Section 47(3)(e), 44(1), 87 and 6
The applicant applied to the Department of Health (Department) for access to information concerning her great aunt’s residence at an aged care facility prior to her death. Although the Department initially refused access to any responsive information on the basis of section 47(3)(e) of the Right to Information Act 2009 (Qld) (RTI Act), after undertaking further searches with Queensland State Archives, the Department located a two page document. The Department submitted that even though it had no objection to the release of the information, it was unable to provide the applicant with access on an informal basis because under section 62A of the Health Services Act 1991 (Qld) it was subject to a strict duty of confidentiality in respect of any information which identifies an individual was the recipient of a public sector health service.
The Information Commissioner identified that section 87 of the RTI Act confirms an agency has an onus to establish that access would, on balance be contrary to the public interest. Further under section 44(1) of the RTI Act an agency should give access unless giving access would, on balance be contrary to the public interest. In this case the Information Commissioner confirmed that because the Department had stated that it would not be making any submissions contending that the information comprises exempt information or that its disclosure would be contrary to the public interest, the Department was required by the RTI Act to give access to the applicant.
In relation to the Department’s submission that it is constrained by section 62A of the Health Services Act 1991 (Qld), the Information Commission confirmed that section 6 of the RTI Act overrides the confidentiality provisions contained within the Health Services Act 1991 (Qld). Further, although the application had progressed to external review, section 90(3) of the RTI Act permits the Department to negotiate a settlement of external review matters.
In setting aside the decision under review, the Information Commissioner found that:
· the Department, not having identified any contrary public interest argument, should give access to the information
· the Department could and should have given the applicant access to the information as soon as it formed the view that it had no public interest arguments against access.