Section 28A(1) – refusal of access – whether document nonexistent
The applicant sought access to files pertaining to him as held by Detective Bradley McLeish in relation to his arrest on 12 April 2007.
Under cover of its original decision, the Queensland Police Service (QPS) provided the applicant with access to 43 documents (subject to exemption/exclusion claims under the Freedom of Information Act 1992 (Qld) (FOI Act) which the applicant did not contest). In his application for internal review the applicant asserted that the QPS had failed to search for and provide him with access to an audio tape belonging to Detective Bradley McLeish. In its internal review decision the QPS agreed to expand the scope of the applicant’s freedom of information application (FOI Application) to include ‘any audio tapes of an interview process relating to the applicant’s arrest on 12 April 2007’ (Interview Tape). However the QPS found that because the applicant had refused to participate in a recorded interview in relation to his arrest, no Interview Tape exists and access may be refused under section 28A(1) of the FOI Act
On external review, the applicant maintained the view that the QPS’ searches had been inadequate with respect to the location of an audio tape belonging to Detective Bradley McLeish (Audio Tape). The QPS did locate the Audio Tape during the course of the external review. However, as the Audio Tape did not record an ‘interview process relating to the applicant’s arrest on 12 April 2007’ Acting Assistant Commissioner Jefferies (A/AC Jefferies) agreed with the QPS’ position that the Audio Tape did not fall within the scope of the FOI Application. A/AC Jefferies noted however that this did not preclude the applicant from lodging a new freedom of information application for the Audio Tape.
In considering whether there were reasonable grounds for the QPS to be satisfied that the Interview Tape did not exist, Acting Assistant Commissioner Jefferies applied the principles set out in PDE and University of Queensland (unreported decision of 9 February 2009). That is, that for the purposes of section 28A(1) of the FOI Act, whether an agency is ‘satisfied’ that a document exists or not 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.
The QPS indicated that the applicant declined to participate in a recorded interview with the QPS on 12 April 2007. A document titled Court Brief Defendant Copy also reflected the QPS’ submission. The applicant did not make any submissions disputing the QPS’ position.
In affirming the decision under review A/AC Jefferies found that:
· the applicant did not participate in an interview process in relation to his arrest on 12 April 2007
· the Interview Tape does not exist
· it is unnecessary for the QPS to conduct searches/further searches for the Interview Tape
· access may be refused under section 28A(1) of the FOI Act.