Key published decisions applying section 52(2) RTI Act
The applicant sought access to documents relating to his transfer between various areas within the Department of Public Works (Department).
The Department did not locate any relevant documents. On external review, one relevant document was located and released to the applicant. The applicant submitted that the Department should conduct further searches of its backup systems.
The RTI Commissioner considered sections 29 and 52(2) of the RTI Act and noted that a search of a backup system is only required in the specific circumstances set out in section 52(2) of the RTI Act. 
The RTI Commissioner considered that section 52(2) of the RTI Act requires a backup system be searched only for documents that may not exist, rather than documents that exist but cannot be found.  This is due to the specific wording of section 52(2) of the RTI Act, '…that a prescribed document does not exist…', which does not encompass documents that exist but cannot be found.
Here, the Department was satisfied that the documents did exist, so section 52(2) of the RTI Act did not apply. In such cases, section 29(2) of the RTI Act makes it clear that a search of a backup system is only necessary if the relevant agency considers the search 'appropriate'. 
Accordingly, access could be refused to the documents under sections 47(3)(e) and 52(1)(b) of the RTI Act. 
Last updated: March 16, 2012