Department of State Development, Infrastructure and Planning (Office of Industrial Relations)

ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - DOCUMENTS NONEXISTENT OR UNLOCATABLE - whether agency has conducted reasonable searches - whether access to further documents may be refused on the basis they are nonexistent - section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld)

1. The applicant applied[1] to the Office of Industrial Relations (OIR)[2] under the Information Privacy Act 2009 (Qld) (IP Act) for access to documents containing his health information held by Compliance and Field Services (CFS), Specialised Health and Safety Services (SHSS), Electrical Safety Office (ESO) and Workers' Compensation Regulatory Services (WCRS)[3] over a 17 year timeframe.[4]

1. OIR refused to deal with the application on the basis that it did not comply with all relevant requirements, particularly, the requirement to give sufficient information concerning the requested documents to enable the agency to identify them.[5]

1. The applicant applied[6] to the Office of the Information Commissioner (OIC) for external review of OIR's decision.

1. For the reasons set out below, I vary OIR's decision and find that access to the requested documents may be refused on the ground that they are nonexistent.

1. This is one in a series of access applications that the applicant has made to government agencies seeking access to any information held about him.

1. The decision under review is OIR's decision dated 6 February 2024.

1. The evidence, submissions, legislation and other material I have considered in reaching my decision are set out in these reasons (including footnotes). I have taken into account the applicant's submissions to the extent they are relevant to the issue for determination in this review.

1. I have also had regard to the Human Rights Act 2019 (Qld) (HR Act), particularly the right of a person to seek and receive information.[7] I consider that a decision-maker will be 'respecting, and acting compatibly with' that right, and others prescribed in the HR Act, when applying the law prescribed in the IP Act and the Right to Information Act 2009 (Qld) (RTI Act).[8] I have acted in this way in making this decision, in accordance with section 58(1) of the HR Act.

1. As noted at paragraph 2, OIR decided the applicant's application did not provide it with enough information to locate the requested documents. Having carefully considered the terms of the application, I was satisfied that the application provided sufficient detail regarding the requested documents to enable them to be identified. OIR accepted this. Accordingly, the issue for determination is not whether the application complied with the requirement that it give sufficient information concerning the requested documents for OIR to ide[9]tify them,9 rather it is whether those documents could be refused because they were nonexistent.

1. Access to a document may be refused if the document is nonexistent.[10]

1. To be satisfied that documents are nonexistent, a decision-maker must rely on their knowledge and experience and have regard to a number of key factors, including:[11]

• the administrative arrangements of government
• the agency's structure
• the agency's functions and responsibilities
• the agency's practices and procedures;[12] and
• other factors reasonably inferred from information provided by the applicant.[13]

1. If searches are relied on to justify a decision that documents do not exist, all reasonable steps must be taken to locate the documents. What constitutes reasonable steps will vary from case to case, as the search and inquiry process an agency will be required to undertake will depend on the particular circumstances.

1. The Information Commissioner's external review functions include investigating whether an agency has taken reasonable steps (as opposed to all possible steps)[14] to identify and locate documents applied for.[15] Generally, the agency that made the decision under review has the onus of establishing that the decision was justified or that the Information Commissioner should give a decision adverse to the applicant.[16] However, if the applicant maintains that further documents exist, the applicant bears a practical onus of establishing reasonable grounds to be satisfied that the agency has not discharged its obligation to locate all responsive documents. Suspicion and mere assertion will not satisfy this onus.

1. During the review, OIR provided further information[17] about the searches and inquiries it conducted in this and two other applications[18] made by the applicant to locate responsive documents.

