ROM212 and Queensland Fire and Emergency Services [2016] QICmr 35 (9 September 2016)

REASONS FOR DECISION

Summary

1. The applicant applied to the Queensland Fire and Emergency Services (QFES)¹ under the Information Privacy Act 2009 (Qld) (IP Act) for access to his personal information and other workplace information.

2. QFES refused to deal with the access application on the basis that the application was not limited to the applicant’s personal information and could not be processed under the IP Act.²

3. The applicant applied to the Office of the Information Commissioner (OIC) for an external review of QFES’s decision.

4. For the reasons set out below, I set aside QFES’s decision and find that QFES may refuse to deal with the access application on the basis that the work involved in dealing with it would substantially and unreasonably divert QFES’s resources from their use in the performance of QFES’s functions.³

Background

5. The Original Scope of the applicant’s application sought:

• all documents⁴ about the applicant, where he was named or referred to or where his identity could reasonably be inferred
• documents pertaining to a workplace investigation including where the applicant was the subject of the investigation
• documents relating to the handling of the applicant’s payroll
• the applicant’s personnel file
• specific investigation reports; and
• documents relating to QFES’s general internal handling of sexual harassment matters.⁵

6. QFES notified the applicant⁶ under section 54(2) of the IP Act that QFES considered the Original Scope did not concern his personal information and therefore the application could not be made under the IP Act but it could be dealt with under the Right to Information Act 2009 (Qld) (RTI Act).  QFES invited the applicant to limit the application to his personal information or pay an application fee and have the application processed under the RTI Act.

7. In a conversation with the QFES decision-maker on 18 August 2015, the applicant agreed to limit the scope of the access application to his personal information (IP Scope).

8. Nevertheless, QFES decided to refuse to deal with the access application, on the basis that it was not limited to the applicant’s personal information and could not be processed under the IP Act.

9. On external review, QFES accepted that it could not refuse to deal with the application under section 54(5)(b) of the IP Act.

10. On 23 September 2015, OIC requested that, by 8 October 2015, QFES:

• locate documents responsive to the IP Scope;⁷ and
• provide a copy of those documents to OIC, marked up to reflect any information which QFES claimed should be refused under the IP Act.

11. On 25 November 2015, QFES submitted that the work involved in processing the IP Scope access application would substantially and unreasonably divert its resources.

12. By 15 December 2015, QFES provided OIC with a copy of all documents located by it in response to the IP Scope, comprising approximately 13,000 pages (13,000 Pages). The 13,000 Pages were not marked up to reflect the information QFES considered should not be disclosed.

13. On perusal of the 13,000 Pages, OIC observed that a substantial portion of the information on these pages fell outside the IP Scope, as it was:

• information relating to the employment, leave and investigation interview arrangements of individuals other than the applicant
• information about complaints and incidents that do not involve or relate to the applicant
• information recording actions taken to implement various workplace investigation report recommendations which do not involve or relate to the applicant
• QFES newsletters; and
• information which falls outside the date range of the application.

14. OIC also identified a significant level of duplication within the 13,000 Pages.  OIC raised these matters with QFES⁸ and noted that exclusion of the documents falling outside the IP Scope and duplicates would significantly reduce the volume of information to be considered on external review.

15. OIC then consulted with the applicant in January 2016 about reducing the scope of the application from the IP Scope to a narrower form.  The applicant agreed⁹ to exclude certain categories of information¹⁰ from the application, thereby further narrowing the scope of the application (Narrowed Scope).  OIC asked QFES¹¹ whether it would agree to process the application with the Narrowed Scope. QFES did not agree to process the application with the Narrowed Scope and submitted¹² that the work involved in processing the application remained a substantial and unreasonable diversion of its resources, based on its assumption that approximately 4200 pages of the 13,000 Pages would be responsive to the Narrowed Scope.

16. In July 2016, OIC then invited the parties to consider further options to informally resolve the review.  At OIC’s invitation, the applicant proposed¹³ an alternative scope for a new access application, as the basis for an informal resolution proposal (New Application Scope).¹⁴ QFES did not agree¹⁵ to this informal resolution proposal. Accordingly, OIC invited QFES¹⁶ to nominate a scope for a new application that it would agree to process, as the basis for an informal resolution proposal. QFES did not nominate any application scope that it would agree to process.¹⁷

17. Significant procedural steps relating to the external review are set out in the Appendix.

Reviewable decision

18. The decision under review is QFES’s decision dated 25 August 2015.

Evidence considered

19. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix).

