Knowledge Update - Reasonable searches under the GIPA Act
Read the document below or download it here Knowledge Update - Reasonable searches under the GIPA Act December 2018
Section 53 of the Government Information (Public Access) Act 2009 (GIPA Act) sets out the obligations of NSW public sector agencies to undertake searches for information requested in an access application.
Receiving an access application
A valid access application under the GIPA Act requires an applicant to include such information as is reasonably necessary to enable the relevant government information to be identified.
Once satisfied that it understands what information has been requested, an agency must then undertake searches to ascertain whether or not the information is held. A common theme in the reviews conducted by the Information Commissioner is that applicants consider that the agency has not properly searched for the information requested. This knowledge update seeks to provide some guidance to agencies regarding what is a reasonable search and how to deal with the issue of having conducted reasonable searches in the agency’s notice of decision
What is a reasonable search?
Agencies are required to undertake a reasonable search for information requested in an access application. What constitutes a reasonable search will depend on the circumstances.
Specifically, the requirements are that an agency:
- must have undertaken such reasonable searches as necessary to locate the government information requested;
- must use the most efficient means reasonably available to it; and
- only needs to search for government information held at the time of the application.
The expression “government information” is given a wide meaning by section 4 of the GIPA Act, which provides that it is “information contained in a record held by an agency.” This means that searches will need to be broadly conducted and include both paper-based and electronic records.
The best practice for a notice of decision would expect to include the following information about the searches conducted:
- an explanation of what the agency understands the applicant’s request to be;
- how the agency’s recordkeeping system is organised;
- how information is retrieved from the recordkeeping system;
- if the system is electronic, the search terms used by the agency to identify information relevant to the request;
- if the system is a paper-based system, how the information is stored and how the agency was able to ascertain what information was relevant to the applicant’s request; and
- the steps taken by the agency to retrieve any documents that are the subject of the request.
Agencies are not required to search their backup or archive systems unless the government information requested has been improperly destroyed or transferred.
How to be satisfied that a reasonable search has been conducted
Generally speaking, the Information Commissioner considers that the factors required to determine whether an agency has conducted a reasonable search are:
(a) whether there are reasonable grounds to believe that the requested documents exist and are documents of the agency; and
(b) whether the search efforts made by the agency to locate such documents have been reasonable in all the circumstances of a particular case.
In determining each of these criteria, the individual circumstances of the application and the steps taken by the agency are relevant.
Notices of decisions
While the GIPA Act does not require agencies to include details of searches undertaken in the notice of decision, the Information Commissioner considers that as a matter of good practice for written decisions, agencies should clearly explain what the search processes were, what was found, an explanation if no records were found, what was released and what was not.
Details of searches may include:
- where and how the agency searched;
- a list of any records found (including, if appropriate, the relevant business centre);
- the key words use to search electronic records (including any alternative spelling used); and
- a description of the paper records that were searched.
The question for the Information Commissioner in conducting a review is to be satisfied as to whether there are further documents relevant to the application and, if so, whether the agency can show that it has tried hard enough to find them.
For more information
Contact the Information and Privacy Commission NSW (IPC):
Freecall: 1800 472 679