E9IH9N and Metro South Hospital and Health Service [2016] QICmr 18 (27 May 2016)

Application number:
312556
Applicant:
E9IH9N
Respondent:
Metro South Hospital and Health Service
Decision date:
Friday, May 27, 2016
Catchwords:

ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - REFUSAL OF ACCESS - EXEMPT INFORMATION - application to access medical records - whether disclosure of information relating to a justices examination order could reasonably be expected to prejudice a system or procedure for the protection of persons, property or environment - schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) - whether access to information may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(a) of the Right to Information Act 2009 (Qld)

ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT -REFUSAL OF ACCESS - CONTRARY TO THE PUBLIC INTEREST INFORMATION - application to access medical records - personal information of other individuals provided or collected in the course of the applicant’s medical treatment - whether disclosure would, on balance, be contrary to the public interest - whether access to information may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(b) of the Right to Information Act 2009 (Qld)

ADMINISTRATIVE LAW - INFORMATION PRIVACY ACT - UNLOCATABLE AND NONEXISTENT DOCUMENTS -applicant contends documents are missing - whether agency has taken all reasonable steps to locate medical records - whether access to further documents may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and sections 47(3)(e) and 52(1) of the Right to Information Act 2009 (Qld)

REASONS FOR DECISION

Summary

1. The applicant applied to Metro South Hospital and Health Service (MSHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to her health records1 held by the Princess Alexandra Hospital.

2. MSHHS granted the applicant access to more than 1,000 pages. MSHHS decided to refuse access to some information on the grounds that it was exempt2 or its disclosure would, on balance, be contrary to the public interest.3

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of MSHHS’ decision to refuse access and also raised concerns about missing information.

4. During the external review, MSHHS agreed to release some additional information to the applicant.

5. Based on the information available to OIC in this review, I have decided that access to the information in issue may be refused under the IP Act.  For the reasons set out below, I have varied MSHHS’ decision and find that access may be refused on the following grounds:

  • some information is exempt as its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment4
  • disclosure of some information would, on balance, be contrary to the public interest;5 and
  • any further information responding to the application does not exist.6

Background

6. Significant procedural steps relating to the application and external review are set out in the Appendix.

Reviewable decision

7. The decision under review is MSHHS’ decision dated 16 June 2015.7

Evidence considered

8. The evidence, submissions, legislation and other material I have considered in reaching this decision are disclosed in these reasons (including footnotes and the Appendix).

Information in issue

9. The information remaining in issue in this review includes:

Description Full pages Part pages
Information relating to the application and Justices Examination Order (JEO) made under the Mental Health Act 2000 (Qld) (MH Act) in relation to the applicant (JEO Information) 22 17
Personal information about other individuals including names and identifying information, opinions about their personal circumstances and alleged conduct of third parties (Third Party Information) 0 14
TOTAL NUMBER OF PAGES IN ISSUE2231

10. As stated in paragraph 4 above, MSHHS agreed to release some additional information to the applicant during the external review.8 That information is therefore no longer in issue in this review and is not dealt with in this decision. Information deemed irrelevant to the terms of the applicant’s access application is also not in issue in this review.9

Issues for determination

11. In this review, the following issues remain for determination:

A. could disclosure of the JEO Information reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment?

B. would disclosure of the Third Party Information, on balance, be contrary to the public interest?

C. are there reasonable grounds to be satisfied that further documents responding to the access application do not exist?

12. The applicant provided handwritten submissions to OIC supporting her case. I have carefully considered all of the applicant’s submissions. OIC explained to the applicant during the review that certain concerns she has raised are beyond OIC’s external review jurisdiction under the IP Act. For example, the applicant is seeking answers to questions relating to her treatment and further information about her diagnoses.10 I acknowledge these issues are of great importance to the applicant.  However, in this decision, I have only examined the applicant’s submissions to the extent they are relevant to the issues for determination on external review.

A.  JEO Information

13. The JEO Information relates to the application and JEO made under the MH Act involving the applicant. The JEO Information identifies the JEO applicant/s and the information supplied in support of the JEO application.

Relevant law

14. Under the IP Act, an individual has a right to access documents of an agency to the extent that the documents contain the individual’s personal information.11 However, this right of access is subject to certain limitations, including the grounds for refusal of access.12

15. Access to documents may be refused to the extent they comprise exempt information.13 Schedule 3 of the RTI Act sets out information which Parliament considers is exempt information on the basis that disclosure would, on balance, be contrary to the public interest.14

16. Information will be exempt if its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment.15 This exemption will apply if each of the following requirements are met: 16

(a) there exists an identifiable system or procedure
(b) it is a system or procedure for the protection of persons, property or environment; and
(c) disclosure of the information in issue could reasonably be expected to prejudice that system or procedure.

