Section 28A(1) of the FOI Act – Refusal of access - Documents not in existence or unlocatable
The applicant applied to the Department of Employment and Industrial Relations, now the Department of Justice and Attorney General (Department), for access to documents relating to his employment. The Department decided to grant the applicant access to the documents subject to the deletion of certain matter which it considered was exempt from disclosure under sections 42(1), 43(1), 44(1) and 44(3) of the Freedom of Information Act 1992 (Qld) (FOI Act).
The applicant sought an internal review in respect of:
· the documents exempted under section 43(1) of the FOI Act; and
· the sufficiency of the Department’s searches.
On internal review, the Department identified the steps taken to locate the documents and sought to affirm the original decision. However, the Department also enclosed a small number of additional documents which were located during the internal review process (Additional Documents).
The applicant then applied to the Information Commissioner for external review, claiming that the Department’s searches were not sufficient.
On external review, the Department provided evidence of the search processes undertaken to locate documents responding to the FOI application.
In PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE), the Information Commissioner indicated that to be ‘satisfied’ that a document does not exist for the purposes of section 28A(1) of the FOI Act it is necessary for the agency to rely on its particular knowledge and experience with respect to various key factors including the agency’s functions and responsibilities, relevant administrative practices and procedures and information provided by the applicant.
Applying the principles in PDE, A/AC Jefferies was satisfied that the Department:
· in undertaking its searches, had regard to its structure and did not confine its search efforts to the area identified in the FOI application
· appropriately identified all relevant areas in the Department that would hold the documents relating to the applicant’s employment
· subsequently identified and made enquiries with relevant personnel who would have knowledge of the particular documents sought; and
· had taken account of relevant practices and procedures, particularly in terms of its record management, and had conducted extensive searches, in response to the FOI application and the internal review application, to locate both hard-copy and electronic documents.
A/AC Jefferies therefore accepted that the Department was entitled to refuse access to the remaining documents sought by the applicant on the basis that there were reasonable grounds for the Department to be satisfied that the documents sought did not exist.