Webb v Information Commissioner
[2021] QCATA 116
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Webb v Information Commissioner[2021] QCATA 116
- Add to List
Webb v Information Commissioner[2021] QCATA 116
Webb v Information Commissioner[2021] QCATA 116
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Webb v Information Commissioner [2021] QCATA 116 |
PARTIES: | gayle webb (applicant/appellant) |
v | |
office of the information commissioner queensland | |
queensland health (respondents) | |
APPLICATION NO/S: | APL086-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 22 October 2021 |
HEARING DATE: | 29 September 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES – Queensland – appeal on a question of law – documents sought included some exempt information – some documents sought found to be non-existent or unlocatable – no error of law shown Right to Information Act 2009 (Qld) s 52, s 119. Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Powell v Queensland University of Technology [2018] 2 Qd R 276 |
APPEARANCES & | |
Applicant: | Self-represented |
Respondents: | T Lake solicitor of the Office of the Information Commissioner, for first respondent J Franco principal lawyer of Crown Law for the second respondent |
REASONS FOR DECISION
- [1]On 8 October 2018 the appellant applied to the second respondent under the Right to Information Act 2009 (Qld) (“the Act”) for access to certain documents. In due course the second respondent disclosed a number of documents to the appellant, but declined to disclose parts of twelve pages to the appellant, on the basis that the disclosure of that information would on balance be contrary to the public interest. The appellant applied to the first respondent for external review of that decision. During the external review process a number of other documents within the application were identified and disclosed to the appellant. Ultimately the first respondent decided that information falling into three categories was not to be disclosed, as disclosure was on balance contrary to the public interest, and that any further documents sought by the appellant were non-existent or unlocatable.[1]
- [2]The appellant has appealed to the Tribunal from that decision. There is a right to appeal to the Tribunal under the Act s 199, but only on a question of law. The appeal provided by s 199, because it is confined to a question of law, is in the nature of judicial review, as is shown by strong authority.[2] The appeal does not provide a mechanism for reconsidering any issue of fact decided by the first respondent, except on the narrow ground that, as a matter of law, the decision on the issue was not open on the material before the first respondent. The only issue is whether an error of law was made by the first respondent.[3] If on appeal an error of law is shown, the appropriate course is to refer the matter back to the first respondent to decide according to law, unless as a matter of law only one decision was open on the material before the first respondent.[4]
Appellant’s submissions
- [3]The appellant did not have the benefit of legal advice, and clearly had difficulty in coming to grips with the concept of a “question of law” for the purposes of an appeal to the Tribunal. Her complaints fell broadly into three categories. First, that there had been insufficient and inadequate searches for documents within the scope of her request. Second, that there had been errors essentially of a procedural nature in handling her request. Third, that the way in which the Act operated in practice did not ensure proper transparency and accountability of government departments.
- [4]As to the first category, the appellant worked at one time within the second respondent, and sought documents relating to her employment. She complained that documents she recalled, from when she had been working and which she could recall seeing or having been a party to, such as certain emails to or from her, had not been disclosed, apparently on the basis that searches for them had not been sufficiently thorough to locate them. She also complained that some of the people involved in the subject matter of the relevant documents had been involved in the searches, which was not consistent with proper accountability, and gave them the opportunity to suppress such documents. Her submissions in writing identified a list of documents or categories of document, some with a good deal of detail, and she submitted that a failure to disclose these documents meant that the searches undertaken by the second respondent had been inadequate.
- [5]The first respondent, in the decision under appeal, found that the second respondent had taken reasonable steps to locate documents responsive to the application for disclosure. The appellant has not shown that in making this finding the appellant made any error of law. The reasons stated that what constitutes all reasonable steps will vary from case to case, depending on the circumstances, which discloses no error of law. It is clear from the progress of this matter that efforts were made by the Office of the Information Commissioner, which had been provided by the appellant with the details of the documents not disclosed, to pursue the adequacy of the searches for relevant documents, and additional documents were produced during the external review, showing that further efforts were made at that time to search comprehensively. The application was expressed in fairly general terms, and it occurs to me that there may well have been a number of different places within the records of the second respondent where relevant documents might have been located. That could well have made it difficult to identify all the places to search for documents within the application.
- [6]Ultimately however the first respondent is dependent on the officers of (in this case) the second respondent to do the actual searching for relevant documents. The Act does not contemplate that the first respondent will in some way check an agency’s records for relevant documents. The second respondent provided information about its recordkeeping system and searches, which shows that this matter was investigated by the first respondent. The finding by the first respondent that reasonable steps had been taken has not been shown to involve any error of law. That is so even if, at least in theory, further and better searches might possibly disclose additional documents. The question in any particular case is whether the tests in s 52 of the Act have been met.