1. After considering the information provided by OIR, I wrote to the applicant and explained the searches and inquiries conducted by OIR and the reasons for my preliminary view that OIR had conducted all reasonable steps to locate responsive documents:[19]

Searches

Compliance and Field Services (CFS)

As you know, OIR can conduct searches using an individual's name in its case management system (CISr) and these searches will capture the individual if they have been recorded as:

• a person who submitted an incident notification
• an injured person; or
• a person who lodged a complaint.[20]

You have confirmed that, as far as you are aware, you would not be identifiable via these categories - that is, a notifier, an injured person or a complainant. Consistent with this, CFS has previously[21] undertaken an 'event by person' search in its case management system, CISr, using your first and last name and combinations of your name which returned no results. > > In addition to an 'event by person' search, in 317523, searches of 'event notification spreadsheets'[22] for Logan, Robina and State Wide Investigations using your full name were also undertaken by relevant units within CFS and returned no results. > > Electrical Safety Office (ESO) > > In addition to an 'event by person' search, in 317523, OIR also performed searches in old records management systems including EL-QLD and Alchemy and the Licensing Processing Services inbox using your full name. These searches returned no results. > > I also note that there is no electrical licensing history held by the ESO under your name. > > Specialised Health and Safety Services > > OIR made enquiries with the Chief Advisor, Occupational Health and Hygiene (OHHA) who provided further information of when and why OIR would collect health monitoring records of individuals. It was explained that: > > OIR may receive health monitoring records from time to time as part of its respiratory diseases monitoring function. Employers are required to monitor the health of their employees when managing respirable crystalline silica dust exposure for employees who are required to wear respiratory masks for periods of more than 35 consecutive workdays. Under the relevant Codes of Practice[23] the employer must inform the employee that the health monitoring is occurring, provide training about the health monitoring and provide copies of the medical records to the workers. Employers are not required to notify OIR when they have provided health monitoring, but occasionally employers will inform OIR that health monitoring has occurred. > > Employers are also required to undertaken [sic] when workers are exposed to hazardous chemical for which here is a valid test method for detecting health effects or exposure, including lead and asbestos exposure. Under the regulation employers must supply a copy of the health monitoring report to the employee and they are only required to provide a copy to OIR if:

• the report contains any advice that test results indicate that the worker has contracted a disease, injury or illness as a result of carrying out work with the hazardous chemical or
• a recommendation that the person conducting the business or undertaking take remedial measures, including whether the worker can continue to carry out the work using, handling, generating or storing hazardous chemicals that triggered the requirement for health monitoring.

The Health Monitoring forms that are provided to OIR are not electronically searchable documents. If a concern is raised, the health monitoring form will be forwarded to the regional [sic] and information about the injured person [sic] as a notification in OIR's case management systems. > > Specialist Health and Safety Services completed searches of the Health Monitoring Database under your full name but there were no records located on the database or the associated files held by OHHA.__[24] > > Workers' Compensation Regulatory Services > > Workers' Compensation Regulatory Services (WCRS) explained that medical records would only be identified if they have been provided to the Review Unit in a claim file. However, in some cases, Appeals and Prosecutions may request this information. > > WCRS confirmed that they are only able to search under the name of a claimant. > > WCRS completed searches (using different iterations of your full name and other combinations) with respect to insurance claims and identifying you as the claimant and there were no results. > > Conclusion > > OIR has explained that:

• if medical records of an individual are obtained, this would be during the course of an investigation, a review, appeal or prosecution of a workers' compensation claim or for a specific health monitoring purpose
• in some cases, if medical records are required, they can be obtained by the consent of an individual or OIR can send a notice to the health agency. An authority is required and this must be notated in the patient's file.
• a copy of the notice of compulsion will be on the patient file.

