UFH1L1 and Cairns and Hinterland Hospital and Health Service [2015] QICmr 35 (16 December 2015)

REASONS FOR DECISION

Summary

1. The applicant applied to the Cairns and Hinterland Hospital and Health Service (CHHHS) for access to a wide range of information about the applicant’s employment and various workplace issues.¹

2. CHHHS located 681 pages. Of these pages, it decided:

• to release 532 pages in full and 148 pages subject to the deletion of personal information of individuals other than the applicant (Decision Documents); and
• that the remaining page was outside the scope of the application.²

3. The applicant applied to the Office of the Information Commissioner (OIC) for an external review regarding the sufficiency of CHHHS’s searches for documents responsive to her application.

4. During the course of the external review, CHHHS located 51 additional pages. It released 48 of these pages in full and three pages Subject to the deletion of personal information of individuals other than the applicant (Additional Documents).

5. The applicant maintains her contention that CHHHS should have located further documents responsive to her application.

6. For the reasons set out below, I vary CHHHS’s decision under review and find that some further documents raised by the applicant are outside the scope of her access application to CHHHS, while the remainder of further documents raised by her may be refused under sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that they are nonexistent or unlocatable.

Background

7. Significant procedural steps relating to the application and external review are set out in the Appendix.

Reviewable decision

8. The decision under review is CHHHS’s decision dated 4 December 2014.

Evidence considered

9. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including the footnotes and Appendix).

Applicant’s submissions

10. The applicant provided many submissions to OIC supporting her case.³ Whilst I have carefully considered all of the applicant’s submissions, not all matters raised are relevant to the issue for determination.  I have summarised and addressed the applicant’s submissions below to the extent they are relevant to the issue for determination.

11. In respect of the applicant’s submissions that are not relevant to the issues for determination, these generally relate to the applicant’s contentions that she was not afforded due process by Queensland Health (QH) in its dealings with her regarding her employment, and that actions taken by it during the course of her employment were discriminatory and unjust.  OIC’s jurisdiction under the RTI Act relates only to decisions about access to documents held by agencies and does not extend to consideration of these matters.

12. Generally, the applicant submits that there are ‘many more omissions, or documentation that has simply not been produced’.⁴ On careful consideration of the applicant’s submissions, OIC has identified that the applicant considers that the following types of documents should have been located by CHHHS:⁵

13. The applicant also submits:

The split agency/services of QH’s Workplace Services in Brisbane and Cairns Hospital has impacted on sufficiency of search.⁸

and:

My contention has always been, that regardless of what file Shared Services (QH) have about me, I should be allowed a copy of all documentation generated in my former workplace that directly impacted me. The division of Shared Services (QH) and Cairns Hospital did not exist in 2010.⁹

Agency’s submissions

14. During the course of the external review, OIC asked¹⁰ CHHHS to:

• provide submissions about the searches for documents responsive to the access application that CHHHS conducted before issuing its decision and have relevant officers who conducted these searches complete search certifications
• consider the further documents raised by the applicant¹¹
• if CHHHS decided additional searches needed to be conducted—provide submissions and search certifications regarding these searches and, if any additional documents were located, advise whether it was prepared to give access to them in full or part; and
• if CHHHS considered that further documents do not exist or cannot be located—provide submissions setting out its reasons for reaching that conclusion.

15. In response,¹² CHHHS:

• conducted further searches
• located and agreed to release the Additional Documents¹³
• provided OIC with search certifications and records of its searches; and
• made submissions regarding nonexistent or unlocatable documents.

Applicant’s further submissions

16. The applicant raised the documents at items 9) to 11) in paragraph 12 above after OIC issued its first request to CHHHS to make submissions regarding the sufficiency of its searches for documents responsive to the access application.¹⁴ However, OIC was satisfied that CHHHS’s responses regarding documents at items 1) to 8) covered the types of documents raised at items 9) to 11), except for specific letters requested at item 10).¹⁵ OIC made further enquiries with CHHHS regarding its searches for these letters. In response, CHHHS submitted that the searches conducted by it to date (that is, initially and on external review) would have located such letters if they were held by CHHHS. OIC was satisfied with this response.¹⁶

17. The applicant also made many submissions to OIC after OIC issued its first preliminary view to her.¹⁷ On careful consideration of the entirety of these submissions, OIC noted that, in relation to the documents at item 11) in paragraph 12 above, the applicant raised three more named individuals and types of documents other than correspondence (ie, evidence).¹⁸ Accordingly, OIC has proceeded on the basis that the applicant considers that the following type of documents should have been located by CHHHS:

18. OIC remained satisfied that CHHHS’s responses regarding documents at items 1) to 8) addressed all documents falling within the documents identified within the expanded category of documents at item 11). Otherwise, OIC was satisfied that the applicant’s further submissions¹⁹ reiterated her previous submissions or raised documents that fell within the types of documents set out at paragraph 12 above.²⁰

Issues for determination

19. The submissions by the applicant and CHHHS raise the following two issues for determination:

• Issue 1: whether the further documents that the applicant contends should have been located fall within the scope of the applicant’s access application; and
• Issue 2: whether access to further documents that the applicant contends should have been located can be refused on the basis that they are nonexistent or unlocatable under sections 47(3)(e) and 52(1) of the RTI Act.

Issue 1:  Are the documents within the scope of the access application?

