Section 47(3)(b) and 49 of the Right to Information Act 2009 (Qld)
Schedule 4 RTI Act public interest factors - part 2 item 9 - part 3 items 3 and 5 - part 4 section 6
The applicant applied to the Department of Health (QH) for a copy of her late son’s medical records. QH refused the applicant access to the medical records under section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act.
In considering the public interest in protecting the deceased’s right to privacy, the Right to Information Commissioner (RTI Commissioner) acknowledged that an individual’s medical records contain sensitive personal information and that the public interest in protecting the deceased’s privacy by not disclosing the medical records under the RTI Act was a relevant public interest factor favouring nondisclosure.
The RTI Commissioner noted that, in accordance with the principles in Summers and Department of Health; Hintz (Third Party) (1997) 3 QAR 479 (Summers), the privacy interest of the relevant individual may be reduced in certain circumstances. However, in this case, it was decided that:
· the medical records did not disclose sufficient evidence of the factors identified in Summers to establish that the privacy interest was reduced; and
· the public interest in protecting the deceased’s privacy was strong.
In considering the public interest in the accountability of QH, the RTI Commissioner recognised that there is a broad public interest in the accountability of public hospitals for the provision of public sector health services and, in some cases, it may be in the public interest for close relatives of patients to be provided with adequate information to allow them to assess whether the standard of care and treatment provided to their family member was appropriate in the circumstances. In this case, the RTI Commissioner decided that the fact that the applicant’s son passed away approximately two years after his treatment by QH reduced the potential weight of this public interest factor.
The RTI Commissioner also considered whether the public interest in the social and economic well-being of the community was relevant but decided that this public interest would not be furthered by disclosure of the medical records because:
· the circumstances surrounding the deceased’s admission to hospital in 2007 could be distinguished from the facts of Keogh and Department of Health (Unreported, Queensland Information Commissioner, 31 August 2010)
· there was no evidence on the face of the medical records to indicate that the applicant made decisions of a medical nature on behalf of the deceased during his admission as a result of the deceased being incapacitated; and
· the deceased did not pass away while being treated by QH.
In balancing the relevant public interest factors, the RTI Commissioner was satisfied that:
· there was a very strong public interest in protecting the deceased’s right to privacy by not disclosing his medical records under the RTI Act; and
· the public interest in promoting QH’s accountability should be given minimal weight in this instance given that the deceased did not pass away while being treated by QH.
The RTI Commissioner affirmed QH’s decision to refuse access to the medical records on the basis that disclosure would, on balance, be contrary to the public interest.