Bruce Dulley Family Lawyers and WorkCover Queensland

REASONS FOR DECISION

Summary

1. The applicant applied to WorkCover Queensland(WorkCover) under the Right to Information Act 2009 (Qld) (RTI Act) for a complete copy of the WorkCover file relating to a claim lodged by a former employee of the applicant (claimant).^[1]

2. WorkCover located 950 pages in response to the application and granted the applicant full access to 141 pages and partial access to 74 pages.  WorkCover decided to refuse access to the remaining parts of 74 pages and 735 whole pages, on the basis that disclosure would, on balance, be contrary to the public interest.  In deciding to refuse access to information on the claim file, WorkCover considered that protecting the claimant’s privacy and safeguarding the claimant’s personal information carried significant weight in favour of nondisclosure.

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of WorkCover’s decision.

4. The applicant submits that it requires access to the WorkCover claim file to assist in its appeal to the Queensland Industrial Relations Commission (QIRC).  The applicant submits that as a participant in an ongoing legal matter, releasing the information would afford it natural justice and procedural fairness.  WorkCover indicated in its decision that the applicant had been provided with access to all information it was entitled to as part of the claim process, including information relevant to rehabilitation and return to work of the claimant and WorkCover’s decision-making process.

5. WorkCover’s decision to refuse access to information under section 47(3)(b) of the RTI Act is affirmed on the basis that disclosure would, on balance, be contrary to the public interest.

Background

6. Significant procedural steps relating to the application and external review are set out in the Appendix to these reasons. 

Reviewable decision

7. The decision under review is WorkCover’s decision dated 7 November 2011 refusing access to information under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest.

Material considered

8. Evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and Appendix).

Information in issue

9. During this review, WorkCover agreed to release 41 full pages and part of one page to the applicant.^[2]  Accordingly, this information is not considered in these reasons for decision.  Part of one further page^[3] is also not dealt with in this decision as the applicant did not raise any specific objection^[4] to the information being deleted on the basis that it was the personal information of an unrelated WorkCover claimant.

10. In view of the above, 692 full and 75 part pages remain in issue in this review and are subject to this decision (Information in Issue).  The Information in Issue can be described as:

(i) documents and information which relate personally to the claimant (Personal Documents);^[5] and

(ii) documents relating to the claimant provided to WorkCover by an external entity (External Documents).^[6]

11. The Personal Documents mainly comprise correspondence exchanged between WorkCover, the claimant and various third parties^[7] in the course of assessing the claim.^[8]  Medical reports, invoices and certificates also fall into this category. WorkCover refused access to the following information in these documents:

• personal details of the claimant – for example, Medicare number, home and email address, telephone numbers and contact details for the claimant’s partner
• details of the claimant’s medical conditions, medications, diagnoses, treatment plans, appointments and assessments
• details of benefit payments to the claimant and related tax details; and
• information relating to other employment of the claimant.

12. The External Documents were provided to WorkCover by an external entity to support a request for information from WorkCover in relation to the claimant.  WorkCover explained to OIC that while it did not request the documents, it chose to retain them on the claimant’s file to comply with recordkeeping requirements. WorkCover also confirmed that the External Documents were not considered in assessing the claim.

Relevant law

13. Under the RTI Act, a person has a right to be given access to documents of an agency.^[9]  However, this right is subject to limitations including grounds on which access may be refused.^[10]  One ground for refusing access is where disclosure would, on balance, be contrary to the public interest.^[11]

14. The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens.  This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests.  However, there are some recognised public interest considerations that may apply for the benefit of an individual.^[12]

15. The RTI Act list factors which may be relevant to deciding the balance of the public interest^[13] and sets out the following steps^[14] to decide where the public interest lies in relation to disclosure of information:

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure
• balance the relevant factors favouring disclosure and nondisclosure; and 
• decide whether disclosure would, on balance, be contrary to the public interest.

Findings

16. I am satisfied that disclosing the Information in Issue would, on balance, be contrary to the public interest for the reasons set out in paragraphs 17 to 39 below.

Irrelevant Factors

17. I have examined the irrelevant factors in schedule 4, part 1 of the RTI Act and consider that none arise in this case.

