Section 28A – nonexistent and unlocatable documents
The applicant made a freedom of information application (FOI Application) to the Office of Health Practitioner Registration Boards (Board) seeking access to a copy of her file. The Board granted the applicant access to documents held on the applicant's registration file, Health Assessment and Monitoring (HAM) file, relevant Board meeting records and registration renewal forms pertaining to the applicant. The Board released most of the documents in their entirety with access to the remainder being granted in part, on the basis that information was either irrelevant to the FOI Application under section 27(3) of the Freedom of Information Act 1992 (Qld) (FOI Act) or exempt matter under sections 43(1) or 44(1) of the FOI Act.
On internal review, the Board did not locate any further documents responding to the FOI Application and affirmed its original decision.
The applicant applied to the Office of the Information Commissioner (OIC) for external review on the basis that the Board had not located all documents relevant to her FOI Application. During the review, a number of additional documents were located by the Board and released to the applicant. However, the applicant maintained throughout the review that the Board should have further documents in its possession. The applicant specifically submitted that additional electronic records, emails and HAM documents should be held by the Board. In respect of one document not located by the Board (Facsimile), the applicant provided the OIC with documentary evidence that it had been received by the Board. The Board located an electronic version of the Facsimile but was unable to locate the original.
The Board submitted that it comprehensively searched for, located and identified all hard copy and electronic records in its possession or under its control relevant to the FOI Application. The Board relied on its searches to support its submission that no further additional electronic records, emails and HAM documents existed. In relation to the Facsimile, the Board submitted that the original version should have been kept on the applicant's file but, as a result of recordkeeping procedures not being followed, the Facsimile had been lost.
In determining whether the board had taken all reasonable steps to locate additional documents, the Information Commissioner referred to the principles in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) and had regard to:
· the Board's standard recordkeeping practices and customs that were in place at the relevant time in relation to storage of documents relating to Board registrants
· the locations in which any further documents would be stored, if they existed
· the searches conducted by the Board in processing the FOI Application and during the course of this review
· the organisational structure of the Board.
The Information Commissioner accepted that at the relevant time, the Board had limited recordkeeping policies and procedures relating to the storage of registrant documents. However, the Information Commissioner recognised that the Board, in conducting its searches, had regard to its structure, standard recordkeeping practices and customs and had made inquiries with relevant officers who were expected to have knowledge of the particular documents sought by the applicant. The Information Commissioner found that the Board had reasonable grounds to be satisfied that further electronic records, emails and HAM documents relevant to the FOI Application did not exist.
The Information Commissioner accepted that, after the Board was provided with evidence of the Facsimile, it undertook thorough searches of its records and made appropriate inquiries with relevant officers in an effort to locate this document. The Information Commissioner acknowledged that, through a combination of administrative oversight and human error, the original version of the Facsimile had not been stored on the applicant's file as it should have been in accordance with the Board's standard recordkeeping practice. On the basis of the searches conducted by the Board, the Information Commissioner was satisfied that the Board had taken all reasonable steps to locate the original version of the Facsimile but that the document could not be located.
The Information Commissioner varied the Board's decision and found that access could be refused to:
· additional electronic records, emails and HAM documents relevant to the FOI Application under section 28A(1) of the FOI Act
· the 17 November 2008 Fax under section 28A(2) of the FOI Act.