ADMINISTRATIVE LAW - RIGHT TO INFORMATION ACT - REFUSAL OF ACCESS - EXEMPT INFORMATION - documents exchanged between agency and internal and external lawyers - legal professional privilege - whether information is exempt under schedule 3, section 7 of the Right to Information Act 2009 (Qld) - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(a) of the Right to Information Act 2009 (Qld)
ADMINISTRATIVE LAW - RIGHT TO INFORMATION - REFUSAL OF ACCESS - CONTRARY TO PUBLIC INTEREST INFORMATION - patient records, witness information and other workplace information - accountability and transparency - personal information and privacy - accuracy of information - administration of justice - prejudice to agency’s management function or conduct of industrial relations by agency - prejudice to agency’s ability to obtain confidential information - whether disclosure would, on balance, be contrary to the public interest - whether access may be refused under section 67(1) of the Information Privacy Act 2009 (Qld) and section 47(3)(b) of the Right to Information Act 2009 (Qld)
REASONS FOR DECISION
Summary
1. The applicant, a former employee of Metro South Hospital and Health Service (MSHHS), made four consecutive access applications to MSHHS, under the Information Privacy Act 2009 (Qld) (IP Act), seeking access to various files containing his personal information.
2. MSHHS located 2052 pages across the four applications.1 MSHHS released most of the located information, but refused access to some information on the basis that it was exempt or because its disclosure would, on balance, be contrary to the public interest.
3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of the four decisions. During three external reviews, MSHHS agreed to release additional information to the applicant.
4. The applicant’s submissions demonstrate that he is aggrieved by various decisions made and actions taken by MSHHS in relation to his employment. During the external review, the applicant made detailed submissions to OIC regarding what he considers to be the significant public interest reasons favouring disclosure of the information to him. Generally speaking, the applicant considers that he has been the subject of unjust treatment and requires the information to advance his fair treatment and contribute to the administration of justice.
5. For the reasons set out below, I find that access to the remaining information in issue may be refused under section 67(1) of the IP Act and section 47(3)(a) and (b) of the Right to Information Act 2009 (Qld) (RTI Act), as it either comprises exempt information or its disclosure would, on balance, be contrary to the public interest.
Background
6. Significant procedural steps relating to the external reviews are set out in Appendix A.
Reviewable decisions
7. The decisions of MSHHS under review are:
- review 312978—considered decision dated 23 September 20162 refusing access to certain information under section 67(1) of the IP Act and section 47(3) of the RTI Act
- review 313109—deemed refusal of access decision under section 66(1) of the IP Act3
- review 313190—original decision dated 31 January 2017 refusing access to certain information under section 67(1) of the IP Act and section 47(3) of the RTI Act; and
- review 313228—original decision dated 6 March 2017 refusing access to certain information under section 67(1) of the IP Act and section 47(3) of the RTI Act.
Evidence considered
8. Evidence, submissions, legislation and other material considered in reaching this decision are referred to in these reasons (including footnotes and Appendices).
Information in issue
9. The remaining information in issue comprises 31 part and 293 full pages,4 and in each review, is as follows:
- review 312978—9 part and 47 full pages
- review 313109—90 full pages
- review 313190—2 part and 78 full pages; and
- review 313228—20 part and 78 full pages.
10. In these reasons, I have dealt with the remaining information in issue in the following categories:
- Legal Information—information recording MSHHS’s communications with its internal and external lawyers
- Patient Information—information about patients who were treated at an MSHHS hospital by the applicant, including extracts of certain patients’ medical records
- Witness Information—witness statements, correspondence with witnesses and other information identifying witnesses
- Workplace Information—a file note recording information about the applicant’s time working at MSHHS; and
- Public Servant Information—a public servant’s views and opinions on two part pages.
11. I am limited in the extent to which I can describe the specific content of the remaining information in issue.5 However, to the extent permissible under the IP Act, the below reasons describe the nature of the information in each category in some further detail.
Issue for determination
12. The issue for determination is the same in all four reviews—whether access to the remaining information in issue may be refused under section 67(1) of the IP Act and section 47(3)(a) and (b) of the RTI Act, on the basis that it is exempt or contrary to the public interest to disclose.