It is possible OIR collected your health information, however, given the explanation provided above, I consider that if this information was collected, you would have known about it - this is because you would be required to authorise the release of your medical records, or you would be aware that you are subject to health monitoring of the type mentioned above by Specialist Health and Safety Services. > > There is nothing before OIC to suggest that you authorised the release of your medical records or are/were subject to health monitoring. There is also nothing before OIC to connect you to a notifiable incident or complaint or other matter including a workers' compensation claim or a specific health monitoring purpose. > > Taking into account the absence of any such information in the relatively high-level, non-specific scope of your application, and also noting the searches and inquiries conducted by OIR to date, I consider it reasonable to expect that these searches and inquiries would have located any relevant documents - or, at the least, located information that may have identified other relevant avenues of search and inquiry. In the circumstances, I am satisfied that OIR has taken all reasonable steps to locate relevant documents and that they are nonexistent or unlocatable.[25]

1. The applicant did not accept my preliminary view and provided a further submission.[26] He contended that OIR had not discharged the onus upon it to take all reasonable steps to locate responsive documents. He sought the following further steps be taken:

In your preliminary view you note that an event by person search was previously conducted during external review 317523 and then it is implied that further searches during this review are not necessary. While it is true that searches have already been conducted within CISr, those searches were undertaken against the employer history reports; it was all but inferred that this was the only way searches could be conducted within CISr. In light of this newly discovered CISr capability, event by person searches using both my known names need to be conducted. Any information uncovered by those searches (whether it be relevant to this review, ER 317523 or ER 317646) needs to be reported to the OIC.

With regards to the event notification spreadsheets, it is not known what information / data fields these notifications contain, and therefore, I am requesting that the OIC ask the OIR for this information. While you do say they contain no more information than what is held on CISr, CISr is a large system, and at this stage it is unclear what types of searches can be conducted and what kind of information those searches can pull from the system...

With regards to the searches said to have been conducted within the event notification spreadsheets for Logan, Robina and State Wide investigations, there is no explanation as to why these locations were relevant while others were not. I have lived (and worked) all over Brisbane, Logan and the Gold-Coast, and therefore, these are the appropriate search locations...

Inquiry is needed to determine whether the Electrical Safety Office (ESO) shares information management systems with Workplace Health and Safety (WHS) (i.e. within CISr). While both these units reside within OIR, ESO and WHS serve completely different legislative purposes; the ESO doesn't get involve [sic] in WHS only matters. While possible, I would have thought they had different information systems, or at the very least, different partitions within the same records management system. Further information regarding the ESO's information management systems is needed, especially those relating to electrical incidents, compliance breaches, investigations, and regulator action. Lastly, to address the searches said to be already undertaken, employer history reports were reviewed in ER 317523 using CISr; there were no person-based searches and it is not clear whether CISr is the appropriate system to be searched.

... While you have said that the Health Monitoring Database was searched, this database is only relevant to monitoring employee health where they have been exposed to biohazards such as asbestos or silica. The information I am concerned with relates to hazard prevention, compliance (with regards to preventative actions), psychological health, psychosocial hazards, disabilities, mental illness and the OIR's interactions with businesses regarding those matters. Proactive engagement on issues such as these seems to be an exclusive undertaking of the SHSS. The SHSS does not acquire information in relation to an event as their functions are largely preventative. Information supplied by the OIR in this review (and others) suggests that CISr is the one records management system employed by the OIR, however the OIR's responses and other sources of information indicate there are other databases, systems and records management locations (Health Monitoring Database, for example). The OIR needs to provide further information regarding the SHSS's scope, operations, and information management systems for searches within this unit to be fairly targeted.

With regards to your claim that WCRS can only search under the names of claimants, the following people have been in-charge of my affairs, and therefore, in this instance, using their names in place of mine is more appropriate...

1. The applicant also requested that the Information Commissioner exercise the power contained in section 116 of the IP Act to direct OIR to 'explain its databases / information management systems and how exactly those databases / information management systems can be searched. In addition, further information regarding the scope of the OIR's business units would be beneficial to the review'.

1. In addition to his request for OIR to conduct further searches for responsive documents, the applicant requested that searches be conducted for any documents that have been transferred to Queensland State Archives (QSA).

1. I sought further information from OIR in relation to some matters raised by the applicant. As CISr was replaced by the Rapid database while this matter was on external review, I also asked OIR if this database would hold relevant information. OIR confirmed that as all information from CISr was transferred to Rapid and because Rapid came into effect after this application was lodged, no new information would be held in Rapid.

