Bourne and Queensland Building and Construction Commission [2014] QICmr 18 (9 May 2014)

REASONS FOR DECISION

Summary

1. The applicant applied to the Queensland Building and Construction Commission¹ (QBCC) under the Right to Information Act 2009 (Qld) (RTI Act) for access to various documents relating to her complaint about building company, Weirkids Pty Ltd, and related dealings with QBCC.²

2. QBCC granted the applicant access to more than 1400 pages. QBCC decided to refuse access to information on basis that it was exempt³, contrary to the public interest⁴ or non-existent or unlocatable.⁵ QBCC also decided to neither confirm nor deny the existence of particular information requested by the applicant⁶ and refused to deal with parts of the access application.⁷

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of QBCC’s decision. The applicant contested all grounds relied on by QBCC to refuse her access to information and also submitted that documents were missing. The applicant submitted that documents should be released to her to hold QBCC accountable for its handling of her building dispute.

4. During the external review, QBCC located further documents and agreed to release these to the applicant, in their entirety. QBCC also agreed to release certain documents to the applicant which it had originally decided were subject to legal professional privilege.

5. Based on the information available to OIC in this review, I vary QBCC’s decision and find that:

• section 43 of the RTI Act applies to parts of the access application which seek information previously applied for by the applicant
• section 55 of the RTI Act applies to the request for information about offences and Crime and Misconduct Commission (CMC) action relating to QBCC officers
• access to information may be refused under section 47 of the RTI Act on the grounds that it is exempt;⁸ its disclosure would, on balance, be contrary to the public interest⁹ or it is non-existent or unlocatable;¹⁰ and
• in accordance with section 28(2) of the RTI Act, it is not reasonably practicable to give access to the metadata requested by the applicant.¹¹

Background

6. Significant procedural steps relating to the application and the external review process are set out in the Appendix.

Reviewable decision

7. The decision under review is QBCC’s decision dated 17 June 2013, as referred to in paragraph 2 above.

Evidence considered

8. The evidence, submissions, legislation and other material I have considered in reaching this decision is disclosed in these reasons (including footnotes and Appendix).

Information in issue in this review

9. The information remaining in issue in this review includes:

Type of information	No. pages
Correspondence between QBCC and CMC (Complaint Letters)	7 (full)
Correspondence and file notes prepared by QBCC’s internal legal officers and external legal representatives (Legal File Information)	54 (full) 5 (part)
Other individuals’ names, contact details and property addresses (Third Party Information)	69 (part)
Correspondence about certain officers finishing employment with QBCC (Employment Information)	4 (full)
Infringement notice issued by QBCC to a builder (Infringement Notice)12	2 (full)
TOTAL NUMBER OF PAGES IN ISSUE	141

10. As stated in paragraph 4 above, further information was released to the applicant during the external review by QBCC.¹³ As this information was released to the applicant without redaction, it is not in issue in this review.

11. On external review, OIC can only consider information that was requested in the access application and which was in existence at the time the access application was made.¹⁴ Therefore, any requests made by the applicant during the external review for additional documents falling outside the scope of her access application, or for documents post-dating her access application, are not considered in these reasons for decision.

Issues for determination

12. In this review, the following issues remain for determination:

A. Does section 43 of the RTI Act apply to part of the access application?

B. Does section 55 of the RTI Act apply to the applicant’s request for information relating to offences by, and CMC action taken against, QBCC officers, as named in the access application?

C. Do the Complaint Letters and Legal File Information comprise exempt information?

D. Would disclosure of the Third Party Information, Employment Information and Infringement Notice on balance, be contrary to the public interest?

E. Are there reasonable grounds to be satisfied that further documents responding to the access application do not exist or are unable to be located?

F. Is it reasonably practicable to give access to metadata sought by the applicant?

Relevant law and findings

13. Under the RTI Act, a person has a right to be given access to documents of an agency.¹⁵ This right is subject to certain limitations, including grounds on which access to information may be refused.¹⁶ The RTI Act also sets out grounds for refusing to deal with applications.¹⁷

A. Previous application for same documents

14. An agency may refuse to deal with an access application where:

(i) an applicant makes an access application to an agency, and then a subsequent access application to the same agency seeking access to one or more of the same documents¹⁸

(ii) the later application does not, on its face, disclose any reasonable basis for again seeking access to the document(s)¹⁹; and

(iii) the first application has been the subject of a completed external review.²⁰

Findings

15. On 16 December 2010, the applicant applied to QBCC, under the Information Privacy Act 2009 (Qld) (IP Act), for access to ‘all documents’ about her and her property since the date of her complaint about Weirkids Pty Ltd in 2008 (First Application).²¹ The First Application specifically requested information relating to Weirkids Pty Ltd, tenders/quotes and QBCC’s insurance scheme, in relation to the applicant’s property.

16. QBCC issued a decision on the First Application on 11 February 2011, providing the applicant with access to various documents subject to any applicable grounds for refusal of access. The applicant sought external review of the QBCC’s decision on 19 February 2011²² and OIC finalised that review on 19 April 2011.²³

17. In the access application to QBCC dated 3 April 2013 (Later Application), the applicant requested access to tender letters, quotes, damage lists, rectification schedules, insurance documents (collectively, Tender Documents) and any failure to rectify documents relating to Weirkids Pty Ltd.²⁴

18. In its decision on the Later Application, QBCC confirmed that the only direction to rectify issued to Weirkids Pty Ltd was in relation to the applicant’s property and that all documents held by QBCC in relation to this direction to rectify had been released to her under the First Application. QBCC also confirmed that various Tender Documents were released to her under the First Application and that therefore, only new documents added to the relevant files since the First Application would be considered under the Later Application.

