Secher and James Cook University (Queensland Information Commissioner, 6 June 2012)

REASONS FOR DECISION

Summary

1. The applicant seeks access to a range of documents from James Cook University (JCU) under the Right to Information Act 2009 (Qld) (RTI Act) for specific periods of time and relating generally to her employment with JCU.     

2. JCU released more than 500 pages to the applicant and refused access to a small amount of information. On internal review, JCU affirmed the initial decision to refuse access to a small amount of information and performed further searches for documents relevant to the access applications.  As a result of these further searches, JCU identified a number of additional documents for release to the applicant.

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of JCU’s decisions to refuse access to the small amount of information (refusal of access) contending also that JCU had not located all relevant documents (sufficiency of search).

4. In relation to the refusal of access issue, JCU was entitled to:

• delete irrelevant information as it was unrelated to the access applications; and
• refuse access to the remaining information on the basis that:
• its disclosure would, on balance, be contrary to the public interest; or
• it comprises exempt information on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege.

5. In relation to the sufficiency of search issue, JCU has taken all reasonable steps to locate the documents sought by the applicant and there is a reasonable basis to be satisfied that no additional documents exist.  In determining this, regard was had to:

• JCU’s recordkeeping practices in relation to the types of documents the applicant seeks 
• the nature and extent of the searches conducted by JCU in processing the access applications, on internal review and external review; and
• signed certifications provided by JCU staff that all documents relating to the access applications in the relevant areas had been located.

Background

6. Significant procedural steps relating to the external reviews are set out in the appendix to this decision.

Reviewable decisions

7. The decisions under review are the decisions JCU was taken to have made on internal review affirming the initial decisions.^[1]

Evidence considered

8. Evidence, submissions, legislation and other material I have considered in reaching my decision are disclosed in these reasons (including footnotes and the appendix).

Is JCU entitled to refuse access to the information in issue?

9. Yes, for the reasons that follow.

10. During the external review, the applicant provided extensive submissions to OIC contending that JCU cannot rely on any of the provisions cited for refusing access to the information in issue. The applicant also claimed that OIC could not reveal her submissions to JCU as it would not be in the public interest for a number of reasons and, in her view, her submissions were provided to OIC in confidence.  The process on external review is open and transparent and only in very limited circumstances would the Information Commissioner receive submissions from a review participant in confidence.  This is not such a case.  In summary, the applicant submits that:

• JCU has fraudulently concealed information from her; and  
• JCU’s actions relating to her are tainted and are for an underlying improper/illegal purpose.

11. I find that there is no evidence on the face of the information in issue to support the applicant’s submissions.

Irrelevant information  

12. The applicant applied for access to a range of information generally related to her employment with JCU.  JCU refused access to parts of 11 pages of staff diary notes (Category A information) on the basis that the information was unrelated to the applicant and therefore was not relevant to the access applications.  I have considered the Category A information and am satisfied that it does not relate to the applicant and is not relevant to the access applications.  I find that JCU was entitled to delete the Category A information from the documents on this basis.^[2]   

Contrary to public interest information

13. JCU refused access to three words of an email between a JCU staff member and a staff member of GriffithUniversity(Category B information) on the basis that its disclosure would, on balance, be contrary to the public interest.

14. Under the RTI Act, an individual has a right to be given access to documents of an agency.^[3]  However, this right is subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.^[4]  Relevantly, access may be refused where disclosure would, on balance, be contrary to the public interest.^[5]

15. The RTI Act identifies many factors that may be relevant to deciding the balance of public interest.  It also explains the steps that a decision-maker must take in deciding the public interest.  To decide whether disclosing the information in issue would be contrary to the public interest, I must:^[6]

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure
• balance the relevant factors favouring disclosure and nondisclosure; and
• decide whether disclosure of the information, on balance, would be contrary to the public interest.

16. In this case, the Category B information relates to a staff member’s leave.  I am satisfied that the Category B information comprises the personal information of the relevant staff member^[7] and its disclosure could reasonably be expected to prejudice the protection of the individual’s right to privacy.^[8]  These are factors favouring nondisclosure of the Category B information to which I attribute weight.  I do not consider there are any factors favouring disclosure of the Category B information. I find that JCU was entitled to refuse access to the Category B information on the basis that its disclosure would, on balance, be contrary to the public interest.^[9]  

Legal professional privilege

17. JCU refused access to 8 pages which comprise correspondence passing between JCU and its solicitor and an internal email which refers to instructions provided to JCU’s solicitor (Category C information) on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege.  

18. JCU is entitled to refuse access to a document to the extent it comprises exempt information.^[10]  Information is exempt information if it would be privileged from production in a legal proceeding on the ground of legal professional privilege.^[11] Information is subject to legal professional privilege if it comprises a confidential communication between a legal adviser and client or third party and is made for the dominant purpose of obtaining or providing legal advice.  In some cases, communications may not be subject to legal professional privilege because privilege has been waived, either expressly or impliedly or the improper purpose exception applies.

19. The Category C information consists of correspondence passing between JCU and its solicitor seeking and conveying legal advice and an internal email which refers to instructions provided to JCU’s solicitor. Having examined the communications, I am satisfied that they:  

• comprise direct communications or records of communications between JCU and its solicitors
• are confidential; and
• were made for the dominant purpose of seeking or conveying legal advice.

