In effect from: 1 July 2025
The Right to Information Act 2009 (Qld) (RTI Act) gives people the right to apply to an agency or Minister for access to documents. This right is subject to limitations set out in section 47(3).
Section 47(3)(a)-(f) sets out when an agency can refuse access to information. This page explains how to apply:
- 47(3)(e) – access is refused because the document is nonexistent or unlocatable as mentioned in section 52; and
- 47(3)(f) – access is refused because other access to the document is available as mentioned in section 53.
Note: references on this page to an agency include a Minister.
Documents that are nonexistent or unlocatable
Section 47(3)(e) of the RTI Act allows an agency to refuse access to a document that is non-existent or unlocatable as set out in section 52.
In order to rely on section 52, the agency must be satisfied that:
- the document does not exist (for example, because it was never created); or
- the document has been, or should be, in the agency's possession and it cannot be located despite all reasonable steps having been taken to find the document.
Transferring the application
If the reason for the document not having been created or received is that it is held by another agency, the agency that received the application should consider transferring it.
Is the agency satisfied that the document does not exist?
As set out in PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) (PDE), to be satisfied that the document does not exist it will be necessary to consider:
- the administrative arrangements of government
- the agency 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 exclusive to its information management approach); and
- other factors reasonably inferred from information supplied by the applicant including the nature and age of the requested document/s; and the nature of the government activity the request relates to.
When the above factors are properly considered, it may not be necessary for an agency to conduct searches (PDE; Exemplar Health and Sunshine Coast Hospital and Health Service [2021] QICmr 27 (8 June 2021 (Exemplar Health)).
An agency may also need to consider the specific scope of the application when determining if an applied for document is non-existent. In Exemplar Health, the applicant contended additional documents must exist because they possessed a version of a released document that differed from the copy released to them. In that decision, the Commissioner noted that the applicant had applied specifically for issued memoranda and, while the applicant had a different version of the released memoranda, there was no evidence that that version had been issued (Exemplar Health).
Legislative record-keeping requirements
In S13 and Queensland Police Service [2020] QICmr 13 (28 February 2020) the applicant sought access to a Public Interest Disclosure (PID) Register, and sought review of the agency's decision that the document was non-existent on the grounds that the Public Interest Disclosure Act 2010 (Qld) required the agency to keep such a register. On review, the agency maintained that, while they did keep records relating to PIDs, they did not, and were not required to, keep a specific PID Register.
The Commissioner did not accept that the existence of record-keeping obligations under the PID Act established the existence of an internal PID Register and based on that, and evidence provided that such a Register did not exist, upheld the agency's decision that the document was non-existent.
Is the agency satisfied that the document is unlocatable?
To be satisfied that a document is unlocatable, the agency must first consider whether there are reasonable grounds to be satisfied the document has been or should be in the agency’s possession or control. Once that is established, the agency must take all reasonable steps to find it (2TH1KV and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 21 October 2011)).
All reasonable steps
When refusing access to a document because it is unlocatable, the agency must set out:
- why it believes the document exists; and
- that it could not be found despite all reasonable steps being taken to find it.
An explanation of the reasonable steps which were taken to locate the document must be included in the decision notice.
Officers in relevant operational areas will often be able to help meet the obligation to take all reasonable steps to find the document, for example by providing information about the document.
Does the agency have to conduct searches to demonstrate all reasonable steps?
To determine if a document is non-existent or unlocatable, agencies must demonstrate they have taken all reasonable steps to find the document, not just that reasonable searches have been undertaken (PDE and University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009)).
Searches are one way an agency can demonstrate it has taken reasonable steps to find the document. Thorough searching is helpful if the decision maker has doubts about where the document could be located within the agency, but searches alone may not disclose the existence of a document that has been or should be in the agency’s possession. However, if the agency bases its decision that a document is non-existent or unlocatable on searches, all reasonable steps must be taken to locate the requested documents (Exemplar Health).
As mentioned above, the decision notice must explain the steps taken to find the document. Where searches were undertaken, the notice should include details of the locations searched, why those locations were chosen, and a description of how the searches were conducted.
Example
Joe Bloggs is a decision maker in the RTI Unit at the Department of Widgets. He receives an application for access to “the plant watering schedule for the Department of Widgets for the period March – June 1998”.
Joe knows that his agency’s approved Retention and Disposal schedule provides for the destruction of general administrative records after five years so he is fairly confident that the plant watering schedule for 1998 no longer exists.
To satisfy himself that this is the case, Joe contacts the Department’s records area and they send him a copy of the Certificate of Destruction for the agency’s plant watering schedules, so he knows that the document does not exist. In his prescribed written notice to the applicant, Joe explains that the document is non-existent because it was destroyed in accordance with the Department’s approved Retention and Disposal schedule. He also includes a copy of the relevant Certificate of Destruction so the applicant knows that the document no longer exists.
Must the agency search its backup systems?
