Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017)

REASONS FOR DECISION

Summary

1. The applicant applied to the Queensland Police Service (QPS) for access to a wide range of documents under the Right to Information Act 2009 (Qld) (RTI Act).

2. QPS located five pages and granted access to all but two part pages, which were refused on the basis that their disclosure would, on balance, be contrary to the public interest.¹

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review.  In summary, the applicant submitted on external review that he was entitled to access the refused information under the RTI Act, and that QPS had not located all relevant documents.  During the external review, QPS agreed to release the two part pages to which it had initially refused access, and also located and released two further pages in full and one further page in part.

4. For the reasons set out below, I vary QPS’s decision, and find that:

• information may be deleted on one part page under section 73 of the RTI Act on the basis that it is not relevant to the access application
• a QPS officer’s ‘special notes’ are not within the scope of the access application
• access to the additional documents the applicant believes exist (as identified below) may be refused under section 47(3)(e) of the RTI Act as they are nonexistent under section 52(1) of the RTI Act; and
• the existence of documents identifying a complainant to QPS may be neither confirmed nor denied under section 55 of the RTI Act.

Background

5. Significant procedural steps taken by OIC in conducting the external review are set out in the Appendix to these reasons.

Reviewable decision

6. The decision under review is QPS’s original decision dated 15 September 2016.

Evidence considered

7. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendix).

8. The applicant provided written submissions to OIC supporting his case.² While I have carefully reviewed all of those submissions, certain concerns the applicant has raised are not matters which the Information Commissioner has jurisdiction to consider in conducting an external review under the RTI Act.  Accordingly, in reaching this decision, I have only considered the applicant’s submissions to the extent they are relevant to the issues for determination on external review.

Issues for determination

9. Seven full pages and one part page have now been released to the applicant,³ comprising:

• the five pages originally dealt with in QPS’s decision—QPS agreed to release these pages in full on external review; and
• three pages—two released in full and one in part—located by QPS on external review.

10. The issues for determination in this review are whether:

• information may be deleted on one part page on the basis that it is not relevant to the access application
• a QPS officer’s ‘special notes’ are within the scope of the access application
• access to certain documents may be refused on the basis that they are nonexistent; and
• the existence of documents identifying a complainant to QPS may be neither confirmed nor denied.

Irrelevant information

11. QPS deleted information from one page⁴ which it submits is irrelevant to the access application.

Relevant law

12. Section 73 of the RTI Act provides that an agency may give access to a document subject to the deletion of information it reasonably considers is not relevant to the access application.  This is not a ground for refusal of access, but a mechanism to allow irrelevant information to be deleted from documents which are identified for release to an applicant.  In deciding whether information is irrelevant, it is necessary to consider whether the information has any bearing upon, or is pertinent to, the terms of the access application.⁵

Findings

13. The applicant applied for access to numerous documents, largely concerning a complaint about him, and documents about QPS officers’ related interactions with the applicant and his family.  The deleted information relates to an entirely separate QPS matter which does not involve the applicant or any member of his family.  Further, the information in no way relates to the terms of the access application.  I consider that the deleted information has no bearing upon the terms of the access application.  Accordingly, I find that this information may be deleted under section 73 of the RTI Act on the basis that it is not relevant to the access application.

Scope of access application

14. On external review,⁶ the applicant submitted that QPS had failed to locate the ‘special notes’ of a Senior Sergeant.  The applicant contends that the Senior Sergeant told the applicant’s sister-in-law between 10 and 12 September 2015 that he would make these ‘special notes’ on the file pertaining to three other QPS officers.

Relevant law

15. Under the RTI Act, an access application must give sufficient information concerning the requested document to enable a responsible officer of the agency to identify the document.⁷ There are sound practical reasons for requiring the documents sought in an access application to be clearly and unambiguously identified, including that the terms of the access application set the parameters for an agency’s response and the direction of an agency’s search efforts.⁸ Accordingly, an applicant cannot unilaterally expand the terms of an access application.⁹

Findings

16. The relevant parts of the access application relating to the Senior Sergeant are as follows:

… A copy of all notes placed in the day book, station diary or reports in the year 2015 pertaining to me and the complaint, in particular on or about 31 July 2015 by [another QPS officer] and/or [another QPS officer] and [the Senior Sergeant] andr [sic] [another QPS officer]. Including my attendance on 1 August 2015 at the Coolum police station.

