Circumcision Information Australia (as agent for DMO) and Health Rights Commission; Stalewski (Third Party)

Circumcision Information Australia as agent for DMO and Health Rights Commission; Stalewski (Third Party)
(2003 F0338, 17 March 2005) 

The applicant acted as agent for a person who had lodged a complaint with the respondent about treatment received by her son from the third party.  The respondent obtained a response from the third party to the complaint, and then informed the complainant that, following assessment of the complaint, it had decided that the health service provided by the third party was reasonable and that the complaint would be closed.  The applicant sought access to parts of the response lodged with the respondent by the third party, and a record of a telephone call between the third party and an officer of the respondent.  The respondent and the third party claimed that the matter in issue was exempt under s.46(1). 

Application of s.46(1)(a) of the FOI Act  

I found that the matter in issue did not qualify for exemption under s.46(1)(a) of the FOI Act. 

The respondent and the third party argued that the matter in issue was provided to the respondent in confidence.  In their submissions the respondent and the third party accepted that any understanding of confidence they held about the third party's response to the complaint must necessarily have been subject to implicit conditions/exceptions permitting disclosure of relevant information to persons directly involved in the investigation  (see McCann and Queensland Police Service (1997) 4 QAR 30 at pp 53-54).  However, they both argued that procedural fairness did not require the complainant to be given a full copy of the third party's response.  After examining the matter in issue, I was satisfied that there was nothing in the matter in issue that could be regarded as being genuinely peripheral or irrelevant information, such that procedural fairness would not require its disclosure to the applicant.  Accordingly, I do not consider that equity would impose on the respondent an obligation of confidence, as against the applicant, in respect of any of the matter in issue. 

Application of s.46(1)(b) of the FOI Act  

I found that the matter in issue did not qualify for exemption under s.46(1)(b) of the FOI Act. 

For the reasons explained above, I considered that all of the matter remaining in issue is relevant to the complaint made against the third party, and therefore that, as least against the applicant, none of that information was "communicated in confidence", such as to qualify for exemption under s.46(1)(b) of the FOI Act. 

While it was not strictly necessary for me to do so, I also considered the arguments raised by the respondent and third party in respect of remaining elements of the test for exemption under s.46(1)(b) (see B and Brisbane North  Regional Health Authority (1994) 1 QAR 279 at pp. 337-341; paragraphs 144-161).  The applicant and the third party argued that the disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information from a substantial number of medical practitioners.  The third party submitted that, if the matter in issue in this review were to be disclosed to the applicant, he would not, in the future, provide any information to assist the HRC in its assessment of a complaint.  However, the requirement for exemption under s.46(1)(b) does not apply by reference to whether the particular confider, whose confidential information is being considered for disclosure, could reasonably be expected to refuse to supply such information in the future, but by reference to whether disclosure could reasonably be expected to prejudice the future supply of such information from a substantial number of sources available, or likely to be available, to an agency (see Re "B" at p.341, paragraph 161). 

The respondent submitted that, in the absence of any coercive powers to compel health service providers under investigation to provide responses to complaints, if a provider refused to provide a response the respondent would be constrained in its ability to effectively assess the complaint.  From the submissions and evidence provided by the respondent and the third party, it appeared that there is already a degree of reluctance amongst medical practitioners to provide any information to the respondent during the assessment stage, even without the "threat" of disclosure under the FOI Act.  While the respondent and third party accepted that it is reasonable for a medical practitioner to expect that the substance of a response to a complaint may need to be given to the complainant in the interests of procedural fairness, they argued that disclosure to the complainant, under the FOI Act, of that same information, could reasonably be expected to cause a substantial number of medical practitioners to refuse to supply the respondent with any information at all, relevant or otherwise.  I do not accept that disclosure of relevant information to a complainant under the FOI Act, should be viewed any differently from the respondent disclosing that same information to the complainant when conveying the respondent's decision in response to the complaint. 

Similarly, the respondent argued that disclosure of the matter in issued was not in the public interest due to the prejudice to the future supply of such information to the respondent, and the resulting detrimental effect that could reasonably be expected to have on the respondent's complaint assessment process.  However, I noted that the respondent had several options in respect to dealing with complaints, even if the assessment was affected by the absence of a response from the provider complained about.  I consider that there is a legitimate public interest in a complainant being given access to all relevant information gathered during a complaint assessment process so as to be satisfied that the investigating body has conducted a thorough assessment and reached a fair and realistic decision about whether the available information and evidence was sufficient or insufficient to justify the complaint being accepted for action.  I was satisfied that disclosure to the applicant of the matter in issue would, on balance, be in the public interest.