14 March 2011
Section 47(3)(e) and section 52(1)(a) of the Right to Information Act – refusal of access - nonexistent or unlocatable documents
The applicant sought access to certain documents of the Office of the Legal Friend, Office of the Adult Guardian (OAG) and the Guardianship and Administration Tribunal (GAAT) under the Right to Information Act 2009 (Qld) (RTI Act). The application was processed by the Department of Justice and Attorney-General (DJAG) as the agency responsible for these three entities.
The applicant applied for external review on the basis that not all documents relevant to the access application had been located. The applicant was asked to assist in the external review by particularising:
· the documents he believed had not been located
· the searches the relevant agencies may reasonably be expected to conduct to locate further documents; and
· reasons and/or evidence on which he relied to support his claim that further documents existed.
The applicant did not provide the requested information.
On external review, DJAG outlined the searches undertaken for documents relevant to the access application including the searches undertaken by the OAG and GAAT. In summary:
· OAG located no relevant OAG documents and advised that the Adult Guardian was never appointed as guardian for the relevant third party
· GAAT located one responsive file, titled ‘Part B’ and following further enquiries by DJAG as to the existence of a corresponding ‘Part A’ to that file, a file titled ‘Part A’ was located; and
· DJAG released the file titled ‘Part A’ to the applicant in full.
Having regard to the searches and enquiries conducted by DJAG and the Information Commissioner’s comments in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) the Right to Information Commissioner (RTI Commissioner) was satisfied that:
· there were reasonable grounds for DJAG to be satisfied that additional documents did not exist; and
· DJAG had taken all reasonable steps to locate additional documents.
The applicant also submitted that in the absence of sworn statutory declarations setting out DJAG’s searches, he did not accept that the searches conducted were sufficient. On this issue, the RTI Commissioner noted that:
· the procedure on external review was within the discretion of the Information Commissioner; and
· it was unnecessary for DJAG to provide a statutory declaration containing the information provided by way of submissions and detailed annexure.
Accordingly, the RTI Commissioner decided that access to any additional documents could be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act on the basis that such documents did not exist.
