The Right to Information Act 20091 (Qld) (RTI Act) gives people the right to access documents in the possession or control of Queensland government agencies,2 subject to some limitations. It also provides applicants and consulted third parties with review rights. In some circumstances, the review process involves assessing whether an agency has searched sufficiently for documents within the scope of the application.
This guideline explains how these search issues are commonly dealt with on external review.
Search Issues at Internal review
An agency can only deal with search issues at internal review if the applicant has applied for internal review of a reviewable decision and the agency has accepted it. However, if this has occurred, the agency can deal with any search issues as part of the internal review, whether they are directly related to the decision or not.
Refer to How to Conduct an Internal Review for more information.
When will search be an issue during an external review?
Search will be an issue during an 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;3 or
- the applicant raises separate concerns about the sufficiency of the agency’s searches, either generally or for specific documents or information.
In both circumstances, the underlying issues will be whether there are reasonable grounds to expect that the documents exist and whether the agency has taken all reasonable steps to locate them.
Who bears the onus and what is the onus?
The agency generally bears the onus4 of demonstrating that its searches were sufficient.
Non-existent or unlocatable
Where the decision under review is that documents are non-existent or unlocatable, the agency will need to satisfy certain specific criteria. Refer to Documents nonexistent or unlocatable for more information.
What is the process for dealing with search issues on external review?
OIC will generally identify whether the agency’s searches are an issue at the start of an external review and inform the agency in its opening letter. If the applicant raises specific concerns or identifies specific documents they believe should have been located, OIC will usually include those details.
Also, in order to assess the sufficiency of the agency’s searches, OIC may request agency submissions which set out:
- locations that were searched
- reasons those locations were chosen (including references to relevant record keeping policies and practices)
- search terms used in searching any electronic databases; and
- 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, signed certifications5 from officers involved in the searching, and may ask the agency to undertake additional searches and inquiries to demonstrate all reasonable steps have been taken to locate relevant documents.
Informal resolution of sufficiency of search reviews
OIC seeks to informally resolve issues under review. As part of informally resolving sufficiency of search issues, OIC asks agencies to provide submissions in a format which 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.
OIC may also request a discussion with officers in the relevant business unit involved in the creation and/or recordkeeping of relevant documents, as these officers have detailed knowledge of these practices and procedures.
If a review cannot be resolved informally, OIC will issue a formal decision.
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 And Chapter 3 of the Information Privacy Act 2009 (Qld) (IP Act)
- 2 In this guideline, agency includes a Minister.
- 3 Under sections 47(3)(e) and 52 of the RTI Act.
- 4 Section 87 of the RTI Act and section 100 of the IP 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.
- 5 OIC can provide a search certification template to be completed by agency officers involved in the searches.
Current as at: August 25, 2020