Relevant law

20. Under the RTI Act, an individual has a right to be given access to documents of an agency, subject to the limitations in the RTI Act.²¹ A person who wishes to be given access to documents of an agency under the RTI Act may apply to the agency for access to them.²² Once OIC determines that a document is outside the scope of the access application in question, it cannot further consider the document in an external review arising from that application.

Analysis

21. It is my understanding that, given that the work areas that were primarily responsible for actions regarding the applicant’s employment are now based in CHHHS, not QH, the applicant submitted her access application to CHHHS. The applicant contends that the application should cover documents that have remained with QH, as well as documents held by CHHHS.

22. In the time since the actions of concern to the applicant regarding her employment were taken by QH, local hospital and health services, including CHHHS, have been established.²³ The boards of such services exercise significant responsibilities at the local level, including responsibilities regarding matters that were, in the applicant’s case, dealt with by QH.

23. Under the RTI Act, each hospital and health service is a ‘public authority’ that comprises an ‘agency’,²⁴ and QH remains a separate agency. It follows that, under the RTI Act, access applications may be made to CHHHS for documents in the possession or under the control of that agency, and to QH for documents in the possession or under the control of that agency.²⁵

24. The applicant submits²⁶ that it is relevant to consider when, how and why documents of QH and CHHHS were divided between the two agencies. However, the merits review process undertaken on external review entails making findings of fact regarding circumstances as they are at the time of the external review decision²⁷—not circumstances that existed at the time the documents were created or received.

25. I am satisfied that, because the applicant’s access application was made to CHHHS, it can²⁸ relate only to documents that are in the possession or under the control of that agency.²⁹ It is not possible, on external review, to extend application of the access application to documents in the possession or under the control of QH as well.³⁰

Findings

Documents at items 3) to 8), and 10) to 11)

26. On the information before me, I consider that the documents at items 3) to 8), and 10) to 11) relate to matters that were dealt with by work areas now based in CHHHS. I also note that CHHHS has at no stage suggested that such documents are documents of work areas that have remained with QH. In these circumstances, I am satisfied that documents at items 3) to 8), and 10) to 11) would—if they exist—be in the possession or under the control of CHHHS, and therefore be documents of CHHHS. Accordingly, in relation to each of these types of documents, I am satisfied that they fall within the scope of the applicant’s access application to CHHHS.

Documents at item 9)

27. I am similarly satisfied regarding some, but not all, of the documents at item 9). In relation to these documents, the applicant submitted that CHHHS should have located documents ‘back as far as 2007-8 and into 2010-11’. However, given that the applicant’s access application specified the period 2008 to 2012, only documents falling within this period can fall within the scope of her access application.

Documents at item 1)

28. In relation to the documents at item 1), I note that the Workplace Services unit was, at the time the actions of concern to the applicant were taken, a business unit of QH and remains so. For this reason, I am satisfied that the records collated and generated by the Workplace Services unit sought by the applicant remain in the possession and under the control of QH.

29. During the course of processing the access application, CHHHS agreed with the applicant to liaise with QH’s Workplace Services unit regarding copies of records held by that unit that involved only CHHHS staff. As a result of this process, QH agreed to search for and provide such records to CHHHS, and CHHHS then released them to the applicant pursuant to its decision. I am satisfied that this course of action by CHHHS and QH is consistent with the position that documents held by QH’s Workplace Services unit are within the possession and under the control of QH—not CHHHS.

30. In conclusion, I find that the documents at item 1) are not documents in the possession or under the control of CHHHS, and therefore cannot fall within the scope of the applicant’s access application to CHHHS.

Documents at item 2)

31. In relation to these documents, CHHHS submits³¹ that:

• a CHHHS Human Resources (HR) staff member who was directly involved with the QIRC matter has confirmed that ‘these hearings were managed via HR Team in Brisbane and we did not see any submissions’;³² and
• if the submissions exist, they would form part of the Workplace Services unit file.

32. In terms of QIRC submissions on a file held by the Workplace Services unit, I again note³³ that this unit was and remains part of QH. Given this position, I find that any QIRC submissions on the Workplace Services unit’s file remain in the possession and under the control of QH, and cannot fall within the scope of the applicant’s access application to CHHHS.

33. However, in relation to QIRC submissions, CHHHS also submits:³⁴

Although QH records, it was believed that some of the documents, if in existence, should be attached to CHHHS files.

34. In my view, this submission indicates that CHHHS holds the expectation that copies of QIRC submissions ‘should be attached to CHHHS files’. On the information currently before me, I consider that CHHHS’s expectation is reasonable. Copies of QIRC submissions could reasonably have been retained by HR work areas that passed to CHHHS on its establishment, or provided to such work areas by their QH counterparts at some stage since then. Such copies would be within CHHHS’s possession or under its control. In these circumstances, I accept that copies of QIRC submissions that ‘should be attached to CHHHS files’ fall within the scope of the applicant’s access application to CHHHS.

Summary

35. Given my finding that the following documents are outside the scope of the access application, I cannot consider them further in this external review:

• documents at item 1)
• documents at item 2) that form part of QH’s Workplace Services unit file; and
• documents at item 9) that were created or received outside the period specified in the applicant’s access application (ie, 2008 to 2012).

36. I will now address whether the following documents that I have determined fall within the scope of the applicant’s access application may be refused by CHHHS:

• documents at item 2) that ‘should be attached to CHHHS files’
• documents at items 3) to 8), and 10) to 11); and
• documents at item 9) that were created or received during the period specified in the applicant’s access application (ie, 2008 to 2012).

Issue 2:  Can the documents be refused on the ground that they are nonexistent or unlocatable?

