Leach and Department of Police
(210689, 14 May 2009)
Section 28A(1) FOI Act – documents nonexistent or unlocatable
The applicant applied to the Department of Police, also known as the Queensland Police Service (QPS), for access to database files relating to a meeting which occurred on 16 March 2007 between the applicant and Inspector Swan of the Cairns Police (Meeting). The QPS denied the applicant access to the documents sought under section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that the documents the applicant was seeking did not exist.
The applicant asserted that as the QPS accepted the meeting took place, and because of the nature and seriousness of the meeting, documents responding to his FOI application should exist. The QPS contended that on the basis of the searches conducted and information provided by Inspector Swan, it was satisfied that the documents sought by the applicant did not exist.
In PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE), the Acting Information Commissioner indicated that for the purposes of section 28A(1) of the FOI Act, whether an agency is ‘satisfied’ that a document does not exist is an evaluative judgement based on the knowledge and experience of the agency with respect to, among other key factors, relevant administrative practices and procedures including but not exclusively information management approaches.
In this review Acting Assistant Commissioner Jefferies was satisfied that:
· the Far Northern register is the only location in which database files sought by the applicant would be stored
· the register had been searched by a senior QPS Officer and no records were located
· the Meeting did occur on the relevant day, but was not a scheduled meeting and occurred as a result of the applicant’s actions
· no records of the Meeting were generated.
A/AC Jefferies also noted that QPS had, as was appropriate, made inquiries with Inspector Swan who had attended the meeting. Inspector Swan explained the nature of the meeting and indicated that there were no indices of the meeting and no record of correspondence, as none was generated.
A/AC Jefferies found that in response to the FOI Application the QPS had:
· had regard to the key factors in the FOI and internal review applications, including the date and location of the meeting referred to in the FOI Application
· identified where the documents sought would be stored if they existed, in this instance, the Far Northern Register
· conducted searches of the Far Northern Register
· made inquiries with persons who attended the relevant meeting.
Accordingly, A/AC Jefferies affirmed the QPS’ internal review decision by finding that:
· the documents requested in the FOI Application do not exist because they were never created
· QPS had taken all reasonable steps to determine whether documents responding to the FOI Application exist
· there were reasonable grounds for the QPS to be satisfied that the documents requested in the FOI Application do not exist
· access to the requested documents can be refused under section 28A(1) of the FOI Act.