Fotheringham and Department of Health

Application number:
1993 S0075
Decision date:
Thursday, Oct 19, 1995
(1995) 2 QAR 799

Fotheringham and Queensland Health
(1993 S0075, 19 October 1995) 

This case involved the application of s.44(1) to the medical records of the deceased wife of Australian author, Arthur Hoey Davis (Steele Rudd), who wrote the 'Dad and Dave' series.  The author had divorced his wife in 1934 on the grounds of her "unsoundness of mind".  The applicant was a literary scholar preparing a biography of Mr Davis, and considered that information in the medical records of Mrs Davis may throw light on aspects of Mr Davis' life and writings.  Mrs Davis died in 1952 after having spent almost all of the last 33 years of her life in institutions controlled by the respondent.  The staff of the Office of the Information Commissioner contacted her closest living relative, a grandchild, who objected to disclosure.  The applicant did not dispute that the records in question concerned Mrs Davis' personal affairs, but contended that public interest considerations in this case favoured disclosure. 

The Information Commissioner stated that the purpose of an agency obtaining the views of the closest living relative of a deceased person is not to permit the closest living relative a right to veto access.  Rather, it is relevant for an agency decision-maker to take into account the views of the closest relative in deciding whether to claim an exemption.  According to the circumstances of a particular case, the views of the closest relative may be afforded some weight in the application of the public interest balancing test incorporated in s.44(1). 

The Information Commissioner stated that the 'public interest' question for determination involved a difficult value judgment, i.e., whether disclosure of information in Mrs Davis' medical records would, on balance, be in the public interest because of the significance of her life and circumstances to the life and work of Mr Davis, a major figure in Queensland's literary/cultural history.  While the Information Commissioner recognised a public interest in facilitating historical and cultural research which can contribute to a society's understanding and identification of itself, the Information Commissioner stated that it was pitted against public interest considerations favouring non-disclosure of the matter in issue which are universally recognised in our community as carrying substantial weight, namely, privacy considerations and the preservation of confidentiality of a person's medical records. 

The Information Commissioner found that the age of the documents in issue was a relevant factor, as privacy concerns in respect of deceased persons may lose their potency with the passage of time.  The Information Commissioner also recognised that some aspects of the life of Mrs Davis were matters of public record, but noted that the details of her specific illness, and initial diagnosis and treatment, which comprised the matter in issue, were not in the public domain.  After analysing all of the relevant factors raised for my consideration, the Information Commissioner concluded that the public interest considerations favouring disclosure, which had been identified by the applicant, were not sufficiently strong to justify intrusion into the medical records of Mrs Davis, and that the Commissioner was not satisfied that disclosure of any of the matter in issue would, on balance, be in the public interest.  Accordingly, the Information Commissioner held that the matter in issue was exempt matter under s.44(1).