Sufficiency of search on external review (agencies)

Overview

The Right to Information Act 2009 (Qld) (RTI Act) and Information Privacy Act 2009 (Qld) (IP Act) provide a right of access to documents of an agency, subject to a number of exclusions and limitations.  One ground for refusal of access is where the document sought is “nonexistent or unlocatable” . 1

This Guideline explains the concept of sufficiency of search when agencies have refused access to a document on the basis that is non-existent or unlocatable and describes how sufficiency of search will be handled by the Office of the Information Commissioner (OIC) on external review.

Sufficiency of search concerns raised by an applicant about specific documents or information, if they are the only issue raised, cannot form the basis of an internal review and the applicant’s only option is to seek an external review. However, where an agency has refused access to documents because they are non-existent or unlocatable the applicant can seek an internal review.

When will sufficiency of search be an issue on external review?

Sufficiency of search will be an issue on external review if:

  • the decision under review is a decision to refuse access to a document on the basis that it is non-existent or unlocatable; 2 or
  • the applicant raises concerns about the sufficiency of the agency’s searches for specific documents or for information relevant to the application generally.

In both circumstances, the underlying issues will be whether there are reasonable grounds to expect that the documents exist with the agency; and whether the agency has taken all reasonable steps to locate the documents.

What is the process for dealing with a sufficiency of search issue on external review?

Usually, OIC will identify whether sufficiency of search is an issue at the start of an external review and will inform the agency in its opening letter. Where the applicant raises specific concerns or identifies specific documents that it thinks should have been located in response to the access application, OIC will usually include those details in its correspondence.

In order to assess the sufficiency of the agency’s searches, OIC may request a submission from the agency which sets out:

  • locations that were searched
  • reasons those locations were chosen (including reference to relevant record keeping policies and practices)
  • search terms used in searching any electronic databases; and
  • any explanation the agency can offer as to why the documents do not exist or cannot be located.

OIC will also require a record of the agency’s searches and signed certifications 3 from officers involved in searching for documents. OIC may also ask the agency to undertake additional searches and inquiries to demonstrate that it has taken all reasonable steps to locate relevant documents.

Generally, OIC seeks to informally resolve issues under review.  In order to assist informal resolution of sufficiency of search issues, OIC asks agencies to provide submissions in a format that can be disclosed to the applicant.  If the agency is concerned about any part of its submissions being provided to the applicant, the agency should advise OIC of its concerns. If a sufficiency of search issue cannot be resolved informally, OIC will issue a formal decision on the issue.

Who bears the onus and what is the onus?

Usually, the agency bears the onus 4 of demonstrating that its searches have been sufficient.  The standard which the agency must satisfy depends on whether the agency claims the document is non-existent , or unlocatable .

Non-existent documents

In order to satisfy its onus to establish that a document is ‘non-existent’, the agency must demonstrate that there is no reasonable basis to expect the document exists with the agency. To do this, the agency may provide OIC with an explanation about why the documents do not exist, eg the agency does not usually create the kind of document requested. Importantly, if the agency conducts searches before concluding the document is non-existent, the agency must demonstrate to OIC that it has taken all reasonable steps to locate the document and there is no reasonable basis to expect the document exists with the agency.

Unlocatable documents

In order to satisfy its onus to establish that a document is ‘unlocatable’, the agency must show that there are reasonable grounds to be satisfied the document was or should be in agency’s possession and all reasonable steps have been taken to find the document, but the document cannot be located.

What steps are “reasonable”?

What steps are “reasonable” will depend on the circumstances of each review.

  • The Information Commissioner has explained that an agency must rely on its knowledge and experience and consider the following factors in order to satisfy itself that a document does not exist: 5
  • 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)
  • relevant administrative practices and procedures, including but not exclusively, information management approaches.

The agency must also consider factors identified in the access application and any other information supplied by the applicant, for example:

  • nature and age of the document sought
  • nature of the government activity to which the access application relates.

Informal resolution of sufficiency of search reviews

OIC will seek to resolve the matter informally with applicants, generally in a telephone conversation or by a written preliminary view.  If the applicant agrees to informal resolution OIC will, in most cases, provide further information about the agency's searches.

If any sufficiency of search issues remain of concern to the applicant, or if OIC identifies issues on which it requires additional information prior to being satisfied that section 52(1) applies, OIC may ask the agency for additional searches/inquiries/explanations.

Alternatively, OIC may seek to speak with officers in the relevant business unit involved in creation of related documents and recordkeeping.  This is because these officers have the most intimate knowledge of these practices and procedures.

Case Study – Informal resolution of sufficiency of search review

The applicant was in a dispute with a Council plumber in relation to flooding on his property and sought all documents from an agency in relation to the plumbing inspections. The agency provided the applicant with full access to a number of documents; however, the applicant sought external review on the basis that the agency had not located all documents responding to his access application.

On external review, the applicant provided OIC with extensive submissions identifying each document he claimed was missing. OIC forwarded the applicant’s submissions to the agency and asked the agency to respond to each of the issues raised.

The agency responded with detailed submissions addressing the applicant’s request and offered to meet with the applicant to discuss the documents he sought. The agency also provided OIC with a number of signed memoranda from managers certifying the searches undertaken and that further documents did not exist.

The applicant was willing to resolve the matter when he received further detailed information on the agency's searches.

1 Sections 47(3)(e) and 52 of the RTI Act.  Note that section 67 of the IP Act adopts the grounds for refusal as set out in section 47 of the RTI Act. [up]
2 Under sections 47(3)(e) and 52 of the RTI Act. [up]
3 OIC can provide a search certification template to be completed by Departmental officers involved in the searches.  Officers are required to provide their contact details and are reminded that it is an offence under section 177 of the Right to Information Act 2009 (Qld) and section 186 of the Information Privacy Act 2009 (Qld) to provide false or misleading information to the Information Commissioner or staff of the Office of the Information Commissioner. [up]
4 Section 87 of the RTI Act provides that on external review, the agency or Minister who made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision that is adverse to the applicant. [up]
5 PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009) at paragraph 37. [up]

Current as at: March 18, 2016