In particular, I require copies of the notes, audio recordings by [another QPS officer] on 10 September 2015 in relation to me or my family.

A copy of all notes of [another QPS officer], where he had purported to issue a ‘formal warning’, later [the Senior Sergeant] confirmed no such warning was issued.

Including notes, records etc by [the Senior Sergeant].
…

17. The first paragraph cited above refers specifically to the Senior Sergeant’s notes from 31 July 2015, and arguably also from 1 August 2015.  I acknowledge that the last paragraph also refers to the Senior Sergeant’s notes.  The applicant submits that his request on external review did not broaden his original scope, as his access application specifically sought the Senior Sergeant’s notes from 10 September 2015.¹⁰

18. I do not agree with the applicant’s submission.  The terms of the access application do not specifically refer to the Senior Sergeant’s notes from 10 to 12 September 2015.  While the last paragraph cited above requests the Senior Sergeant’s notes, it is not clear at all what date these notes were supposed to have been made.  I do not consider that the reference to 10 September 2015 two paragraphs prior to that should be applied to the request for the Senior Sergeant’s notes.  Further, the access application is largely focused on other events, and the applicant’s sister-in-law is not specifically mentioned at all.  Finally, there is no reference in the access application to the connection between the ‘special notes’ the applicant seeks on external review and the applicant’s sister-in-law.

19. On that basis, I consider that the access application did not give sufficient information concerning the ‘special notes’ to enable a QPS officer to identify these documents when processing the request and identifying the relevant searches necessary to locate the documents.  As I consider that it was reasonable for QPS not to identify these notes which the applicant subsequently raised on external review,¹¹ I find that the access application’s scope does not cover the ‘special notes’ by the Senior Sergeant.

20. As OIC has previously explained to the applicant,¹² he may wish to make a further access application to QPS for this specific information.

Nonexistent documents

21. On external review, the applicant sought access to a number of documents which were within the scope of the access application.  I deal with these documents separately under the relevant subheadings.

Relevant law

22. The RTI Act confers a right of access to documents of an agency,¹³ subject to limitations, including grounds for refusal of access.¹⁴ Access to a document may be refused if it is nonexistent or unlocatable.¹⁵ A document is nonexistent if there are reasonable grounds to be satisfied it does not exist.¹⁶

23. To be satisfied that a document does not exist, the Information Commissioner has previously recognised that 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 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.¹⁷

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

25. An agency may also rely on searches to satisfy itself that a document does not exist.  In those cases, all reasonable steps must be taken to locate the documents.¹⁸ Such steps may include inquiries and searches of all relevant locations identified after consideration of the key factors listed above.

QPS’s searches and enquiries

26. QPS has provided OIC¹⁹ with information which shows that:

• electronic searches were conducted of Electronic Logs, the Intelligence Tasking Analysis System (ITAS) and the Queensland Police Records and Information Management Exchange (QPRIME) system,²⁰ using relevant names and addresses as search terms
• searches were performed by officers within Coolum Police Station, the Right to Information and Privacy Unit, and the Sunshine Coast District and Noosa Heads Criminal Investigation Branches; and
• enquiries were made with the relevant individuals in the above areas, including the Senior Sergeant.

Findings

27. On external review, the applicant stated that he was prepared to accept OIC’s preliminary view about the nonexistence of recordings ‘subject to the requested submission(s) on oath confirming same’ and ‘subject to an accurate written recollection of the conversation(s) provided on oath’.²¹ I firstly note that an agency is not obliged by the terms of the RTI Act to create a new document in response to an access application; rather, an agency is only obliged to locate existing documents which it is entitled to access or which are in its possession or under its control.²² Secondly, the procedure to be followed on external review is, subject to the RTI Act, within the discretion of the Information Commissioner.²³ I consider that, for the purpose of reaching conclusions on these sufficiency of search issues, it is not necessary for the relevant QPS officers to provide submissions to OIC under oath or affirmation.

