Section 28A(1) of the FOI Act- Refusal of Access- Documents not in existence or unlocatable
The applicant applied to the Office of the Public Service Commission (PSC) for access to documents relating to his employment with the Queensland Public Service. The PSC initially located 12 folios in response to the freedom of information application (FOI Application) and granted full access to those folios.
The applicant sought an internal review contending that additional documents responding to the FOI Application should have been located by the PSC. Specifically, the applicant contended that the PSC had not provided him with the following documents:
1. “documents which indicate that Commissioner Purtill directed Brian Carroll to act on his behalf in responding to the applicant’s letter dated 24 October 2007” (Direction to Act) and “correspondence between Mr Purtill and Mr Carroll regarding the applicant” (Correspondence)
2. “records, including meeting notes of meetings held on 7 November 2007 between Ms J Hunter of the former Department of Employment and Industrial Relations (DEIR), Mr S Woods (DEIR), Ms J Saleh (PSC) and Ms C Fraser (PSC)” (Meeting Documents)
3. “any documents that detail the nature of organisational change within the Office of Workplace Health and Safety which resulted in the applicant’s substantive position being declared surplus to departmental requirements” (OWH&S Documents).
On internal review the PSC sought to affirm the Original Decision.
The applicant applied to the Information Commissioner for external review. He submitted that the:
· seemingly rushed nature of the internal review decision
· fact that documents had been located by other agencies
· inconsistencies between the decision making processes of different agencies
founded his belief that further documents existed.
On external review, the PSC submitted that the:
· Direction to Act did not exist because it was never created and that it was common practice for the Executive Director to respond to certain correspondence on behalf of the Commissioner without a written Direction to Act
· Correspondence and Meeting Documents did not exist because they were never created and a number of electronic and manual searches had been undertaken by the PSC to confirm this
· OWH&S Documents did not exist because they were never received as it was not standard practice for the PSC to receive all relevant internal documents from other agencies where it is asked to provide staffing advice.
A/AC Jeffries considered the principles in PDE and the University of Queensland in deciding whether the PSC could refuse access to the documents in issue under 28A(1) of the Freedom of Information Act 1992 (QLD).
In relation to the Direction to Act, A/AC Jeffries accepted that:
· it was ordinary practice for a PSC Executive Director to act on their formal delegation and undertake tasks as assigned by the Public Service Commissioner
· in this instance, the Public Service Commissioner verbally assigned the task of responding to the applicant’s letter to the Executive Director
· the Commissioner did not issue a written direction to the Executive Director to support his verbal instructions to respond to the applicant’s letter.
In relation to the Correspondence and Meeting Documents, A/AC Jefferies accepted that:
· the PSC identified the locations and systems from which relevant documents could be identified and/or retrieved and conducted appropriate searches
· the PSC identified and consulted relevant personnel who would be expected to have knowledge of documents responding to the FOI Application
· the PSC has taken all reasonable steps to find documents responding to the FOI Application, including the Correspondence and Meeting Documents.
In relation to the OWH&S documents, A/AC Jefferies accepted that:
· the PSC only retains copies of information it requires to support agencies and provide advice
· the PSC would not require internal documents of the type sought in order to provide advice
· in relation to the meeting regarding the applicant the Department did not provide any OWH&S Documents to the PSC.
· there are reasonable grounds for the PSC to be satisfied that the documents sought do not exist
· access can be refused under section 28A(1) of the FOI Act.