44ZNEO and Department of Health (210795) - (Decision currently under Judicial Review)

Application number:
210795
Decision date:
Wednesday, Mar 31, 2010

44ZNEO and Department of Health
(210795, 31 March 2010)

 

 

Section 44(1) of the FOI Act – Personal affairs

 

 

The applicant sought access to medical records of his deceased son from the Royal Brisbane and Women’s Hospital (RBWH).  The Department of Health also known as Queensland Health (QH) decided to refuse the applicant access to his son’s RBWH medical records (Matter in Issue) pursuant to section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act).  The applicant sought internal review of QH’s decision.  On internal review, QH affirmed its original decision.  The applicant then applied to the Information Commissioner for external review of QH’s decision.

 

On external review, the applicant made a number of submissions including the following:

 

·          that the Matter in Issue should be released to him because his son was a minor and he is the father

·          the release of the Matter in Issue would enable him to assess whether he should pursue a breach of duty of care action against the RBWH and his son’s school

·          the release of the Matter in Issue would be in the public interest as he wanted to ensure that the Education and Health systems followed proper practice and procedure in their dealings with mentally ill adolescents such as his son.

 

In its original decision and internal review decision, QH stated that:

 

·          there is a very strong public interest in preserving the privacy of an individual’s medical records even after their death

·          the pursuit of a legal remedy does not serve as a basis for unfettered access to records

·          release of the health record would be an unwarranted invasion of the son’s privacy.

 

Following consideration of the Matter in Issue, the requirements of section 44(1) of the FOI Act, relevant public interest considerations and the submissions made by the parties, the Information Commissioner found that:

 

·          the Matter in Issue comprised personal affairs information of the applicant’s son

·          some of the information in the Matter in Issue could be categorised as shared personal affairs information of the applicant and his son

·          it was not possible to sever the information concerning the applicant from the information concerning his son

·          all of the Matter in Issue was prima facie exempt pursuant to section 44(1) of the FOI Act, subject to the application of the public interest balancing test

·          the following public interest considerations were relevant in the circumstances:

o         the public interest in an individual’s right to pursue a legal remedy

o         the public interest in ensuring the accountability of public services

o         the public interest in maintaining the privacy of an individual’s medical records.

 

In applying the principles in Willsford and Brisbane City Council (1996) 3 QAR 36, the Information Commissioner was not satisfied that:

 

·          there was a reasonable basis for the applicant to pursue a legal remedy

·          the disclosure of the Matter in Issue would assist the applicant in pursuing a remedy or evaluating whether a legal remedy was available or worth pursuing as the applicant already had access to the Matter in Issue under the Personal Injuries Proceedings Act 2002. 

 

Accordingly, the Information Commissioner found that disclosure of the Matter in Issue would not advance the public interest in relation to the right of an individual to pursue a legal remedy.

 

The Information Commissioner recognised that while there is a public interest in ensuring the accountability of public services, in most cases this public interest is not sufficient to outweigh the significant public interest in protecting the privacy of individuals.   In applying the principles of Summers and Cairns District Health Service; Hintz (Third Party) (1997) 3 QAR 479 (Summers), the Information Commissioner found that disclosure of the Matter in Issue would not expose unsatisfactory performance or assist in establishing grounds for a proper basis to make a complaint to the Health Quality and Complaints Commissioner or the Medical Board of Queensland.

 

In relation to the strong public interest in maintaining the privacy of an individual’s medical records, the Information Commissioner also recognised that:

 

·          an applicant’s familial relationship to another person does not confer any entitlement to be given access to information concerning the personal affairs of that other person

·          in accordance with the reasoning in Summers, this public interest may be reduced where a close relative can demonstrate that they were privy to medical information of the kind covered in the matter in issue.

 

The Information Commissioner considered that there were no factors which significantly diminished the strong public interest in maintaining the privacy of the applicant’s son’s medical record and that minimal weight was to be afforded to the public interest considerations favouring disclosure.  Accordingly, the public interest consideration favouring non-disclosure of the Matter in Issue outweighed the public interest considerations favouring disclosure and the Matter in Issue was found to be exempt under section 44(1) of the FOI Act.