Application of Section 44(3) FOI Act

Relevant considerations

1. Does the relevant matter contain ‘health care information’ of the applicant?

‘Health care information’ is defined in section 44(6) of the FOI Act as ‘information provided by a health care professional’.¹

The Information Commissioner has previously found that information concerning an applicant’s:

• psychiatric treatment²
• prescribed medication³
• psychiatric diagnosis⁴
• psychiatrist’s observations and impressions,⁵

is ‘health care information’ for the purposes of section 44(3) of the FOI Act.

2. Is the principle officer of the agency or Minister satisfied that direct disclosure to the applicant might be prejudicial to the physical or mental health or wellbeing of the applicant?

a) Might be prejudicial

The words ‘might be prejudicial’ require a real and tangible possibility (as distinct from a fanciful, remote or far-fetched possibility) of prejudice.⁶

The opinion of the applicant must be balanced against the opinion of health care professionals as to whether direct disclosure might be prejudicial to the applicant.⁷ The Information Commissioner has previously given more weight to the opinion of psychiatrists that are aware of the precise nature of the document in issue than the opinions of other psychiatrists or the applicant that do not have knowledge of the contents of the document in issue.⁸

Under section 44(4) of the FOI Act, an appropriately qualified health care professional may be appointed by a principal officer or Minister to make a decision under section 44(3) on behalf of the principal officer or Minister.

3. If direct disclosure might be prejudicial, should the discretion be exercised to give access to a nominated health care professional?

The agency or Minister must specifically identify the nature and extent of the prejudice to the applicant’s physical or mental health or wellbeing that might result from disclosure. The nature of the possible prejudice may be weighed against the likelihood of its occurrence to determine whether discretion may be exercised to provide access to an ‘appropriately qualified health care professional’⁹ nominated by the applicant and approved by the principle officer or Minister.¹⁰

Where considerations of the applicant’s physical or mental health are such that access should only be given to a specialist then the principle officer may withhold approval of the health care professional until the applicant nominates a suitable specialist in the field.¹¹

The applicant should bear the cost of a consultation with the health care professional.¹²

¹ Section 44(6) of the FOI Act also defines ‘health care professional’ for this section.  
²S and the Medical Board of Queensland (1994) 2 QAR 249 at paragraph 14.
³S and the Medical Board of Queensland (1994) 2 QAR 249 at paragraph 14.  
⁴NKS and Queensland Corrective Service Commission (1995) 2 QAR 662 at paragraph 18.
⁵NKS and Queensland Corrective Service Commission (1995) 2 QAR 662 at paragraph 18.  
⁶S and the Medical Board of Queensland (1994) 2 QAR 249 at paragraph 12 adopting the test identified by Deputy President Smart QC in Re K and Director-General of Social Security (1984) 6 ALD 345 at pages 356-7.  
⁷S and the Medical Board of Queensland (1994) 2 QAR 249 at paragraph 15.
⁸S and the Medical Board of Queensland (1994) 2 QAR 249 at paragraph 15.
⁹ Under section 44(5) of the FOI Act, an ‘appropriately qualified health care professional’ may decide whether or not to disclose all or part of the information to the applicant and the way in which to disclose the information.
¹⁰S and the Medical Board of Queensland (1994) 2 QAR 249 at paragraph 16.
¹¹NKS and Queensland Corrective Service Commission (1995) 2 QAR 662 at paragraph 20.
¹²NKS and Queensland Corrective Service Commission (1995) 2 QAR 662 at paragraph 20.