Key published decisions applying Section 50(b) FOI Act

Orth and Medical Board of Queensland (2003) 6 QAR 209

The applicant sought access to a report submitted to the Medical Board of Queensland (Board) in response to complaints made by the applicant. The Board refused access to the report under section 50(b) of the FOI Act.

Is the relevant matter subject to an order or direction?

At the commencement of the inquiry, the Complaints Investigation Committee (CIC) issued a non-publication order prohibiting any aspect of the proceedings from being published in any form except to the Board, the Medical Assessment Tribunal or to persons that the CIC was required to consult. [9] The non-publication order was issued pursuant to section 16 of the CI Act:

16 Power to prohibit publication of evidence.

A commission may order that any evidence given before it, or the contents of any book, document, or writing produced at the inquiry, shall not be published.

The question was, therefore, whether the report was ‘produced’ at the inquiry such that the report would be subject to the non-publication order of the CIC and accordingly would be exempt from disclosure under section 50(b) of the FOI Act. While the report was ‘made available’ to CIC members to review in preparation for the hearing, the Deputy Information Commissioner was satisfied the Report was not ‘produced’ at the inquiry, in accordance with section 16 of the CI Act because the report was prepared several months before the inquiry and was not formally tendered as evidence. [91]

The Deputy Information Commissioner considered that the purpose of the FOI exemption is to protect sensitive information provided at an inquiry from being published, ‘where publication could prejudice the inquiry or unfairly prejudice a person’s rights, interests or reputation’. [101] However, on occasion, procedural fairness may indicate that matter should be made available to parties involved in a hearing. [102]

Was the direction given by a person or body having power to take evidence on oath?

Pursuant to section 37(3) of the Medical Act 1939 (Qld), the CIC was established by the Medical Board of Queensland and was vested with the same powers as the Board, including the power to take evidence on oath. Accordingly, the Deputy Information Commissioner was satisfied that the CIC was a body with power to take evidence on oath. [84-86]

However, the Deputy Information Commissioner considered that, in addition to the report not having been ‘produced’ at the inquiry, that the non-publication order made by the CIC, as a body of inquiry created by the Board, could not in any event be construed as binding on the Board itself. [100]

Accordingly, the report was not exempt from disclosure under section 50(b) of the FOI Act.