Relevant law
13. The IP Act confers on an individual a right to access documents of an agency, to the extent they contain the individual’s personal information.6 Section 12 of the IP Act defines ‘personal information’ as:
information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
14. However, this right of access is subject to some limitations, including grounds for refusing access.7 One ground for refusing access is where the requested information comprises exempt information.8 Another ground for refusing access is where disclosing information would, on balance, be contrary to the public interest.9
15. The RTI Act identifies various factors that may be relevant to deciding the balance of the public interest,10 and explains the steps that a decision-maker must take11 in deciding the public interest as follows:
- identify any irrelevant factors and disregard them12
- identify relevant public interest factors favouring disclosure and nondisclosure
- balance the relevant factors favouring disclosure and nondisclosure; and
- decide whether disclosure of the information would, on balance, be contrary to the public interest.
Applicant’s submissions – summary
16. The applicant provided extensive submissions to OIC during the reviews.13 I have distilled the central issues raised by the applicant and endeavoured to summarise the relevant arguments he has put forward to OIC. In making my decision on these reviews, I have carefully considered all of the issues raised by the applicant in his submissions, to the extent they are relevant to the issue for determination in these reviews.
17. The applicant submits that numerous public interest factors favouring disclosure apply to disclosure of the information in issue, as follows:14
- disclosure will promote open discussion about the bullying and discrimination of junior doctors in Australian public hospitals, and also enhance the Government’s accountability around these same issues15
- disclosure will contribute to the debate around bullying of doctors and the misuse of the notifications process, both of which are current and serious issues for the medical profession16
- disclosure could reasonably be expected to inform the community of the Government’s operations, as members of the public would be interested in how government organisations deal with allegations arising at workplaces17
- disclosure could reasonably be expected to ensure effective oversight of expenditure of public funds in two ways—firstly, in that time and money was ‘wasted’ on inappropriate investigations that should never have been initiated, and secondly, the public may be interested to know why public funds were not used to initiate an investigation into the applicant’s case when so many ‘injustices’ are demonstrable on the evidence18
- disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official, as the applicant’s internship and early medical career were ‘irreversibly [jeopardised]’ due to ‘very poor’ management decisions19
- disclosure could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct—as there is already ‘evidence’ that MSHHS staff had adopted a discriminatory strategy, it is reasonable to suggest that further information involving these same individuals may reveal further misconduct20
- a considerable amount of the information is the applicant’s personal information21
- disclosure would help to advance fair treatment in all of the applicant’s proceedings22
- disclosure would reveal the real reasons and background information that led to ‘extremely unjust’ decisions being made and acted upon in the applicant’s case, relating to the applicant’s internship and the allegations arising at the workplace23
- disclosure could reasonably be expected to reveal that the information was incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant, as disclosure will reveal any such inconsistencies which could help to explain the discrepancies and the ‘extremely unjustified’ outcome in the applicant’s case, relating to the applicant’s internship and the allegations arising at the workplace24
- disclosure could reasonably be expected to contribute to the administration of justice generally, including procedural fairness,25 or for a person26—the applicant has ‘suffered immensely’ due to improper decisions by MSHHS staff, and the release of information relating to these decisions will contribute to the administration of justice, which he says is ‘actively being pursued’, and will further allow for procedural fairness throughout the proceedings; and
- disclosure of the information could reasonably be expected to contribute to the enforcement of the criminal law—the applicant submits that ‘capital misconduct’ has already occurred, and as it is not unreasonable to suspect that there may be ‘more of the same’ evident on his records (eg, demonstrating criminal acts such as corruption), disclosure would assist in the enforcement of the criminal law.27
18. The applicant further submits that28 while there are some public interest factors potentially favouring nondisclosure,29 these cannot reasonably be applied to his case, and even if significant weight was to be given to those factors, the applicant maintains that the balance of the public interest favours disclosure.
Findings
Legal Information
19. This category comprises 37 full pages set out in Appendix B. Generally speaking, these pages comprise information recording MSHHS’s communications with its internal and external lawyers.
20. Information is exempt information if it would be privileged from production in a legal proceeding on the ground of legal professional privilege (Privilege).30 This exemption reflects the requirements for establishing Privilege at common law.31
21. At common law, Privilege attaches to confidential communications between a client and their lawyer, made for the dominant purpose of giving or obtaining legal advice or for use in existing or reasonably anticipated litigation. When these requirements are met, Privilege is established. Qualifications and exceptions to Privilege32 may, in particular circumstances, affect whether information attracts or remains subject to Privilege.
22. Having considered the nature and purpose of the communications contained in the Legal Information, I consider that it is covered by Privilege as:
- internal and external lawyers were engaged by MSHHS to provide legal services
- the information in the Legal Information comprises confidential communications; and
- the communications:
- are between MSHHS as client and the lawyers as legal advisers; and
- were for the dominant purpose of seeking and/or providing legal advice, or for use in existing litigation.
