Key published decisions applying sections 47(3)(e) and 52(1) RTI Act

Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010)

The applicant sought access to documents concerning a dog attack. The applicant submitted that not all relevant information had been identified by Logan City Council (Council) and specifically sought access to photographs which he said had been taken by Council officers for the purpose of his reporting of the attack.

The Information Commissioner noted the requirements for determining whether an agency is entitled to refuse access to a document because it is unlocatable under section 52(1)(b) of the RTI Act: [20]

1. there must be reasonable grounds for the agency or Minister to be satisfied that the requested document has been or should be in the agency's possession; and
2. the agency or Minister must have taken all reasonable steps to find the document.

Whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency's possession

Council's standard Dog Attack Investigation Report (Report) contained a blank space titled 'Photograph of Injury'. The Information Commissioner was satisfied on the basis of the Report and the parties' submissions that Council's standard practice in reporting dog bite injuries was for a Council officer to take photographs of the injuries and include them in the Report.

Accordingly, the Information Commissioner found that there were reasonable grounds for the agency to be satisfied that the requested photographs had been or should be in the agency's possession.

Whether the agency has taken all reasonable steps to find the document

As to whether Council had taken all reasonable steps to find the requested documents, the Information Commissioner referred to the key factors identified in PDE and the University of Queensland¹, which concerned the equivalent section of the FOI Act (repealed). [21, 44] The following factors may be relevant to determine whether all reasonable steps have been taken to find the document: [19]

• the administrative arrangements of government;
• the agency structure;
• the agency's functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it);
• the agency's practices and procedures (including but not exclusive to its information management approach); and
• other factors including:
  • the nature and age of the requested document/s; and
  • the nature of the government activity the request relates to.

Here, the Information Commissioner was satisfied that Council used knowledge of its organisational structure to appropriately identify the relevant areas that would hold the documents. [45] Upon searching in these locations, signed Search Certificates were provided. [46] Council also identified and made enquiries with the relevant officers who were expected to have knowledge of the documents sought. [45] The Information Commissioner held that it would have been reasonable for Council to obtain a statement from the officer who initially investigated the attack; however, because the officer had ceased employment with Council it was not reasonable to obtain such a statement in these circumstances. [47]

Accordingly, access was refused under sections 47(3)(e) of the RTI Act on the basis that the documents were unlocatable under section 52(1)(b); the documents had been or should be in Council's possession and all reasonable steps were taken to locate the photographs, but they could not be found. [50]

Whittaker and Public Service Commission (Unreported, Queensland Information Commissioner, 23 November 2010)

The applicant sought access to certain information held by the Public Service Commission (PSC). The applicant submitted that PSC failed to locate and provide all relevant documents.

In determining whether the documents were non-existent under section 52(1)(a) of the RTI Act, the RTI Commissioner referred to the decision in PDE and the University of Queensland² and the relevant factors key factors identified in that decision. [15]

The RTI Commissioner noted that where an agency conducts searches to satisfy itself that the document does not exist, the agency must take all reasonable steps to find the document. [16]

In this case, the agency undertook searches. The RTI Commissioner was satisfied on the basis of the agency's submissions that additional documents did not exist and all reasonable steps had been taken to locate the documents sought. [17]

Accordingly, the agency was entitled to refuse access to documents under section 47(3)(e) of the RTI Act on the basis that the documents did not exist under section 52(1)(a). [23]

Grenning and Queensland Law Society Inc (Unreported, Queensland Information Commissioner, 23 November 2010)

The applicant sought access to information relating to his previous employment with the Queensland Law Society (QLS). The applicant submitted that there should be more documents relevant to his access application, particularly in relation to his position being made redundant.

The RTI Commissioner referred to the decision of PDE and the University of Queensland³, which concerned the equivalent FOI Act provision, and considered that the two-step test set out in that decision was relevant to the application of section 52(1)(b) of the RTI Act: [17]

1. there must be reasonable grounds for the agency or Minister to be satisfied that the requested document has been or should be in the agency's possession; and
2. the agency or Minister must have taken all reasonable steps to find the document.

Are there reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency's possession?

