Middleton and Department of Environment and Resource Management
(310260, 27 May 2011)
Section 41 of the Right to Information Act – refusal to deal; substantial and unreasonable diversion of agency resources
The applicant applied to the Department of Environment and Resource Management (Department) under the Right to Information Act 2009 (Qld) (RTI Act) for access to:
- all documentation on file for BNE1767/38 and
- all documentation relating to all reported sewage flooding incidents for [the applicant’s address] including incidents on 19 December 1988 and 8 June 1991. Period 30 May 1987 to 12 April 2010.
In response to the access application, the Department’s decision-maker advised the applicant that:
- the Department had located 380 pages of which, 152 pages were copies and 12 pages were irrelevant to the access application; and
- they had decided to release 202 pages in full and 14 pages in part.
In her external review application, the applicant questioned the sufficiency of the Department’s searches, contending that the Department held more documents responding to her access application.
During the course of the external review, the Department conducted further searches for documents responding to the access application and provided submissions to the Office of the Information Commissioner in relation to those searches.
In its further searches the Department identified an additional 44 files (additional files), which it estimated to contain at least 12 900 pages.
The Department:
- contended that it would be a substantial and unreasonable diversion of its resources to process the additional files due to the volume of documents involved; and
- submitted that it was unlikely that the additional files would hold information regarding reports of past sewage overflows at the applicant’s property as such events ‘would not fall under the Department’s regulatory jurisdiction unless there was a risk of environmental harm to the surrounding receiving environment’.
In response, the applicant submitted that the Department could not refuse to deal with her access application under section 41 of the RTI Act because the Department had not complied with section 42 of the RTI Act and she should not be disadvantaged because the Department had breached the Act.
The applicant’s submission that the Department had not satisfied the prerequisites set out in section 42 of the Act was accepted. However, it was noted that once the matter was on external review, the RTI Act did not, unfortunately, provide any mechanism to remedy this circumstance.
In view of the Department’s submissions regarding the volume of documents involved, together with the extremely low likelihood of those documents containing any information responding to the access application, the Right to Information Commissioner set aside the Department’s decision, substituting a decision that:
- dealing with the access application would be a substantial and unreasonable diversion of the Department’s resources; and
- the Department was entitled, under section 41 of the RTI Act, to refuse to deal with the access application.