Key published decisions applying sections 47(3)(c) and 50 RTI Act
Access applications were made on behalf of four children by their mother. The applications were made under the Information Privacy Act 2009 (Qld) (IP Act) for child safety records in relation to each child. In accordance with section 45 of the IP Act the mother was entitled to apply on behalf of each child, and each child was taken to be the applicant.
The Department of Communities, Child Safety and Disability Services (Department) refused access to the documents in issue on two grounds. Firstly, the documents comprised exempt information as disclosure is prohibited by the Child Protection Act 1999 (Qld) (CP Act) and secondly the disclosure of documents was not in the children’s best interests.
While the mother was entitled to make an application for each child under the IP Act, the mother was not responsible for the day to day care of the children, varying in age from 11 years to 17 years, for the timeframe of the requested documents.
The Assistant Information Commissioner was satisfied that some information in relation to each child was not prohibited from disclosure under the CP Act as it comprised the applicant’s personal information. However, the Assistant Information Commissioner also decided that the disclosure of each child’s personal information to their mother, on their behalf, would be contrary to each child’s best interest.
In making this decision, the Assistant Information Commissioner made reference to the United Nations’ Convention on the Rights of a Child (1989) and ALRC report For Your Information: Australian Privacy Law and Practice and decided that children approaching the age of 18 had a right to privacy and the ability to make decisions regarding their personal information. The Assistant Information Commissioner considered that in these four cases:
- there was no evidence that the children in question had knowledge of or consented to information being disclosed to their mother on their behalf despite being of an age where they could be consulted on these matters; and
- disclosure of this information to the children’s mother would prejudice the privacy of each child and deter the child from communicating openly with the Department.
On the basis of these findings, the Assistant Information Commissioner decided that disclosure of the information in issue to the children’s mother, on their behalf would be contrary to the best interests of each child under sections 47(3)(c) and 50 of the RTI Act.
The applicant sought access to his infant son's medical records. The Department of Health (Department) refused access to the documents under sections 47(3)(c) and 50 of the RTI Act on the basis that disclosure of the information would not be in the child's best interests.
For section 47(3)(c) of the RTI Act to apply, an application must be made by or for a child. Under section 87 of the RTI Act, the decision maker has the onus to establish that access would, on balance, be contrary to the public interest.
Here, the Information Commissioner was satisfied that the Department did not discharge its onus under section 87 of the RTI Act to establish that disclosure of the information would not be in the child's best interests and therefore contrary to the public interest under sections 47(3)(c) and 50 of the RTI Act. 
Last updated: March 16, 2012