‘Day book’ entry from 31 July 2015

28. The applicant sought access to a ‘day book’ from 31 July 2015 regarding any entry about the incident that day which was the subject of the complaint about the applicant.²⁴ The applicant submits that, on his attendance at the QPS station on 1 August 2015, the Duty Sergeant acknowledged the existence of this book, and noted that an access application would be required.

29. QPS has informed OIC that its current practice is to keep a log on ITAS rather than a ‘day book’.²⁵ The relevant ITAS ‘Activity log’ entry was located and released to the applicant.²⁶

30. Based on this explanation and the information set out above about the nature and extent of QPS’s searches and enquiries, I consider that the requested ‘day book’ does not exist as it was never created.  For these reasons, I find that QPS is entitled to refuse access to this document under section 47(3)(e) of the RTI Act on the basis that it is nonexistent.

Recordings of attendance by QPS officers on 31 July 2015

31. The applicant sought access to audio and/or video recordings by two QPS officers on 31 July 2015 of their attendance at the location of the incident and at the home of the applicant’s sister-in-law.²⁷ The applicant submits that the Senior Sergeant acknowledged the existence of these recordings.

32. The Senior Sergeant has explained that there is no audio or video available as none was taken.²⁸ A search certification of the QPS decisionmaker provides evidence of searches undertaken in March 2017 of the QPRIME system in relation to the two QPS officers, the applicant’s name, and the applicant’s sister-in-law’s name and address.²⁹ QPS advises that these searches did not result in any relevant audio or video recordings being located.

33. Based on this explanation and the information set out above about QPS’s searches and enquiries, I consider that these recordings do not exist as they were never created.  For these reasons, I find that QPS is entitled to refuse access to these recordings under section 47(3)(e) of the RTI Act on the basis that they are nonexistent.

Recordings by a QPS officer on 10 September 2015

34. The applicant sought access to audio recordings by a QPS officer on 10 September 2015, being a recorded telephone call to the applicant’s sister-in-law’s number, and a subsequent recorded telephone call from the applicant’s sister-in-law later that day.³⁰ The applicant submits that the Senior Sergeant acknowledged the existence of these recordings, and confirmed to the applicant’s sister-in-law (in a telephone call between 10 and 12 September 2015) that he had listened to these conversations.

35. The Senior Sergeant has explained that there is no audio available as none was taken.³¹

36. Based on this explanation and the information set out above about QPS’s searches and enquiries, I consider that these recordings do not exist as they were never created.  For these reasons, I find that QPS is entitled to refuse access to these recordings under section 47(3)(e) of the RTI Act on the basis that they are nonexistent.

Recordings by the Senior Sergeant on 10 September 2015

37. The applicant sought access to an audio recording of a telephone call between the Senior Sergeant and the applicant’s sister-in-law between 10 and 12 September 2015.³² The applicant submits that, in response to a complaint emailed to Ethical Standards Command in the afternoon of 10 September 2015, the Senior Sergeant made an audio recorded telephone call to the applicant’s sister-in-law to apologise for the behaviour of two QPS officers towards the applicant and his brother and sister-in-law.

38. The Senior Sergeant has explained that there is no audio available as none was taken.³³

39. Based on this explanation and the information set out above about QPS’s searches and enquiries, I consider that these recordings do not exist as they were never created.  For these reasons, I find that QPS is entitled to refuse access to these recordings under section 47(3)(e) of the RTI Act on the basis that they are nonexistent.

Transcripts of recordings

40. The applicant sought access to relevant transcripts, including any of the recordings listed above.  The applicant submits that, in the week of 31 October 2016 to 6 November 2016, the Senior Sergeant reconfirmed the existence of the audio recordings to either the applicant or his sister-in-law, and also confirmed that a transcript (or transcripts) of the conversation(s) on audio also exists (or exist).³⁴

41. As I have found that no audio or video recordings exist, it follows that no transcripts would have been created.  Further, QPS advises that not every recording is transcribed, given transcription of recordings resulting from investigations (internal or otherwise) is completed on a needs basis only.³⁵ This advice accords with section 7.7 of QPS’s Digital Electronic Recording of Interviews and Evidence Manual Issue 11 which states that ‘[a]s a general rule transcription of an electronically recorded interview … will not be carried out.’ Therefore, even if the audio or video recordings did exist, it is unlikely that any transcript would have been created.