19. The applicant submitted²⁵ that QBCC should deal with the requests in her Later Application on the basis that ‘…in a claim that is 5 years old, there would be multiples of all documents, at different dates’. The applicant says that relevant documents were not released to her under the First Application and that therefore, she is entitled to request them again in the Later Application. The applicant has not however, provided OIC with any evidence to support this submission, other than her assertions.

20. I have carefully considered the scope of the First Application. I am satisfied that it was a broad request for all documents relating to the applicant’s property, and specifically requested Tender Documents and failure to rectify documents, which were also requested in the Later Application. In the circumstances, I am not satisfied that the applicant has established a reasonable basis for again seeking access to these documents. I am also satisfied that the First Application has been the subject of a completed external review.

21. On the basis of the above, I am satisfied that section 43(3)(d)(ii) of the RTI Act applies to those parts of the Later Application which seek access to Tender Documents and failure to rectify documents. Accordingly, I find that QBCC was entitled to refuse to deal with those parts of the Later Application.

B. Section 55 of the RTI Act

22. An agency may decide²⁶ to neither confirm nor deny the existence of a document that, if it did exist, would contain 'prescribed information'.²⁷

23. Section 55 of the RTI Act is intended to apply in situations where revealing that the agency does or does not have documents in response to an application, due to the specific wording of the request, would reveal information to which an agency would normally be entitled to refuse access.²⁸

Findings

24. The applicant sought information about CMC action against, and offences committed by, QBCC officers. QBCC neither confirmed nor denied the existence of such information, on the basis that if it existed, it would constitute the personal information of the relevant individuals, which would, on balance, be contrary to the public interest to disclose.

25. I acknowledge that information about offences and CMC action relating to particular individuals, would, if it existed, constitute those individuals’ personal information.²⁹ However, in the circumstances of this case and for the reasons set out below, I am satisfied that if the information existed, it would be exempt under schedule 3, section 10(4) of the RTI Act, and for this reason, constitutes prescribed information under section 55 of the RTI Act.

26. Schedule 3, section 10(4) of the RTI Act provides that information is exempt if:

‘…it consists of information obtained, used or prepared for investigation by a prescribed crime body, or other agency, in the performance of the prescribed functions of the prescribed crime body.’ ³⁰

27. The exception to the above exemption is where information consists of information about the applicant and the investigation has been finalised.³¹

28. The applicant has made complaints alleging misconduct against various QBCC officers. I am satisfied that information relating to any offences by, and any CMC action taken against, QBCC officers, if it did exist, would have been obtained, used or prepared for an investigation by the CMC, in the performance of its misconduct function under the Crime and Misconduct Act 2001 (Qld) (CM Act). I am therefore satisfied that the information, if it existed, would be exempt under schedule 3, section 10(4) of the RTI Act.

29. In applying the exception in schedule 3, section 10(6) of the RTI Act, I cannot confirm whether or not any investigation has been finalised, as to do so would conflict with the purpose of section 55 of the RTI Act. However, it is well-settled that the exception is intended to allow individuals who are the subject of a CMC complaint to access their information, not to allow complainants, such as the applicant, access to investigation documents.³² For this reason, I find that the exception to the exemption does not apply.

30. The applicant submitted³³ that, assuming the information exists, she should be allowed access to it, on public interest grounds. As I have found that the information, if it existed, would be exempt, there is no scope to consider public interest factors in favour of disclosure.

31. In summary, I am satisfied that if information existed about any CMC action against, and any offences committed by, QBCC officers, it would comprise ‘exempt information’ under schedule 3, section 10(4) of the RTI Act, and therefore constitute ‘prescribed information’.³⁴ Therefore, I find that section 55 of the RTI Act applies to neither confirm nor deny the existence of this information.

C. Exempt information

32. Access to information may be refused if it comprises exempt information.³⁵ Schedule 3 of the RTI Act provides that information will be exempt if:

(i) it would be privileged from production in a legal proceeding on the ground of legal professional privilege;³⁶ or

(ii) it consists of information obtained, used or prepared for an investigation by a the CMC in the performance of its prescribed functions (CMC Exemption).³⁷

Legal Professional Privilege

33. Information will be exempt from disclosure if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.³⁸ This exemption reflects the requirements for establishing legal professional privilege at common law.³⁹

34. The general principles of legal professional privilege were summarised by the High Court of Australia in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission⁴⁰ as follows:

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings…

35. Confidential communications between a lawyer and client will be privileged where the communications are for the dominant purpose of seeking or giving legal advice (advice privilege) or use in existing or anticipated legal proceedings (litigation privilege). The dominant purpose is ‘the ruling, prevailing or most influential purpose’,⁴¹ and is to be determined objectively, having regard to the evidence, the nature of the documents and the parties’ submissions.

36. Legal professional privilege will not apply to communications made in furtherance of a fraud or a crime; the improper purpose exception. The Information Commissioner has previously considered the law in relation to this exception is as follows:

The person alleging that privilege has been displaced by reason of an alleged illegal or improper purpose must show that it is made out in the current circumstances. In establishing improper purpose, the standard of proof is high. The High Court has observed that it “is a serious thing to override legal professional privilege where it would otherwise be applicable” and as a result “vague or generalised contentions of crimes or improper purposes will not suffice.” ⁴²

Findings

37. The Legal File Information comprises communications which occurred in the context of the lawyer-client relationship between QBCC officers, QBCC’s Legal Services Branch and QBCC’s external legal advisers.

38. Section 108(3) of the RTI Act prohibits me from describing the content of the Legal File Information in any detail. In summary, it comprises:

• file notes created by QBCC’s Legal Services Branch and QBCC’s external legal advisers; and
• correspondence between QBCC and its external legal advisers in relation to a Queensland Civil and Administrative Tribunal proceeding, involving QBCC and the applicant.

39. I am satisfied that the Legal File Information comprises confidential communications between a client, QBCC, and its legal representatives for the dominant purpose of use in relation to litigation that was current at the time. Accordingly, I find that the information is subject to legal professional privilege.