1. In considering the issue for determination, I am required to consider OIR's explanations regarding its record keeping processes, and whether all reasonable steps to locate the requested documents have been taken. Necessarily, the explanations and steps taken are considered with reference to the particular terms of the access application - that is the scope noted at paragraph 1 above.

1. Based on his understanding that, to date, searches in CISr have only been conducted against employer history reports, the applicant submits that 'event by person' searches (which he understands to be 'newly discovered') should also be conducted. An 'event by person' search in CISr is a separate search to the searches of employer history reports referred to by the applicant[27] - however, both types of searches have been undertaken. As explained at paragraph 15, an 'event by person' search (also known as a 'person' search) was conducted using the applicant's first and last name provided in the access application and returned [28] results.28 I do not consider it is reasonable to require OIR to undertake further searches using other names used by the applicant in circumstances where this information was not provided in the access application and, moreover, the 'event by person' search would not, in any event, capture any information about the applicant because he has confirmed that he was not:

• a person who submitted an incident notification
• an injured person; or
• a person who lodged a complaint.[29]

1. The applicant also submits that further searches of the event notification spreadsheets that were searched using his name are required. He also suggests that event notification spreadsheets at other locations should be located and searched. I do not, however, consider that it is reasonable to require OIR to undertake further searches in other event notification spreadsheets in circumstances where:[30]

• CISr captures all events that are linked to an entity name or number
• event notification spreadsheets contain relatively brief information used by some work units to track current matters, and it would be highly unlikely that they would contain a reference to the applicant when CISr does not; and
• the event notification spreadsheets of all relevant work units who use such spreadsheets in south-east Queensland have already been searched and, as explained at paragraph 15, these returned no results.

1. In summary, as the applicant did not provide any information in his application, other than his name, to facilitate targeted searches, I am not satisfied that further searches in CISr or in other event notification spreadsheets are required.

1. The applicant submits that inquiries regarding ESO's information management systems are necessary to determine whether ESO shares its systems with Workplace Health and Safety Queensland. The relevance of these submissions is unclear. Regardless, I made further inquiries with ESO about the information held in its various systems. OIR confirmed that no health information would be retained by ESO for a person who is not an injured worker/person. As the applicant has advised that he was not an injured worker/person and no results were returned from the searches undertaken by ESO under his name, I do not consider it reasonable to require ESO to respond to further searches or inquiries.

1. In relation to SHSS, my preliminary view noted that Occupational Health and Hygiene collect health monitoring records of individuals (see paragraph 15). The applicant recognises that this part of SHSS relate to biohazards, and submits that he is interested in other information which he appears to expect would be collected and he[31] by SHSS.31 In response to OIC's inquiries, OIR explained that, apart from Occupational Health and Hygiene, CFS is the only other area in OIR that may collect medical records of an injured worker/person - during an investigation involving serious injury to show that the injured worker/person was exposed to the risk[32]f injury.32 OIR also noted that other medical information, including psychologist records, may be obtained to present to a court for consideration when sentencing a defendant in a prosecution. As the applicant has advised that he was not an injured worker/person, I do not consider it reasonable to require any further searches or inquiries of either SHSS or CFS.

1. Similarly, I do not accept the applicant's contention that it is reasonable to require WCRS to undertake further searches under the names of two individuals in charge of his affairs. The terms in which an access application is framed set the parameters for an agency's response, and, in particular, set the direction of the search efforts to locate responsive documents.[33] These individuals are not mentioned in the access application, nor is it clear how searches under their names would produce a different result - that is, WCRS advised that it is only able to search under the name of a claimant and there were no results returned from the searches undertaken by WCRS under the applicant's name. In circumstances where there is no information before me to connect the applicant to a claim, I am not satisfied that further searches are required.

