Master N and Department of Education and Training (270025)

Application number:
270025
Decision date:
Thursday, Dec 23, 2010

Section 67(1) & 45 Information Privacy Act 2009 (Qld)

Section 47(3)(e) & 52(1)(a) of the Right to Information Act 2009 (Qld)

 

Ms H applied on behalf of her son (Master N, the applicant) under the Information Privacy Act 2009 (Qld) (IP Act) for access to various documents concerning the applicant.  Although the Department of Education and Training (Department) had located and released numerous documents, Ms H remained of the view that a number of documents should still exist in the Department’s possession and be provided to her.

 

Specifically Ms H sought information concerning (a) a phone call she had made to the District Office, (b) observational information she believed had been created by a staff member of the Department about the applicant and (c) an incident report relating to the applicant’s suicide attempt.  Although the Department had conducted searches for the requested documents it was unable to locate any responsive documents and as a consequence refused the applicant access to the documents under section 47(3)(e) of the Right to Information Act 2009 (RTI Act) on the basis that the documents were nonexistent or unlocatable under section 52(1) of the RTI Act.

 

In respect of the documents sought at (a) and (b) above, Right to Information Commissioner Smith found there was no evidence to suggest that the documents existed and as a consequence decided that access to the documents could be refused under section 52(1)(a) of the RTI Act.  In relation to the document sought at (c) above, the Department provided further information to the Office which confirmed that at the time of the applicant’s suicide attempt, the Department was under no obligation to create an incident report or similar document.  On the basis of this information, and in the absence of any evidence to the contrary, Right to Information Commissioner Smith decided that the document did not exist under section 52(1)(a) of the RTI Act.  On the basis that the documents sought were found not to exist, Right to Information Commissioner Smith confirmed that despite the Department’s submissions under section 52(1) of the RTI Act, a claim under section 52(1)(b) of the RTI Act was not relevant in the circumstances.

 

Right to Information Commissioner Smith affirmed the reviewable decision by deciding that the Department was entitled to rely on section 52(1)(a) of the RTI Act to refuse access to the requested documents under section 47(3)(e) of the RTI Act.