JCO and Department of Police
(210558, 22 October 2009)
Section 28A – refusal of access – documents nonexistent or unlocatable
The applicant applied to the Department of Police, also known as the Queensland Police Service (QPS), for access to documents relating to DNA testing in prisons (including DNA sampling and analysis, videotape material, investigations and intelligence leading to the identity of target groups and specific information relating to the taking of the applicant’s DNA) (FOI Application). The applicant particularised the information to which he sought access by grouping and numbering each request as 1(a)‑(n), 2(a)-(d) and 3(a)-(c).
During the course of the review, QPS released information requested in item 2(a)-(c) to the applicant and accordingly, these items were no longer in issue in the review. QPS also located twelve folios responsive to item 1(i)-(n) and released these folios to the applicant, however the applicant submitted that additional information responsive to these items should exist.
Assistant Commissioner (AC) Corby considered whether there were reasonable grounds to be satisfied that:
o documents responsive to items 1(a)-(g) and (i)-(n), 2(d) and 3(a)-(c) did not exist and accordingly, whether access could be refused under section 28A(1) of the FOI Act
o document/s responsive to item 1(h) could not be found and accordingly, whether access could be refused under section 28A(2) of the FOI Act.
Having regard to the principles in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009), AC Corby was satisfied that:
· in respect of item 1(a)-(g):
o there were reasonable grounds to be satisfied that documents of the type sought by the applicant did not exist because they were not created
o access to the requested documents was refused under section 28A(1) of the FOI Act
· in respect of item 1(h):
o there was sufficient evidence that documents responding to item 1(h) once existed but the item could not be found
o QPS took all reasonable steps to locate documents responding to item 1(h)
o access to item 1(h) was refused under section 28A(2) of the FOI Act
· In respect of item 1(i)-(n):
o there were reasonable grounds to be satisfied that documents of the type sought by the applicant did not exist because they were not created
o access to the requested documents was refused under section 28A(1) of the FOI Act
· in respect of items 2(d) and 3(a)-(c):
o the Police Powers and Responsibilities Act 2000 (Qld) details the processes and procedures for DNA sampling and analysis and no other documents were created to explain this process as it is clearly provided for in the legislation
o accordingly, there were reasonable grounds to be satisfied that the documents sought by the applicant did not exist because they were not created
o access to the requested documents was refused under section 28A(1) of the FOI Act.
Accordingly, AC Corby varied the decision under review by finding that:
· access to documents responsive to items 1(a)-(g) and (i)-(n), 2(d) and 3(a)-(c) could be refused under section 28A(1) of the FOI Act on the basis that the documents sought do not exist
· access to documents responsive to item 1(h) could be refused under section 28A(2) of the FOI Act on the basis that although the document should be in the possession of QPS, it has taken all reasonable steps to locate the document but the document could not be found.