Annotation

Right to Information Act 2009 (Qld)

Section 52(2)

(2) Before an agency or Minister may be satisfied under subsection (1)(a) that a prescribed document does not exist, a search for the document from a backup system is required, but only if the agency or Minister considers the document has been kept in, and is retrievable from, the backup system.

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Overview of section 52(2) RTI Act

Last updated: December 20, 2021

Section summary

If an agency intends to rely on section 52(1)(a) of the RTI Act to refuse access to a prescribed document on the basis that the document does not exist and the agency or Minister considers the document has been kept in, and is retrievable from a backup system, the agency or Minister must search the backup system before refusing access.

Other relevant RTI/IP Act sections

Schedule 6 RTI ActSchedule 6 defines 'backup system' for the purposes of the RTI Act as:

a system that has, for disaster recovery purposes, copied electronic data onto a separate data storage medium, for example onto a backup tape.

Section 29 RTI ActSection 29 of the RTI Act provides that an agency or Minister is generally not required to search a backup system for documents relevant to an access application.

Section 49 IP ActSection 49 of the IP Act replicates section 29 of the RTI Act and is relevant to dealing with access applications under the IP Act.

Application of section 52(2) RTI Act

Last updated: November 25, 2021

Before access can be refused to a prescribed document that does not exist, it will be necessary to search a backup system if the agency or Minister considers that the document has been:

There is no obligation to search the backup system for documents that exist but cannot be found.1A prescribed document is a document that:

Refer to Documents nonexistent or unlocatable for more information.

  • 1 Cullen and Department of Public Works (Unreported, Queensland Information Commissioner, 21 January 2011) at paragraph 30.

Key published decisions applying section 52(2) RTI Act

Last updated: March 16, 2012

Cullen and Department of Public Works (Unreported, Queensland Information Commissioner, 21 January 2011)

The applicant sought access to documents relating to his transfer between various areas within the Department of Public Works (Department).

The Department did not locate any relevant documents. On external review, one relevant document was located and released to the applicant. The applicant submitted that the Department should conduct further searches of its backup systems.

The RTI Commissioner considered sections 29 and 52(2) of the RTI Act and noted that a search of a backup system is only required in the specific circumstances set out in section 52(2) of the RTI Act. [32]

The RTI Commissioner considered that section 52(2) of the RTI Act requires a backup system be searched only for documents that may not exist, rather than documents that exist but cannot be found. [30] This is due to the specific wording of section 52(2) of the RTI Act, '…that a prescribed document does not exist…', which does not encompass documents that exist but cannot be found.

Here, the Department was satisfied that the documents did exist, so section 52(2) of the RTI Act did not apply. In such cases, section 29(2) of the RTI Act makes it clear that a search of a backup system is only necessary if the relevant agency considers the search 'appropriate'. [31]

Accordingly, access could be refused to the documents under sections 47(3)(e) and 52(1)(b) of the RTI Act. [38]

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Annotated legislation

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