LKJ and Department of Police
LKJ and Queensland Police Service
(210236, 27 June 2008)
Section 29B Refusal to deal with application – previous application for same documents
The applicant applied for documents relating to an incident involving an MP’s Office and the Queensland Police Service (QPS) (Later Application). The QPS refused to deal with the Later Application under section 29B of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that the applicant had previously applied to the QPS for the same documents (Earlier Application). This decision was affirmed on internal review.
It should be noted that at the time of the Later Application the QPS had decided to neither confirm nor deny (under section 35 of the FOI Act) the existence of documents sought in the Earlier Application. As a consequence of this and in an effort to be more specific about the documents he sought, the applicant submitted the Later Application. In consideration of the particular circumstances of the external review about the Earlier Application (Earlier External Review), First Assistant Commissioner Rangihaeata decided that it was appropriate to put the external review resulting from the Later Application on hold until the Earlier External Review could be finalised.
During the course of the Earlier External Review:
· the application of section 35 of the FOI Act was no longer pursued by the QPS, enabling discussion with all parties in that review about the documents in issue and informal resolution regarding specific issues in the review, where the parties agreed to disclosure of some of the matter to the applicant
· a decision was issued by this Office finding that all documents remaining in issue (except for a small amount of matter) could be released to the applicant.
Once the Earlier External Review had been finalised, Assistant Commissioner Rangihaeata decided it was appropriate to progress with the external review about the Later Application.
In reviewing the application of section 29B of the FOI Act, First Assistant Commissioner Rangihaeata decided that the QPS was entitled to rely on section 29B of the FOI Act if the following criteria were met:
a) the documents sought under the Later Application to the QPS are the same documents sought under the Earlier Application to the QPS
b) the Later Application does not disclose any reasonable basis for again seeking access to the documents
c) is the decision of the QPS in relation to the Earlier Application the subject of an incomplete external review or has it been the subject of a completed external review.
In examining the above criteria, the First Assistant Commissioner Rangihaeata first considered in relation to criteria a) whether the documents sought under the Later Application were the same documents sought under the Earlier Application. To determine this, First Assistant Commissioner Rangihaeata compared the terms of each application and found that the scope of the Earlier Application was sufficiently broad to cover the documents requested in the Later Application. As a consequence, First Assistant Commissioner Rangihaeata considered the documents requested in the Later Application were the same documents the applicant requested in the Earlier Application.
In relation to criteria b), the First Assistant Commissioner Rangihaeata considered the sufficiency of search issues raised by the applicant. In this context, the applicant raised concerns that the QPS had not located any documents to support the warnings it had made about the applicant in a document previously released to the applicant (pursuant to a decision of this Office resulting from the Earlier Application). Using the principles identified in Shepherd and Department of Housing, Local Government & Planning (1994) 1 QAR 464, and having considered the applicant’s submissions and information provided by the QPS relating to how the warning system operates, First Assistant Commissioner Rangihaeata found that in this case there were no reasonable grounds to believe that further documents relating to the warnings or responsive to either application exist. Accordingly, First Assistant Commissioner Rangihaeata considered that the Later Application did not disclose a reasonable basis for seeking access to the documents which were the subject of the Earlier Application.
In satisfaction of criteria c), First Assistant Commissioner Rangihaeata confirmed that the Earlier Applicant had been the subject of a completed external review which resulted in a decision being made by this Office on 2 June 2008.
In affirming the QPS’ internal review decision, First Assistant Commissioner Rangihaeata decided it was appropriate to refuse to deal with the Later Application under section 29B of the FOI Act in this case.