Murphy and Health Quality and Complaints Commission (Third Party)
(210563, 9 July 2009)
Section 46(1)(a) – name of Medical Practitioner who provided an opinion to the Health Quality and Complaints Commission in relation to a complaint received
In her application for external review, the applicant applied for a review of the Health Quality and Complaints Commission (Commission) decision to refuse her full access to all documents held by the Commission relating to her late husband.
During the course of the external review the applicant indicated she only wished to pursue access to three documents containing the name of a Medical Practitioner (Third Party) who provided an opinion to the Commission in relation to the applicant’s complaint (Matter in Issue).
During the course of the review, the Commission expressed a view that while the Matter in Issue was of a nature that was generally exempt, the matter could be disclosed in this case because the Matter in Issue had already been inadvertently disclosed to the applicant on two prior occasions. The Commission and the Third Party however did not accept the way in which the Acting Information Commissioner applied sections 46(1)(a) and 46(2) of the FOI Act to the Matter in Issue.
Specifically the Commission argued that section 46(2) of the FOI Act did not apply because the Third Party, in addition to having a limited role with the Commission was not employed under the Public Services Act 2008 (Qld) and therefore could not satisfy the requirement of an ‘officer of the agency’ as those terms are defined under section 7 of the FOI Act.
In making her decision the Acting Information Commissioner initially considered the principles set down in ‘B’ and Brisbane North Regional Health Authority (1994) 1 QAR 279. Although the Acting Information Commissioner found that a contractual obligation of confidence was established on the facts, in satisfaction of section 46(2) of the FOI Act:
· the Matter in Issue is matter of a kind mentioned in section 41(1)(a) of the FOI Act because it was obtained during a deliberative process of the Commission
· the Third Party whilst not considered a member of the agency’s staff under section 7(c) of the FOI Act, is a person employed by or for the Commission under section 7(d) of the FOI Act
· the Third Party fulfils the role of an ‘officer of the agency’ for the purposes of the FOI Act.
Accordingly, the Acting Information Commissioner decided that as the Matter in Issue fell within section 46(2) of the FOI Act, section 46(1)(a) of the FOI Act did not apply in this case and the Matter in Issue should be released to the applicant.