Relevant law

37. The right to be given access to documents of an agency is subject to limitations, including grounds on which access to information may be refused.³⁵

38. One of the grounds for refusal is that the document sought is nonexistent³⁶ or unlocatable.³⁷ A document is nonexistent if there are reasonable grounds to be satisfied it does not exist.³⁸ 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 it, but it cannot be found.³⁹

39. To be satisfied that a document does not exist, an agency must rely on its particular knowledge and experience, having regard to various key factors including:

• the administrative arrangements of government
• the agency’s structure
• the agency’s functions and responsibilities (particularly with respect to the legislation for which it has administrative responsibility and the other legal obligations that fall to it)
• the agency’s practices and procedures (including, but not limited to, its information management approaches); and
• other factors reasonably inferred from information supplied by the applicant, including the nature and age of the requested documents, and the nature of the government activity to which the request relates.⁴⁰

40. By considering the above factors, an agency may ascertain that a particular document was not created because, for example, its processes do not involve creating the specific document.  In such instances, it is not necessary for the agency to search for the document.  It is sufficient that the relevant circumstances to account for the nonexistent document are explained.

41. An agency may also rely on searches to satisfy itself that documents do not exist.  If an agency does rely on searches to justify a decision that documents do not exist, all reasonable steps must be taken to locate the documents.⁴¹ Such steps may include enquiries and searches of all relevant locations identified after consideration of the key factors listed above.

42. In assessing whether a document exists, but is unlocatable, it is necessary to consider:

• whether there are reasonable grounds for the agency to be satisfied that the requested document has been or should be in the agency’s possession; and
• whether the agency has taken all reasonable steps to find the document.⁴²

43. In answering these questions, regard should be had to the circumstances of the case and to the key factors set out above.⁴³

Analysis

44. As CHHHS conducted further searches to locate the further documents raised by the applicant, I must, for the documents that fall within the scope of the access application, consider whether CHHHS has taken all reasonable steps to locate them.

Documents at item 2) that ‘should be attached to CHHHS files’

45. The documents at item 2) of paragraph 12 that the applicant submits CHHHS should have located are submissions made to a particular QIRC proceeding that was heard on 19 August 2010 and 1 November 2010. As noted at paragraphs 31 to 34 above, I consider that only submissions in CHHHS’s possession or under its control fall within the scope of the access application.

46. The applicant submits⁴⁴ that the requested submissions would exist for the two hearings. She contends that the submissions at the two hearings ‘[told] two different stories’.

47. Prior to making its decision, CHHHS made enquiries with QH.⁴⁵ In response, the QH officer involved in the QIRC proceedings advised that it was her recollection that no submissions were developed.⁴⁶

48. The QH officer’s recollection appears to be consistent with a letter from the Deputy Industrial Registrar dated 3 August 2015, which stated ‘[a]s the matter you refer to was an industrial dispute conference [matter number] no formal submissions or evidence were tabled’.⁴⁷

49. The Decision Documents released to the applicant include a file note which set out information regarding a meeting held in preparation for the QIRC hearing on 19 August 2010.⁴⁸ However, CHHHS was unable to locate any submissions for a hearing on this date or 1 November 2010.

50. CHHHS submits⁴⁹ that CHHHS officers conducted a physical search of CHHHS’s hard copies of relevant HR files and WPH&S and Rehabilitation files over several days. Also, work unit drives and email accounts of relevant staff were electronically searched using the applicant’s [first name / last name] and [last name] as search terms. No QIRC submissions were identified by these searches.

51. Given the QH officer’s recollection that no submissions were developed and the Deputy Industrial Registrar’s letter advising that ‘no formal submissions or evidence were tabled’, I consider it reasonable to conclude that no QIRC submissions exist.

52. However, I also remain conscious of CHHHS’s expectation that copies of QIRC submissions ‘should be attached to CHHHS files’. To the extent that this expectation provides reasonable support for the position that QIRC submissions should be in CHHHS’s possession or under its control, I note the comprehensive nature of CHHHS’s physical searches of the hard copies of relevant files and electronic searches of relevant hard drives and email accounts. In these circumstances, I am satisfied that—if the QIRC submissions exist—they cannot be found, despite CHHHS having taken all reasonable steps to locate them.

Documents at item 3)

53. The documents at item 3) that the applicant submits CHHHS should have located are documents relating to a WPH&S risk assessment. The applicant contends that a risk assessment should have been undertaken prior to the first QIRC hearing on 19 August 2010, and states she was neither involved in nor consulted about it.

54. CHHHS submits⁵⁰ that CHHHS officers conducted a physical search of CHHHS’s hard copies of relevant WPH&S and Rehabilitation files, including files that were recalled from off-site storage, and also electronically searched work unit drives and email accounts of relevant staff.⁵¹ However, CHHHS did not locate the requested risk assessment.

55. Further, CHHHS submits that:⁵²

• the WPH&S officer who conducted the initial searches prior to CHHHS’s decision had commenced work for CHHHS only recently, and was unaware whether a risk assessment had been completed
• enquiries were made with a former WPH&S officer who had been involved in matters related to the applicant’s employment—however, these were inconclusive, as the officer was unable to recall whether a risk assessment had been completed
• following OIC’s request,⁵³ additional searches were conducted by different WPH&S staff not involved in the initial searches
• the term ‘risk assessment/review’ is widely used throughout the WPH&S unit; and
• the gathering of information from various contacts over a certain time period could form a ‘risk assessment’ without the creation of a specific document titled ‘risk assessment’.