23. The applicant submits that ‘there remains the allegation that this information may have been used for an improper purpose – to justify discriminatory line of escalation’.33 I have carefully assessed the Legal Information and the applicant’s submissions. I am satisfied that none of the Legal Information records or otherwise evidences an illegal or improper purpose. Accordingly, I find that the improper purpose exception does not apply to preclude the application of Privilege to the Legal Information.34
24. The applicant also raises public interest reasons in favour of disclosure of the Legal Information.35 I acknowledge that the IP Act is to be administered with a pro disclosure bias.36 However, the exemptions in schedule 3 of the RTI Act set out the types of information which Parliament has decided would, on balance, be contrary to the public interest to disclose. Once the requirements of an exemption, such as Privilege, have been established, I am precluded from considering any public interest factors, no matter how compelling.37
25. Accordingly, I am satisfied that access to the Legal Information can be refused under section 67(1) of the IP Act and section 47(3)(a) of the RTI Act as it is subject to the exemption in schedule 3, section 7 of the RTI Act.
Patient Information
26. This category comprises 207 full pages and 1 part page, as identified in Appendix B. Generally speaking, these pages comprise information about patients who were treated at an MSHHS hospital by the applicant, including extracts of certain patients’ medical records.
Factors favouring nondisclosure
27. I have considered whether disclosing the Patient Information could reasonably be expected to prejudice the protection of other individuals’ right to privacy38 and/or cause a public interest harm by disclosing those individuals’ personal information.39
28. The applicant submits that:40
- he would expect and demand the release of the Patient Information to be entirely free of identifying information of any kind, including patient names, initials, Unit Record Numbers (URNs), dates of birth, ages and genders; and
- if this information were removed, it would be impossible to identify the particular patients, given the high number of patients doctors see every year.
29. As the applicant acknowledges, the Patient Information in its entirety comprises the personal information of the relevant patients. However, I have considered whether the Patient Information could be redacted to an extent which would mean that the remaining information no longer meets the definition of ‘personal information’—ie, whether sufficient information could be removed so as to make the information no longer ‘… about an individual whose identity is apparent, or can reasonably be ascertained, from the information …’ (emphasis added).41
30. Where a document does not contain information that obviously identifies an individual, I have previously considered that, in some instances, an individual may be reasonably identifiable through additional information. I found that the below factors will influence whether an individual’s identity can be reasonably ascertained:42
- how available the additional information is
- how difficult it is to obtain
- how many steps are required to identify the individual
- how certain the identification will be
- whether it will identify one specific individual or a group of people; and
- whether the individual receiving the information can use it to identify the individual.
31. I consider that the final factor listed above is critical in these reviews. It appears likely that the applicant is aware of the relevant patients’ identities, given he was their treating doctor, and the Patient Information formed part of the material in relation to a notification about his conduct. Accordingly, even if the information suggested by the applicant—ie, patient names, initials, URNs, dates of birth, ages and genders—were removed, it is reasonable to expect that the applicant would nonetheless be able to identify the relevant patients from the remaining parts of the Patient Information. On that basis, I am satisfied that the Patient Information comprises the patients’ personal information, and I am also satisfied that it is not possible to redact the Patient Information to the degree necessary to prevent it from revealing the patients’ personal information.
32. Given the nature of the information, being the patients’ medical records and information about their medical history, it comprises extremely sensitive personal information, and for this reason, I consider that disclosure under the IP Act would be a significant intrusion into the privacy of the patients and the extent of the public interest harm that could be anticipated from disclosure is extremely high. As noted above, it appears likely that the applicant is aware of the relevant patients’ identities; however, given the nature of the information and particularly, the sensitivity of information afforded to medical records, I do not consider that this reduces the weight of these factors to any degree. As a result, I afford both of these factors significant weight in favour of nondisclosure.
Factors favouring disclosure
33. I acknowledge that the applicant’s personal information—including his name, position title and contact details—appears in some of the Patient Information, as the applicant is listed as the treating doctor. I acknowledge the importance of providing individuals with access to their personal information held by government and therefore, I give substantial weight to this factor favouring disclosure.43 However, I note that the applicant’s personal information forms only a very small part of the Patient Information; that is, the Patient Information is substantively about the patients, being their medical records or information about their medical history.