- [7]I can understand the appellant’s frustration with what she claims are many documents which she says existed not being produced. She said that these were mainly electronic documents, such as emails, and that the second respondent has comprehensive electronic back-up systems properly to preserve such documents.[5] However, unless it can be shown that there was some error of law on the part of the first respondent in coming to this conclusion, nothing can be done about this in an appeal on a question of law.
- [8]As to the second category, the appellant complained about a number of things which do not involve any legal error on the part of the first respondent. She complained that at one stage her application was being dealt with by the second respondent under the Information Privacy Act 2009 (Qld) when she had applied under the Act, but it is clear that the decision of the first respondent properly treated the external review as proceeding under the Act.
- [9]Apart from information found to be non-existent or unlocatable, the decision of the first respondent identified three categories of information disclosure of which was refused: Category A, the mobile telephone numbers of Queensland Health officers; Category B, the personal (ie non-departmental) email addresses of persons; and Category C, names of and other information about other candidates for employment with the second respondent. It was not entirely clear from the appellant’s written submissions whether she was pressing for disclosure of the Category A and Category B information[6] but at the hearing she clarified that she did want this information released if release was permissible under the Act. But the first respondent has decided that such information is exempt information under the Act, and therefore not to be released. The appellant has not shown that there was any error of law in that decision, and no error is obvious to me from the reasons of the first respondent.
- [10]The appellant complained that some personal information was disclosed to her, such as information identifying certain members of her family, although this was on documents provided to the second respondent by her, and therefore presumably known to her anyway. No inconsistency disclosing an error of law was identified. It appears that documents with category A, B and C information redacted have been provided to the appellant, although it may be that there was some delay in this while the status of information in those categories was being investigated, and the matter was being considered.
- [11]The appellant complained about the length of time the whole matter has taken, and the fact that documents have been released to her from time to time. I expect there are reasons for this, but it is not apparent to me that there has been any error of law on the part of the first respondent involved in any delay. It may be that part of the delay in the external review was due to the efforts of the first respondent to confirm that all reasonable steps had been taken to identify documents within the terms of the application for disclosure.
- [12]The appellant complained about the failure to disclose the Category C information, but did not identify any error of law in the decision process of the first respondent as to this information. In essence, she is just unhappy about the outcome.
- [13]In her submissions in reply, the appellant set out a number of questions which she has about the process, but these were generally just complaints about the outcome, or complaints about aspects of the process with which she was unhappy. For example, she claimed that at one point she was told by someone in effect that “only journalists” make applications under the Act. Whatever the perception of the person who made such a remark (and it does not match my experience in this area) it is clear that the first respondent’s decision was not based on the fact that the appellant is not a journalist.
- [14]At one point the appellant submitted that the first respondent had not stated that information in Categories A, B and C was personal information as described in the Information Privacy Act 2009 (Qld): Reply p 3 para 13. Yet the first respondent described the Category A and B information as “personal information” in the reasons paragraph [26], and the Category C information in the reasons paragraph [34], and referred to the definition of “personal information” in the Information Privacy Act 2009 (Qld) s 12 in footnote 36. This submission was just wrong.
- [15]The appellant claimed that the first respondent ignored some provisions in the Act (and in the Information Privacy Act 2009 (Qld) and the Human Rights Act 2019 (Qld)) but did not show that any such provisions were relevant to the decision of the first respondent in this matter, or that there was any error of law involved. She also queried the accuracy of some information in a document disclosed to her, but that does not arise as an issue in this appeal.
- [16]The third category complained about the adequacy of disclosure under the Act, essentially on the basis that she did not receive all the documents she wanted. For example, she submitted that there should be some mechanism for some independent person to audit the searches undertaken by the second respondent, or for the first respondent somehow to undertake searches of records of the second respondent. But the first respondent had to take the Act as it stands, as indeed does the Tribunal. It is not the function of the Tribunal to embark on political questions about the scope of the Act.
- [17]Overall the appellant has failed to show that the first respondent made any error of law in the decision under appeal. I have read the reasons for that decision, and have not detected myself any error of law exposed by them. In those circumstances, the appeal is dismissed, and the decision of the first respondent is confirmed. The first respondent in written submissions reserved the right to make submissions on costs, but at the hearing did not press for costs. The second respondent did not seek costs in written submissions, or at the hearing. There will therefore be an order that the parties bear their own costs of the appeal.
Footnotes
[1] L78 and Queensland Health [2020] QICmr 5.
[2] Osland v Secretary, Department of Justice (2010) 241 CLR 320; Powell v Queensland University of Technology [2018] 2 Qd R 276 at [42] – [46], a case concerning the Information Privacy Act 2019 (Qld) s 132 which is in essentially the same terms as the Act s 199.
[3] As to the identification of an error of law, see also Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202.
[4] Powell (supra).
[5] The appellant said she has a background in IT, and worked in that field in the second respondent.
[6] See for example the submissions by way of reply p 4 paragraph 18.