G8KPL2 and Department of Health
(310329, 31 January 2011)
Section 47(3)(a) – exempt information
Schedule 3, section 10(4) and (6) – investigations by a prescribed crime body
The applicant applied to the Department of Health (Department) for access to an investigation report (Report) prepared by the Department’s Ethical Standards Unit (ESU) into allegations of misconduct the applicant had made against hospital staff.
The Department refused access to the Report under section 47(3)(a) of the Right to Information Act 2009 (Qld) (RTI Act) on the basis that the information:
· was obtained, used or prepared for an investigation by a prescribed crime body, or another agency, in the performance of the prescribed functions of the prescribed crime body; and
· was exempt information under section 48 and schedule 3, section 10(4) of the RTI Act (CMC exemption).
On external review, the applicant submitted that, as the complainant, s/he has the right to know if an open, honest and transparent investigation was conducted and that an appropriate and reasonable outcome was achieved in relation to the complaint. The applicant submitted that the only way to establish this would be to obtain access to the Report.
The Right to Information Commissioner found that:
· following receipt of the applicant's complaint the Department notified the prescribed crime body, the Crime and Misconduct Commission (CMC);
· the CMC assessed the allegations and considered that if proven, they may amount to official misconduct under the Crime and Misconduct Act 2001 (Qld) and referred the matter back to the Department to deal with, subject to the CMC’s monitoring role; and
· the Department's ESU investigated the allegations against a number of staff, prepared the Report and subsequently notified the CMC of the outcome of its investigation.
On the basis of the above findings, the Right to Information Commissioner was satisfied that:
· the Report was obtained, used or prepared for an investigation by the CMC, or the Department, in the performance of the prescribed functions of the CMC; and
· the requirements of the CMC exemption in schedule 3, section 10(4) of the RTI Act had been met.
In considering whether schedule 3, section 10(6) of the RTI Act operated to exclude the application of the CMC exemption to the Report, the Right to Information Commissioner found that while the investigation had been finalised, the Report:
· contained information about the conduct of and investigation into officers of the Department against whom the applicant had made allegations of misconduct; and therefore,
· did not contain information "about" the applicant to enliven the exception to the CMC exemption in schedule 3, section 10(6) of the RTI Act.
The Right to Information Commissioner affirmed the Department’s decision refusing access to the Report under section 47(3)(a) of the RTI Act.