Factors favouring disclosure

Accountability

18. The applicant contends that by refusing it access to the Information in Issue, WorkCover is being provided with ‘a certain immunity from scrutiny and hence accountability’.^[15]  Specifically, the applicant considers that:

• the financial information which has been released is so deficient that the calculations of amounts it has been ordered to pay ‘cannot be checked for accuracy’^[16]
• it should have access to any information showing WorkCover’s deliberations to reach the decision to ‘exclude any pre-existing injury from their assessment of the contested claim’;^[17] and
• the intervention of ‘another unidentified entity’ in the assessment of the WorkCover claim is concerning and the applicant should be told why the External Documents were not considered.^[18] 

19. The applicant’s above submissions relate generally to the public interest in enhancing government accountability and transparency in decision-making.  Under the RTI Act, the public interest will favour disclosure of information where it could reasonably be expected to:

• enhance the government’s accountability^[19]
• allow or assist inquiry into possible deficiencies in the conduct of an agency;^[20] and
• reveal the reason for a government decision and any background or contextual information that informed the decision.^[21]

20. I acknowledge that disclosing the Information in Issue would allow the applicant to scrutinise the full body of evidence which was available to the WorkCover decision-maker.  WorkCover has, however, already provided the applicant with a complete copy of its decision to accept the claim^[22] which includes reasons for the decision and a summary of the evidence considered by WorkCover, including relevant medical evidence. 

21. WorkCover’s reasons for the claim decision state that the claimant’s treating doctor considered the claimant’s previous back injuries were ‘unrelated to [the claim] injury’ and the ‘current condition was not an aggravation of a pre-existing condition’.  I am satisfied that the reasons for decision adequately explain the extent to which any evidence of a pre-existing injury was treated by WorkCover in its assessment of the claim and that disclosing any further documents concerning a pre-existing injury would not further the public interest in revealing information that informed WorkCover’s decision on this issue.

22. The financial information of particular concern to the applicant appears in a Payment/Recoveries History Report.^[23]  All information in the report relating to medical, hospital and rehabilitation payments was released.  However, only the total amounts of weekly benefits and lump sum payments were disclosed, not the breakdown of these payments.  WorkCover stated^[24] that claims costs information was released to the applicant as it impacts on an employer’s premium but that this consideration does not extend to the breakdown of weekly benefits, paid to the claimant and Australian Taxation Office, as there is a significant privacy interest attaching to this information.  Having reviewed the information which was not disclosed, I am satisfied that there is no basis to consider that WorkCover’s conduct of the matter (including calculation of payments) was deficient.     

23. WorkCover’s submissions in relation to the External Documents are set out in paragraph 12 of these reasons. I have considered these, as well as the content of the External Documents and WorkCover’s reasons for decision on the claim.  In view of the circumstances in which the External Documents were received by WorkCover and the fact that they are not referred to in the claim decision, I am satisfied that the public interest in accountability would not be furthered by disclosing the External Documents. 

24. On the basis of the above, I am satisfied that disclosing the Information in Issue would allow the applicant to view all of the evidence which was available to the WorkCover decision-maker and may therefore, increase the applicant’s understanding of WorkCover’s reasons for decision.  However, I do not consider that the public interest in accountability and transparency would be significantly advanced through disclosure given the information which has already been provided to the applicant.  I therefore find that these factors carry only moderate weight in favour of disclosure.

Administration of justice

25. The applicant submits that it requires access to all information on the WorkCover claim file to assist in its pursuit of further legal avenues, including the QIRC appeal and any potential related common law claim. The applicant contends that ‘knowledge of medical information and treatment’ is crucial to its QIRC appeal and that it is important for it to know ‘employment details of the worker especially those which could mitigate a loss’.^[25]

26. The applicant also emphasises that it is seeking any evidence which shows there was a delay in the claimant’s return to work program as a result of acts/omissions of WorkCover employees and/or the claimant’s treating doctor as it considers this information impacts on the quantum of its financial liability.^[26]

27. The RTI Act recognises that where disclosure of information could reasonably be expected to contribute to the administration of justice for a person^[27] or generally, including procedural fairness,^[28] this will favour disclosure.  In view of the applicant’s submissions regarding its current and potential future involvement in related legal proceedings, I consider these factors are relevant in this case.  

28. In a QIRC proceeding relating to a Q-COMP appeal, the QIRC may make a directions order about the conduct of a proceeding for example, in relation to disclosure of documents.^[29]  Given QIRC’s broad discretion as to procedure and the rules applicable to QIRC proceedings, I am satisfied that the QIRC has the power to obtain any information it identifies as necessary to examine the issues in the appeal, including any information which may impact the quantum of the applicant’s financial liability. For this reason, I consider the public interest in the applicant gaining access to the Information in Issue for the purpose of conducting the QIRC appeal carries only limited weight. 