Information in issue

20. As set out at paragraph 34 below, I consider that it is reasonable to proceed on the basis that between 5000 and 6000 pages of the 13,000 Pages provided to OIC by QFES is a fair estimation of the number of pages responsive to the IP Scope.

Issue for determination

21. The issue for determination is whether the work involved in dealing with the applicant’s application seeking information falling within the IP Scope¹⁸ would, if carried out, be a substantial and unreasonable diversion of QFES’s resources.

22. As demonstrated in the Appendix and the discussion above under the heading ‘Background’, a significant period of time during the external review process was devoted to assessing QFES’s claim regarding section 54 of the IP Act, perusing the 13,000 Pages to identify information which was not responsive to the IP Scope and pursuing possible informal resolution options.  However, in light of QFES’s acceptance that it could not rely on section 54 of the IP Act to refuse to deal with the application, it is not necessary to make a finding on that point.  Therefore, in making my findings below, I have only considered the parties’ submissions to the extent they relate to the substantial and unreasonable diversion issue, set out at paragraph 21 above.

Relevant law

23. Parliament intends that an agency receiving an access application will deal with that application unless dealing with the application would, on balance, be contrary to the public interest.¹⁹ The limited circumstances in which dealing with an access application will be contrary to the public interest are set out in sections 59, 60 and 62 of the IP Act.

24. Relevantly, section 60 of the IP Act permits an agency to refuse to deal with an access application if the agency considers the work involved in dealing with the application would, if carried out, substantially and unreasonably divert the resources of the agency from their use by the agency in the performance of its functions.²⁰

25. In deciding to refuse to deal with an application on this basis, an agency:

(a) must not have regard to any reasons the applicant gives for applying for access or the agency’s belief about what are the applicant’s reasons for applying for access;²¹ and

(b) must have regard to the resources that would be used for:²²

• identifying, locating or collating the documents
• making copies, or edited copies of any documents
• deciding whether to give, refuse or defer access to any documents, including resources that would have to be used in examining any documents or conducting third party consultations; or
• notifying any final decision on the application.

26. Whether the work involved in dealing with an application would, if carried out, substantially and unreasonably divert the resources of an agency is a question of fact in each individual case.²³ The volume of documents is not the only consideration.  In each case, it is necessary to assess the work required to deal with the application in the context of the agency’s other functions.

27. On external review, OIC may decide any matter in relation to an access application that could, under the IP Act, have been decided by an agency.²⁴ Accordingly, OIC may determine that requiring an agency to process an access application would be a substantial and unreasonable diversion of the agency’s resources, and decide to refuse to deal with an application under section 60 of the IP Act.

28. The IP Act does not expressly address the procedural requirements to be met by OIC before making a decision to refuse to deal with an application on this basis.  However, generally, the IP Act provides that the procedure to be taken on external review is at the discretion of the Information Commissioner.²⁵

Analysis

What work would be involved in dealing with the access application?

29. QFES submitted²⁶ that processing the access application with the IP Scope would involve examining and undertaking relevant redactions of approximately 7000 pages,²⁷ and this would take a decision-maker, working solely on the application, 9-10 weeks to process the application.²⁸

30. QFES also provided OIC with a more detailed processing estimate in support of its position that processing the Narrowed Scope²⁹ would be a substantial and unreasonable diversion of its resources. This estimate specified that processing the Narrowed Scope would involve consideration of approximately 4200 pages and would require:

• 109 hours to locate relevant pages and exclude duplicates³⁰
• 5 hours to create and update a document register
• 140 hours to examine documents³¹
• 10 hours for consultation; and
• 14 hours to prepare the written decision.

31. The above estimate relates to the Narrowed Scope, whereas the relevant scope for the purpose of this decision is the IP Scope.  However, I have included the above estimate in this decision, as doing so provides some context for the estimations regarding the processing of the IP Scope set out in the following paragraphs.

32. In processing the applicant’s application, QFES was required to search its record keeping systems to identify and collate documents within its possession or control responsive to the IP Scope.³² In other words, because the applicant had limited the application to his personal information, QFES’s searches should have reflected that limitation.  Instead, on OIC’s perusal of the 13,000 Pages, it is apparent that the 13,000 Pages includes a substantial portion of information which falls outside the IP Scope and a large amount of duplication.  This has the effect of artificially inflating the number of responsive pages QFES submits it is required to process.