42. Based on this explanation and the information set out above about QPS’s searches and enquiries, I find that QPS is entitled to refuse access to these transcripts under section 47(3)(e) of the RTI Act on the basis that they are nonexistent.

‘QPRIME Details’ page from 1 August 2015

43. The applicant originally sought access to documents related to his attendance at a QPS station on 1 August 2015.  QPS located and released the ‘Intelligence Log Summary’ and part of the ‘Activity Log’ for this event.³⁶ The applicant sought access to the ‘QPRIME Details’ page for this event.³⁷

44. QPS confirmed that the only two documents related to this event number are the ‘Intelligence Log Summary’ and the ‘Activity Log’, and that there is no ‘QPRIME Details’ page.³⁸

45. Based on this explanation and the information set out above about the nature and extent of QPS’s searches and enquiries, I consider that the requested ‘QPRIME Details’ page does not exist as it was never created.  For these reasons, I find that QPS is entitled to refuse access to this document under section 47(3)(e) of the RTI Act on the basis that it is nonexistent.

Neither confirm nor deny

46. On external review, the applicant confirmed that one of the specific categories of documents to which he sought access was the log recording the allegation and/or the statutory declaration/affidavit by a named individual lodged with a QPS station on or about 10 September 2015, and any associated documents.³⁹ The applicant submits that the Senior Sergeant acknowledged the existence of this allegation.  As the applicant raised this issue on external review, it was not dealt with in QPS’s decision.

Relevant law

47. Section 55 of the RTI Act allows a decision-maker to neither confirm nor deny the existence of a document which, if it exists, would contain prescribed information.  ‘Prescribed information’ is defined as including personal information the disclosure of which would, on balance, be contrary to the public interest.⁴⁰ ‘Personal information’ is defined as ‘information or an opinion … whether true or not … about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.⁴¹

48. Section 55 of the RTI Act is intended to apply in situations where revealing that the agency does or does not have documents in response to an application, due to the specific wording of the request, would reveal information to which an agency would normally be entitled to refuse access.⁴²

Findings

49. As noted above, the applicant seeks access to documents recording an allegation which he believes was made by a named individual.  Although the applicant maintains that these documents exist,⁴³ he has not provided anything to OIC which independently confirms that he has been made aware that this named individual made the specific allegation.  Further, nothing in these reasons should be taken to confirm or deny that the named individual made this allegation or that the requested documents exist.

50. If the documents did exist, they would identify an individual who made an allegation to QPS.  There are strong public interest factors favouring the nondisclosure of this type of information—including those relating to the personal information and privacy of the complainant⁴⁴ and the fact that disclosing a complainant’s identifying details could reasonably be expected to prejudice the flow of information from the community to QPS.⁴⁵

51. The applicant submits that the allegation was found to be false, and that the public interest would be better served by full disclosure, as he submits that the fact that the named individual was granted a government licence should override any considerations weighing against disclosure.⁴⁶ The applicant has not raised any specific public interest factors favouring disclosure, and I also am unable to identify any.⁴⁷ However, to the extent that any factors exist which may favour disclosure of the requested information, I do not consider that any arise in this instance which would carry sufficient weight to override the public interest factors favouring nondisclosure identified above.  I do not consider that the fact that the named individual may have been granted an entirely unrelated government licence has any bearing on the balancing of the public interest in this review.

52. For these reasons, I consider that the type of information requested by the applicant would be the personal information of another individual and its disclosure would, on balance, be contrary to the public interest.  Accordingly, I find that the requested information, if it exists, would contain prescribed information, and QPS is entitled to neither confirm nor deny the existence of that information under section 55 of the RTI Act.

DECISION

53. For the reasons set out above, I vary the decision under review, and find that:

• information may be deleted on one part page under section 73 of the RTI Act on the basis that it is not relevant to the access application
• a QPS officer’s ‘special notes’ are not within the scope of the access application
• access to certain documents identified above may be refused under section 47(3)(e) of the RTI Act as they are nonexistent under section 52(1) of the RTI Act; and
• the existence of documents identifying a complainant to QPS may be neither confirmed nor denied under section 55 of the RTI Act.

