Decision and Reasons for Decision - Office of the Information ...

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Office of the Information Commissioner (Qld) - 210906 - Page 8 of 22 agency or Minister is required to satisfy itself that the document sought exists (to the extent that it has been or should be in the agency’s possession) and carry out all reasonable steps to find the document before refusing access. ‘Satisfied’ 18. In PDE the Information Commissioner also considered how an agency is to satisfy itself as to the non-existence of documents sought by an applicant and indicated that to be satisfied that a document does not exist, it is necessary for the agency to rely upon its particular knowledge and experience with respect to various key factors including: • 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) • other factors reasonably inferred from information supplied by the applicant including: o o the nature and age of the requested document/s the nature of the government activity the request relates to. 19. To be satisfied under section 28A(2) of the FOI Act that a document can not be found an agency must take all reasonable steps to locate a document. Section 28A(1) is silent on the issue of how an agency is to satisfy itself that a document does not exist. 20. When proper consideration is given to the key factors discussed at paragraph 18 above and a conclusion reached that the document sought does not exist, it may be unnecessary for the agency to conduct searches. However, where searches are used to substantiate a conclusion that the document does not exist, the agency must take all reasonable steps to locate the documents sought. 9 21. Therefore, in applying section 28A(1) of the FOI Act it is relevant to firstly ask whether there are reasonable grounds to be satisfied that the requested documents do not exist. If the agency has used searches to satisfy itself that the additional documents sought do not exist, it is then necessary to consider whether the agency has taken all reasonable steps to find the additional documents sought. QH’s reasons 22. In the decision under review QH states that in relation to items 1-3 & 7-8 of Part One and item 7 of Part Two of the FOI Application: • it searched for documents by conducting a physical review of all hard copy files in the following locations: o Human Resources Department Cairns Base Hospital – office of the Director HRM 9 See PDE.
Office of the Information Commissioner (Qld) - 210906 - Page 9 of 22 o o o o Workplace Health and Safety offices at Cairns Base Hospital – files held by Ms Anna Mintowt-Czyz Office of the Executive Director of Medical Services at Cairns Base Hospital Office of the Clinical CEO Office of the former District Manager o Office of Dr Sue Anastasios, Medical Superintendent, Mossman Hospital/DSMPHS o Mossman Hospital. 23. QH states that despite undertaking the above searches, it was unable to find any responsive documents to items 1-3 & 7-8 of Part A and item 7 of Part B of the FOI Application for the following reasons: a) during the time period between the FOI Application and when the events the applicant is interested in occurred, there were a number of substantial organisational changes occurring at both a staff and process level within the District b) several of the specific individuals that were identified as possibly holding relevant material are no longer employed by QH c) the Cairns District Executive Office has had a number of people acting in senior management positions for short periods of time, making continuity an issue. This has been further compounded by a similar level of staff changeover among the administrative staff occupying the Executive Support Officer roles in the Executive Office d) it is QH’s belief that where communications have taken place between particular individuals, these communications were primarily verbal and were not necessarily documented e) it was advised by the District’s Information Division that a search for the possible existence of electronic communications, where it is unknown whether any e-mail communications exist, is an impossible task. 24. In response to further requests from the Office, QH provided me with information about the individuals approached and the specific areas which were searched as a consequence of receiving the FOI Application. 25. In denying access to documents under section 28A of the FOI Act, QH contends that it has taken all reasonable steps to locate relevant documents within the District and has concluded that the documents do not exist. The applicant’s submissions 26. In response to QH’s searches and submissions above, the applicant submits the following: • QH’s searches for documents have been inadequate • QH does not appear to have approached relevant staff members who could have been of assistance
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