Findings

Requirement (a) – an identifiable system or procedure

17. A JEO allows a person in the community to request a non-urgent, involuntary mental health assessment for a person they believe may be experiencing mental health problems.17

18. The MH Act18 relevantly provides:

  • a person may apply to a Magistrate or Justice of the Peace for a JEO for another person19
  • the Magistrate or Justice of the Peace may issue a JEO if he/she reasonably believes that the relevant person has a mental illness and should be examined20
  • once a JEO has been issued and sent to the administrator of an authorised mental health service, a doctor or authorised mental health practitioner may conduct the examination21
  • the JEO authorises a doctor or authorised mental health practitioner to examine the person to decide whether a recommendation for assessment for the person should be made;22 and
  • if a recommendation for assessment for the person is not made after the person’s examination under the JEO, the examining doctor or authorised mental health practitioner must give notice to the director.23

19. In view of the above, I am satisfied that the JEO procedure described in the MH Act is a system or procedure for the purposes of schedule 3, section 10(1)(i) of the RTI Act.

Requirement (b) – for the protection of persons, property or environment

20. The Information Commissioner has previously decided that the JEO procedure under the MH Act is an identifiable procedure for the protection of persons.24

21. The JEO process is an important mechanism by which those who are in need of mental health care, may be removed from the community for the purposes of assessment and treatment, thereby minimising the potential to harm themselves and others.25

22. On this basis, I am satisfied that the procedure for making a JEO application is a system or procedure for the protection of persons.

Requirement (c) – disclosure of the information in issue could reasonably be expected to prejudice that system or procedure

23. The Information Commissioner has previously explained that individuals applying for a JEO provide information on the understanding that it is confidential and will only be used for the limited purpose of ensuring the proper administration of the MH Act.26 I agree with that view and consider that confidentiality is integral to the JEO process.

24. I consider that disclosure of information identifying a JEO applicant and/or the substance of the application, could render future JEO applicants reluctant to supply information. As a consequence, this could diminish the quality of information provided by applicants and some applicants may be deterred from using the JEO process at all.

25. The JEO Information in this review identifies the JEO applicant/s and the information supplied in support of the JEO application. I am therefore satisfied that disclosing the JEO Information could reasonably be expected to prejudice the JEO procedure prescribed in the MH Act.

26. The applicant has raised various submissions in support of her case for disclosure of the JEO Information.27 In summary, the applicant:

  • believes she knows the identity of the JEO applicant/s
  • believes that the person, who she suspects is the JEO applicant, has waived their right to personal privacy by the nature of their conduct
  • considers that the risk of any reprisal action taken against the suspected JEO applicant is minimised, as the applicant has had the opportunity to take action and has chosen not to; and
  • contends that an officer of MSHHS revealed specific details about the JEO to the applicant and that the JEO files were transferred to the applicant’s general medical files which were used by and read by a number of departments within MSHHS.

27. I have carefully considered the applicant’s submissions. I do not consider the applicant’s submissions have any impact on requirement (c) – prejudice to a system or procedure. The prejudice relates to the system as a whole and not to an individual case.  I am satisfied that the applicant’s suspicions as to the identity of the JEO applicant do not negate the potential prejudice to the JEO system.

28. The applicant raises issues which are clearly of genuine concern to her.  However, to the extent the applicant is contending that there is a public interest in disclosure of the JEO Information to her, I am unable to take this into account when applying schedule 3, section 10(1)(i) of the RTI Act as there is no public interest test incorporated in the exemption.28

29. For the reasons set out above, I am satisfied that the JEO Information meets each of the requirements of schedule 3, section 10(1)(i) of the RTI Act and is exempt information. As a result, I find that access to the JEO Information can be refused under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act.

B. Third Party Information

30. The Third Party Information comprises personal information about other individuals including names and identifying information, opinions about their personal circumstances and alleged conduct of third parties. This information appears in the applicant’s medical records and in a general sense, was provided for the purpose of the care and treatment of the applicant.29

Relevant law

31. An agency may refuse access to information where its disclosure would, on balance, be contrary to the public interest.30 The term ‘public interest’ refers to considerations affecting the good order and functioning of the community and government affairs, for the wellbeing of citizens generally. This means that, ordinarily, a public interest consideration is one which is common to all members of, or a substantial segment of, the community as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.