33. In these circumstances, it is difficult for OIC to reach an estimate regarding the amount of time required to identify, locate and collate responsive documents.  As noted at paragraph 30 above, in respect of the Narrowed Scope, QFES submits that it would take 109 hours to undertake a review of the 13,000 Pages to identify, locate and collate responsive information responsive to this scope.  Had QFES’s search efforts reflected the IP Scope, there would be no requirement to undertake a review of this nature.  While I acknowledge that the manner in which QFES would process the access application is a matter for QFES, I also note that conducting fresh searches for documents responsive to the IP Scope would remove any need for QFES to review the 13,000 Pages, to exclude those which would not need to be processed.  Otherwise, I note that, in QFES’s submissions, QFES indicated that information within the 13,000 Pages was in different forms, and it was therefore necessary to convert relevant information to a readily accessible format for processing.  Taking these matters into consideration, I consider it reasonable to estimate that it would take QFES 21 to 28 hours to identify, locate and collate information responsive to the IP Scope.

34. Based on OIC’s perusal of the 13,000 Pages and QFES’s submissions in respect of the IP Scope³³ and Narrowed Scope,³⁴ I consider that it is reasonable to proceed on the basis that between 5000 and 6000 pages of the 13,000 Pages is a fair estimation of the number of pages located by QFES that would be responsive to the IP Scope.

35. Following collation of this information, QFES would then need to assess it for relevance, identify duplicates and determine if access could be granted under the IP Act. QFES estimates that it would assess and redact information at a rate of 30 pages per hour.  On the material before me, including the 13,000 Pages, I am satisfied this is a reasonable processing rate.  Based on that rate, it would take between 167 and 200 hours to examine and redact 5000 to 6000 pages of information.

36. As a result of OIC’s perusal of the 13,000 Pages and the context in which any third party personal information is likely to appear, I consider it unlikely that QFES would be required to consult with any third parties under section 56 of the IP Act about the likely disclosure of information.  However, if I am incorrect and consultation is required, I consider that such consultation would likely to be limited to a small volume of information.

37. QFES estimates that, following examination and redaction of information, it would take 14 hours to prepare a written decision.  I am satisfied this is a reasonable estimate, particularly as QFES indicated³⁵ that a schedule of documents would be prepared and attached to the decision.

38. In summary, based on careful consideration of the material available me, I consider that processing the applicant’s application for information falling within the IP Scope would take approximately 202 to 242 hours.

Would the impact on QFES’s functions be substantial and unreasonable?

39. Yes.  I am satisfied that processing the access application with the IP Scope would substantially and unreasonably impact QFES’s functions for the reasons set out below.

Would the work substantially divert QFES’s resources?

40. Based on QFES’s estimates for examining and redacting responsive information and issuing a decision, it would take between 202 and 242 hours to process the access application.  This equates to approximately 28 to 33 working days for one full time decision-maker working exclusively on the access application, and exceeds the usual processing period allowed for processing an application.³⁶

41. Given this estimate of the time required to deal with the application, and considering QFES’s capacity to devote resources to processing applications under the RTI and IP Acts relative to its other functions, I am satisfied that the work involved in dealing with the application, in particular taking a decision-maker offline for such a long period, would, if carried out, substantially divert the resources of QFES from their use in the performance of its functions.

Would the work unreasonably divert QFES’s resources?

42. In determining whether the work involved in dealing with an application is unreasonable, it is not necessary to show that the extent of the unreasonableness is overwhelming.  Rather, it is necessary to weigh up the considerations for and against, and form a balanced judgement of reasonableness, based on objective evidence.³⁷

43. Factors that have been taken into account in considering this question include:³⁸

• whether the terms of the request offer a sufficiently precise description to permit the agency, as a practical matter, to locate the documents sought within a reasonable time and with the exercise of reasonable effort
• the public interest in disclosure of documents relating to the subject matter of the request
• whether the request is a reasonably manageable one, giving due but not conclusive, regard to the size of the agency and the extent of its resources usually available for dealing with access applications
• the agency’s estimate of the number of documents affected by the request, and by extension the number of pages and the amount of officer time
• the reasonableness or otherwise of the agency’s initial assessment and whether the applicant has taken a cooperative approach in redrawing the boundaries of the application
• the timelines binding on the agency
• the degree of certainty that can be attached to the estimate that is made as to the documents affected and hours to be consumed; and in that regard, importantly whether there is a real possibility that processing time may exceed to some degree the estimate first made; and
• whether the applicant is a repeat applicant to that agency, and the extent to which the present application may have been adequately met by previous applications to the agency.

