Minogue and Department of Health
(210700, 24 June 2009)
Section 44(1) of the FOI Act – Matter affecting personal affairs
Section 40(c) of the FOI Act – Matter concerning certain operations of agencies
Section 28A(2) – Refusal of access – document nonexistent or unlocatable
The applicant sought access to his personnel files and other files concerning him which were held by the Department of Health, otherwise known as Queensland Health (QH).
QH released some documents to the applicant but refused access to some information under sections 44(1) and 40(c) of the FOI Act and deleted some information under section 27(3) of the FOI Act on the basis that it was not relevant to the applicant’s application.
The applicant contested the exemptions relied on by QH, queried the matter deleted as irrelevant and also requested that further searches be performed for documents the applicant said should exist. QH’s internal review decision upheld the original decision and the applicant applied for external review of QH’s decision refusing access to documents.
After some parts of the review were informally resolved, the matter remaining in issue comprised:
· parts of a response to a grievance lodged by the applicant
· a file note of a conversation between a third party employee of QH and their supervisor about the third party’s work performance.
On external review, the applicant made a number of submissions in support of his case for disclosure of the matter in issue including:
· that the matter in issue formed part of a grievance process and formed part of his personnel file and that the rules of procedural fairness require that the whole of the relevant documents be provided to him in order for him to respond
· that further emails and computer files responding to his FOI application exist in the possession of QH.
Following consideration of the documents in issue and the requirements of sections 44(1) and 40(c) of the FOI Act, Assistant Commissioner Henry (AC Henry) decided that:
· the parts of the response to the grievance remaining in issue concerned the personal affairs of the author of the response and that on balance, disclosure of that matter was not in the public interest
· disclosure of the file note regarding a third party’s work performance could reasonably be expected to have an adverse effect on the management of QH’s personnel and would not, on balance, be in the public interest.
AC Henry also considered the applicant’s submissions that further emails and computer files responding to his application existed, and found that all reasonable searches for the documents had been undertaken by QH, but that the documents could not be found.
In summary, AC Henry decided that:
· parts of the matter remaining in issue were exempt from disclosure under section 44(1) of the FOI Act
· the remainder of the matter in issue was exempt from disclosure under section 40(c) of the FOI Act
· QH are entitled to refuse access to documents under section 28A(2) of the FOI Act on the basis that all reasonable searches have been undertaken to locate the requested documents and the documents could not be found.