32. The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest31 and explains the steps that a decision-maker must take32 in deciding the public interest as follows:

  • identify any irrelevant factors and disregard them
  • identify relevant public interest factors favouring disclosure and nondisclosure
  • balance the relevant factors favouring disclosure and nondisclosure; and
  • decide whether disclosing the information would, on balance, be contrary to the public interest.

Findings

33. No irrelevant factors arise in the circumstances of this case and I have not taken any into account. Below, I have examined the relevant factors favouring disclosure and nondisclosure of the Third Party Information.

Accountability and transparency

34. I have considered whether disclosing the Third Party Information could reasonably be expected to:

  • promote open discussion of public affairs and enhance the Government’s accountability33
  • reveal the reason for a government decision and any background or contextual information that informed the decision.34

35. I accept that disclosing the Third Party Information would provide the applicant with a more comprehensive understanding of what appears in her medical records and the reasons certain treatment actions were taken by her doctors and would provide her with access to the background information that was available to the treating doctors.

36. However, the applicant was granted access to the majority of the documents in her medical record. I am satisfied that the information already released largely satisfies the public interest factors identified above. Also, given the comparatively small number of pages that make up the Third Party Information and its particular contents, I do not consider its disclosure would advance these public interest factors to any significant degree. Accordingly, I find that while above factors apply, they carry limited weight.

Personal information and privacy

37. The Third Party Information appears in the applicant’s medical records. The RTI Act recognises that it is in the public interest for individuals to access their personal information that is held by government agencies.35 I am satisfied that the applicant’s medical records comprise her personal information and therefore, this factor applies. However, this information is interwoven with that of others in such a way that it cannot be separated and is properly characterised as ‘mutual personal information’. As this information cannot be separated, the applicant’s personal information cannot be released without also releasing the personal information of others. Therefore, I find that this factor favouring disclosure can only be given minimal weight.

38. The Third Party Information specifically comprises the names, identifying information, opinions and allegations about other individuals. I am satisfied that this also comprises the personal information of those individuals.

39. The RTI Act recognises there is a public interest in protecting the privacy of individuals and their personal information.36 I am satisfied that the Third Party Information which appears in the context of the applicant’s mental health records, is of a highly sensitive nature. I consider that disclosure of the Third Party Information under the IP Act would be a significant intrusion into the privacy of the other individuals and the extent of the public interest harm that could be anticipated from disclosure is significant. As a result, I attribute these factors favouring nondisclosure significant weight.

Balancing the public interest

40. I am satisfied that the public interest in protecting the privacy of other individuals and safeguarding their personal information which appears in the applicant’s mental health records carries such significant weight so as to outweigh the disclosure factors relating to accountability and government transparency, and allowing the applicant access to her personal information.  Accordingly, I find that access to the Third Party Information may be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest.

C. Missing Information

41. The applicant raised concerns about missing information, as follows:

(i) in relation to a stalking allegation made against her while she was in hospital, the applicant asked whether certain matters were reported to hospital authorities or to the police, and sought any verifying information relating to this incident37

(ii) the applicant asked if there was any information to reconcile what she considers to be conflicting accounts within documents, concerning an interview with a particular doctor;38 and

(iii) admission and discharge notes from 2009 and 2011 are missing.39

42. In relation to item (iii), the applicant was advised by OIC during the external review that this information had been located by MSHHS and was contained within the documents released to her.  Therefore, this category of documents is not examined below.

Relevant law

43. An agency must take all reasonable steps to locate the documents sought in an access application. Access to a document may be refused if the document is non-existent or unlocatable.40 A document is unlocatable if it has been or should be in the agency’s possession and all reasonable steps have been taken to find the document but it cannot be found.41 A document is nonexistent if there are reasonable grounds to be satisfied the document does not exist.42

44. To be satisfied that documents are nonexistent, a decision-maker must rely on their particular knowledge and experience and have regard to a number of factors.43 When the factors are properly considered, it may not be necessary for the agency to conduct searches.  However, if searches are relied on to justify a decision that documents do not exist, all reasonable steps must be taken to locate the documents.  What constitutes reasonable steps will vary from case to case as the search and enquiry process an agency will be required to undertake will depend on which of the key factors are most relevant in the particular circumstances. Where an external review involves the issue of missing documents, the applicant has a practical onus to establish reasonable grounds to believe that the agency has not discharged its obligation to locate all relevant documents.44

Findings

45. The applicant applied for access for her medical records held by the Princess Alexandra Hospital, for a specified time period. MSHHS located in excess of 1,000 pages of the applicant’s medical records. MSHHS provided OIC with records showing searches were conducted at the Princess Alexandra Hospital Medical Records, Mental Health Medical Records and Pathology and Radiology units.45

46. Given the scope of the application, I am satisfied that the searches conducted by MSHHS for the applicant’s medical records have been targeted and comprehensive.  There is no evidence to suggest the applicant’s medical records would be held in any other location other than those searched by MSHHS.

