DH6QO5 and Department of Health
(310034, 11 May 2011)
Information Privacy Act 2009 (Qld) – section 67(1)
Right to Information Act 2009 (Qld) – public interest factors – section 47(3)(b) and section 49 –schedule 4, part 2, items 1, 7 and 11 – part 3, item 16
Right to Information Act 2009 (Qld) – nonexistent/unlocatable documents - sections 47(3)(e), 52(1)(a) and 52(1)(b)
The applicant applied to Queensland Health (QH) for access to his medical records as held by the Royal Brisbane and Women’s Hospital (RBWH). The applicant also contended that various documents had not been located and dealt with by QH, including audio and CCTV recordings made during a period of admission to the RBWH.
Contrary to Public Interest Information
QH granted the applicant access to the bulk of the documents located. QH refused access to a small segment of text appearing on one page of the applicant’s medical records – information supplied by a third party – under section 67(1) of the Information Privacy Act 2009 (Qld) (IP Act), on the basis disclosure would, on balance, be contrary to the public interest under section 47(3)(b) of the Right to Information Act 2009 (Qld) (RTI Act).
On external review, the applicant submitted he should be granted access to the information, on the basis it comprised his personal information and would enable him to assess the basis on which certain treatment decisions had been made about him.
QH submitted disclosure of the information would inhibit its ability to obtain confidential information in the future, by deterring potential sources of information that may assist in an individual’s treatment, resulting in a lowering of the service of care provided by the RBWH.
Right to Information Commissioner Smith acknowledged that:
· enhancing the transparency and accountability of agencies such as QH;
· giving a person access to their own personal information; and
· enabling a person to have access to background/ contextual information,
were all important public interest factors favouring disclosure of the information in issue.
However, in the circumstances of this case, the Right to Information Commissioner considered the public interest in ensuring agencies such as QH were able to obtain confidential information from third party sources in the future was very important.
In balancing the competing public interest considerations, the Right to Information Commissioner noted the applicant had been given access to the bulk of his medical records, thus adequately addressing the public interest in ensuring QH operates transparently and accountably and providing him with information necessary to understand the manner in which RBWH staff had dealt with him.
Whilst also recognising the importance of ensuring individuals have access to their own personal information, the Right to Information Commissioner considered the public interest in ensuring agencies such as QH were able to obtain confidential information, and in thus preserving the free flow of information from community to government agencies discharging important public functions (such as those performed by QH), should be preferred in the circumstances.
Accordingly, the Right to Information Commissioner decided that, on balance, disclosure of the information in issue would be contrary to the public interest.
Nonexistent/unlocatable documents
QH explained that no audio recordings had ever been created, and therefore documents of this kind did not exist. QH acknowledged that the RWBH is monitored by CCTV video recording systems, however explained that recordings are reused on a weekly cycle, unless particular recordings are required to be preserved for official purposes. Enquiries made by QH confirmed that RBWH did not hold CCTV recordings for the relevant period.
Applying the principles in PDE and University of Queensland (Unreported, Qld Information Commissioner, 9 February 2009), the Right to Information Commissioner was satisfied that the audio recordings had never been created, and that access to these documents could therefore be refused under section 47(e) and 52(1)(a) of the RTI Act, on the basis such documents did not exist.
The Right to Information Commissioner found that, while CCTV footage had at one time existed, it had since been recorded over in accordance with the RBWH’s reuse policy. QH had taken reasonable steps to locate the footage, and could refuse access to this footage under section 47(e) and 52(1)(b) of the RTI Act.
The Right to Information Commissioner also considered that various other general contentions raised by the applicant as to missing documents either sought information set out in his medical records as disclosed to him, or otherwise comprised questions QH was not obliged to answer under the information access provisions of the IP Act.
The Right to Information Commissioner was therefore satisfied that there were reasonable grounds for QH to be satisfied no further documents of the kind sought by the applicant kind existed.
The Right to Information Commissioner varied QH’s decision and found that:
· QH was entitled to refuse access to the segment of information appearing on the relevant folio of the applicant’s medical records under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act, on the basis that its disclosure would, on balance, be contrary to the public interest under section 49 of the RTI Act; and
· access could be refused to the additional documents sought under section 67(1) of the IP Act, and sections 47(3)(e), 52(1)(a) and 52(1)(b) of the RTI Act on the basis that these documents did not exist or were unlocatable.
