E and Legal Aid Office (Queensland)
(1994 S0099, 24 April 1996)
The applicant had been refused access to parts of a "Merit Assessment Report" prepared for the respondent agency by a social worker in private practice, with a view to assisting the respondent's assessment of whether it should grant the applicant legal aid to seek court orders concerning the custody of his children. The respondent contended that the matter in issue was exempt matter under either s.46(1) or s.41(1), and that part of the matter in issue was also exempt under s.44(1).
The Information Commissioner first considered whether s.46(2) operated to exclude the matter in issue from the application of s.46(1). The Information Commissioner found that the matter in issue was matter of the kind mentioned in s.41(1)(a), as it comprised opinions and recommendations prepared, and consultations that had taken place, for the purpose of one of the deliberative functions of government, namely, consideration by the respondent of whether or not to grant legal aid to the applicant. As the matter was communicated by the social worker, who was not a person or body of the kind mentioned in s.46(2)(a) or (b), the Information Commissioner found that the matter could still qualify for exemption under s.46(1)(a), provided that its disclosure would found an action for breach of confidence owed to the social worker.
The balance of the case involved the application of s.46(1)(a) and the principles explained in B and Brisbane North Regional Health Authority (1994) 1 QAR 279. On evidence, the Information Commissioner was satisfied that it was made clear to the applicant, before he agreed to participate in the process which led to the preparation of the report in issue, that the report was to be a confidential report, and only the conclusions of the report would be made available to him. Some parts of the report contained information that was not confidential vis-à-vis the applicant, and he was given access to them. However, the Information Commissioner was satisfied that the balance of the report was communicated in circumstances which imported an obligation of confidence binding on the respondent not to use or disclose the report in a manner that was not implicitly or expressly authorised by the social worker. As the Information Commissioner was also satisfied that the other criteria to found an action for breach of confidence had been made out, the Information Commissioner found that the matter remaining in issue in the report was exempt matter under s.46(1)(a).