DSR and The University of Queensland
(210904, 4 August 2009)
Section 77(1) - Commissioner may decide not to review
The applicant applied to the University of Queensland (UQ) for access to documents ‘used in determination of an email’ concerning him (FOI Application). The email referred to was previously released to the applicant by UQ under the Freedom of Information Act 1992 (Qld) (FOI Act).
From the information in the FOI Application, UQ was unable to understand the nature of the documents to which the applicant was seeking access and therefore, asked him to clarify the description of the documents. The applicant responded to UQ but did not clarify the documents to which he sought access. Instead, the applicant asked a series of questions and contended that 'these documents don't exist' (Response).
UQ did not issue a notice under section 25A(3) of the FOI Act, nor did it make a decision on the FOI Application within the appropriate period. Accordingly, UQ’s principal officer was deemed to have refused access to the documents sought by the applicant. The applicant then applied for external review of UQ’s deemed decision.
On external review, Assistant Commissioner Jefferies (AC Jefferies) formed the view that the Response was not intended to clarify the documents the applicant was seeking but rather to highlight the applicant's belief that there was no basis for UQ to have created the email in the first place. AC Jefferies observed that by posing a question to UQ in the Response, the applicant was attempting to make the point that there was no basis for the email.
In referring to the decision in Hearl and Mulgrave Shire Council (1994) 1 QAR 557, AC Jefferies explained that the FOI Act confers a legally enforceable right to be given access to documents of an agency and does not require an agency to provide answers to an applicant's questions.
AC Jefferies took the view that the interchange between the applicant and UQ in relation to the FOI Application was, from the applicant's perspective, a forum for pursuing his grievance with UQ. Therefore, despite requesting clarification, UQ was still not able to process the FOI Application.
AC Jefferies found that any further requests for clarification would be futile because the FOI Application was wrongly conceived as it was not a genuine request for documents, but rather, a means by which the applicant sought to voice his grievance with UQ.
On this basis, AC Jefferies was satisfied that:
· the applicant’s FOI application was wrongly conceived
· there was no real basis on which an external review could proceed
· the applicant’s external review application was misconceived.
Based on the above findings, AC Jefferies decided not to deal with the applicant’s external review application under section 77(1)(a) of the FOI Act on the basis that the application was misconceived.