47. With respect to items (i) and (ii) at paragraph 41 above, I have only examined these to the extent they concern the issue of missing information. As set out above, OIC does not have the power to interpret or comment on the content of the documents released to an applicant, or to provide answers to questions.46 I acknowledge that the applicant has ongoing concerns about some of the information in her medical records and the actions taken by doctors and hospital staff.  However, these issues are beyond OIC’s external review jurisdiction under the IP Act.47

48. Based on the information available to OIC in this review, I am satisfied that there are no reasonable grounds to believe that any further information responding to the applicant’s application for access to her medical records exists. I therefore find that access to any additional information may be refused48 on the basis that it does not exist.49

DECISION

49. For the reasons set out above, I vary MSHHS’ decision and find that:

  • the JEO Information is exempt information under schedule 3, section 10(1)(i) of the RTI Act and therefore, access to it may be refused under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act
  • disclosure of the Third Party Information would, on balance, be contrary to the public interest and therefore, access to it may be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act; and
  • any further information is non-existent under section 52(1) of the RTI Act and therefore, access to it may be refused under section 67(1) of the IP Act and section 47(3)(e) of the RTI Act.

50. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.

________________________
K Shepherd
Assistant Information Commissioner

Date:  27 May 2016

APPENDIX

Significant procedural steps

DateEvent
11 May 2015MSHHS received the initial access application.
16 June 2015MSHHS issued its decision to the applicant.
13 August 2015OIC received the application for external review of MSHHS’ decision.
18 August 2015OIC notified the applicant that it had received her application for external review.
19 August 2015OIC notified MSHHS that the external review application had been received and requested relevant procedural documents.
20 August 2015OIC received the procedural documents from MSHHS.
27 August 2015OIC conveyed a letter to the applicant noting issues OIC cannot review and seeking clarity on the issues relevant to the external review application.
8 September 2015

OIC received submissions from the applicant.

OIC notified the applicant and MSHHS that it had accepted the external review application.

OIC asked MSHHS to provide OIC with a copy of the information in issue.

2 October 2015OIC received the information in issue from MSHHS.
10 December 2015OIC conveyed a preliminary view to MSHHS and invited MSHHS to provide submissions in response.
12 January 2016MSHHS notified OIC that it accepted the preliminary view. MSHHS sent additional documents to the applicant.
3 February 2016OIC conveyed a preliminary view to the applicant and invited the applicant to provide submissions in response.
18 February 2016OIC received submissions from the applicant.
25 February 2016OIC wrote to the applicant seeking confirmation as to whether she objected to the preliminary view.
11 March 2016OIC received submissions from the applicant confirming her objection to the preliminary view.
13 May 2016OIC provided the applicant with a written update on the status of the review.