56. I also consider it relevant that, during the external review, the applicant stated to OIC⁵⁴ that she did not expect that any risk assessment documents would be located, as it was her understanding that a risk assessment was never done, and she had applied for this type of document in order to confirm this position.

57. I have carefully considered:

• the applicant’s understanding that no risk assessment occurred, and therefore no risk assessment documents exist
• CHHHS’s submission that, if a risk assessment occurred, it may be gathered over time rather than recorded in a specific document; and
• CHHHS’s physical searches of the hard copies of relevant files (including files recalled from off-site storage) and electronic searches of relevant hard drives and email accounts. In these circumstances, I am satisfied that all reasonable steps have been taken to locate the item 3) documents, but documents of this type do not exist.

Documents at item 4)

58. The documents at item 4) of paragraph 12 that the applicant submits CHHHS should have located are documents from the applicant’s case manager from 12 August 2009 onwards. The applicant submits⁵⁵ ‘I have no documentation from [my case manager] since 12/8/2009’.

59. The Decision Documents released to the applicant include six pages of email correspondence to and from the applicant’s case manager which postdate 12 August 2009.⁵⁶

60. In response to OIC’s request,⁵⁷ CHHHS conducted a physical search of CHHHS’s hard copies of relevant WPH&S and Rehabilitation files, including files that were recalled from off-site storage, and also electronically searched work unit drives and email accounts of relevant staff.⁵⁸ The outcome of this search was that 28 pages of additional emails relevant to item 4) were located and released to the applicant as part of the Additional Documents.⁵⁹

61. CHHHS submits⁶⁰ that:

• enquiries were made with the former WPH&S officer who had been the applicant’s case manager—however, these were inconclusive, because that officer no longer works within CHHHS’s WPH&S unit and therefore could not access the WPH&S files to conduct a search
• additional searches were conducted by different WPH&S staff not involved in the initial searches prior to CHHHS’s decision
• there were periods of time where WPH&S was not ‘formally’ involved with the applicant—that is, the periods when common law proceedings instituted by the applicant were on foot;⁶¹ and
• during these periods, it would be unlikely that formal case notes would be recorded and more likely that emails, of the type included in the Additional Documents, would be sent between staff seeking information or advice to assist other units who were involved in matters concerning the applicant.

62. I note that the applicant’s case manager was, at the time relevant to the access application, located within the WPH&S unit.  I further note that, on external review, CHHHS conducted physical searches of the hard copies of relevant files (including files recalled from off-site storage) and electronic searches of relevant hard drives and email accounts. I also note that six pages of the Decision Documents and 28 pages of the Additional Documents include emails involving the applicant’s case manager from 12 August 2009 onwards. In this regard, I accept CHHHS’s explanation that emails, rather than case notes, are likely to have been generated during periods when common law proceedings were on foot and CHHHS’s WPH&S staff were not ‘formally’ engaged with the applicant.

63. For these reasons, I am satisfied that all reasonable steps have been taken to locate the further documents at item 4) and further documents of this type either do not exist or cannot be located.

Documents at item 5)

64. The documents at item 5) of paragraph 12 that the applicant submits CHHHS should have located are all records of consultation with the applicant. The applicant generally submits that CHHHS failed to locate all records of consultation with her.

65. The Decision Documents include records of consultation retrieved from HR files.⁶²

66. In response to OIC’s request^,63 CHHHS conducted a physical search of CHHHS’s hard copies of relevant HR files and WPH&S and Rehabilitation files, including files that were recalled from off-site storage, and also electronically searched work unit drives and email accounts of relevant staff.⁶⁴ The outcome of this search was that nine pages of additional documents, including emails, were located and released to the applicant as part of the Additional Documents.⁶⁵

67. I note that, on external review, CHHHS conducted physical searches of the hard copies of relevant files (including files recalled from off-site storage) and electronic searches of relevant hard drives and email accounts. I also note that the Additional Documents released to the applicant include nine pages regarding consultation with her. I am unable to identify any particular records of consultation with the applicant which have not yet been located.

68. In these circumstances, I am satisfied that all reasonable steps have been taken to locate the further documents at item 5) and further documents of this type either do not exist or cannot be located.

Documents at item 6)

69. The documents at item 6) of paragraph 12 that the applicant submits CHHHS should have located are documents containing or comprising information about employment offered to the applicant prior to the CEO’s decision to retire her on the ground of ill-health.

70. The applicant generally submits additional information about employment offered to her should exist. Concurrent with this submission, she states that she was only offered one position, which she refused as it was unsuitable.⁶⁶

71. The Decision Documents include information regarding a position offered to the applicant, a part time position she was encouraged to apply for and reasons why positions were considered unavailable or unsuitable.⁶⁷ They also include information regarding the applicant’s opinion that the position offered to her was unsuitable.⁶⁸

72. On external review, CHHHS conducted a physical search of CHHHS’s hard copies of relevant HR files, and also electronically searched work unit and CEO drives and email accounts of relevant staff.⁶⁹

73. On external review, CHHHS has not located any additional employment offer information.  CHHHS submits:⁷⁰

• the initial searches prior to CHHHS’s decision included searches by senior executive support and IT officers—however, these searches did not locate any documents other than those already identified from searches of HR files and WPH&S files and released among the Decision Documents⁷¹
• information about employment offers is not recorded in one specific document
• within CHHHS, it is usual practice for letters of this type to be drafted by the HR work unit and then provided to the CEO for her review; and
• senior executive support staff have advised that this practice would have occurred regarding the employment offer information sought by the applicant (ie, when the CEO and HR staff were part of QH).

