Price and Department of Police

Application number:
210548, 210553, 210554
Decision date:
Friday, Feb 27, 2009

Price and Department of Police

(210548, 210553, 210554 27 February 2009)

 

The applicant applied to the Office of the Information Commissioner for an extension of time within which to make several external review applications concerning the Department of Police (QPS).  Subsequently, the applicant forwarded eight letters to the Office for review.

 

Functus officio

 

With respect to the first letter (210548), the Acting Information Commissioner considered it was an FOI application which had been the subject of a completed external review.  The Acting Information Commissioner questioned whether she had the power to vary or revoke an external review decision.  The Acting Information Commissioner, after canvassing relevant statutory provisions and case law and finding that

 

  • the Delegate’s Decision was a valid, final decision made in accordance with section 89 of the FOI Act and conveyed to both the applicant and the respondent
  • there is no obvious error which ought to be corrected under s89A of the FOI Act
  • the Delegate held the necessary delegation
  • the conduct of the previous external review conformed to the requirements of procedural fairness,

 

decided that once an external review decision had been made, the decision making power of the Information Commissioner was spent.  That is, the Information Commissioner was functus officio.  Accordingly, the Information Commissioner had no power to deal with this application for external review and no discretion to accept it out of time.

 

With respect to the remaining seven letters the Acting Information Commissioner questioned which, if any, constituted FOI applications out of which reviewable decisions arose.  The Acting Information Commissioner decided two of the letters constituted valid FOI applications out of which reviewable decisions arose.

 

In circumstances where the agency had made a ‘deemed decision’ because it had not made a decision within the statutory time periods, and the agency had not given the applicant notice of the ‘deemed decision’ and the applicant’s review rights under the FOI Act, the Acting Information Commissioner decided that the statutory time period within which the applicant must make an external review application had not commenced.  The Acting Information Commissioner decided that a procedural failure of this kind should not be used to disentitle an applicant an external review.  Nor should the applicant be put to the inconvenience of re-applying for external review, once an agency had been directed to issue the required notice.  On that basis the Acting Information Commissioner accepted both applications for external review.

 

 

Section 29B of the FOI Act – Refusal to deal

 

In relation to one of these applications (210553) the Acting Information Commissioner was satisfied from an examination of the wording of the application that:

 

  • the applicant was requesting the same documents subject of an earlier application made by the applicant
  • the earlier application was not withdrawn
  • the later application has not disclosed any reasonable basis for again seeking access to the documents and
  • the earlier agency decision was the subject of a completed review under part 5 of the FOI Act.

 

On that basis the Acting Information Commissioner decided to set aside QPS’s deemed decision to refuse access to the requested documents, and make a decision to refuse to deal with the application under section 29B of the FOI Act.

 

Section 25(2) of the FOI Act – FOI application must contain sufficient information for a document to be identified

 

In relation to the second of these applications (210554) the Acting Information Commissioner decided that as it was not clear from the applicant’s correspondence what additional documents he was seeking under the FOI Act, the preferable course was for the applicant to make a fresh FOI application to QPS clearly identifying the documents sought.