34. In view of the applicant’s submissions about the conduct of MSHHS staff, and the way in which the applicant says he was treated, including in relation to notifications, I have considered whether disclosing the Patient Information could reasonably be expected to give rise to the factors favouring disclosure raised by the applicant.44
35. By obtaining access to the Patient Information, the applicant would be able to view all of the information which was before MSHHS in the context of the relevant matters. However, the information released to the applicant in the course of the four applications and reviews discloses nearly all of the information held by MSHHS about the applicant, and comprehensively reveals how MSHHS dealt with these matters. Given the particular nature of the Patient Information, I consider that its disclosure would only provide the applicant with limited further insight into how MSHHS handled these matters. Accordingly, I consider minimal weight can be given to factors favouring disclosure regarding MSHHS’s accountability and transparency.45
36. However, in relation to the other factors favouring disclosure raised by the applicant,46 I cannot see how disclosure of the Patient Information could reasonably be expected to give rise to these factors. Further, I am unable to identify any other public interest factors favouring disclosure of the Patient Information.
Balancing the public interest
37. I acknowledge the general public interest in furthering access to government held information.47 I have given substantial weight to the factor favouring disclosure insofar as the Patient Information contains the applicant’s own personal information. I have also recognised that minimal weight can be given to factors favouring disclosure regarding MSHHS’s accountability and transparency. Balanced against these factors is the significant weight to be given to the factors favouring nondisclosure concerning the patients’ personal information and privacy. I consider that the weight of the nondisclosure factors far outweighs the weight to be afforded to the factors favouring disclosure.
38. For these reasons, I am satisfied that access to the Patient Information may be refused, as its disclosure would, on balance, be contrary to the public interest.
Witness Information
39. This category comprises 47 full pages and 28 part pages, as identified in Appendix B, and:
- mostly comprises the full witness statements taken by MSHHS of individuals, or correspondence or file notes recording contact with such witnesses
- does not include witness statements taken by the Queensland Police Service (QPS);48 and
- includes a small amount of information identifying witnesses, including their names, contact details, summaries of statements and position titles.
Factors favouring nondisclosure
40. I have considered whether disclosing the Witness Information could reasonably be expected to prejudice the protection of other individuals’ right to privacy49 and/or cause a public interest harm by disclosing those individuals’ personal information.50
41. As with the Patient Information, the applicant submits that if the Witness Information is released, it must be anonymised.51 However, the same issue arises as with the Patient Information—ie, the applicant is likely to be aware of the identities of the witnesses, given he has copies of certain QPS witness statements. On that basis, I am satisfied that the Witness Information comprises the witnesses’ personal information, and I am also satisfied that it is not possible to redact the Witness Information to the degree necessary to prevent it from revealing the witnesses’ personal information.
42. The Witness Information comprises the witnesses’ accounts concerning allegations about the applicant’s conduct. Although the personal information appears in an employment context, I consider that it is not routine work information52 as it comprises sensitive personal statements given in relation to an investigation into allegations at the workplace. For this reason, I consider that disclosure under the IP Act would be a significant intrusion into the witnesses’ privacy and the extent of the public interest harm that could be anticipated from disclosure is significant. As noted above, it appears likely that the applicant is aware of the relevant witnesses’ identities; however, given the nature of the information and particularly, the sensitivity of information given by witnesses, I do not consider that this reduces the weight of these factors to any significant degree. As a result, I afford significant weight to both of the factors favouring nondisclosure concerning others’ privacy and personal information.
43. I also consider that disclosing the Witness Information could reasonably be expected to have a detrimental effect on MSHHS’s management function53 as it may deter witnesses from providing full and frank accounts to investigators in future workplace investigations, thereby prejudicing investigation processes and outcomes. The applicant submits that it does not follow that future witnesses with no ties to the applicant or knowledge of his matters would be deterred from providing such accounts.54 I consider, however, that it is reasonable to expect that, if potential witnesses in future investigations were aware that witness statements had been released under the IP Act following a previous investigation, this would make staff reluctant to fully participate in such investigations.55 Similarly, information that is provided by witnesses in workplace investigations is ordinarily treated confidentially, except to the extent that procedural fairness requires otherwise.56 Accordingly, I consider that disclosing the Witness Information could reasonably be expected to prejudice MSHHS’s ability to obtain confidential information.57 I consider that both of these factors carry significant weight in favour of nondisclosure.
Factors favouring disclosure
44. I acknowledge that the applicant’s personal information appears in some of the Witness Information, as it includes accounts given by other individuals concerning allegations about his conduct. I acknowledge the importance of providing individuals with access to their personal information held by government and therefore, I give substantial weight to this factor favouring disclosure.58 However, I note that some of the Witness Information—eg, a small amount of information identifying witnesses on some of the part pages—contains none of the applicant’s personal information, and therefore, this factor does not apply to that part of the Witness Information.