40. As set out above, privilege can be displaced through waiver or where the improper purpose exception applies. The issue of waiver is not relevant in this case. However, the applicant has argued that ‘emails, simple emails, and ordinary documents, that were altered. Reason for not issuing them. Hiding the unlawful acts behind them.’⁴³

41. I have carefully considered the applicant’s submissions, together with the Legal File Information. There is no evidence on the face of the Legal File Information that any of the communications were made in furtherance of any illegal or improper purpose. I am therefore satisfied that the improper purpose exception does not apply in this case.

42. For the reasons set out above, I am satisfied that the Legal File Information attracts legal professional privilege and is therefore exempt under schedule 3, section 7 of the RTI Act. Accordingly, I find that access to the Legal File Information may be refused under section 47(3)(a) of the RTI Act.

CMC Exemption

43. The requirements of the exemption in schedule 3, section 10(4) of the RTI Act are set out at paragraph 26 above. In summary, information will be exempt if:

• it was obtained, used or prepared for an investigation⁴⁴ by the CMC
• in undertaking the investigation, the CMC was performing its prescribed functions;⁴⁵ and
• the exception in schedule 3, section 10(6) of the RTI Act does not apply.

Findings

44. The Complaint Letters comprise correspondence exchanged between QBCC and the CMC in relation to the applicant’s complaints of misconduct against QBCC officers. The applicant submitted⁴⁶ that the CMC has an interest in her file, and therefore, she is entitled to these documents.

45. I am satisfied that the CMC, the prescribed crime body, obtained, used or prepared the Complaint Letters for the purpose of an examining and assessing the applicant’s complaint in the performance of the CMC’s misconduct function.

46. As set out at paragraph 27 above, the exception to this exemption will apply if the investigation is (i) about the applicant and (ii) the investigation has been finalised. While the applicant made complaints which were assessed by the CMC, the applicant was not the subject of any CMC investigation. For this reason,⁴⁷ I am satisfied that the CMC Letters are not about the applicant and therefore, the exception does not apply.

47. I am satisfied that the Complaint Letters are exempt under schedule 3, section 10(4) of the RTI Act. I therefore find that access to this information may be refused under section 47(3)(a) of the RTI Act.

D. Contrary to public interest information

48. Access to information may be refused where its disclosure would, on balance, be contrary to the public interest.⁴⁸

49. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest⁴⁹ and explains the steps that a decision maker must take⁵⁰ in deciding the public interest as follows:

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure
• balance the relevant factors favouring disclosure and nondisclosure; and
• decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.

50. Schedule 4 of the RTI Act sets out various public interest factors that may be relevant in determining the public interest.⁵¹

51. I have reviewed the factors in schedule 4, part 1 of the RTI Act and am satisfied that no irrelevant factors apply in the circumstances of this case.

Third Party Information

52. This information comprises names, addresses and phone numbers of other homeowners, and the postal address of a builder who performed work at the applicant’s property. It appears in the following documents:

• scopes of work for defective building work relating to other properties
• insurance premium confirmation forms provided to builders for rectification work they performed on various properties; and
• certificates of insurance for building work performed on the applicant’s property and other properties.

53. QBCC released the above documents to the applicant, subject to deletion of the Third Party Information. The substance of the above documents has been disclosed to the applicant and the Third Party Information does not relate to the performance of QBCC’s function in directing and insuring building rectification work. For these reasons, I do not consider the public interest in enhancing QBCC’s accountability⁵² or in revealing background information that informed a government decision⁵³ would be any further advanced through disclosure of the Third Party Information. Accordingly, I do not consider these public interest factors apply in favour of disclosure.

54. I am satisfied that the Third Party Information is the personal information⁵⁴ of the other homeowners and the builder. This raises a public interest harm factor in favour of nondisclosure.⁵⁵ I am satisfied that disclosure of the names of homeowners, their addresses and telephone numbers, in the context of building rectification work done at their properties, could reasonably be expected to cause significant public interest harm. The postal address of the builder is not the address attached to his licence⁵⁶ and is not, on the information available to me, otherwise available to the public. On this basis, I consider disclosure could reasonably be expected to cause moderate harm.

55. Given the nature of the Third Party Information, it is also relevant to consider whether disclosure could reasonably be expected to prejudice the protection of the other homeowners’ and builder’s right to privacy.⁵⁷ The concept of ‘privacy’ is not defined in either the IP Act or the RTI Act. It can, however, essentially be viewed as the right of an individual to preserve their ‘personal sphere’ free from interference from others.⁵⁸ I consider that names, addresses and telephone numbers are at the core of an individual’s ‘personal sphere’ and therefore, attract a high privacy interest. Also, the Third Party Information is not known to the applicant nor will it further the applicant’s knowledge about QBCC’s handling of her building dispute with Weirkids Pty Ltd. Therefore, I afford this factor significant weight in favour of nondisclosure.

56. The weight to be afforded to the factors favouring nondisclosure of the Third Party Information is significant in this case. I have not identified any public interest factors favouring disclosure which apply to this information. Therefore, I find that disclosure of the Third Party Information would, on balance, be contrary to the public interest and that access may be refused to the information under section 47(3)(b) of the RTI Act.

Employment Information

57. This information comprises the reasons particular QBCC employees left QBCC’s employment. The applicant submitted that she is entitled to this information because:

• the relevant officers left QBCC’s employment as a result of the Parliamentary Inquiry into the Operation and Performance of the Queensland Building Services Authority⁵⁹
• the relevant officers were involved in misconduct;⁶⁰ and
• the applicant’s home has been destroyed as a result of the relevant QBCC officers’ conduct.⁶¹

58. The applicant’s above submissions raise the following public interest factors for consideration:

• disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official;⁶² and
• disclosure could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct.⁶³

59. I have carefully reviewed the Employment Information and am satisfied that there is no evidence in the reasons provided by officers for leaving QBCC employment to suggest that disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in their conduct, nor reveal misconduct, or negligent, improper or unlawful conduct. Accordingly, I find that the above public interest factors do not apply in favour of disclosure in this case.

