JSDand Medical Board of Queensland
(2002 S0054, 4 March 2003)
Liability to pay access charges under the Freedom of Information Regulation 1992 Qld- whether allegations of sexual misconduct by a doctor in the course of treating patients is information concerning the doctor's personal affairs - apportionment of processing charges when some documents concern the applicant's personal affairs and some do not.
The applicant was a medical practitioner accused of sexual misconduct in the course of treating patients. He sought access to information concerning the investigation into those allegations conducted by the Medical Board of Queensland (the MBQ).
The applicant claimed that the documents related to his personal affairs. The MBQ argued that they related to his professional affairs, as the alleged incidents occurred during professional consultations with patients. The documents fell into two categories:
· documents that referred to allegations of sexual misconduct or of misconduct generally (which the Deputy Information Commissioner found took colour from those around them), or the police investigation into the allegations, and
· medical records of the complainants.
Because allegations of sexual misconduct have such a strong element of the personal about them, documents which contain information concerning such matters should be characterised as documents concerning the applicant's personal affairs, and no access charges are payable (see NHL and the University of Queensland (1997) 3 QAR 436).
Only six folios in the medical records of the complainants contained any reference to the allegations of sexual misconduct. The balance of the medical records merely recorded health concerns raised by the patients and the doctor's assessment of those concerns, and therefore could not be characterised as documents concerning the applicant's personal affairs.
There were 198 folios that did not concern the applicant's personal affairs, and the Deputy Information Commissioner was satisfied that the time spent by the MBQ processing those 198 folios exceeded 2 hours. The total processing time was 22 hours, but the MBQ had not recorded the time spent processing individual documents. The Deputy Information Commissioner was satisfied that Mr Posner of the MBQ spent approximately 1 hour assessing an audiotape of an interview with one of the complainants, and that, because it contained information concerning the applicant's personal affairs, no processing charges were payable in respect of the audiotape. It appeared that the time spent processing the remaining documents was relatively evenly distributed.
The Deputy Information Commissioner therefore assessed the processing charges payable by the applicant by apportioning the total time spent by the MBQ in processing the "personal affairs" and non-"personal affairs" documents (22 hours), less 1 hour spent processing the audiotape (21 hours), by reference to the non-"personal affairs" documents (198) as a fraction of the total number of folios (313), multiplied by the hourly charge set out in item 1 of the Schedule to the FOI Regulation, i.e.:
198/313 x 21 hours x $20/hour = $265.69
The Deputy Information Commissioner also held that the MBQ should refund to the applicant the amount by which the charges he had paid exceeded $265.69, and refund any charges paid in respect of items 2 or 3 in the Schedule for the provision of access to documents identified as documents concerning the applicant's personal affairs.