44. As the issue of substantial and unreasonable diversion of resources only arose on external review, some of these factors are not relevant in this case.

45. It is disappointing that QFES did not nominate a further narrowed scope for an access application that it would agree to process, in an effort to informally resolve this review.  I consider that the applicant has been cooperative on external review in seeking to narrow the application and, when doing so, has clearly identified the information to which he seeks access.  There is no information available to me which suggests the applicant is a repeat applicant to QFES or that the applicant has sought access to the same information from QFES previously.

46. In terms of the public interest in disclosure of the documents responsive to the IP Scope, my views are necessarily qualified, given that they are based on information gleaned from OIC’s perusal of the 13,000 Pages rather than a more thorough assessment.  Noting this qualification, I consider that there is some public interest in the applicant having access to his own personal information, and I am prepared to accept that the application may relate to matters which could potentially enhance the accountability and transparency of QFES.  However, it also appears that, given the nature of the request, these public interest factors may apply only in relation to the applicant, and may not be a matter of serious interest to all or a substantial segment of the community.  Otherwise, I also note that OIC’s perusal of the 13,000 Pages indicates that at least some of the documents responsive to the IP Scope may contain information that has already been released to the applicant.³⁹ In these circumstances, I do not consider it likely that processing the application would further the public interest to any significant degree.

47. QFES’s processing estimates were submitted to OIC at a time when PSBA was processing access applications on behalf of QFES.⁴⁰ In determining whether the application is reasonably manageable for QFES, I am required to consider the resources reasonably required to deal with the application, consistent with QFES’s attendance to its other priorities. I do not regard 202 to 242 hours of work to be reasonably manageable in the current case, particularly in light of the need to process other access applications and complete other QFES functions.  For QFES, I am satisfied that taking one full time decision-maker offline for what equates to 28 to 33 working days to process the application would amount to an unreasonable diversion of QFES’s resources.

Conclusion

48. For the reasons set out above, I am satisfied that the work involved in dealing with the access application with the IP Scope would, if carried out, substantially and unreasonably divert QFES’s resources from their use in QFES’s functions.

DECISION

49. For the reasons set out above, I set aside QFES’s decision and find that QFES may refuse to deal with the access application on the basis that the work involved in dealing with it would substantially and unreasonably divert QFES’s resources from their use in the performance of QFES’s functions.⁴¹

50. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.

