Non-existent or unlocatable documents - a guide for external review applicants

Overview

The Right to Information Act 2009 (RTI Act) gives people a right to access documents of an agency, subject to some limitations which allow the agency to refuse access. This includes where the documents applied for are nonexistent or unlocatable. This is set out in section 52 of the RTI Act.

When does section 52 let the agency refuse access to a document?

Section 52 of the RTI Act allows an agency to refuse access if the agency is satisfied on reasonable grounds that the document applied for does not exist (for example, because it was never created) or the agency has taken all reasonable steps to find the document, but it cannot be located.

Review rights if you believe there are more documents or that a document does exist

You can apply for a review if the agency makes a decision under section 52 that you reasonably believe is not correct, or  if you receive a decision that you reasonably believe does not deal with all documents of the agency that fall within your application.

This can be an internal review from the agency or an external review from the Office of the Information Commissioner (OIC). Refer to Explaining your review rights for more information.

If the agency decided a document does not exist

As part of considering an agency’s decision that a document does not exist, OIC will consider whether there are reasonable grounds to be satisfied that the requested document does not exist.

The RTI Act does not list any criteria for what constitutes reasonable grounds. However, the Information Commissioner has said that to satisfy itself that a document does not exist an agency must rely on its knowledge and experience about the structure and arrangement of government and the agency, its functions, responsibilities, practices and procedures. For example, the Information Commissioner may consider the functions of the agency in forming a view on whether the requested documents are (or should reasonably be) in existence.

The agency does not have to search for the document if it decides, based on the above factors, that the document in question was never created. It is sufficient that the relevant circumstances to account for the non-existent document are plausible and explained.

If, however, the agency establishes that the document was or should have been created, it must take all reasonable steps to locate the document.

What are ‘reasonable steps’ is assessed on a case by case basis. On external review, the OIC will ordinarily ask the agency to provide specific information about the relevant record keeping systems and the searches conducted.

Documents that were or are in existence, but cannot be located

An agency must locate all documents that an applicant applies for. One of the Information Commissioner’s external review functions is to determine whether the agency took all reasonable steps to identify and locate all the documents the applicant applied for.

During an external review, the OIC may need to exercise this function if:

• an agency made a decision under section 52 that a document you applied for could not be located; or
• you reasonably believe a document that you applied for exists, but it wasn’t dealt with by the agency, eg the document was not mentioned in your decision notice.

As set out above, what is reasonable is assessed on a case by case basis. If an agency refuses access because a document is nonexistent or unlocatable OIC will require the agency to provide evidence to justify its claim or undertake further searches. OIC may also require further searches to be undertaken if the agency did not make a decision under section 52, but you reasonably believe the agency has documents that fall within your application that it did not deal with.

The OIC may ask you to provide information about the document, why you believe this document exists, and/or why you consider the agency has not performed adequate searches for this document. This information will help the OIC make appropriate enquiries and specifically target any additional searches they ask the agency to conduct.

If the OIC asks you for more information, you are required to assist OIC in its inquiries. Where you do not cooperate with a reasonable request of OIC, the Information Commissioner may make a decision based on the available information or decide not to continue with external review.

Reasonable grounds and all reasonable steps

The OIC may form the view that there are reasonable grounds to be satisfied the document does not exist, that the agency has taken all reasonable steps to locate the document and it cannot be found, or that the agency does not have any more documents.

If all reasonable steps have been taken to find a document and the document cannot be found, then access can be refused under section 52, even if hypothetical further and better searches might possibly locate additional documents.¹ The requirement is to undertake all reasonable steps, not all possible steps.

If you disagree with the OIC’s view, it will be up to you to demonstrate that the agency does not have reasonable grounds to be satisfied, that it has not taken all reasonable steps,² or that more documents exist. General assertions that the documents must exist or that there must be more documents, without any supporting evidence, will not generally be enough for the OIC to require further searches.³

What if more documents are found?

If the agency finds additional documents during the external review process the OIC may refer those documents back to the agency to deal with as a new application. If this happens, the agency will process the documents and give you a new decision on them.

Will the OIC do the searches itself?

Under the RTI Act, the Information Commissioner has broad powers and can require an agency to conduct further searches for a document.⁴ However, OIC does not, and the RTI Act does not permit or require it to, attend agency premises to conduct searches or check an agency’s records for relevant documents.⁵

OIC may identify the specific searches it requires an agency to conduct, but it depends on agency officers to do the physical searching of hard copy and electronic locations.⁶

Does an agency have to keep every document it creates?

No, it does not. There are specific rules about when documents must be retained, for how long, and when they can be destroyed. These are set out in the Public Records Act 2023 (Qld), Information Standards, guidelines, Public Records Briefs, and retention and disposal schedules.

Retention and disposal schedules set out how long certain records must be retained by agencies and when and how records can be destroyed at the expiry of the minimum retention period. OIC may have regard to the relevant retention and disposal schedule if the agency has relied on these to explain why documents cannot be located.

Can I ask for extra documents at external review?

No. The external review process only deals with documents that you applied for in your original access application.

It is not unusual for documents released under an RTI application to raise new issues, further lines of inquiry, or suggest that there may be other documents of interest to the applicant. If this happens you will have to make a new RTI application to the agency; you cannot ask for those extra documents as part of your external review.