1 Dated between April 2009 and April 2013.
2 Under sections 47(3)(a) and 48 and schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) (RTI Act). Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access under section 47 of the RTI Act.
3 Under sections 47(3)(b) and 49 of the RTI Act.
4 Under sections 47(3)(a) and 48 and schedule 3, section 10(1)(i) of the RTI Act.
5 Under sections 47(3)(b) and 49 of the RTI Act.
6 Under sections 47(3)(e) and 52(1) of the RTI Act.
7 On this date, MSHHS provided the applicant with a copy of the decision, in person, together with the documents to which access was granted. OIC accepted that this constituted ‘written notice’ of the decision and therefore, it was a ‘considered decision’ under section 65 of the IP Act, not a ‘deemed decision’.
8 25 full pages and eight part pages.
9 158 full pages and one part page. The irrelevant information consists of information which is not covered by the date range of the application and blank template documents which do not contain the applicant’s personal information.
10 MSHHS and OIC both recommended the applicant contact the Patient Liaison Office at the Princess Alexandra Hospital in relation to her concerns which fall outside the IP Act access scheme.
11 Section 40 of the IP Act.
12 Section 47 of the RTI Act. Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access to a document under section 47 of the RTI Act if the application had been made under the RTI Act.
13 Under section 47(3)(a) and section 48 of the RTI Act.
14 Section 48(2) of the RTI Act.
15 Schedule 3, section 10(1)(i) of the RTI Act.
16 SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) at [9] (SQD).
17 Page 2 of Queensland Government (Queensland Health), Information about Justices Examination Orders can be downloaded from: https://www.health.qld.gov.au/clinical-practice/guidelines-procedures/clinical-staff/mental-health/resources/factsheets-poster/default.asp
18 This is the current applicable legislation. State Parliament passed the Mental Health Act 2016 (Qld) on 18 February 2016. However, as at the date of this decision, that Act has not commenced.
19 Section 27 of the MH Act.
20 Section 28 of the MH Act.
21 Section 29 and 30 of the MH Act.
22 Section 30 of the MH Act.
23 Section 32 of the MH Act.
24 See for example ROSK and Brisbane North Regional Health Authority; Others (Third Parties) (1996) 3 QAR 393 (ROSK) at [13]-[15] and VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009) at [49] and QPF and Department of Health (Unreported, Queensland Information Commissioner, 29 June 2009) at [26] regarding section 42(1)(h) of the repealed Freedom of Information Act 1992 (Qld); and SQD at [16], 74KDLG and Department of Health (Unreported, Queensland Information Commissioner, 25 February 2011) (74KDLG) at [15] and B7TG4G and Gold Coast Hospital and Health Service (Unreported, Queensland Information Commissioner, 1 May 2015) at [20] regarding schedule 3, section 10(1)(i) of the RTI Act.
25 74KDLG at [17].
26 SQD at [17]; see also ROSK at [21].
27 Applicant’s submissions to OIC dated 11 July 2015, 28 August 2015 and 11 March 2016.
28 Schedule 3 of the RTI Act sets out the types of information the disclosure of which Parliament has already decided would, on balance be contrary to the public interest: section 48(2) of the RTI Act. If the information meets the requirements of one of the exemptions in schedule 3 of the RTI Act, access can be refused and there is no scope for a decision-maker to take into account any public interest considerations or an applicant’s reasons for seeking access to the information, no matter how compelling they may be.
29 This category includes information to which MSHHS refused access on the basis that it was exempt under schedule 3, section 8 of the RTI Act, due to breach of confidence.  However, on external review, MSHHS accepted OIC’s preliminary view that the information did not meet the requirements of that exemption and that instead, access could be refused on public interest grounds.
30 Section 47(3)(b) and 49 of the RTI Act.
31 Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, this list of factors is not exhaustive. In other words, factors that are not listed may also be relevant.
32 Section 49(3) of the RTI Act.
33 Schedule 4, part 2, item 1 of the RTI Act.
34 Schedule 4, part 2, item 11 of the RTI Act.
35 Schedule 4, part 2, item 7 of the RTI Act.
36 Schedule 4, part 3, item 3 and part 4, item 6(1) of the RTI Act.
37 Applicant’s submissions to OIC dated 11 March 2016.
38 Applicant’s submissions to OIC dated 11 March 2016.
39 Applicant’s submissions to OIC dated 11 July 2015 and 28 August 2015.
40 Sections 47(3)(e) and 52 of the RTI Act.
41 Section 52(1)(b) of the RTI Act.
42 Section 52(1)(a) of the RTI Act.
43 Pryor and Logan City Council (Unreported, Queensland Information Commissioner, 8 July 2010) at [19] which adopted the Information Commissioner’s comments in PDE and the University of Queensland [2009] QICmr7 (9 February 2009).  The key factors include: the administrative arrangements of government; the agency structure; the agency’s functions and responsibilities; the agency’s recordkeeping practices and procedures and other factors including the nature and age of the requested document/s and the nature of the government activity to which the request relates.
44 Mewburn and Department of Local Government, Community Recovery and Resilience [2014] QICmr 43 (31 October 2014) at [13].
45 Submission to OIC dated 20 August 2015.
46 Hearl and Mulgrave Shire Council (1994) 1 QAR 557 at [30]-[31].
47 On 25 February 2016, OIC provided the applicant with information about applying for amendment of her personal information under the IP Act, in view of the concerns raised in her submissions to OIC.
48 Section 67(1) of the IP Act and section 47(3)(e) of the RTI Act.
49 Section 52(1)(a) of the RTI Act.