Middleton and Department of Health
(310354, 10 June 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 Health, also known as Queensland Health (QH), under the Right to Information Act 2009 (Qld) (RTI Act) for access to:
a) all documentation related to [the applicant’s address] dating back to 1980; including folios 1 – 157 from [her] previous RTI application – ref 0205-3000-679
b) all documentation for file references MI167729 MO:09002866, including correspondence to and from third parties, etc; and
c) documentation relating to complaints, in addition to the above, that Queensland Health had received against Brisbane City Council since 1 January 2008.
In response to the access application, QH’s decision-maker:
· refused to deal with items a) and b) of the access application on the basis that all documents relevant to these items were provided to the applicant under a previous application
· interpreted the scope of item c) as meaning any complaints QH had received against Brisbane City Council (Council) since 1 January 2008 in relation to sewage overflow
· indicated that QH was unlikely to hold information regarding complaints against Council about sewage overflow incidents as QH only becomes involved in the limited circumstances prescribed by the Public Health Act 2005; and
· refused access to the documents sought at item c) on the basis that there were reasonable grounds to be satisfied that the documents sought did not exist.
In her external review application, the applicant disputed QH’s decision to refuse to deal with items a) and b) of her access application. She also stated that at item c) of her application she was seeking access to all complaints against Council; not just those concerning sewage overflow.
On external review, the Office of the Information Commissioner (OIC) conveyed to QH a view that whilst it was understandable, given the focus of the access application and the applicant’s email address (sewerageoverflow@[applicant’s email address]) which was included in item c), that the scope of the application was interpreted as being confined to complaints in relation to sewage overflow, this did not accord with a plain reading of the access application.
In response, QH contended that it would be a substantial and unreasonable diversion of its resources under section 41 of the RTI Act to process item c) as the request would extend to any complaint received by QH about enforcement of any aspect of public health and safety for which Council is responsible.
However, the applicant submitted that QH could not refuse to deal with her access application under section 41 of the RTI Act because it had not complied with section 42 of the RTI Act and she should not be disadvantaged because QH had breached the Act.
The applicant’s submission that QH 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 provide a mechanism to remedy this circumstance.
In view of the extent and manner of searches required to locate all documentation responding to the applicant’s request in order to process the access application, the Right to Information Commissioner set aside QH’s decision, substituting a decision that:
· dealing with the access application would be a substantial and unreasonable diversion of QH’s resources; and
· QH is entitled, under section 41 of the RTI Act, to refuse to deal with the access application.