74. I note CHHHS’s explanation of the usual practices regarding the creation and review of documents containing employment offer information.  I further note that some documents outlining employment offered to the applicant have been released to the applicant and that these documents were created in accordance with the practices explained by CHHHS. I also note CHHHS’s searches of relevant HR files and WPH&S files and searches by senior executive support and IT officers.

75. In these circumstances, I am satisfied that all reasonable steps have been taken to locate the further documents at item 6) and further documents of this type either do not exist or cannot be located.

Documents at item 7)

76. The documents at item 7) of paragraph 12 that the applicant submits CHHHS should have located are records of a meeting held on 30 May 2011 upon which the CEO based her opinion that the applicant had refused all job offers. In this regard, the applicant quoted from a letter from the CEO to her dated 2 June 2011 as follows:⁷²

I understand you have previously informed the District you are not willing to return to your substantive position. This advice was confirmed by you in a meeting with your union representative your husband and District representatives on 30 May 2011.

…

At the meeting on 30 May 2011 you and your union representative and husband advised the District you are not interested in any other operational positions [pay classification] within the District.

77. The Decision Documents include two emails,⁷³ which discuss the meeting held on 30 May 2011.  The applicant submits generally that additional documents upon which the CEO based her opinion exist.⁷⁴

78. On external review, CHHHS conducted a physical search of CHHHS’s hard copies of relevant HR files, and also electronically searched work unit and CEO drives and email accounts of relevant staff.⁷⁵ However, CHHHS has not located any additional records of the specified meeting.

79. CHHHS submits:⁷⁶

• information about all job offers refused by the applicant is not recorded in one specific document
• within CHHHS, it is usual practice for information regarding meetings such as that held on 30 May 2011 to be compiled by the HR unit and communicated to the CEO for her review; and
• senior executive support staff have advised that this practice would have occurred regarding the meeting on 30 May 2011 (ie, when the CEO and HR staff were part of QH).

80. I note CHHHS’s explanation of the usual practice for information of this nature to be compiled by the HR unit, and then reviewed by the CEO.  Further, I note that emails outlining a summary of the meeting were released to the applicant among the Decision Documents, and that these emails accord with the practices explained by CHHHS. I also note CHHHS’s searches of relevant HR files, computer drives and email accounts.

81. In these circumstances, I am satisfied that all reasonable steps have been taken to locate the further documents at item 7) and further documents of this type either do not exist or cannot be located.

Documents at item 8)

82. The documents at item 8) of paragraph 12 that the applicant submits CHHHS should have located are any responses to a specified memorandum dated 4 August 2008 and any documents relating to the ‘proper enquiry’ referred to in that memorandum.

83. The memorandum in question is a memorandum by the Acting Director of Human Resource Services dated 4 August 2008 which, in part, states:

I would like it noted that any comments made about [the applicant] that are held on this file are unfounded or unsubstantiated comments.  These comments have not been investigated or put to [the applicant] for any response and therefore have not been validated.  These comments cannot be used in any process until a proper enquiry into the comments has been conducted.

84. The applicant attached a copy of this memorandum to her external review application. In summary, she submits⁷⁷ that referenced comments about her were used by CHHHS in many processes, and therefore documents should exist relating to the ‘proper enquiry’ that was conducted into the comments.

85. Prior to CHHHS’s decision, CHHHS conducted a search of all HR files, including electronic searches. On external review CHHHS also conducted a physical search of hard copies of the HR files. These searches did not locate any documents which refer to the 4 August 2008 memorandum or to any ‘proper enquiry’ conducted by CHHHS into the referenced comments.⁷⁸

86. CHHHS submits⁷⁹ that enquiries made with HR staff who had been involved in matters related to the applicant’s employment indicated that there are no such documents.

87. Further, CHHHS submits⁸⁰ that:

• a document titled ‘Transcript of Proceedings’ dated 1 August 2008⁸¹ states⁸² that the intended purpose of the memorandum was to have a statement on file that the ‘…allegations were not investigated or substantiated, but for the nature of the Public Service, we can’t destroy it and it shouldn’t be taken into account any further’
• this document confirms the applicant’s representative agreed with this intended purpose of the memorandum
• given the intended purpose of the memorandum, it is reasonable to conclude that a ‘proper enquiry’ was not required; and
• in these circumstances, there is no reasonable basis to expect that any additional documents relating to a ‘proper enquiry’ exist.

88. In relation to the applicant’s view that comments in the file in question were used by CHHHS in many processes, and her reasoning that the ‘proper enquiry’ referred to in the memorandum must have been conducted in order for this to occur, I am unable to identify any evidence before me in support of this contention apart from the applicant’s general submissions. I acknowledge that the memorandum in question uses the words ‘until a proper enquiry has been conducted’ [emphasis added].  In the absence of any further information, this wording could, in my view, be construed as conveying the impression that a ‘proper enquiry’ would subsequently occur.  However, I accept CHHHS’s explanation supported by the ‘Transcript of Proceedings’ that the memorandum was intended to record that particular allegations were unfounded or unsubstantiated, not that a ‘proper enquiry’ into them was envisaged. In these circumstances, I consider it reasonable to conclude that no such enquiry occurred and, accordingly, no documents regarding such an enquiry were created.

89. On this basis, I am satisfied that all reasonable steps have been taken to locate the further documents at item 8) and documents of this type do not exist.