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

T Mainwaring
Acting Assistant Information Commissioner

Date: 28 August 2017

APPENDIX

Significant procedural steps

1 By decision dated 15 September 2016.
2 Including his external review application, and submissions received on 19 October 2016, 24 April 2017, 29 May 2017, 6 July 2017 and 31 July 2017.
3 QPS provided a compilation of these pages to the applicant by email on 28 June 2017.
4 Page 3 of the documents QPS sent to the applicant by email on 28 June 2017.
5 O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [52].
6 Including the external review application and submission received on 19 October 2016.
7 Section 24(2)(b) of the RTI Act.
8 Cannon and Australian Quality Egg Farms Ltd (1994) 1 QAR 491 at [8]; O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [33].
9 Fennelly and Redland City Council (Unreported, Queensland Information Commissioner, 21 August 2012) at [15].
10 Submission received on 6 July 2017.
11 Kelson and Queensland Police Service [2017] QICmr 7 (3 March 2017) at [14]-[20].
12 Preliminary view letter dated 20 June 2017.
13 Section 23(1)(a) of the RTI Act.
14 Grounds for refusal of access are set out in section 47 of the RTI Act.
15 Sections 47(3)(e) and 52(1) of the RTI Act.
16 Section 52(1)(a) of the RTI Act.
17 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) (FOI Act).  Section 52 of the RTI Act is drafted in substantially the same terms as the provision considered in PDE and, therefore, the Information Commissioner’s findings in PDE are relevant here.
18 As set out in PDE at [49].  See also section 130(2) of the RTI Act.
19 Submissions received on 15 November 2016, 14 February 2017 and 15 March 2017.
20 QPRIME is the database used by QPS to capture and maintain records for all police incidents in Queensland. 
21 Submission received on 24 April 2017.
22 Dimitrijev and Department of Education (Unreported, Queensland Information Commissioner, 23 February 1998) at [21].  Although this decision was made under the now repealed FOI Act, similar provisions in the RTI Act—including the section 12 definition of ‘document of an agency’ and sections 23 and 24—mean its reasoning is still applicable.  This position is supported by the fact that an access application is taken only to apply to documents that are, or may be, in existence on the day the application is received: section 27(1) of the RTI Act.
23 Section 95(1)(a) of the RTI Act.
24 External review application and submission received on 19 October 2016.
25 Submission received on 14 February 2017.
26 Page 6 of the documents QPS sent to the applicant by email on 28 June 2017.
27 External review application and submission received on 19 October 2016.
28 Submission received on 15 March 2017.
29 Submission received on 15 March 2017.
30 External review application and submission received on 19 October 2016.
31 Submission received on 15 March 2017.
32 Submission received on 19 October 2016.
33 Submission received on 15 March 2017.
34 Submission received on 7 November 2016.
35 Submission received on 14 February 2017.
36 Respectively, pages 1-2 and 3 of the documents QPS sent to the applicant by email on 28 June 2017.
37 Submission received on 24 April 2017.
38 Submissions received by email on 12 June 2017 and by telephone on 14 June 2017.
39 External review application and submission received on 19 October 2016.
40 Section 10 and schedule 5 of the RTI Act.
41 Section 10 and schedule 5 of the RTI Act, and section 12 of the Information Privacy Act 2009 (Qld).
42 Australian Broadcasting Corporation and Psychologists Board of Australia (Unreported, Queensland Information Commissioner, 3 January 2012) at [14].  
43 Submission received on 24 April 2017.
44 Schedule 4, part 3, item 3 and schedule 4, part 4, item 6(1) of the RTI Act.  See Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [27]-[28].
45 Schedule 4, part 3, item 13 of the RTI Act.  See P6Y4SX and Department of Police (Unreported, Queensland Information Commissioner, 31 January 2012) at [35]-[40].
46 Submission received on 24 April 2017.
47 I have considered schedule 4, part 2 of the RTI Act which sets out the factors favouring disclosure in the public interest.  However, this list of factors is not exhaustive; in other words, factors that are not listed may also be relevant in a particular case.