60. Generally, the RTI Act permits the disclosure of information that relates to the routine day to day work activities of a public service officer. Examples of routine personal work information are a work email address, a work phone number, an opinion given in a professional capacity or information about an officer’s qualifications required for the position.⁶⁴ Agencies also hold information about their staff which is not solely related to their routine day to day work activities. Examples of non-routine personal work information include reasons for taking sick leave, or opinions about an officer’s performance.

61. I am satisfied that the reasons particular officers left QBCC’s employment does not comprise their routine personal work information. I am satisfied disclosure of the Employment Information could reasonably be expected to:

• reveal the officers’ personal information, causing a public interest harm;⁶⁵ and
• prejudice the protection of the officers’ right to privacy.⁶⁶

62. I consider that the reasons provided by a person for leaving a place of employment are of an inherently personal and private nature. I therefore afford significant weight to the above factors in favour of nondisclosure.

63. I am satisfied that the public interest factors favouring nondisclosure carry significant weight, and that on balance, disclosure of the Employment Information would be contrary to the public interest. Therefore, I find that access to the Employment Information may be refused under section 47(3)(b) of the RTI Act.

Infringement Notice

64. This document comprises an infringement notice issued by QBCC to a builder⁶⁷ under the former Queensland Building Services Act 1991 (Qld).

65. The applicant submits that the public interest in public safety requires disclosure of the Infringement Notice⁶⁸ and also argues that because information about infringement notices is available through QBCC’s online licence check system, the document should be disclosed.

66. I am satisfied that disclosure of the Infringement Notice would demonstrate that QBCC is fulfilling its role in regulating the building industry.⁶⁹ On this basis, I find that disclosure could reasonably be expected to enhance QBCC’s accountability⁷⁰ and promote positive, informed debate about the way QBCC performs its regulatory function.⁷¹ I am also satisfied that disclosure of the Infringement Notice could reasonably be expected to reveal measures that QBCC has taken in relation to public safety⁷² and contribute to safe, informed and competitive markets.⁷³

67. The information available through QBCC’s online licence search⁷⁴ sets out a builder’s disciplinary history, including dates and fines relevant to any infringement notices issued to the builder. However, copies of the actual infringement notices are not accessible through the online search function.

68. I am satisfied that the Infringement Notice does not disclose any information about the nature of the offence, or the penalty imposed, beyond that which is available through the online licence search.⁷⁵ On that basis, I am satisfied that the public availability of a builder’s disciplinary history discharges, to an extent, the public interest factors discussed at paragraph 66 above. Therefore, I find that the significant public interest in disclosing such information is slightly reduced in this case and accordingly, I afford the factors only moderate weight in favour of disclosure.

69. I am satisfied that the Infringement Notice comprises the builder’s personal information and therefore, disclosure could reasonably be expected to cause a public interest harm.⁷⁶ As the builder is no longer licensed, I also consider that disclosure could reasonably be expected to prejudice the builder’s privacy.⁷⁷ I am satisfied that there is high interest in protecting the privacy and personal information of an individual who is no longer licensed by the regulatory authority.

70. The Infringement Notice is framed in terms of an allegation of an offence against the builder and does not set out the builder’s response to the allegation, nor does it indicate whether any final disciplinary action was enforced in relation to the Infringement Notice. I am satisfied that the public interest favours nondisclosure of information which is in the nature of a preliminary disciplinary notice, particularly where the information does not include the subject’s response to the allegation and/or the final decision by the regulatory authority.

71. Having considered the competing public interest factors in this case, I am satisfied that the factors favouring disclosure are marginally outweighed by the factors favouring nondisclosure. Therefore, I find that access to the Infringement Notice may be refused under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest.

E. Non-existent or unlocatable documents

72. An agency may refuse access to documents which do not exist⁷⁸ or are unlocatable.⁷⁹ A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist (for example, where it was never created). A document is unlocatable if it has been, or should be, in the agency’s possession and all reasonable steps have been taken to find the document but the document cannot be found.

73. In PDE and the University of Queensland⁸⁰ the Information Commissioner explained that, to be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to key factors including:

• administrative arrangements of government
• agency structure
• 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)
• agency’s practices and procedures (including but not exclusive to its information management approach); and
• other factors reasonably inferred from information supplied by the applicant including:
• • nature and age of the requested document/s; and
  • nature of the government activity the request relates to.

74. By considering the above factors, an agency may decide that a particular document was not created because, for example, the agency’s recordkeeping processes do not require creation of the document. Where circumstances to account for a nonexistent document are adequately explained, it will not be necessary for the agency to conduct searches. If however, searches are conducted, an agency must demonstrate that it has taken all reasonable steps to locate the documents.⁸¹

75. Whether all reasonable steps have been taken to locate documents have been taken will depend on the circumstances of each case. However, this will be informed by the key factors listed above, particularly the agency’s recordkeeping and document retention practices and procedures.

