Section 55 – information as to existence of particular documents
The applicant applied, under the Right to Information Act 2009 (Qld) (RTI Act), to the Department of Police (Department) for access to documents (Access Application) relating to:
· a complaint made to the Department regarding a criminal offence which allegedly occurred in Toowoomba in 1975
· any corresponding admission made by the alleged offender.
The Department refused to deal with the Access Application on the basis of section 40 of the RTI Act (Decision). In its reasons for Decision, the Department neither confirmed nor denied the existence of the documents sought by the applicant. The applicant applied to the Information Commissioner for external review of the Decision.
On external review, the Information Commissioner identified that the reasons for the Decision did not disclose a basis on which the Department could rely on section 40 of the RTI Act to refuse to deal with the Access Application because the reasons did not:
· identify an exemption provision in schedule 3 of the RTI Act
· give reasons as to why the documents sought were exempt information.
Accordingly, the Information Commissioner gave the Department an opportunity to make an alternative submission to support its refusal to deal with the Access Application. In response, the Department submitted that, under section 55 of the RTI Act, it neither confirmed nor denied the existence of the documents sought by the applicant.
The Information Commissioner identified that when an agency relies on section 55 of the RTI Act to neither confirm nor deny the existence of documents, an agency must demonstrate that the information sought by the applicant is 'prescribed information' as that term is defined in schedule 6 of the RTI Act. For the purposes of this review, the Information Commissioner identified that part (b) of the definition of 'prescribed information' was relevant, that is, the information must be:
· personal information
· the disclosure of which would, on balance, be contrary to the public interest under section 47(3)(b) of the RTI Act.
Based on the nature of the documents sought by the applicant, particularly the specific reference to other individuals, the Information Commissioner found that the documents, if they existed, would contain personal information of individuals other than the applicant.
In deciding whether disclosure of the documents, if they existed, would, on balance, be contrary to the public interest, the Information Commissioner found that:
· the public interest relating to the administration of justice should not be afforded any weight as the information (if it exists) could not reasonably be expected to contribute to the administration of justice
· the public interest in protecting other individuals' right to privacy should be attributed substantial weight
· the type of personal information that the documents would contain (if they exist) could reasonably be expected to cause a public interest harm, if disclosed.
On balance, the Information Commissioner found that disclosure of the documents (if they existed) would be contrary to the public interest.
The Information Commissioner decided that the Department was entitled to neither confirm nor deny the existence of documents sought by the applicant under section 55 of the RTI Act on the basis that, if the documents sought by the applicant did exist, they would be documents to which access would be refused under section 47(3) of the RTI Act because they contain prescribed information.