Leach and Department of Police
(210686, 31 March 2009)
Section 28A(1) FOI Act – refusal of access – documents non-existent or unlocatable – whether warrant issued
The applicant applied to the Department of Police, also known as the Queensland Police Service (QPS), for access to documents which suggest that a warrant was issued for his arrest on a particular day in 2007. QPS denied the applicant access to relevant documents 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. This decision was affirmed on internal review.
On external review the applicant questioned the sufficiency of the QPS’ searches. The applicant submitted that he was arrested and detained on the relevant day and that this occurred because the QPS had issued a warrant and were ‘on the lookout’ for him. The applicant also asserted that an interview which took place on the relevant day was a formal interview in respect of his arrest.
QPS submitted that the applicant was not arrested on the relevant day and that there was no warrant issued for his arrest. QPS also submitted that the applicant’s action and behaviour on the relevant day was sufficient to warrant his being questioned. Additionally, QPS asserted that searches were conducted for documents which responded to the applicant’s request, but that no documents were able to be located.
Acting Assistant Commissioner Jefferies considered that there was no evidence to suggest that a warrant was issued for the applicant’s arrest or that he was taken into police custody on the specified day. A/AC Jefferies was satisfied that it was not unreasonable to expect that QPS Officers would question the applicant about his activities as a result of what was directly observed on the relevant day. A/AC Jefferies was also satisfied that in undertaking searches, QPS was able to ascertain that no warrant was issued for the applicant’s arrest and accordingly, that no documents responding to the applicant’s FOI Application could exist.
A/AC Jefferies found that:
· the documents requested in the applicant’s FOI Application do not exist because they were never created
· there were reasonable grounds for QPS to be satisfied that the documents requested in the FOI Application do not exist
· it was unnecessary for QPS to conduct further searches to locate documents sought
· access could be refused under section 28A(1) of the FOI Act.
Accordingly, A/AC Jefferies affirmed the decision under review.