Sections 47(3)(e) and 52(1)(a) Right to Information Act – nonexistent documents
Sections 47(3)(f) and 53(a) Right to Information Act – other access available
The applicant applied under the Right to Information Act 2009(Qld) (RTI Act) to the Building Services Authority (BSA) for access to documents relating to disciplinary actions taken by BSA in relation to two building companies.
BSA located and released some documents to the applicant, however, it did not locate any relating to disciplinary action. BSA refused access to transcripts of court and tribunal proceedings on the basis that the applicant could obtain access to these documents elsewhere.
On external review, the applicant submitted that BSA should have located disciplinary action documents and also sought review of the decision refusing access to the transcripts. BSA submitted that documents relating to disciplinary action did not exist because:
· no disciplinary action was taken against the building companies
· the applicant's interpretation of the term 'disciplinary action' was wider than the meaning given to the term by BSA’s enabling legislation, the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act)
· documents relating to "complaints" or "disputes" are different to disciplinary action documents.
In applying the principles set out in PDE and University of Queensland (Unreported, Qld Information Commissioner, 9 February 2009), the Information Commissioner found that there were reasonable grounds for the BSA be satisfied that documents relating to disciplinary action did not exist on the basis that:
· the applicant specifically sought access to documents relating to disciplinary action, not complaints or disputes;
· in interpreting the scope of the applicant's request, BSA appropriately referred to the meaning of 'disciplinary action' under the QBSA Act; and
· BSA's records did not contain any evidence that the building companies in question had been the subject of disciplinary action under the QBSA Act.
Based on the above, the Information Commissioner decided that access to disciplinary action documents could be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act.
In relation to the transcripts, enquiries made by staff of the Office of the Information Commissioner during the external review confirmed that access was available through the Magistrates Court and Queensland Civil and Administrative Tribunal upon application and payment of the relevant fee. On this basis, the Information Commissioner decided that access to the transcripts could be refused under sections 47(3)(f) and 53(a) of the RTI Act.