Relevant decisions from other jurisdictions

Re K and Director-General of Social Security (1984) 6 ALD 345

This decision considered the application of the equivalent exemption under the Commonwealth legislation, section 41(3) of the Freedom of Information Act 1982 (Cth). The test outlined in this decision was referred to and adopted by the Information Commissioner in S and the Medical Board of Queensland.¹⁵

The applicant sought access to his social security file. The Director-General of Social Security refused direct access to a confidential report about the applicant prepared by a Commonwealth Medical Officer.

Deputy President Smart QC set out the test to determine whether section 41(3) of the FOI Act (Cth) should be applied:¹⁶

1. Does the document in issue contain information of a medical or psychiatric nature concerning the applicant?
2. If the information were disclosed direct to the applicant is there a real and tangible possibility as distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or well-being of the applicant?...
3. If there is a real or tangible possibility of such prejudice the decision-maker is called upon to exercise his discretion whether to direct that access which would otherwise be given to the applicant should be given to a medical practitioner nominated by him. …

The Deputy President was satisfied that:

• the document contained information of a medical and psychiatric nature concerning the applicant
• upon balancing the opinion of the applicant and psychiatrists, there was a real and tangible possibility that disclosure might prejudice the physical or mental health or wellbeing of the applicant because if the applicant was not taking his medication regularly or ceased to take his medication then he might act impulsively upon disclosing the information; and
• discretion to give access through a qualified person was not exercised.

Accordingly, access to the relevant document was not granted to a qualified person under section 41(3) of the FOI Act (Cth).

¹⁵S and the Medical Board of Queensland (1994) 2 QAR 249 at paragraph 12.
¹⁶Re K and Director-General of Social Security (1984) 6 ALD 345 at paragraph 6.