76. If a document is non-existent,⁸² section 52(2) of the RTI Act requires an agency to conduct a search of its backup system⁸³ if the agency considers the document has been kept in, and is retrievable from, the backup system.⁸⁴

Analysis

77. The terms of an access application set the parameters for an agency’s search efforts. In this instance, the scope of the access application was very broad as it requested to all documents relating to the applicant’s building dispute with Weirkids Pty Ltd and QBCC’s handling of the complaint, and related dealings. In the access application, the applicant included a significant level of detail about the specific documents she was seeking, for example:

‘FULL FILE, TENDERS, quotes, FROM nov. to NOW. All docs continuing from 1st R.T.I 16.12.2010. FILE closure summary, Emails, note, legals, insurance, Letters, external contracts, QCAT contact, ANY person, ministers, CMC, about me’

78. The applicant maintains that she applied for, and is entitled to, full copies of QBCC’s files.⁸⁵ The applicant has raised concerns about documents having been destroyed and alleges that QBCC has altered or invented documents in response to her application.⁸⁶

Non-existent documents

79. To establish the nonexistence of certain documents, QBCC conducted searches of relevant recordkeeping systems. The table below sets out the searches conducted by QBCC and the explanations provided⁸⁷ for the non-existence of particular documents:

 

Document requested	Searches performed	Reason documents do not exist
File closures	QBCC staff searched the content management system (CMS) status, and CMS notes, for file closures. QBCC also searched EDRMS88 for file closures letters.	No new file closure documents have been created since the applicant’s access application dated 16 December 2010.
Monies paid in relation to the applicant’s claim, including insurance monies, inspection fees	QBCC staff searched the applicant’s case number in CMS.	There has been no expenditure on the applicant’s case since her access application dated 16 December 2010 because no external inspectors were used,89 and insurance expenditure was halted whilst this matter was on foot in QCAT.
Rectification works for QBCC by a specified builder	Licence history for relevant builder searched	No insurances were paid for the builder’s licence since 2008. No QBCC rectification works have occurred.
Weirkids Pty Ltd– fines, demerit points, offences	Licence history was searched; in particular, under ‘Disciplinary Record’. Resolution services officer conducted searches of CMS for the relevant licence number and case number	Weirkids Pty Ltd disciplinary record shows no actions.
Cladding complaints against Weirkids Pty Ltd	QBCC Research and Investigations Officer conducted searches	No cladding complaints have been made against Weirkids Pty Ltd. A BSA Research and Investigations officer conducted searches, and could only find complaints that the applicant made, prior to her access application dated 16 December 2010.
Cladding work directions for a specified builder	QBCC Research and Investigations Officer conducted searches	Searches confirmed that no cladding complaints have been made about the relevant builder.

80. In relation to three documents specifically requested by the applicant, QBCC provided an explanation for their nonexistence, without conducting searches, as follows:

Document requested	Reason document does not exist
An application finalised on ‘7/11/11’	The date ‘7/11/11’ was a typing error in an email dated 18 January 2013 from QBCC to the applicant about the applicant’s access application dated 16 December 2010, which QBCC finalised on 11 February 2011 by decision of that date.
Documents showing incentives paid to any person in relation to the applicant’s insurance claim with the QBCC	QBCC does not operate an incentive scheme, nor does it pay incentives to staff or any person.
Legal fees generated in relation to the applicant’s file	QBCC held an annual retainer with an external law firm to act on QBCC’s behalf and therefore, did not obtain individual invoices from the law firm for each legal inquiry.

81. I have carefully considered QBCC’s search certifications, locations searched and the explanations QBCC has provided for the non-existence of specific documents. Based on that information, I am satisfied that documents listed in the table at paragraph 79 do not exist. I am also satisfied that it is reasonable to conclude that QBCC’s practices and procedures did not require the documents listed at paragraph 80 to be created and therefore, I find that they do not exist. On that basis, access to those documents may be refused under section 47(3)(e) and 52(1)(a) of the RTI Act.

82. The applicant considers QBCC should have checked its backup systems before reaching the conclusion that documents did not exist.⁹⁰ I am satisfied that the reasons QBCC provided for the documents not being in existence demonstrate a sufficient basis for QBCC to consider that the documents were not kept in, or retrievable from, the backup system, and therefore, searches of the backup system were not required.⁹¹

Unlocatable documents

(i) Quote

83. The applicant sought access to insurances and quotes for rectification work performed by Weirkids Pty Ltd and another builder.

84. QBCC was unable to locate one quote from Weirkids Pty Ltd for a particular insurance policy. The relevant QBCC assessment officer searched QBCC’s EDRMS, as well as his email account, for the quote, and could not locate it. In deciding that this document is unlocatable, QBCC suggested that the document may have been lost, or scanned to an incorrect file. QBCC submitted that if errors such as these had occurred, it would not be possible to trace the quote in its system.

85. I have carefully considered QBCC’s search certifications on this issue, and on the basis of the searches conducted, I am satisfied that all reasonable steps have been taken to locate the quote, and it cannot be found,⁹² and therefore access to it may be refused under section 47(3)(e) of the RTI Act.

(ii) Applicant’s correspondence to QBCC dated 15 and 17 March 2011

86. The applicant considers that QBCC should have located several emails she sent to a former QBCC officer, dated 15 and 17 March 2011. The applicant submits that these documents have been wrongfully destroyed.⁹³

87. On external review, QBCC spent approximately 30 hours conducting searches in response to OIC’s enquiries about the documents listed above.⁹⁴ The search records and certifications demonstrate the extent of the searches QBCC conducted as follows:

(i) searches were conducted of the EDRMS, QBCC’s email system and backups⁹⁵ of that email system, the former QBCC officer’s email inbox, and that of their former support officer

(ii) the Acting Manager for Information Systems searched the former QBCC officer’s inbox, sent items, junk emails, archived emails and deleted items; and

(iii) QBCC staff performed searches in Meridio⁹⁶ and on hardcopy files.⁹⁷

88. QBCC staff who undertook searches for the correspondence completed search certifications and records of searches forms, as requested by OIC. QBCC also provided a submission addressing OIC’s queries about the existence of individual documents that the applicant requested access to in her external review application.

89. Based on the above, I am satisfied that all reasonable steps have been taken to find the applicant’s emails dated 15 and 17 March 2011, but these documents cannot be found, and therefore access may be refused under section 47(3)(e) of the RTI Act.