1. As to the applicant's contention that it is reasonable for searches of QSA records to be conducted because there is a possibility that relevant records may have been transferred to QSA - I note that this issue has been addressed in previous external reviews involving the applicant. There is nothing before me to indicate that OIR located anything in its records to suggest that responsive documents ever existed in its possession or under its control. It follows that there is no reasonable basis for expecting that responsive documents have been transferred to QSA. In circumstances where no documents have been found, the possibility of a transfer of documents to another agency is mere speculation by the applicant, unsupported by cogent evidence, and does not discharge the practical onus upon him. I also note that the applicant has not suggested what additional searches, beyond the extensive searches undertaken, OIR should reasonably be required to undertake to identify any documents transferred to QSA.

1. The applicant has also requested that OIC issue a direction to OIR under section 116 of the IP Act to require it to provide further information about its information management practices and systems and their relationship with the organisational units listed in the application. The applicant contended that this information was needed because 'to move ahead without this kind of information requested would be limiting the facts of the case to what the OIR is willing to divulge and given the OIR's responses to my applications generally, this can't be said to be much...It is crucial to understanding where and how searches need to be conducted'. Firstly, I note that section 116 of the IP Act relates to the provision of documents to OIC, not the applicant. It also requires OIC to have reason to believe that the agency has information or a document relevant to an external review. While the applicant may hold the view that this information is relevant and is needed to satisfy himself about the adequacy of the searches undertaken by OIR, the issue is whether the Information Commissioner (or delegate), as the independent decision-maker, considers that such information is relevant and required in order to determine whether OIR has taken all reasonable steps to identify and locate requested documents. I am not satisfied that it is required. For the reasons explained, I consider that the information provided by OIR concerning the searches it has conducted is sufficient to determine the issue under consideration.

1. In terms of the steps taken by OIR and the explanations offered by it, I conclude:

• OIR has conducted targeted searches for relevant documents based on its knowledge of its structure, functions, practices and procedures (including its record-keeping and information management systems) and performed by relevant staff of CFS, ESO, SHSS and WCRS and these searches returned no results
• on external review, OIC's inquiries clarified and confirmed the comprehensive nature of these searches and identified no other reasonable avenues for further searches or inquiries; and
• the applicant has provided no cogent evidence to support a reasonable belief that OIR ought to hold relevant documents.

1. The applicant has not satisfied the practical onus on him to show that OIR has failed to take all reasonable steps to locate the requested documents. On the information before me, I am satisfied that the searches and inquiries conducted by OIR in an effort to locate relevant documents were reasonable. If any relevant documents were to exist in OIR's possession, I consider it is reasonable to expect that these searches and inquiries would have located such documents, or, at least, located information that may have identified other relevant avenues of search and inquiry.

1. For the reasons set out above, I vary the decision under review by finding that access to the requested documents may be refused under section 67(1) of the IP Act and sections 47(3)(e) and 52(1)(a) of the RTI Act on the ground that they are nonexistent.

2. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act_._

OIC received the application for external review from the applicant.

OIC advised the applicant and OIR that the application for external review had been accepted.

During this period, OIC progressed nine other external reviews involving the applicant. Of these, one was returned to the agency for further consideration, one was resolved informally, four were finalised by formal decision,[34] and three were ongoing.

OIC received a response from OIR which provided the requested information.

OIC received a response from OIR which provided the requested information.

[2] At the time the application was made, OIR was part of the Department of Education, however, following machinery of government changes, OIR became part of the Department of State Development and Infrastructure on 18 December 2023, which in turn became the Department of State Development, Infrastructure and Planning on 1 November 2024.

[3] Each of which are directorates of OIR.

[4] Between 1 January 2007 to 1 January 2024.

[8] See XYZ v Victoria Police (General) [2010] VCAT 255 (16 March 2010) at [573] wherein Bell J observed as follows with respect to the interaction between the Freedom of Information Act 1982 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic): 'it is perfectly compatible with the scope of that positive right in the Charter for it to be observed by reference to the scheme of, and principles in, the Freedom of Information Act'. OIC's approach to the HR Act set out in this paragraph was considered and endorsed by the Queensland Civil and Administrative Tribunal in Lawrence v Queensland Police Service [2022] QCATA 134 at [23] (where Judicial Member McGill saw 'no reason to differ' from OIC's position).

