Sanderson and Department of Justice and Attorney-General
(210507, 28 January 2009)
Section 28A(2) Refusal of access – document nonexistent or unlocatable
The applicant sought access to a psychological report (Report) of the principal witness in the applicant’s trial, which the Department of Justice and Attorney-General (Department) was deemed to have refused access to under section 27(5) of the Freedom of Information Act 1992 (FOI Act).
In the course of the review, the Department undertook searches to locate the Report. Having been unable to locate the Report as a result of these searches, the Department submitted that the test for section 28A of the FOI Act was met.
Applying the principles of Shepherd and Department of Housing, Local Government and Planning (1994) 1 QAR 464, Assistant Commissioner Henry found that while there were reasonable grounds to believe that the Report existed and was a document of the agency, as the Department had been unable to locate a copy of the Report as a result of reasonable search efforts, the Department was entitled to rely on section 28A(2) of the FOI Act to refuse access to the Report.
Section 44(1) Matter affecting personal affairs
The applicant sought access to two witness statements of the principal witness (Witness Statements) in the applicant’s trial, which the Department was deemed to have refused access to under section 27(5) of the FOI Act.
Assistant Commissioner Henry found that the Witness Statements concerned the personal affairs of persons other than the applicant and were, prima facie, exempt from disclosure under section 44(1) of the FOI Act, subject to the application of the public interest balancing test. Weighing the public interest considerations favouring disclosure against the public interest considerations favouring non-disclosure, Assistant Commissioner Henry found that in the circumstances of this case, the public interest favoured disclosure of the Witness Statements to the applicant.
Assistant Commissioner Henry also considered whether the principal witness should be notified of the external review under section 78 of the FOI Act, to enable the principal witness to provide submissions regarding the disclosure of the Witness Statements, or apply to become a participant in the review. Having carefully considered the relevant issues, Assistant Commissioner Henry determined that disclosure of the Witness Statements could not reasonably be expected to be of substantial concern to the principal witness, given the public treatment of those statements in the past and the applicant’s existing knowledge of their content. Accordingly, it was not necessary for the principal witness to be notified of the external review.