20. Legal professional privilege will not apply to legal communications made in the furtherance of a fraud or crime. This exception operates to displace legal professional privilege where evidence exists that the relevant client (in this case JCU) has embarked on a deliberate course of action knowing that the proposed actions were contrary to law, and has made the relevant communications in furtherance of that illegal or improper purpose.^[12] 

21. The person alleging that privilege has been displaced by reason of an alleged illegal or improper purpose must show that it is made out in the current circumstances.^[13] In establishing improper purpose, the standard of proof is high. The High Court has observed that it “is a serious thing to override legal professional privilege where it would otherwise be applicable” and as a result “vague or generalised contentions of crimes or improper purposes will not suffice.”^[14]

22. As noted above at paragraphs 10 and 11, I have considered the applicant’s submissions on this issue together with the Category C information. I find there is no evidence on the face of the Category C information that the particular communications were made in furtherance of any illegal or improper purpose.  I am satisfied that the improper purpose exception does not preclude the application of legal professional privilege to the Category C information in the circumstances.

23. I find that JCU was entitled to refuse access to the Category C information as it comprises exempt information on the basis that it would be privileged from production in a legal proceeding on the ground of legal professional privilege.^[15]

Is there a reasonable basis to be satisfied that no additional documents responding to the access applications exist?   

24. Yes, for the reasons that follow.

25. In relation to the sufficiency of search issue, I need to determine whether JCU is entitled to refuse access to the additional documents the applicant believes exist on the basis that they are nonexistent.

Relevant law

26. An individual has a right to be given access to documents of an agency subject to other provisions of the RTI Act including the grounds on which an agency may refuse access to documents.  Relevantly, the RTI Act provides that access to a document may be refused if the document is nonexistent or unlocatable.^[16] 

27. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.^[17]  A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found.^[18] 

28. To be satisfied that documents are nonexistent, a decision maker must rely on their particular knowledge and experience and have regard to a number of key factors.^[19]  When proper consideration is given to relevant factors, it may not be necessary for searches to be conducted. However, if searches are relied on to justify a decision that the documents do not exist, all reasonable steps must be taken to locate the documents.  What constitutes all reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances.    

Findings

29. In deciding that JCU has taken all reasonable steps to locate the additional documents and that there is a reasonable basis to be satisfied that no additional documents exist, I have had regard to:

• JCU’s recordkeeping practices in relation to the types of documents the applicant sought 
• the nature and extent of the searches conducted by JCU in processing the access applications, on internal review and external review; and
• signed certifications provided by JCU staff that all documents relating to the access applications in the relevant areas have been located.

30. The applicant believes that numerous additional documents relevant to her access applications exist and has provided extensive submissions in support of her case which reach almost a hundred pages plus attachments.^[20] JCU performed searches for the relevant documents during its initial processing of the access applications, on internal review and twice on external review.

31. As JCU has conducted searches in response to the applicant’s belief that additional documents exist, the key issue in these reviews is whether JCU has taken all reasonable steps to locate these documents.  In deciding this issue, I do not consider it necessary to deal separately with each of the numerous contentions raised by the applicant, nor JCU’s individual responses as to why particular documents do not exist.

32. On numerous occasions during the external review, OIC made further enquiries with JCU in response to the applicant’s submissions.^[21]  As a result of performing further searches on external review, JCU located a number of additional documents, many of which JCU agreed to release to the applicant.  Where required, JCU responded to the applicant’s specific submissions about the existence of particular documents.  JCU now contends that it has taken all reasonable steps to locate any additional documents and no additional documents exist.

33. JCU provided OIC with detailed information on how its records are stored and why particular search locations were chosen in relation to the access applications.  The search and inquiry process that JCU undertook in response to the access applications can be summarised as follows:

• The RTI Coordinator sent targeted requests to JCU staff who were responsible for maintaining records in the areas where records were expected to exist and, where the records provided showed communications with other staff members, follow up requests were sent to these staff members.
• JCU made specific enquiries with numerous staff members within various units of JCU.  These staff members provided information detailing the extent and nature of the searches performed, the result of these searches and certifications that all documents relating to the access applications in the relevant areas had been located.  
• These staff members conducted physical searches of hardcopy documents such as work diaries, notebooks and handwritten notes of meetings and performed electronic searches of relevant databases within particular units, three email systems, laptops and shared drives using several search terms and the applicant’s name.
• The search certifications indicate that on external review alone JCU staff spent more than 50 hours performing searches for additional documents relevant to the access applications.   

34. Based on JCU’s knowledge of its organisational structure and recordkeeping practices, JCU performed targeted searches and made enquiries with relevant staff to locate documents relevant to the access applications.  Where these documents suggested the existence of more documents, JCU conducted further enquiries with relevant staff.   JCU’s submissions detail a targeted, comprehensive and systematic approach to the searches undertaken and enquiries made to locate the additional documents.  The approach taken was appropriate with reference to the nature of the information sought by the applicant and JCU’s record keeping practices. I accept JCU’s evidence as to its search efforts and enquiries.

35. JCU also provided signed search certifications by relevant staff that all documents relating to the access applications in the possession of JCU have been located. I accept these certifications as further evidence that JCU has taken all reasonable steps to find relevant documents.

36. Having reviewed JCU’s submissions, together with the submissions lodged by the applicant, I am satisfied that JCU has taken all reasonable steps to locate relevant documents, and that there is a reasonable basis to be satisfied that no additional documents responding to the access applications exist.^[22]

DECISION

37. As JCU located additional documents on external review, I vary the decisions under review, but find, for the reasons set out above, that:

• JCU was entitled to:
• delete the Category A information under section 73(2) of the RTI Act; and
• refuse access to the Category B and C information under sections 47(3)(a) and 47(3)(b) of the RTI Act
• as JCU has now taken all reasonable steps to locate relevant documents, access to further documents the applicant contends exist can be refused under sections 47(3)(e) and 52(1)(a) of the RTI Act.  

38. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.

________________________
Suzette Jefferies
Assistant Information Commissioner 

Date: 6 June 2012  

APPENDIX

Significant procedural steps