Richardson and Brisbane City Council
(210678, 11 August 2009)
Section 28A(1) FOI Act – documents nonexistent or unlocatable
The applicant applied to Brisbane City Council (BCC), for access to documents concerning the flooding of her residence on 6 February 2008 (Flooding Incident). BCC provided the applicant with 82 pages, most of which dealt with a later flooding incident in September 2008. The applicant sought an internal review on the basis of insufficiency of search.
On internal review, BCC invoked section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that additional documents did not exist.
The applicant asserted that as the Flooding Incident was significant and involved the despatch of a Clean Up Surcharge Crew to remedy the flooding and a private-sector damage assessor engaged on BCC’s behalf and a potential insurance claim, administrative and reporting documents concerning the Flooding Incident should exist. The applicant also sought to have further issues included in the scope of her initial FOI application. However, Acting Assistant Commissioner Jefferies indicated that issues arising subsequent to the Flooding Incident were out of scope of the FOI application.
BCC submitted that no additional documents existed because:
· its established procedures for documenting and reporting ‘wastewater surchages’ had fallen into disuse because Queensland’s extended period of drought had resulted in the procedures not being required for several years
· inquiries made of BCC’s insurance broker had found that no insurance claim had been made in relation to the applicant’s residence
· BCC’s insurance broker had, upon request, provided all of the documents created by the damage assessor
· BCC has electronic document and record management systems and comprehensive searches were made of these systems.
In PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE), the Information Commissioner indicated that for the purposes of section 28A(1) 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, among other key factors, relevant administrative practices and procedures including but not exclusively information management approaches.
In this review Acting Assistant Commissioner Jefferies accepted that:
· had BCC’s procedures been followed, documents of the type sought by the applicant would have been generated
· the documents would have been locatable within Brisbane Water and searchable by using the applicant’s residence as an identifier
· as the procedures were not followed in this case, no documentation was created.
A/AC Jefferies found that in response to the FOI Application BCC had:
· made inquiries of those locations where the documents sought would be stored if they existed
· conducted searches of its electronic document and record management systems
· made inquiries of the Clean Up Surcharge Crew members.
Accordingly, A/AC Jefferies affirmed BCC’s internal review decision by finding that:
· additional documents to those provided to the applicant do not exist because they were not created
· BCC had taken all reasonable steps to determine whether additional documents exist
· there were reasonable grounds for BCC to be satisfied that additional documents do not exist
· access to the requested additional documents can be refused under section 28A(1) of the FOI Act.