Documents at item 9) from 2008 to 2012

90. The documents at item 9) of paragraph 12 that the applicant submits CHHHS should have located are all documents regarding the applicant’s WPH&S rehabilitation files, including the closing of her rehabilitation program ‘back as far as 2007-8 and into 2010-11’.⁸³ As noted at paragraph 27 above, I consider that only documents of this type created or received in the period from 2008 to 2012 are within the scope of the applicant’s access application.

91. The Decision Documents include a significant amount of WPH&S information.⁸⁴

92. In response to OIC’s request,⁸⁵ CHHHS conducted a physical search of CHHHS’s hard copies of relevant WPH&S and Rehabilitation files, including files that were recalled from off-site storage, and also electronically searched work unit drives and email accounts of relevant staff.⁸⁶ As a result, WPH&S information was located, and has been released as part of the Additional Documents.⁸⁷

93. I am unable to identify any particular WPH&S rehabilitation file documents, or types of documents, falling within the scope of the access application that have not been located.

94. In these circumstances, on the information before me, I am satisfied that all reasonable steps have been taken to locate all documents at item 9) and further documents either do not exist or cannot be located.

Documents at item 10)

95. The documents at item 10) of paragraph 12 that the applicant submits CHHHS should have located are all documents regarding the decision to retire the applicant, including specifically documents and letters sent by the CEO to the Workplace Services unit, the Deputy Director-General of Human Resource Services and the Director-General of QH.⁸⁸

96. While the Decision Documents include some information regarding the decision to retire the applicant,⁸⁹ I acknowledge that they do not include any letters sent by the CEO to the parties listed above.

97. In relation to the letters, it is relevant to note that CHHHS submits that, within CHHHS, it is usual practice for letters of this type to be drafted by the HR work unit and then provided to the CEO for her review, and senior executive support staff have advised that this practice would have occurred regarding the employment offer information sought by the applicant (ie, when the CEO and HR staff were part of QH).⁹⁰ CHHHS submits⁹¹ that, given the extensive searches undertaken both prior to its initial decision and on external review, it is of the view that any additional letters sent by the CEO to the parties listed above are not held within CHHHS.

98. In relation to both these letters and any other documents regarding the decision to retire the applicant, I note that, on external review, CHHHS conducted a physical search of CHHHS’s hard copies of relevant HR files, and also electronically searched work unit and CEO drives and email accounts of relevant staff.⁹² In these circumstances, I am satisfied that all reasonable steps have been taken to locate the documents at item 10) and further documents either do not exist or cannot be located.

Documents at item 11)

99. The documents at item 11) (amended as noted at paragraph 17) that the applicant submits CHHHS should have located are all correspondence, covering the period from 24 March 2010 to 1 November 2010, involving ten named individuals, and other evidence considered by the CEO (including evidence of these ten individuals) regarding the applicant’s placement in Support Services and the decision to send her to North Cairns. The applicant generally submits⁹³ that CHHHS has failed to locate all such correspondence and evidence.

100. The Decision Documents include correspondence of the type requested by the applicant.⁹⁴ CHHHS has not located any additional correspondence or evidence of the type specified by the applicant.

101. In relation to the correspondence, I note the applicant’s expectation that the ten individuals named by her may have been a party to relevant correspondence during this period. However, on the information before me, I am unable to identify any particular correspondence that has not yet been located.

102. In relation to evidence other than correspondence considered by the CEO, including evidence provided by the ten named individuals, I also note the usual practice for provision of information by the HR unit to the CEO mentioned above in relation to the documents at items 6), 7) and 10).⁹⁵ On the information before me, there is nothing to suggest that any evidence considered by the CEO has not yet been located.

103. In relation to such correspondence and evidence, I also note the extensive searches the CHHHS has conducted of hard copies of relevant HR files and WPH&S files, hard drives and email accounts. In these circumstances, I am satisfied that all reasonable steps have been taken to locate the further documents at item 11) and documents of this type either do not exist or cannot be located.

Findings

104. I have carefully considered all of the information provided to OIC by CHHHS, including material about the initial processing of the access application, CHHHS’s submissions about the searches conducted during the course of this review, search certifications and records of searches completed by relevant CHHHS staff, and the structure of CHHHS as well as relevant units’ record keeping practices.  I have also considered the Decision Documents, the Additional Documents and the relevant parts of the applicant’s submissions during the course of the external review.

105. On the information before me, I consider that officers of CHHHS have:

• conducted searches of all relevant hard copy files (including archived files), email accounts and work unit drives for the types of documents raised by the applicant; and
• identified relevant staff and made enquiries of them regarding the possible existence and location of documents requested by the applicant.

106. Taking into account the entirety of searches for documents conducted by CHHHS and the documents located, I am satisfied that CHHHS has ensured that relevant staff have undertaken comprehensive, appropriately targeted searches of CHHHS’s relevant document management systems for relevant documents, and no further documents exist or, if they exist, they cannot be located.

107. In these circumstances, I am satisfied that CHHHS has conducted all reasonable searches documents sought by the applicant that fall within the scope of her application and accordingly:

• access to the documents at items 3) and 8) may be refused on the ground that they are nonexistent;⁹⁶ and
• access to the documents at item 2) that ‘should be attached to CHHHS files’, the documents at item 9) that were created or received from 2008 to 2012, and the documents at items 4) to 7) and 10) and 11) may be refused on the ground that they are nonexistent or unlocatable.⁹⁷

DECISION

108. I vary the decision under review and find that:

• some further documents sought by the applicant are outside the scope of her access application to CHHHS; and
• the remaining further documents sought by the applicant that fall within the scope of her access application may be refused under sections 47(3)(e) and 52(1) of the RTI Act.

