Lovelock and Queensland Health (Department of Health)
(2000 S0223, 12 February 2001)
The applicant had been convicted of murder. He had appealed unsuccessfully to the Supreme Court and had applied for special leave to appeal to the High Court. He sought access to medical records of a witness who gave evidence at his trial, in an effort to challenge the credibility of the witness, who had disclosed at the trial that she had a 'bi-polar mood disorder'.
The Information Commissioner found that the medical records concerned the personal affairs of the witness and were therefore prima facie exempt from disclosure under s.44(1) of the FOI Act. As in Fox (discussed above), the Information Commissioner acknowledged that there may be a public interest in a person obtaining access to information that would assist the bona fide use of avenues for correcting a miscarriage of justice. However, the Information Commissioner stated that the public interest must be weighed against the significant public interest in protecting the privacy of the medical records of the witness. Again, the Information Commissioner considered it appropriate (in assessing the weight to be accorded to the public interest considerations favouring disclosure) to take into account the strength of the Crown case against the applicant, and the likelihood that disclosure of the matter in issue would assist the applicant to mount a persuasive case in support of the remedy the applicant proposed to seek.
The Information Commissioner referred to comments in the Court of Appeal showing the strength of the Crown case. As the witness had given evidence concerning the disorder at the trial, the Information Commissioner indicated that the relevant ground of appeal raised by the applicant in his application for special leave to appeal would not be advanced by detailed evidence concerning the medical history of the witness. The Information Commissioner also noted that the medical records predated the murder by a number of years. The Information Commissioner decided that disclosure of the medical records would not, on balance, be in the public interest, and that the records were therefore exempt under s.44(1) of the FOI Act.