Coulthart and Princess Alexandra Hospital and Health Service District
(1999 S0189, 10 August 2001)
The matter in issue in this review comprised a statistical table of adverse outcomes from carotid artery surgery performed by the Hospital's Vascular Surgery Unit (the VSU) over a specified time period. The table was organised in such a manner as to indicate that one of the five surgeons in the VSU had a ‘complication rate’ higher than that of the other surgeons. The Hospital objected to disclosure on the basis that the statistical table comprised raw data, which had not been adjusted to take account of operative risk factors, such as the severity of carotid artery disease and co-existing conditions in the patients in question. The Hospital submitted that the table could lead to unwarranted conclusions being drawn about the surgical competence of one surgeon, and that this adverse effect on the surgeon's professional affairs warranted an exemption under s.45(1)(c) of the FOI Act.
During the course of the review, it was confirmed that the matter in issue related only to public patients of the Hospital, and that no private patients of any of the individual medical practitioners comprising the VSU were represented in the statistical information in issue. The Information Commissioner reaffirmed the interpretation first stated in Pope and Queensland Health (1994) 1 QAR 616 to the effect that the words ‘professional affairs’, in the context of s.45(1)(c) of the FOI Act, were intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee (i.e., to the running of a professional practice for the purpose of generating income).
The Information Commissioner decided that, since the matter in issue concerned the surgeons' treatment of public patients, it was properly to be characterised as information concerning the performance by the surgeons of their duties of employment as government employees, and not as information concerning their professional affairs, according to the meaning which the term ‘professional affairs’ has in the context of s.45(1)(c) of the FOI Act. The Information Commissioner therefore decided that, as disclosure of the matter in issue would not disclose information concerning the business, professional, commercial or financial affairs of a person, the matter in issue did not qualify for exemption under s.45(1)(c) of the FOI Act.
While it was not strictly necessary to do so, because the participants had fully argued the issues, the Information Commissioner went on to consider the remaining elements of the test for exemption under s.45(1)(c) on the assumption, contrary to his finding, that the term ‘professional affairs’ extended to the performance of professional services, irrespective of whether the professional is a salaried employee of a government agency or is engaged in running a professional practice on a fee for service basis.
On that assumption, he considered that disclosure of the matter in issue could reasonably be expected to have an adverse effect on the professional affairs of the particular surgeon whose adverse results were highlighted by the manner of presentation of the statistical table. The Information Commissioner rejected the Hospital's contention that disclosure of the matter in issue could reasonably be expected to prejudice the future supply of such information to government, since it was merely information extracted from patient clinical data about the occurrence of significant adverse events that would necessarily be recorded.
The Information Commissioner went on to find that, even accepting that disclosure of the matter in issue could reasonably be expected to have an adverse effect on the professional affairs of one surgeon, disclosure would, on balance, be in the public interest. The Information Commissioner recognised a public interest in members of the community having access to information that would allow them to make informed choices about health care providers. However, the Hospital contended that disclosure of raw data, rather than data that had been properly risk-adjusted, would not facilitate informed choices.
The Information Commissioner expressed the view that there are at least two reasonable bases for treating with scepticism an agency's assertion that information should not be disclosed because it would confuse or mislead the public. The first applies where it is open to a citizen who has been interested enough to seek out certain information, to seek assistance in understanding it. The second applies where it is open to the agency, by the provision of further nonexempt information, to avoid the potential for misleading or confusing the public. He observed that, in the latter situation, it might well be appropriate to discount any weight to be accorded to an agency argument that disclosure of information would confuse or mislead the public. He noted that, in the instant case, the tenor of the Hospital's submissions indicated an acceptance of the proposition that disclosure of risk-adjusted statistical data would be in the public interest, and that it was within the power of the Hospital to arrange for the preparation and disclosure of risk-adjusted statistical data.
The Information Commissioner decided that disclosure of the matter in issue would, on balance, be in the public interest. He observed that:
• the statistical table provided accurate figures as to the number (and percentage) of adverse surgical outcomes in the relevant period, and this information still had value in assisting interested members of the public to make informed decisions about available surgical treatments and service providers;
• disclosure would enhance the accountability of the Hospital for its monitoring and management of adverse surgical outcomes; and
• while disclosure of ‘raw data’ might make some surgeons reluctant to perform surgery on high-risk patients because it might affect their complication rates, it may well be as much in the public interest that patients who are in significant danger of death or stroke in any event have access to information about surgeons who are willing to operate on high-risk patients (that being the reason the surgeon claimed for having a higher complication rate).
The Hospital also claimed that the statistical table was exempt under s.45(3), but the Information Commissioner decided that disclosure of the table would not disclose the purpose or results of ‘research’, in the sense that word is used in the context of s.45(3), because it merely categorised information extracted from computerised statistical data and patient records, ordinarily kept by the Hospital, and was more akin to performance audit information than to the results of a research project undertaken to discover new facts or principles. The Information Commissioner also held that there was no suggestion of an adverse effect on the hospital on whose behalf the purported ‘research’ had been carried out. Accordingly, the matter in issue did not qualify for exemption under s.45(3) of the FOI Act.