Troiani and Department of Justice and Attorney-General

Application number:
210636
Decision date:
Thursday, Apr 09, 2009

Troiani and Department of Justice and Attorney-General
(210636, 9 April 2009)

 

Section 28A (1) – refusal of access – document nonexistent

 

The applicant applied to the Department of Justice and Attorney-General (Department) for access to a transcript of the proceedings in a chambers matter heard before the Chief Justice of the Supreme Court on 19 March 2001 (Proceedings).

 

In the original decision, the Department’s decision-maker indicated that the relevant hearing file had been recalled from archives on two occasions but neither an audio record nor a transcript of the Proceedings was located on the file.  The decision-maker also referred, by way of explanation, to a lack of recording facilities in the chambers of the Chief Justice.  On internal review the Department’s decision-maker refused access to the transcript under section 28A(1) of the Freedom of Information Act 1992 (Qld) (FOI Act) on the bases that:

 

·          matters heard in chambers are not generally recorded and that it is at the discretion of the presiding judge whether or not to require a recording

·          there was no record on the file that the Proceedings were recorded. 

 

The applicant applied to the Office of the Information Commissioner (Office) for external review of the internal review decision.

 

In her submissions the applicant indicated that her belief that a transcript of the Proceedings either exists or had previously existed (and had since been destroyed) was based on information provided to her by her late husband, that is, that he had ordered a copy of the transcript on 14 July 2004 from the State Reporting Bureau (SRB) and had been directed to return the following day to pick up the transcript.  However, the next day the SRB informed Mr Troiani that the Proceedings had not been recorded. 

 

In response to inquiries from the Office the Department provided additional information on the processes for recording court proceedings at the relevant time.   Significant steps/matters in the process included that:

 

·          matters heard in court rooms (including chambers matters) were recorded as a matter of course

·          if a proceeding was recorded, an entry was made on a manual log

·          each court matter has an individual file

·          transcripts are not automatically made of every recording but are made upon request or where the circumstances of the matter require a transcript

·          recordings and transcripts (where made) are held on the relevant court file at all times.

 

Having considered the parties’ submissions and the available evidence, Acting Assistant Commissioner Jefferies found that:

 

·          the Proceedings were one of 15 chambers matters listed for 19 March 2001

·          the Proceedings were heard in Court 5 and not in the Chief Justice’ chambers

·          there was no record of the Proceedings having been recorded in the manual log

·          no audio recording or transcript of the Proceedings are held on the relevant file.

 

Applying the reasoning in PDE and the University of Queensland (unreported decision of the Office of the Information Commissioner of 9 February 2009) Acting Assistant Commissioner Jefferies concluded that:

 

·          as the Proceedings were heard in a court room it is reasonable to expect that in accordance with usual practice, they would have been recorded

·          however, in this instance there was no evidence that the Proceedings were recorded

·          as the Proceedings were not recorded, no transcript of the Proceedings was made

·          the Department had taken all reasonable steps to locate the transcript sought by the application

·          there were reasonable grounds for the Department to be satisfied that the transcript does not exist.

 

Accordingly, Acting Assistant Commissioner Jefferies found that access to the transcript could be refused under section 28A(1) of the FOI Act.