Ott and Logan City Council
(310609, 30 August 2011)
Section 67(1) of the Information Privacy Act 2009 (Qld) – grounds on which access may be refused - Sections 47(3)(e) and 52(1)(a) of the Right to Information Act 2009 (Qld) – document nonexistent
The applicant, a Logan City Council (Council) employee, made a complaint to Council about a number of Council officers. Council retained Local Government Workcare (LGW) to investigate the applicant’s complaint. The applicant applied to Council under the Information Privacy Act 2009 (Qld) (IP Act) for access to “all requests to Council from [the LGW Investigator] in relation to investigation file and for CD copy of my personnel file” (Requested Documents).
After conducting searches for the Requested Documents, Council decided to refuse access under section 67(1) of the IP Act and section 47(3)(e) and 52 of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that the Requested Documents were nonexistent or unlocatable.
During the course of the external review, Council conducted further searches for the Requested Documents and explained that:
· Council’s practice is to send documents through to LGW in response to a verbal request from the LGW investigator
· it is not standard practice for the LGW investigator to issue Council with a written request for files relevant to his investigations
· generally, Council officers do not make records of all telephone discussions with the LGW investigator; and
· in this case, the LGW investigator made a verbal request for the applicant’s personnel and investigation files which was not recorded by Council.
Council also provided submissions on the nature and extent of the searches it performed for the Requested Documents.
After considering the Information Commissioner’s decision in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009), the Right to Information Commissioner decided that Council:
· had provided a reasonable explanation as to why the Requested Documents did not exist
· had taken all reasonable steps in searching for the Requested Documents to be satisfied that they did not exist; and
· may refuse access to the Requested Documents under section under section 67(1) of the IP Act and section 47(3)(e) and section 52(1)(a) of the RTI Act on the basis that they do not exist.