[10] Section 67(1) of the IP Act and sections 47(3)(e) and 52 of the RTI Act. A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist - section 52(1)(a) of the RTI Act. A document is unlocatable if it has been or should be in the agency's possession and all reasonable steps have been taken to find the document, but it cannot be found -section 52(1)(b) of the RTI Act.

[11] Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] which adopted the Information Commissioner's comments in PDE and the University of Queensland (Unreported, Queensland Information Commissioner, 9 February 2009).

[12] Including but not exclusive to its information management approach.

[13] Including the nature and age of the requested document/s and the nature of the government activity to which the request relates.

[14] S55 and Queensland Police Service [2023] QICmr 3 (30 January 2023) at [23], cited with approval in W55 and Brisbane City Council [2024] QICmr 13 (17 April 2024) at [19].

[15] Section 137(2) of the IP Act. The Information Commissioner also has power under section 115 to require additional searches to be conducted during an external review.

[17] Submission dated 31 May 2024, emails dated 29 April and 13 May 2025.

[18] That were the subject of external reviews 317523 and 317646. These matters have since been finalised by a formal decision.

[19] Dated 19 November 2024. The footnotes in this preliminary view have been renumbered and included in this decision's footnotes, in italics, but not in chronological order.

[20] The complainant or notifier of an incident would receive an acknowledgement of the notification if they supplied a valid email address.

[21] In external reviews 317523 and 317646.

[22] These spreadsheets are used as an administrative 'bring up' tool by these region/business units to track the status of their current matters. OIR has confirmed that CISr contains more detail than the spreadsheets.

[23] Code of Practice: Managing respirable crystalline silica dust exposure in construction and manufacturing of construction elements 2022 and Code of Practice 2019 'Managing respirable crystalline silica dust exposure in the stone benchtop industry'- available at https://www.worksafe.qld.gov.au.

[24] This included a search of the Form 28 - Hazardous Chemical Health Monitoring Records under '[the applicant's name]'.**

[25] Sections 47(3)(e) and 52 of the RTI Act.

**[27] That is, keyword searches performed by OIC staff of employer history reports generated by OIR.

[28] As noted in A34 and Department of State Development, Infrastructure and Planning (Office of Industrial Relations) [2024] QICmr 61 (A34) at [18] and F47 and Department of State Development, Infrastructure and Planning (Office of Industrial Relations) [2025] QICmr 4 at [35]. This search was completed by two OIR officers on 29 April 2024.

[29] The applicant confirmed this in his submission dated 23 September 2024 in external review 317646. This statement was put to him again in my preliminary view in this matter at paragraph 15 and he did not reject this in his submission.

[31] That is, information concerning 'hazard prevention, compliance (with regards to preventative actions), psychological health, psychosocial hazards, disabilities, mental illness and the OIR's interactions with businesses regarding those matters'.

**[32] OIR explained that a medical record may be obtained during an investigation to provide evidence the injured worker/injured person was exposed to the risk of injury including the gravity of such injury to assist the courts determine the penalty for breaches of the Work Health and Safety Act 2011 (Qld). Medical information such as psychologist reports may also be obtained to present to a court for their consideration when sentencing a defendant in a criminal prosecution.

[33] Cannon and Australian Quality Egg Farms Ltd [1994] QICmr 9; (1994) 1 QAR 491 at [8], cited in O80PCE and Department of Education and Training (Unreported, Queensland Information Commissioner, 15 February 2010) at [33]; Van Veenendaal and Queensland Police Service [2017] QICmr 36 (28 August 2017) at [15] and Ciric and Queensland Police Service [2018] QICmr 30 at [20].

[34] Under sections 103(4), 106(2) and 123 of the IP Act respectively.**