________________________
A Rickard
Acting Assistant Information Commissioner

Date: 9 September 2016

APPENDIX

Significant procedural steps

1 The access application was processed by the Public Safety Business Agency (PSBA) on behalf of QFES and PSBA initially acted on behalf of QFES in this external review.  However, following the tabling in Parliament of the report into the review of PSBA on 17 February 2016, PSBA ceased to act on behalf of QFES in this external review, with responsibilities moving to a QFES decision-maker in late July 2016.  In the circumstances, in this decision I will refer to QFES as being the relevant processing and external review entity.
2 Under section 54(5)(b) of the IP Act.
3 Under section 60(1)(a) of the IP Act.
4 The applicant specified this would include emails, attachments to emails, other communications, investigation and other types of report, transcripts and notes of interviews and meetings, meeting minutes and notes, correspondence with the Office of the Director-General, Office of the Premier, the Fire and Emergency Services Minister, Queensland Liberal National Party, Queensland Police Service, Queensland Ambulance Service, Ethical Standards Unit and other departments within PSBA.
5 The access application covered the period from December 2013 to 17 July 2015.
6 By letter dated 13 August 2015.
7 OIC’s request specifically enunciated that QFES was to locate documents which were responsive to the Original Scope and contained the applicant’s personal information.
8 By letter dated 4 February 2016.
9 By email dated 18 January 2016.
10 Being duplicate documents, correspondence sent to or from the applicant or his representative relating to the suspension and termination of the applicant’s employment, QIRC documents relating to the applicant, correspondence sent to or from the applicant regarding the workplace investigation, the applicant’s letter and statement to the workplace investigation and newspaper articles about the applicant.
11 By letter dated 4 February 2016.
12 By letter dated 2 March 2016.
13 By email dated 8 August 2016 and confirmed by email dated 18 August 2016.
14 Being ‘The following documents (Including emails, notes, tasks, letters, mail, correspondence, fax, memos, text messages/SMS, file notes, reports and transcripts – but excluding the following: duplicate documents; letters, emails, documents sent to or from me relating to my suspension and termination, including correspondence with my union representative and relevant show cause notices/responses; my application to QIRC, QIRC directions and the employer submissions to QIRC; emails and correspondence sent to or from me regarding the Ashdale Workplace Solutions investigation (eg regarding the interview process); my letter dated 28 September 2014 and attached statement regarding the strawpoll; and newspaper articles about me) about myself held by Queensland Fire and Emergency Services (QFES):
1. My complete personnel file, in particular to confirm my employment status as a Senior Fire Fighter (as referred to in information concerning the Ashdale Workplace Solutions investigation)
2. all documents pertaining to the decision making process of QFES that led to my suspension without pay on 24 December 2014; and
3. all documents pertaining to the referral of my conduct by QFES to the Crime and Corruption Commission
Date range: December 2013 to present.’
15 On the basis that QFES considered item 1 of the New Application Scope sought personnel records which are not documents of QFES, as they are held within Queensland Shared Services (QSS), and item 2 of the New Application Scope was too wide.
16 By email dated 1 September 2016.
17 By email dated 2 September 2016.
18 The Narrowed Scope and New Application Scope were proposed and considered on external review as procedures taken under section 108(1)(a) of the IP Act akin to those required of agencies in section 61(1) of the IP Act and/or in exploration of informal resolution options in accordance with section 103(1) of the IP Act. However, neither were accepted by QFES. Accordingly, the IP Scope is the relevant scope for the purpose of this decision.
19 Section 58 of the IP Act.
20 Section 60(1)(a) of the IP Act.  Before making a decision to refuse to deal with an application under section 60(1)(a), an agency must satisfy certain procedural prerequisites set out in section 61 of the IP Act.  However, in this case, as the issue of substantial and unreasonable diversion of resources was raised by QFES on external review, I am not required to make any determination regarding the satisfaction of the procedural requirements in section 61 of the IP Act.
21 Section 60(3) of the IP Act.
22 Section 60(2) of the RTI Act.
23 Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10 (22 February 2013) at [28].
24 Section 118(1)(b) of the IP Act.
25 Section 108(1)(a) of the IP Act.
26 Submission dated 25 November 2015.
27 Note—this estimate of responsive pages was made before the 13,000 Pages was provided to OIC.
28 Based on examining and redacting 7000 pages, at 20 pages per hour.
29 Submissions dated 2 March 2016.
30 Based on the decision-maker being required to review all of the 13,000 Pages to identify and locate those documents which fall within the Narrowed Scope.
31 Based on examining and redacting 4200 pages, at 30 pages per hour.
32 Refer to section 12 of the RTI Act, which relevantly defines a ‘document’ of an agency as a document in the possession, or under the control, of an agency whether brought into existence or received by the agency and includes documents to which an agency is entitled to access.
33 Submission dated 25 November 2015, in which QFES estimated that approximately 5000-7000 pages fell within the IP Scope.
34 Submission dated 2 March 2016, in which QFES estimated that approximately 4200 pages fell within the Narrowed Scope.
35 In its more detailed submissions dated 2 March 2016, relating to the Narrowed Scope.
36 Under section 22 of the IP Act, the processing period for an access application is 25 business days.  Whilst this period can effectively be extended in certain circumstances as certain periods do not count as part of the processing period, it is relevant to have regard to this timeframe when considering whether the time involved in processing a single access application will have a substantial impact on an agency’s resources.
37 Smeaton v Victorian WorkCover Authority (General) [2012] VCAT 1550 (Smeaton) at [30], citing Re SRB and Department of Health, Housing, Local Government and Community Services (1994) 19 AAR 178 at [34].
38 Smeaton at [39].
39 In relation to his separate access applications to other agencies, which have been the subject of completed external reviews 312584 and 312630.
40 Those submissions dated 25 November 2015 and 2 March 2016 noted that PSBA had 16 delegated decision-makers.
41 Under section 60(1)(a) of the IP Act.