No, an agency would only do so in limited circumstances. These include where an agency intends to refuse access to a prescribed document because the document does not exist and it considers the document has been kept in, and is retrievable from, a backup system.
A prescribed document is a document required to be kept under the Public Records Act 2023 that is not a document that the agency could lawfully have disposed of under that Act (section 54(2) of the RTI Act).
Before refusing access to a prescribed document because it is non-existent, the agency must search the backup system. This requirement does not apply to documents that are unlocatable (Cullen and Department of Public Works (Unreported, Queensland Information Commissioner, 21 January 2011))
Other access to the document is available
Under section 47(3)(f), an agency may refuse access to a document if the document is otherwise available.
Can the agency choose to provide access under the RTI Act?
An agency is not required to refuse access to a document where other access is available, however if an agency does choose to give access under the RTI Act the applicant should not face higher fees than under the alternative access method.
When is other access available to a document?
Other access is available to a document if the applicant can reasonably access the document under another Act, or under arrangements made by an agency, whether or not the access is subject to a fee or charge.
Documents which would fall under this subsection are those available:
- in an agency's disclosure log
- in publicly available transcripts of court proceedings
- in agencies' policy documents
- for purchase under an established access scheme.
The Commissioner has previously determined that documents tendered in court and marked as exhibits and court transcripts were reasonably available 'under another enactment'. Similarly, if an applicant has issued a notice of claim to a Department, all documents relevant to the matters in issue can be obtained from the Department in pre-court procedures under the Personal Injuries and Proceedings Act 2002 (Qld) and will therefore fall within section 53(a) of the RTI Act.
Allowing agencies to refuse access under the RTI Act to documents available by other means ensures specialised access regimes provided for in other Acts or agency-specific access schemes are not overridden. The presence of restrictions on accessing documents under those statutory schemes or arrangements, however, may invalidate this ground for refusing access.
Not all information is available to every applicant
Before a decision maker refuses access because other access is available they must consider whether the applicant can 'reasonably access' the documents they have applied for.
In some cases access to information is restricted. For example, transcripts from the Magistrates Court are usually only available to a person whom the Registrar deems to have a sufficient interest in the matter. Such restrictions may have the practical effect of denying access to all or some of the particular documents sought.
The Commissioner has found that the below may affect whether access is reasonably available to the applicant (JM and Queensland Police Service (1995) 2 QAR 516).
The applicant
If access to the requested document is reasonably available to the particular applicant, access may be refused provided that other aspects of the reasonableness test are met. It does not matter that access is not available to the general public or all members of the community. For example, if an applicant is able to access a copy of their own criminal history through administrative access procedures of the Queensland Police Service other access to that document would be available to that applicant.
Cost
The fact that other access is only available for a fee is not enough on its own to make access unreasonable. It may be different if an agency’s access scheme has unreasonably high fees, which markedly exceed reasonable cost recovery. Where the document is available for purchase, the reasonableness of access may also depend on the availability of stock
Geography
A scheme requiring a person to travel to an agency to inspect documents might mean that an applicant cannot reasonably access that document, particularly where the applicant lives a considerable distance from the agency.
Documents available for public inspection
Other access is available if the document is reasonably available for public inspection under the Public Records Act 2023 (Qld) (Public Records Act) or in a public library (Candy and Environmental Protection Agency (Unreported, Queensland Information Commissioner, 25 November 2008)). The document does not have to be reasonably available for public inspection by the particular applicant, merely that it be reasonably available for inspection by the public in general.
For example, where the document has been placed in the State Library of Queensland and is generally available to the public the fact that the applicant resides in Far North Queensland does not mean the agency is unable to rely on this section to refuse access.
Copies of documents stored at Queensland State Archives
Other access is available to a document if it is stored for preservation or safe custody in the Queensland State Archives (QSA) and it is a copy of a document of an agency.
This covers those documents held by QSA which are copies of agency documents. It allows agencies to refuse access to documents if copies can be accessed at QSA.
The mere fact that a document is held by QSA does not mean that an agency may refuse access to the documents. Before refusing access the agency should establish whether the document is subject to a restricted access period. If it is, they should ascertain whether access to the applicant would be approved by a person with authority to provide it under the Public Records Act.
Documents in the restricted access period
Section 34 of the Public Records Act provides a general right of access to public records which are not subject to a restricted access period. A 'restricted access period' is defined in section 28 of the Public Records Act and the length of the restricted access period is set out in schedule 2 of the Public Records Act. .
Commercially available documents
Other access is available to a document if the document is commercially available. This may cover a number of documents available for a fee under an agency scheme. However, it would also cover documents held by agencies which have not been produced by those agencies. This would include documents such as maps and property titles data available from the Titles Office.
What should an agency do if they refuse access?
If an agency intends to refuse an applicant access to documents on the basis that other access is available, the applicant should be advised of this fact as soon as possible. The decision maker should also give the applicant details about how to access the alternative access arrangements.
If it is a type of information which can only be provided to a particular applicant, the agency or Minister should advise the applicant of what needs to be established to obtain access.