29. In support of its case, the applicant also made extensive submissions in relation to the Information Commissioner’s decision in Willsford and Brisbane City Council (Willsford),^[30] a decision which considered the public interest in the administration of justice in the context of allowing a person with an actionable wrong to pursue a remedy.  In Willsford, the Information Commissioner found that the administration of justice will favour disclosure if an applicant demonstrates that:

(i) they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be, available under the law
(ii) they have a reasonable basis for seeking to pursue the remedy; and
(iii) disclosing the information would assist the applicant to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.^[31] 

30. The applicant considers that legal remedies are available to it and that it should be given access to the Information in Issue so that its ‘rights at law can be pursued and/or evaluated as to whether the remedies available are worth pursuing’.^[32]  The applicant has not, however, specified the particular remedies it is considering other than to refer to ‘a common law claim’ throughout its submissions in this review.

31. Having considered the circumstances of the applicant’s case, I am not satisfied that the principles in Willsford apply to support disclosure of the Information in Issue.  The applicant has been ordered to make payments to the claimant and has disputed these in Q-COMP and more recently in the QIRC appeal.  In my view, a WorkCover order to make payments to an injured employee does not constitute a loss, damage or actionable wrong to the employer, as identified by the Information Commissioner in Willsford.  Similarly, while there are avenues of appeal available to an employer who contests a decision to accept a claim and/or quantum, I am not satisfied that pursuing an appeal is equivalent to pursuing a remedy for an actionable wrong.  For these reasons, I am unable to attribute any weight to the applicant’s submissions as they relate to the Willsford requirements for establishing the administration of justice factor. 

32. On the basis of the above, I am satisfied that disclosing the Information in Issue could not reasonably be expected to assist the applicant in conducting the QIRC appeal, or contribute to the administration of justice generally in relation to any future legal pursuits.  I therefore find that the public interest in the administration of justice carries limited weight in favour of disclosure of the Information in Issue.

Factors favouring nondisclosure

Personal information and privacy

33. As set out in paragraph 11 of these reasons, the Personal Documents contain information which relates personally to the claimant – for example, medical, and financial information.  The External Documents also relate personally to the claimant.^[33]  I am satisfied that the Information in Issue comprises the claimant’s ‘personal information’^[34] as it is about, and identifies, the claimant.

34. The RTI Act recognises a public interest in safeguarding another individual’s personal information^[35] and protecting their privacy.^[36]  Given the particularly personal and sensitive nature of the Information in Issue, I consider these factors are relevant. 

35. I accept that the privacy interest in some of the claimant’s personal information is somewhat reduced as it is already known to the applicant through their previous employment relationship.^[37]  However, I am not satisfied that the privacy interest is reduced to such an extent so as to favour disclosure.   As for the personal information not already known to the applicant, for example, medical details, I am satisfied that disclosure would constitute a significant intrusion into the claimant’s privacy. 

36. I find that the public interest in protecting the claimant’s personal information and privacy carries significant weight favouring nondisclosure of the Information in Issue.

Disclosure of information prohibited by an Act

37. In its decision, WorkCover stated that any communication between an injured worker and WorkCover is confidential.^[38]  This reflects section 573(7) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act) which places a general prohibition on WorkCover employees from disclosing information they obtain through their employment. 

38. I acknowledge that section 6 of the RTI Act overrides provisions of other legislation prohibiting the disclosure of information.  However, where a provision such as section 573(7) of the WCR Act applies to information, it will give rise to a public interest factor favouring nondisclosure.^[39]  In this case, I consider this factor carries some weight in favour of nondisclosure of the Information in Issue, particularly in relation to the sensitive personal information of the claimant obtained by WorkCover.

Conclusion

39. In balancing the competing public interest factors in this case, I am satisfied that moderate weight can be afforded to the public interest in advancing WorkCover’s accountability and providing the applicant with further understanding of the reasons for the claim decision.  However, I do not consider that disclosing the Information in Issue could reasonably be expected to contribute to the administration of justice for the applicant in its current and/or future legal pursuits and therefore, I attribute only limited weight to this factor in favour of disclosure.   Weighing against these factors are the significant interests in safeguarding the claimant’s personal information and privacy. There is also some weight to be afforded to the public interest in ensuring information obtained by WorkCover employees under their enabling legislation is not disclosed.  On balance, I find that the public interest factors favouring disclosure are outweighed by the factors favouring nondisclosure considered in these reasons for decision.

DECISION

40. I affirm WorkCover’s decision to refuse access to the Information in Issue under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest.

41. I have made this decision as a delegate of the Information Commissioner, under section 145 of the RTI Act.

________________________
K Shepherd
Assistant Information Commissioner

Date: 26 July 2012

APPENDIX

Significant procedural steps