Pryor and Logan City Council
(270008, 8 July 2010)
Section 67(1) Information Privacy Act – refusal of access
Section 47(3)(e) Right to Information Act – refusal of access
Section 52(1)(b) Right to Information Act – unlocatable documents
The applicant applied to Logan City Council (Council) for access to documents relating to two dog attacks which he had reported. Council granted full access to six documents and partial access to four documents. The applicant expected that more documents would have been located by Council and on that basis, applied to the Office of the Information Commissioner (OIC) for external review.
On external review, Council located a number of additional documents and released these to the applicant. However, the applicant maintained that Council should have further documents in its possession, particularly photographs of injuries he suffered in the first dog attack. The applicant stated that a Council officer attended his residence following the first dog attack and took photographs of his injuries. The applicant submitted that photographs must exist because it was Council's policy to take photographs of injuries suffered in dog attacks.
Council submitted that it conducted extensive searches of all relevant business areas but could not locate the photographs. The investigating officer involved indicated to OIC that there were no photographs of injuries. Council stated that, at the relevant time, its standard recordkeeping practice required the investigating officer to upload photographs into the corresponding investigation report. Council submitted that the absence of injury photographs from the report would ordinarily indicate that photographs were not taken. However, Council submitted that, in the circumstances of this case, it was equally possible that the photographs were taken, not stored in accordance with its standard recordkeeping practice and have since been lost. Council explained that the investigating officer's employment with Council had since ended due to poor work performance. Having regard to that factor, Council submitted that it could not be satisfied as to whether photographs were taken.
The Information Commissioner identified that, where an agency cannot locate documents, the principles in PDE and University of Queensland (Unreported, Qld Information Commissioner, 9 February 2009) are relevant to the question of whether access to unlocatable documents can be refused under section 67(1) of the Information Privacy At 2009 (Qld) (IP Act) and sections 47(3)(e) and 52(1)(b) of the Right to Information Act 2009 (Qld) (RTI Act).
On the basis of the applicant's evidence, references in several Council documents to the applicant's injuries and the poor work performance history of the investigating officer involved, the Information Commissioner found that it was more likely than not that:
· the applicant suffered some level of injury in the first dog attack
· the investigating officer attended the applicant's residence on 26 March 2009 and took photographs of the applicant's injuries
· the investigating officer did not upload the photographs into the investigation report in accordance with Council's standard recordkeeping practice.
The Information Commissioner found that therefore, there were reasonable grounds for Council to be satisfied that the photographs had been, and still should be, in Council's possession. The Information Commissioner also found that Council had taken all reasonable steps to locate the photographs on the basis of:
· the searches and enquiries undertaken by Council in processing the access application and on external review
· the locations in which the photographs could be located
· Council's standard recordkeeping practice at the relevant time and
· Council's organisational structure,
The Information Commissioner found that, in the circumstances, it would not have been reasonable for Council, or OIC, to make any further attempts to contact the investigating officer.
The Information Commissioner accepted that, at the time, Council did not have formal written procedures in place in relation to obtaining and storing photographs. However, the Information Commissioner identified that Council had since amended its policies and procedures and addressed associated staffing issues and that this indicated a responsiveness to improve its policies and procedures.
The Information Commissioner varied the Council's decision and found that access to the photographs could be refused under section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(b) of the RTI Act.