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

________________________
A Rickard
Acting Assistant Information Commissioner

Date: 16 December 2015

APPENDIX

Significant procedural steps

1 The applicant provided CHHHS with a five page list of specific types of documents sought by her on 4 July 2014, and revised this on two occasions, 9 July 2014 and 14 July 2014, to a six page list of specific documents sought by her. The lists were referred to in and attached to CHHHS’s decision.
2 The applicant did not seek external review of CHHHS’s decision regarding the personal information of other individuals or this page.
3 Namely, in:
- the external review application
-  emails (including multiple emails on some days) to OIC on 28 January 2015, 29 January 2015, 30 March 2015, 24 April 2015, 13 May 2015, 18 June 2015, 1 July 2015, 7 July 2015, 24 July 2015, 9 August 2015, 10 August 2015, 2 September 2015, 27 September 2015, 28 September 2015, 1 October 2015, 2 October 2015, 20 October 2015, 21 October 2015, 2 November 2015 and 5 November 2015; and
-  telephone conversations with OIC officers on 19 March 2015, 1 May 2015, 7 August 2015, 11 August 2015, 27 August 2015, 11 September 2015, 25 September 2015, 28 September 2015, 29 September 2015, 9 October 2015, 28 October 2015 and 17 November 2015.
4 In the external review application.
5 Throughout the course of the review, the applicant made many submissions regarding the types of documents that she considered CHHHS should have located. Often, the submissions used similar, but not the same, terms. Consequently, it was necessary for OIC to analyse each submission to identify when the applicant was raising new types of documents, raising documents that fell within previously raised types, or simply reiterating previous submissions.
6 At times referred to by the applicant as ‘Work Services’ in her submissions.
7 The applicant specified QIRC’s matter number for this hearing—however, as this decision has been deidentified, the matter number is not included in this decision.
8 In the external review application.
9 Submissions dated 2 November 2015 and 5 November 2015.
10 By letters dated 25 May 2015 and 11 September 2015.
11 That is, the documents at items 1) to 8) in paragraph 12 only—see paragraph 16 regarding the documents at items 9) to 11).
12 By correspondence dated 18 June 2015, 25 June 2015, 27 July 2015 and 8 October 2015.
13 The Additional Documents consist of 10 pages of ‘OHS’ documents and 41 pages of ‘WPH&S’ documents.
14 That is, in submissions from the applicant dated 1 July 2015, 7 July 2015, 24 July 2015, 7 August 2015, 9 August 2015 and 10 August 2015—ie, after 25 May 2015.
15 OIC advised the applicant of this view in OIC’s preliminary view issued to the applicant on 11 September 2015.
16 OIC advised the applicant of this view in OIC’s preliminary view issued to the applicant on 5 November 2015.
17 That is, submissions after 11 September 2015—in:
- emails (including multiple emails on some days) to OIC on 27 September 2015, 28 September 2015, 1 October 2015, 2 October 2015, 20 October 2015, 21 October 2015, 2 November 2015 and 5 November 2015; and
- telephone conversations with OIC officers on 25 September 2015, 28 September 2015, 29 September 2015, 9 October 2015, 28 October 2015 and 17 November 2015.
18 In submissions sent on 27 September 2015 (second email, at 1:40pm) and on 21 October 2015 (sixth email, at 2:13pm).
19 That is, those identified in footnote 17.
20 OIC confirmed this position to the applicant on 14 December 2015.
21 Section 23 of the RTI Act.
22 Section 24 of the RTI Act.
23 By the Hospital and Health Boards Act 2011 (Qld).
24 Sections 14 and 16 of the RTI Act.
25 Sections 12 and 24 of the RTI Act.
26 Submission dated 2 November 2015.
27 Woodyatt and Minister for Corrective Services (1995) 2 QAR 383 at [35].
28 In the absence of a parttransfer of the application to QH, consented to by QH under section 38 of the RTI Act. A decision to parttransfer (or not) is not a ‘reviewable decision’ (as defined in schedule 6 of the RTI Act) that can be considered on external review.
29 CHHHS raised this with the applicant during the processing of the access application in telephone calls on 5 November 2014 and 12 November 2014. Then, at page 2 of CHHHS’s decision, CHHHS stated ‘As we have discussed previously, there is a possibility that there may be some documents held by Queensland Health and not held by / within the Cairns and Hinterland Hospital and Health Service.  Possible documents could include, documents created by the Workplace Services Unit, within Queensland Health (e.g. Documents prepared for Commission Hearings).’
30 OIC advised the applicant that QH is a separate agency to CHHHS, and that the applicant may wish to apply to QH for access to any documents held by QH, by letters dated 2 February 2015, 11 September 2015 and 5 November 2015, and in telephone conversations with OIC staff members on 27 August 2015, 11 September 2015 and 25 September 2015.
31 Submission dated 18 June 2015.
32 First row on page 1 of table recording searches conducted by CHHHS attached to CHHHS’s submissions dated 18 June 2015 (provided by OIC to applicant on 11 September 2015).
33 As set out at paragraph 28 above.
34 First and second rows on page 3 of table recording searches conducted by CHHHS attached to CHHHS’s submissions dated 18 June 2015 (provided by OIC to applicant on 11 September 2015).
