21 January 2011
Section 29 Right to Information Act – Application not for backup system documents
Section 47(3)(e) Right to Information Act – Refusal of access
Section 52(1)(b) Right to Information Act – Unlocatable documents
The applicant sought access to various documents about his transfer and a subsequent attempted transfer between portfolios within the Department of Public Works (Department).
The Department refused access on the basis that it had not located any responsive documents.
On external review, the Department located a responsive document which it agreed to release to the applicant. However, the applicant maintained that the Department should conduct a search of its backup system.
The Department submitted that no further responsive documents can be located for the following reasons:
· at the time of the events, the DMS records management system did not exist
· the records management system in place at the time only had functionality to record files and did not register individual documents or folios against each file
· reviews of hard copy files failed to locate any relevant documents
· the requested documents may not have been placed on a file or they may have been misfiled or placed on another file; and
· in relation to emails, a review of hard copy files failed to locate any relevant documents and it appeared that the emails may not have been printed and placed on hard copy files.
Further, the Department submitted that it was not necessary, nor appropriate, to search its backup tapes for the requested documents.
Right to Information Commissioner Mead identified that, where an agency cannot locate documents, the principles in PDE and University of Queensland (Unreported, Qld Information Commissioner, 9 February 2009) are relevant to the question of whether access to unlocatable documents can be refused under sections 47(3)(e) and 52(1)(b) of the Right to Information Act 2009 (Qld) (RTI Act).
Right to Information Commissioner Mead noted that section 29 of the RTI Act only required searches of backup systems to be conducted in the circumstances set out in section 52(2) of the RTI Act, that is, where a document may not exist under section 52(1)(a) of the RTI Act.
In considering whether a search of the backup system was appropriate, Right to Information Commissioner Mead took into account the technological difficulties identified, and the time and costs involved in searching the backup tapes specified by the Department in the particular circumstances of this external review.
Having regard to the applicant’s application and submissions, the Department’s statement that the relevant documents may have or should be in the Department’s possession but after thorough and extensive searches the documents could not be located and the Department’s submissions, Right to Information Commissioner Mead found:
· the documents sought by the applicant should be in the Department’s possession
· the Department has taken all reasonable steps to locate the documents and they cannot be found
· the documents are unlocatable for the purpose of section 52(1)(b) of the RTI Act
· the Department is not required to search its backup system for the documents and such a search is not appropriate in the circumstances; and
· the Department can refuse access to the documents under section 47(3)(e) of the RTI Act.
Right to Information Commissioner Mead affirmed the decision under review and found that the Department can refuse access to the documents sought under section 47(3)(e) of the RTI Act on the ground set out is section 52(1)(b) of the RTI Act.