PDE and The University of Queensland
(210632, 9 February 2009)
Section 28A(1) FOI Act – Documents nonexistent or unlocatable
The applicant applied to the University of Queensland (UQ) for access to the results form of a specified UQ course (Course). UQ located and released a number of documents in the original decision and on internal review. One of the documents released by UQ on internal review was a form signed by the Chief Examiner. In his external review application the applicant contended that UQ must hold but had not released a copy of the form signed by the Chief Examiner which also contained the signatures of the Course Coordinator and the Executive Dean/Academic Registrar.
In this decision, the Acting Information Commissioner made the following observations with respect to ‘sufficiency of search’ issues:
· section 28A of the Freedom of Information Act 1992 (Qld) (FOI Act) should be applied when a question of sufficiency of search arises
· sections 28A(1) and 28A(2) of the FOI Act are mutually exclusive propositions
· the approach should reflect the ordinary meaning conveyed by the text of the provision of the FOI Act, taking into account the purpose or object underlying the FOI Act
· it is preferable that general guidance provided in Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464 and a number of the earlier review decisions be aligned with the approach taken in section 28A of the FOI Act.
For the purposes of sections 28A of the FOI Act, whether an agency is ‘satisfied’ that a document does not exist is an evaluative judgement based on the knowledge and experience of the agency with respect to:
· the administrative arrangements of government
· the agency structure, functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it)
· relevant administrative practices and procedures including but not exclusively information management approaches
· key factors within the FOI application or factors reasonably inferred from any other information supplied by the applicant.
The Acting Information Commissioner indicated that section 28A(1) of the FOI Act is relevant in circumstances where the document sought does not exist. If so satisfied, the agency or Minister is not required by the FOI Act to carry out all reasonable steps to find the document. Nonetheless, the construction of section 28A of the FOI Act does not preclude an agency or Minister from using searches as a means to satisfy itself that a document does not exist under section 28A(1). However if the agency undertakes searches to satisfy itself that the document does not exist, then all reasonable steps must be taken to find the document before refusing access.
In applying section 28A(1) of the FOI Act to the issues arising in this external review, the Acting Information Commissioner determined that:
· by reference to its knowledge and experience of the ordinary practice for processing the Course results UQ could be satisfied on reasonable grounds that the document sought by the applicant was never created
· there was no evidence to suggest that there has been any deviation from the usual process in relation to this particular incident/event/procedure/transaction
· it was therefore unnecessary for UQ to conduct searches to satisfy itself that the document sought does not exist
· access to the document sought in the FOI Application could be refused under section 28A(1) of the FOI Act.