35 The grounds on which an agency may refuse access are set out in section 47(3) of the RTI Act.
36 Sections 47(3)(e) and 52(1)(a) of the RTI Act.
37 Sections 47(3)(e) and 52(1)(b) of the RTI Act.
38 Section 52(1)(a) of the RTI Act.
39 Section 52(1)(b) of the RTI Act.
40 PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE) at [37]-[38].  The decision in PDE concerned the application of section 28A of the now repealed Freedom of Information Act 1992 (Qld).  Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Acting Information Commissioner’s findings in PDE are relevant here.
41 As set out in PDE at [49].  See also section 130(2) of the RTI Act.
42 Section 52(1)(b) of the RTI Act.
43 Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [21].
44 In the external review application and submission dated 28 January 2015.
45 The enquiries were made on the basis that ‘although QH records, it was believed that some of the documents, if in existence, should be attached to CHHHS files’—as noted at paragraph 33 above.
46 Second row on page 3 of table recording searches conducted by CHHHS attached to CHHHS’s submissions dated 18 June 2015 (provided by OIC to applicant on 11 September 2015). The QH officer also stated that she drafted her own speaking notes, and that relevant files would be contained in QH’s Workplace Services unit. The applicant has not raised these speaking notes in any of her submissions—however, for sake of completeness I confirm my view that such documents are not in the possession or under the control of CHHHS, and accordingly cannot fall within the scope of the applicant’s access application to CHHHS.
47 The applicant provided OIC with a copy of this letter attached to her submissions dated 21 October 2015.
48 Pages 10-11 of the PDF titled ‘Industrial Relations’ released in accordance with CHHHS’s decision.
49 Submission dated 18 June 2015.
50 Submission dated 25 June 2015.
51 Using the applicant’s [first name / last name] and [last name] as search terms.
52 Submission dated 25 June 2015.
53 At paragraph 14.
54 In the applicant’s telephone conversations with OIC staff on 1 May 2015 and 7 August 2015.
55 Submission dated 30 March 2015.
56 Pages 48-49, 52-53, 54 and 227 of the PDF titled ‘Emails’ released in accordance with CHHHS’s decision.
57 At paragraph 14.
58 Using the applicant’s [first name / last name] and [last name] as search terms.
59 Pages 8-25, 28-34, 36 and 39-40 of the PDF titled ‘WPH&S Additional Documents’.
60 Submissions dated 18 June 2015 and 25 June 2015.
61 As on commencement of such proceedings, WPH&S’s formal involvement with an employee ceases.
62 For example, at pages 1-7, 15-17 and 21-23 of the PDF titled ‘Case Notes, File Notes, Documents’; pages 49-63 of the PDF titled ‘Letters to by [applicant’s initials] and Assessment’; and pages 17, 201-207, 256-258, 283-285, 302-305 and 324-333 of the PDF titled ‘Emails’.
63 At paragraph 14.
64 Using the applicant’s [first name / last name] and [last name] as search terms.
65 At pages 4-5 of the PDF titled ‘OHS Additional Documents’, and pages 8-10, 11-13 and 25 of the PDF titled ‘WPH&S Additional Documents’.
66 Submission dated 28 January 2015.
67 Pages 15-19 of the PDF titled ‘Industrial Relations’ and pages 53-63 of the PDF titled ‘Letters to by [applicant’s initials] and Assessment’ released in accordance with CHHHS’s decision.
68 Pages 20-36 of the PDF titled ‘Industrial Relations’ released in accordance with CHHHS’s decision.
69 Using the applicant’s [first name / last name] and [last name] as search terms.
70 Submission dated 18 June 2015.
71 As noted at paragraph 71 above.
72 Submission dated 7 July 2015.
73 Pages 274-275 of the PDF titled ‘Emails’ released in accordance with CHHHS’s decision.
74 The applicant’s submissions relating to this item overlap with her submissions regarding information about employment offered to the applicant (being the information set out at item 6)).
75 Using the applicant’s [first name / last name] and [last name] as search terms.
76 Submission dated 18 June 2015.
77 Submission dated 2 October 2015.
78 Submission dated 18 June 2015.
79 Submission dated 18 June 2015.
80 Submission dated 18 June 2015.
81 CHHHS advised OIC that the applicant has a copy of this document.
82 At page 5.
83 Submission dated 1 July 2015.
84 For example, many of the 139 pages of the PDF titled ‘Case Notes, File Notes, Documents’ released in accordance with CHHHS’s decision contain information relevant to this item.
85 At paragraph 14.
86 Using the applicant’s [first name / last name] and [last name] as search terms.
87 That is, the PDF titled ‘WPH&S Additional Documents’.
88 Submissions dated 1 July 2015, 7 July 2015 and 24 July 2015.
89 For example, at pages 283-285 and 294-333 of the PDF titled ‘Emails’, and pages 53-63 of the PDF titled ‘Letters to by [applicant’s initials] and Assessment’ released in accordance with CHHHS’s decision.
90 As noted at paragraph 74 above.
91 Submission dated 8 October 2015.
92 Using the applicant’s [first name / last name] and [last name] as search terms.
93 Submissions dated 9 August 2015, 10 August 2015, 27 September 2015 (second email, at 1:40pm) and on 21 October 2015 (sixth email, at 2:13pm).
94 For example, as attached to the applicant’s submission dated 9 August 2015.
95 At paragraphs 74, 80 and 97.
96 Sections 47(3)(e) and 52(1)(a) of the RTI Act.
97 Sections 47(3)(e) and 52(1)(a) or (b) of the RTI Act.