Chand and Medical Board of Queensland; Cannon (Third Party)
(2000 S0320, 30 November 2001)
The matter in issue consisted of a report supplied to the Medical Board by the third party in response to a complaint made by the applicant about the third party's medical treatment of the applicant's husband.
The third party claimed that his entire report was exempt from disclosure under s.46(1)(a) and (b) of the FOI Act (matter communicated in confidence). The Medical Board claimed that only parts of the report were exempt under s.46(1)(b) of the FOI Act.
Deputy Commissioner Sorensen dealt firstly with a preliminary issue as to the identity of the access applicant, finding that Mrs Chand had exercised her power as Attorney for her husband in personal/health matters by instructing solicitors to make the relevant FOI access application (and subsequent applications for internal and external review) on behalf of her husband. Pursuant to s.81 of the Powers of Attorney Act 1998 Qld, this meant that, if Dr Sukhi Chand would have been entitled to access the matter in issue under the FOI Act, no objection to disclosure could be taken on the basis that the information was confidential as against Mrs Chand.
With respect to the third party's claim that his report was exempt under s.46(1)(a) of the FOI Act because disclosure by the Board to the applicant would found an action for breach of confidence, the Deputy Information Commissioner made findings that:
• while it may have been reasonable for the third party to expect that the Board would treat his report in confidence as against the rest of the world, his request that his report be treated in confidence as against the complainant was not reasonable, having regard to the functions of the Board and the uses it might properly wish to make of the information contained in the report in discharging its responsibility to deal fairly and properly with the complaint;
• equity would not treat the third party's request for confidentiality in respect of his report as giving rise to a binding obligation of confidence, restraining the Board from disclosing to the complainant those parts of the report which addressed (including giving relevant background information) the particular issues of complaint;
• the only material contained in the report which could properly be considered to be irrelevant or non-responsive to the complaint was that contained in the final paragraph of the report. It was reasonable for the third party to assume that the Board would not need to disclose that information to the complainant in order to explain to her the outcome of the Board's investigation of her complaint, and that information was capable of being the subject of an obligation of confidence, as against the complainant.
Accordingly, the only information contained in the third party's report which satisfied the requirements for exemption under s.46(1)(a) of the FOI Act was that contained in the final paragraph of the report.
As to the application of s.46(1)(b) of the FOI Act to the third party's report, the Deputy Information Commissioner found that:
• parts of the report had already been disclosed to the applicant by the Medical Board and were therefore not confidential information as against the applicant;
• at least as against the applicant (being the person to whose complaint the third party was responding when he wrote his report), the information contained in the report (except for the final paragraph) was not ‘communicated in confidence’;
• it was not reasonable to expect that disclosure of the third party's report would prejudice the future supply to the Medical Board of information from a substantial number of medical practitioners; rather, it was reasonable to expect that most medical practitioners under investigation by the Board would be willing to cooperate with the investigation, and provide relevant information and exculpatory explanations to the Board.
Accordingly, the Deputy Information Commissioner found that the third party's report did not qualify for exemption under s.46(1)(b) of the FOI Act.
