O'Connor and The University of Queensland
(210817, 30 June 2009)
Section 28A(1) FOI Act - Refusal of access – Document nonexistent or unlocatable
The applicant applied to the University of Queensland (UQ) for access to documents relating to an investigation conducted by UQ into a complaint made by the applicant (FOI Application). UQ initially located five folios in response to the FOI Application and granted full access. The applicant sought an internal review contending that additional documents responding to the FOI Application should have been located by UQ. On internal review UQ located one further document and released it in full to the applicant.
The documents located by UQ and released to the applicant were file notes of conversations between the complaint investigator and three individuals he had spoken with. However, UQ did not locate a file note of the investigator’s conversation with a particular staff member (File Note in Issue). UQ refused access to the File Note in Issue under section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that it did not exist.
The applicant applied to the Information Commissioner for external review on the ground that the File Note in Issue should have been located by UQ. The applicant submitted that:
· he lacked confidence that UQ performed reasonable searches to locate the File Note in Issue
· the File Note in Issue may have been misfiled
· further comprehensive searches were necessary.
UQ submitted that:
· the investigator was no longer an employee of UQ
· if the File Note in Issue did exist it would have been reasonable to infer that it would have been located with the other three file notes created by the investigator
· the staff member in relation to whom the applicant sought the File Note in Issue had provided the investigator with a memo to explain his version of events (Memo)
· it was likely the Memo was provided to the investigator as an alternative to being interviewed
· based on the comprehensive searches UQ had conducted it was reasonable to conclude the File Note in Issue did not exist.
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.
A/AC Jefferies accepted that an extract from the Investigation Report suggested that the investigator created the File Note in Issue, along with three other file notes. However, she stated:
In my view, the fact that the three file notes were identified in two separate locations and in each instance the File Note in Issue was not located with the other file notes, supports a conclusion that the File Note in Issue was not created. In addition, the co-location of the Memo with the three file notes located affords weight to UQ’s conclusion that it may have been unnecessary for [the investigator] to create the File Note in Issue as he had access to the Memo.
Applying the principles in PDE, A/AC Jefferies was satisfied that:
· if the File Note in Issue was created, it could reasonably be expected to have been kept with the other file notes created by the investigator
· the File Note in Issue was not located with the file notes created by the investigator
· in any event, if it existed, the File Note in Issue would be stored/filed in the Central Registry (at RAMS) or the UQ legal office
· UQ has conducted appropriate and thorough searches of RAMS and the Legal Office and the File Note in Issue could not be located
· UQ has taken all reasonable steps to locate the File Note in Issue and it could not be located
· there were reasonable grounds for UQ to be satisfied that the File Note in Issue does not exist
· access to the File Note in Issue could be refused under section 28A(1) of the FOI Act.
Accordingly, A/AC Jefferies affirmed the decision under review.
