Overview of sections 47(3)(d) and 51 RTI Act

Section summary

An agency or Minister may refuse access to the applicant's relevant healthcare information if its disclosure might prejudice the applicant's physical or mental health or wellbeing.

Other relevant RTI/IP Act sections

Sections 30, 31 RTI Act
Sections 30 and 31 concern powers to deal with and make decisions regarding applications to agencies and Ministers respectively. Under sections 30(5) and 31(2), a principal officer or Minister cannot delegate the power to deal with an application to the extent it involves a decision as to whether disclosure would prejudice the physical or mental health or wellbeing of the applicant under section 51 of the RTI Act. However, the agency or Minister may appoint an appropriately qualified healthcare professional to make the decision.¹

Section 77 RTI Act
If an agency or Minister refuses access to information under sections 47(3)(d) and 51 of the RTI Act, the agency or Minister has a discretion to direct that access is instead given to the applicant indirectly, through an appropriately qualified health care professional.  The applicant can nominate their preferred healthcare professional under this section; however, the agency must approve the healthcare professional nominated by the applicant. Practically, this means that an agency can require that the applicant nominate a healthcare professional with particular qualifications—eg, a psychiatric specialist—before approving disclosure to that professional. In most cases, it is also necessary to check with the nominated healthcare professional that they understand and accept responsibility for determining disclosure of the relevant healthcare information to the applicant, and the way in which that disclosure should occur.

The healthcare professional may decide:

• whether or not to disclose all or part of the relevant healthcare information; and
• the way in which the information is disclosed to the applicant.

Once the has approved the healthcare professional nominated by the applicant, it cannot direct whether or how disclosure should occur.

1 Note that schedule 5 of the RTI Act defines the terms 'appropriately qualified' and 'healthcare professional'.