(iii) Further documents

90. In addition to the specific documents the applicant considered were missing, as discussed above, the applicant was generally concerned with the quality of QBCC’s searches, submitting ‘Missing documents show, there may or may not be many more missing…Selective entry or control of documents, files and processes…’⁹⁸.

91. Having carefully considered the applicant’s submissions, the information released to the applicant by QBCC, the information in issue and QBCC’s search certifications and related submissions, I am satisfied that QBCC has taken all reasonable steps to locate documents requested by the applicant. I consider there is a reasonable basis to be satisfied that any further documents responding to the access application are either non-existent or unlocatable, and therefore access may be refused under section 47(3)(e) of the RTI Act.

F. Request for metadata

92. ‘Metadata’ includes information about the document’s content, author, publication date and physical location.⁹⁹ The RTI Act provides that an access application for a document is not taken to include an application for access to metadata about the document, unless the access application expressly states that it does.¹⁰⁰ Where an application expressly seeks access to metadata, access does not need to be given unless it is reasonably practicable.¹⁰¹

93. In the access application, the applicant sought access to ‘…all internal and external requests regarding my file’. I have taken this as a request for information about which QBCC officers accessed the documents comprising what the applicant considers to be ‘her file’. I find that this constitutes a request for metadata.¹⁰²

94. QBCC submitted¹⁰³ that giving the applicant access to metadata is not reasonably practicable, for the following reasons:

[QBCC] is a fully digitised organisation. Any document sent to [QBCC] is stored under the participant number that relates to that entity. So, a document sent to [QBCC] goes into a folder of records for the participant number. The actual storage of documents is as an individual record in [QBCC’s EDRMS]. Therefore, the question of who has accessed the “file” is not possible to determine. Rather, access and authorship etc. can be determined per record (a record can contain more than 1 document)…

…at the bare minimum, [there] are some 200 records that have been located that can easily be determined as related to [specific files] … however, there are 117 records in [another identified folder] and 23 records in [another identified folder] that require opening to ascertain their relevance to the case files.

It is not always possible to isolate a single document in order to obtain its metadata. If in a record there are a number of documents, the individual documents do not secure individual metadata – the metadata is only for the complete record. For instance, if an email containing some attachments e.g a report, plans, photos etc. was [declared into QBCC’s EDRMS], the metadata is for the entire record and not the individual documents that make up the record, so in the example above, it would not be possible to identify who has looked at the report within the record.

Where a document can be accessed in isolation, the approximate time required to prepare the information on who accessed and who the document was tasked to and prepare a word document with the relevant information, would be 10 minutes plus per document, 200 records x 10 / 60 – 34 hours. To search the 140 records that are not easily identifiable would take at least five minutes to identify i.e approximately 12 hours. To get the task history on the case related records would take approximately another 10 minutes/record.

95. Based on the above, QBCC submitted that processing the applicant’s request for metadata would require more time and staffing resources than QBCC’s records unit has available to carry out its normal functions.

96. The applicant has submitted that:

• the disclosure of metadata is likely to reveal that certain offences relating to the destruction of documents have been committed, and that documents have been falsified;¹⁰⁴ and
• QBCC’s preparedness to spend 30 hours searching for a particular document that it decided was unlocatable is contrary to QBCC’s refusal to spend 46 hours searching for metadata.¹⁰⁵

97. Having considered QBCC’s submissions at paragraph 94, I am satisfied that providing the applicant with access to metadata would not be practicable in view of the way QBCC records are arranged within EDRMS and the estimated time it would take QBCC to access the metadata for all the documents relevant to the access application. In the circumstances, I do not consider the applicant’s submissions at paragraph 96 are relevant to determining the issue of whether giving access to metadata would be reasonably practicable.

98. On the basis of the above, I find that access to the metadata would not be reasonably practicable and therefore, access to it does not need to be given, in accordance with section 28(2) of the RTI Act.

DECISION

99. For the reasons set out above, I vary QBCC’s decision set out in paragraph 2 above, and in substitution decide:

• to refuse to deal with part of the applicant’s access application under section 47(3)(d)(ii) of the RTI Act
• to neither confirm nor deny the existence of information under section 55 of the RTI Act
• to refuse access to information under sections 47(3)(a), 47(3)(b) and 47(3)(e) of the RTI Act; and
• that access to metadata does not need to be given as it is not reasonably practicable under section 28(2) of the RTI Act.

100. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld).

________________________
K Shepherd
Assistant Information Commissioner

Date: 9 May 2014

APPENDIX

Significant procedural steps

Date	Event
3 April 2013	QBCC received the access application.
26 April 2013	The access application became compliant.
17 June 2013	QBCC issued its decision on the application.
5 July 2013	The applicant applied to OIC for external review.
29 July 2013	OIC advised the applicant and QBCC that the application had been accepted for review.
9 August 2013	QBCC provided OIC with a copy of the information to which it refused the applicant access, and correspondence with consulted third parties.
18 September 2013	OIC conveyed a preliminary view to QBCC that certain documents were not exempt on the basis of legal professional privilege.
19 September 2013	QBCC informed OIC that it accepted OIC’s preliminary view and that it would release the relevant documents to the applicant.
20 September 2013	QBCC informed OIC that it had located additional documents relevant to the application. OIC provided the applicant with an update on the status of the external review.
30 September 2013	QBCC confirmed to OIC that it had released additional documents to the applicant.
10 October 2013	OIC asked QBCC to provide a submission about the searches it had conducted on the application and a response to the applicant’s request for metadata. OIC provided the applicant with an update on the status of the external review.
13 October 2013	The applicant made a further request to OIC for the metadata of the additional documents released to her by QBCC during the external review.
30 October 2013	OIC provided the applicant with an update on the status of the external review.
1 November 2013	QBCC provided OIC with a submission about the searches it had conducted in relation to the access application, and its ability to search for metadata.
19 November 2013	OIC asked QBCC to provide certifications from relevant officers involved in searching for documents that responded to the access application. OIC provided the applicant with an update on the status of the external review.
26 November 2013	QBCC provided OIC with search certifications.
2 December 2013	OIC made further enquiries with QBCC about its search processes.
4 December 2013	QBCC provided OIC with an additional search certification.
16 January 2014	OIC provided the applicant with an update on the status of the external review.
31 January 2014	OIC conveyed a written preliminary view to the applicant.
28 February 2014	The applicant advised OIC that she contested the preliminary view and provided submissions in support of her case.
9 April 2014	QBCC provided OIC with further information relevant to the issues in the review.
11 April 2014	OIC provided the applicant with an update on the status of the external review.

