Mathews and Department of Primary Industries and Fishers
(210482, 26 November 2008)
Section 28A(1) – refusal of access – documents non-existent or unlocatable
The Applicant sought access to documents in the possession or under the control of the Department of Primary Industries and Fisheries (Department) relating to the investigation of a complaint he had made about a Royal Society for the Prevention of Cruelty to Animals (RSPCA) Inspector.
In light of a number of earlier freedom of information (FOI) applications made by the Applicant to the Department seeking access to similar documents, the Department interpreted the scope of this FOI application to include only documents not previously released to the Applicant and documents created since the date of his last application for similar documents. The Department conducted searches but was unable to locate any documents sought by the Applicant and therefore, refused access to the documents sought pursuant to section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act).
On external review, the Applicant’s questioned the sufficiency of searches undertaken by the Department. Specifically, the Applicant contended that a statement made by the RSPCA Inspector should be in the possession of the Department or under its control. The Applicant argued that the Department has the power to obtain the documents to which he sought access from the RSPCA.
The Applicant’s submissions raised the issue of whether the documents sought in his FOI application were documents of an agency for the purpose of section 7 of the FOI Act.
The Department submitted that the investigation of the Applicant’s complaint about the RSPCA Inspector was conducted internally by the RSPCA and that the RSPCA Inspector’s statement (if such a document existed) was not, and had never been, in its possession. With respect to the issue of ‘control’, the Department submitted that documents held by the RSPCA were not under its control because in order for the Department to obtain documents from the RSPCA it would have to take an additional step that was not intended by the FOI Act.
With respect to possession, Acting Assistant Commissioner Jefferies found that:
· if the RSPCA Inspector’s statement existed, it was not in the possession of the Department
· no further documents responding to the FOI application were in the possession of the Department.
In relation to the issue of control, Acting Assistant Commissioner Jefferies considered the relationship between the Department and the RSPCA and relevant provisions of the Animal Care and Protection Act 2001 (Qld) (ACP Act) and found that:
· the RSPCA is a separate legal entity and is not an agency for the purposes of the FOI Act
· the Department did not have a present legal entitlement to obtain a copy of the RSPCA Inspector’s statement or any other documents relating to the investigation (if in fact such documents existed) from the RSPCA without taking a further step as contemplated by the Information Commissioner in Price and Nominal Defendant (1995) 5 QAR 80.
Accordingly, Acting Assistant Commissioner Jefferies decided that section 28A(1) of the FOI Act applied to the documents sought by the Applicant in his FOI application.