Milovanovic and Health Rights Commission; Ting (Third Party)
(2003 F0377, 22 September 2005)
Response to complaint - application of s.46(1)(a) and s.46(1)(b)
The applicant sought access to various documents concerning a complaint he had made to the respondent about medical treatment he had received from the third party. In particular, the applicant sought access to the third party's written response to the complaint. Both the respondent and the third party claimed that the response had been provided in confidence and was therefore exempt from disclosure to the applicant under s.46(1)(a) or s.46(1)(b) of the FOI Act.
Applying the principles set out in Circumcision Information Australia as agent for DMO and Health Rights Commission; Stalewski (Third party) (2005) 7 QAR 1, Assistant Commissioner Moss decided that it was not reasonable for the respondent and the third party to expect that the third party's response to the applicant's complaint could be kept confidential from the applicant and that procedural fairness required disclosure to the applicant of the response, all of which was relevant and responsive to the complaint.
However, AC Moss found that the reference in a document to the name of an independent medical practitioner, whom the respondent had telephoned to obtain an informal expert opinion about the applicant's complaint, did qualify for exemption under s.46(1)(a) of the FOI Act.
AC Moss decided that the practitioner's identity had been communicated in confidence and that procedural fairness did not require disclosure to the applicant of the identity (the applicant had been given access to the medical practitioner's opinion) because the applicant could, if he wished, challenge the opinion without knowing the identity of the practitioner.