[1] Formerly the Building Services Authority.
[2] The applicant has been involved in a dispute with Weirkids Pty Ltd and the QBCC, regarding building work undertaken at her property, since 2008. The matter has a long and complex history. See Bourne v Queensland Building Services Authority [2012] QCATA 102.
[3] Under sections 47(3)(a) and 48 and schedule 3, sections 7 and 10(4) of the Right to Information Act 2009 (Qld) (RTI Act).
[4] Under sections 47(3)(b) and 49 of the RTI Act.
[5] Under sections 47(3)(e) and 52(1) of the RTI Act.
[6] Under section 55 of the RTI Act.
[7] Under section 43 of the RTI Act.
[8] Under schedule 3, sections 7 and 10(4) of the RTI Act.
[9] Under section 49 of the RTI Act.
[10] Under section 52(1) of the RTI Act.
[11] In accordance with section 28 of the RTI Act.
[12] This document comprises the original infringement notice dated 23 April 2013. QBCC’s decision related to an infringement reminder notice dated 24 May 2013. As the access application was validated on 26 April 2013, the infringement reminder notice is a post-application document and therefore, QBCC’s decision to refuse access to it cannot be subject to external review – see section 27(3)(b) of the RTI Act. Following OIC’s inquiries on external review, the original infringement notice was identified by QBCC and therefore, it is a document in issue in this review.
[13] 218 additional pages located on a file titled 1031580 Ministerials and 68 pages which QBCC previously considered were subject to legal professional privilege.
[14] See Hearl and Mulgrave Shire Council (1994) 1 QAR 557 and section 27 of the RTI Act.
[15] Section 23 of the RTI Act.
[16] Section 47 of the RTI Act.
[17] Chapter 3, part 4 of the RTI Act.
[18] Section 43(1) of the RTI Act.
[19] Section 43(1) of the RTI Act.
[20] Section 43(3)(d)(ii).
[21] The date range specified in the First Application was November 2008 to 29 November 2010.
[22] External review no 310554.
[23] Under section 103 of the IP Act.
[24] The date range specified in the Later Application was ‘file closure summary 2008 to now, all other 16 December 2010 to now, continue from last RTI issue’.
[25] Applicant’s submission to OIC dated 28 February 2014, at page 3.
[26] Section 55(4) of the RTI Act states that a decision refusing access to information under section 55(2) of the RTI Act is a decision refusing access to a document under section 47 of the RTI Act.
[27] Schedule 6 of the RTI Act defines ‘prescribed information’ to mean information that would be exempt under schedule 3, sections 1, 2, 3, 4, 5, 9 and 10 of the RTI Act; and personal information the disclosure of which would, on balance be contrary to the public interest under section 47(3)(b) of the RTI Act.
[28] Australian Broadcasting Corporation and Psychologists Board of Australia (Unreported, Queensland Information Commissioner, 2 January 2012) at [14].
[29] ‘Personal information’ is defined in schedule 6 of the RTI Act, and section 12 of the IP Act as ‘…information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent or can reasonably be ascertained, from the information or opinion’.
[30] Schedule 3, section 10(9) of the RTI Act lists the CMC as a ‘prescribed crime body’.
[31] Schedule 3, section 10(6) of the RTI Act.
[32] See McKay and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 25 May 2010) at [80] to [81]; Cameron and Queensland Police Service (Unreported, Queensland Information Commissioner, 7 August 2012) at [31] to [32]; G8KPL2 and Department of Health (Unreported, Queensland Information Commissioner, 31 January 2011) at [32].
[33] Applicant’s submission to OIC dated 28 February 2014, pages 12 and 14.
[34] As defined in schedule 6 of the RTI Act. See footnote 27 above.
[35] Section 47(3)(a) of the RTI Act.
[36] Schedule 3, section 7 of the RTI Act.
[37] Schedule 3, section 10(4) of the RTI Act.
[38] Sections 47(3)(a) and 48 and schedule 3, section 7 of the RTI Act.
[39] Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12].
[40] (2002) 213 CLR 543 at [9].
[41] Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at [416].
[42] G8KPL2 and Department of Health (Unreported, Queensland Information Commissioner, 17 June 2013) at [18] citing Secher and James Cook University (Unreported, Queensland Information Commissioner, 6 June 2012) at [20] and [21] with approval.
[43] Applicant’s submissions to OIC dated 28 February 2014, page 21.
[44] Schedule 2 of the CM Act provides that ‘investigate includes examine and consider’. In Springborg MP and Crime and Misconduct Commission (2006) 7 QAR 77 at [58], the Information Commissioner found the term ‘investigation’ included considering and examining allegations of misconduct referred to the CMC.
[45] Schedule 3, section 10(9) of the RTI Act provides that the CMC’s prescribed functions include its misconduct functions. Section 35(1)(a) of the CM Act provides that the CMC may ‘…perform its misconduct functions by expeditiously assessing complaints about, or information or matters (also complaints) involving, misconduct made or notified to it’.
[46] In her external review application.
[47] This interpretation of the exception is well-settled. See the cases at footnote 31 above.
[48] Section 47(3)(b) of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs, for the wellbeing of citizens generally. This means that ordinarily, a public interest consideration is one which is common to all members of the community, or a substantial segment of the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of a particular individual.
[49] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant.