Based on QLS's submissions and the fact that that both parties agreed that relevant documents should be in the possession of the agency, the RTI Commissioner was satisfied that there were reasonable grounds for the agency to be satisfied that the requested documents should be in the agency's possession. [18]

Has the agency taken all reasonable steps to find the document?

The RTI Commissioner was satisfied that the agency had taken all reasonable steps to find the documents and that QLS had used its particular knowledge of its organisational structure and experience to conduct comprehensive searches in the appropriate areas with relevant staff. On the evidence provided, including the details of QLS's searches, the RTI Commissioner was satisfied that QLS had taken all reasonable steps to find the documents sought and that these documents could not be located because they did not exist. [23]

Accordingly, access could be refused to the documents under section 47(3)(e) of the RTI Act on the basis that the documents were unlocatable under section 52(1)(b) of the RTI Act.

Master N and Department of Education and Training (Unreported, Queensland Information Commissioner, 22 December 2010)

Mrs H applied to the Department of Education and Training (Department) on behalf of her son (applicant) for access to documents concerning the applicant. Specifically the applicant sought access to documents concerning:

• Mrs H's call to the Department's District Office
• observational notes made by an officer from the Behaviour Advisory Team (BAT); and
• her son's suicide attempt.

The Department refused access under section 47(3)(e) of the RTI Act on the basis that the documents were either nonexistent or unlocatable under section 52(1)(a).

The RTI Commissioner confirmed that sections 52(1)(a) and 52(1)(b) are mutually exclusive; the provisions cannot be relied upon simultaneously. It was found that section 52(1)(b) was not relevant as the section concerns unlocatable documents and here, the document was claimed to be non-existent. Accordingly, the RTI Commissioner considered the application of section 52(1)(a) to the documents. [37]

In determining whether the documents were non-existent under section 52(1)(a) of the RTI Act, the RTI Commissioner referred to the decision in PDE and the University of Queensland⁴ and the relevant key factors identified in that decision. [15]

In relation to documents concerning Mrs H's phone call to the District Office, the Department relied on searches to be satisfied that the documents sought did not exist, therefore, the RTI Commissioner considered whether the Department had taken all reasonable steps to find the documents. The RTI Commissioner was satisfied that all reasonable steps had been taken to find the documents on the basis of the Department's electronic and physical searches and the lack of evidence of any further documentation. Accordingly, the RTI Commissioner found that access could be refused to documents concerning the phone call on the basis that they were nonexistent under section 52(1)(a).

In relation to the BAT observational notes, the RTI Commissioner relied on the relevant officer's submissions that he did not formally observe the applicant as well as the Department's physical and electronic searches for the documents. The RTI Commissioner was satisfied that documents concerning the BAT observational notes were nonexistent under section 52(1)(a). [28-29]

In relation to documents concerning the suicide attempt, given the gravity of the described incident OIC requested that the Department provide further information on its searches for relevant documents. In its response the Department explained that at the time of the alleged incident, there was no requirement for formal documentation to be compiled for reporting student self-harm. Notwithstanding this practice, the Department undertook more detailed searches at the school to find any records relevant to the request but found no documents relating to the incident. The RTI Commissioner found that, given the evidence of the usual procedure or lack of procedure that existed at this time, she was satisfied that the Department's searches for relevant documents were adequate and therefore considered that access may be refused on the basis that the document was nonexistent under section 52(1)(a) of the RTI Act. [36]

Accordingly, access was refused to all three categories of documents under section 47(3)(e) of the RTI Act on the basis that the documents were non-existent under section 52(1)(a). [38]

Henderson and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 March 2011)

This decision concerned searches by the Department of Justice and Attorney-General (DJAG) for documents of the Office of the Legal Friend, which no longer exists.

With regard to a request that the applicant provide information as to the expectation that further documents exist, the RTI Commissioner noted that under section 87 of the RTI Act, the general onus on external review rests with the agency however under section 96(2) of the RTI Act, the Information Commissioner can reasonably request a participant to provide assistance in relation to a review, even where the participant does not have the onus under section 87 of the RTI Act. In relation to the applicant's assertions that statutory declarations were necessary to establish that the searches conducted were sufficient, the RTI Commissioner referred to section 95 of the RTI Act and noted that the procedure on external review is within the discretion of the Information Commissioner.