[50] Section 49(3) of the RTI Act.
[51] This is a non-exhaustive list and therefore, other factors not included in schedule 4 may be relevant in a particular case.
[52] Schedule 4, part 2, item 1 of the RTI Act.
[53] Schedule 4, part 2, item 11 of the RTI Act.
[54] See footnote 29 above for the definition of ‘personal information’.
[55] Schedule 4, part 4, item 6 of the RTI Act.
[56] OIC confirmed this through a QBCC online licence search available at http://www.qbcc.qld.gov.au/online-licence-search/SearchBSALicensee.aspx
[57] Schedule 4, part 3, item 3 of the RTI Act.
[58] Paraphrasing the Australian Law Reform Commission’s definition of the concept in ‘For your information: Australian Privacy Law and Practice’ Australian Law Reform Commission Report No. 108 released 11 August 2008, at [1.56].
[59] Applicant’s submissions to OIC dated 28 February 2014, page 18.
[60] Applicant’s submissions to OIC dated 28 February 2014, page 19.
[61] Applicant’s submissions to OIC dated 28 February 2014, page 19.
[62] Schedule 4, part 2, item 5 of the RTI Act.
[63] Schedule 4, part 2, item 6 of the RTI Act.
[64] Underwood and Department of Housing and Public Works (Unreported, Queensland Information Commissioner, 18 May 2012) at [60].
[65] Schedule 4, part 4, item 6(1) of the RTI Act.
[66] Schedule 4, part 3, item 3 of the RTI Act.
[67] A builder who is not connected to Weirkids Pty Ltd.
[68] Applicant’s submissions to OIC dated 28 February 2014, page 15.
[69] Section 3 of the Queensland Building and Construction Commission Act 1991 [69](Qld) (QBCC Act).
[70] Schedule 4, part 2, item 1 of the RTI Act.
[71] Schedule 4, part 2, item 2 of the RTI Act.
[72] Schedule 4, part 2, item 14 of the RTI Act.
[73] Channel Seven and Redland City Council (Unreported, Queensland Information Commissioner, 30 June 2011) at [35].
[74] See footnote 55 above.
[75] The nature the information contained in, and the accessibility of, the records in QBCC’s online licence search also distinguishes the issues in this review from the decisions in Food Business and Gold Coast City Council and Seven Network Limited (Unreported, Queensland Information Commissioner, 14 September 2011) and Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) which also considered disclosure of compliance information generated by regulatory bodies. In those cases, public registers such as that operated by QBCC were not available for the relevant information and therefore, the public interest in disclosure was significantly greater.
[76] Schedule 4, part 4, item 6 of the RTI Act.
[77] Schedule 4, part 3, item 3 of the RTI Act.
[78] Section 47(3)(e) and section 52(1)(a) of the RTI Act.
[79] Section 47(3)(e) and section 52(1)(b) of the RTI Act.
[80] (Unreported, Queensland Information Commissioner, 19 February 2009) (PDE) at [28].
[81] PDE at [49] and [53]. See also section 130(2) of the RTI Act.
[82] A search of a backup system is not required where documents are unlocatable under section 52(1)(b) of the RTI Act.
[83] Schedule 6 of the RTI Act defines ‘backup system’ to mean ‘a system that has, for disaster recovery purposes, copied electronic data onto a separate data storage medium, for example, onto a backup tape’.
[84] Section 29 of the RTI Act provides that whilst an access application cannot require an agency to search for a document from a backup system, the agency may conduct searches of its backup system if the agency considers this is appropriate.
[85] Applicant’s submission to OIC dated 15 August 2013.
[86] Applicant’s submissions to OIC dated 28 February 2014 at pages 6, 9 and, 21.
[87] QBCC’s decision dated 17 June 2013 and search certifications provided to OIC in correspondence dated 26 November and 4 December 2013.
[88] Electronic Data and Records Management System. This system is also referred to by QBCC as ‘Meridio’.
[89] On page 17 of her submission to OIC dated 28 February 2014, the applicant referred to reports dated February and April 2010 in relation to external inspectors.
[90] Applicant’s submissions to OIC dated 28 February 2014, page 4.
[91] Under section 52(2) of the RTI Act.
[92] Under section 52(1)(b) of the RTI Act.
[93] Applicant’s submission to OIC dated 28 February 2014, page 10.
[94] QBCC’s search certifications, included with QBCC’s submission to OIC dated 1 November 2013.
[95] As these documents were unlocatable, the RTI Act did not require that QBCC search its backup system for these documents. Notwithstanding this, section 29(2) of the RTI Act provides that an agency may search for a document from a backup system if an agency considers it appropriate. See footnote 83 above.
[96] See footnote 87 above.
[97] QBCC’s submission to OIC dated 1 November 2013, page 2.
[98] External review application.
[99] Section 28(3) of the RTI Act.
[100] Section 28(1) of the RTI Act.
[101] Section 28(3) of the RTI Act.
[102] The applicant contests that she requested metadata in her access application. In her submissions to OIC dated 28 February 2014, she submits that she did not request this information until the external review was in process. In those submissions, the applicant strongly asserts that she is seeking metadata. I accept that the applicant specifically requested metadata in her submissions to OIC dated 13 October 2013. However, I am also satisfied that the terms of her access application also requested metadata and on this basis, I consider it is an issue for determination in this review.
[103] Submissions to OIC dated 1 November 2013.
[104] Applicant’s submission to OIC dated 28 February 2014, page 9.
[105] Applicant’s submission to OIC dated 28 February 2014, page 11.