45. The applicant submits that disclosing the Witness Information will help him obtain a potential remedy for the ‘irreversible damages’ arising from the improper actions and decisions of MSHHS staff, as he is seeking to pursue claims of discrimination and maladministration.59 I have therefore considered whether disclosing the Witness Information could reasonably be expected to contribute to procedural fairness and/or the administration of justice for the applicant.60
46. In Willsford and Brisbane City Council,61 the Information Commissioner found that the administration of justice factor will arise where an applicant can demonstrate that:
- they have suffered loss or damage or some kind of wrong, in respect of which a remedy is, or may be, available under the law
- they have a reasonable basis for seeking to pursue the remedy; and
- disclosing the information would assist them to pursue the remedy, or to evaluate whether a remedy is available or worth pursuing.
47. I have carefully considered the nature of the Witness Information and the context in which it appears, together with the applicant’s submissions on this issue. Based on this information, I am unable to identify how the Witness Information would assist the applicant in identifying or pursuing any legal remedy against MSHHS or its staff.62 In the event that this information is identified as directly relevant to legal proceedings in the future, the applicant would foreseeably have court disclosure and subpoena processes available to him. However, at present, I do not consider that disclosing the Witness Information to the applicant would assist him to pursue a legal remedy or evaluate whether such a remedy is available. As a result, I consider that these disclosure factors do not apply.
48. I have considered whether disclosing the Witness Information could reasonably be expected to reveal that the information is incorrect, out of date, misleading, gratuitous, unfairly subjective, or irrelevant.63 The applicant submits that, as OIC only has limited (if any) knowledge about what happened during the period covered by the Witness Information, I am not in a position to reach a conclusion about the accuracy of the information.64 The applicant points to information within the QPS witness statements which he believes is ‘categorically false’, unfairly subjective or ‘utterly irrelevant’, and seeks disclosure of the Witness Information to ascertain if there are any incorrect statements within it.
49. This factor does not operate to favour disclosure of information to an applicant, in order for them to have the opportunity of identifying inaccuracies etc after the fact of such disclosure. Instead, this factor will be enlivened where disclosing information could reasonably be expected to reveal that that information itself is incorrect etc; this requires ‘a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that’ a given consequence would follow the disclosure of information.65
50. I note that a large part of the Witness Information is, by its very nature, the particular versions of events of the relevant individuals, and it is shaped by factors such as the individuals’ memories of relevant events and subjective impressions. This inherent subjectivity does not, however, mean that the Witness Information is necessarily incorrect etc or unfairly subjective.66 I consider that disclosing the Witness Information would only potentially reveal that other individuals may have different recollections of events from the applicant’s own. The Witness Information presents to me as nothing more than personal accounts or interpretations of particular events from the witnesses’ perspectives, no aspect of which, viewed objectively, presents as incorrect, out of date, misleading, gratuitous, unfairly subjective or irrelevant. In the circumstances, I consider that this factor favouring disclosure does not arise in respect of the Witness Information.
51. By obtaining access to the Witness Information, the applicant would be able to view all of the information which was before MSHHS in the context of the relevant matters. However, the information released to the applicant in the course of the four applications and reviews discloses nearly all of the information held by MSHHS about the applicant, and reveals how MSHHS dealt with these matters. Given the nature of the Witness Information, I consider that its disclosure would provide the applicant with limited further understanding of how MSHHS handled these matters. Accordingly, I consider that limited weight can be given to factors favouring disclosure regarding MSHHS’s accountability and transparency.67
52. However, in relation to the other factors favouring disclosure raised by the applicant,68 I cannot see how disclosure of the Witness Information could reasonably be expected to give rise to these factors. Further, I am unable to identify any other public interest factors favouring disclosure of the Witness Information.
Balancing the public interest
53. I acknowledge the general public interest in furthering access to government held information.69 I have given substantial weight to the factor favouring disclosure insofar as the Witness Information contains the applicant’s own personal information. I have also recognised that limited weight can be given to factors favouring disclosure regarding MSHHS’s accountability and transparency. Balanced against these factors is the significant weight to be given to the factors favouring nondisclosure concerning the witnesses’ personal information and privacy, and also the prejudice to MSHHS’s management function and ability to obtain confidential information. I consider that the significant weight given to these factors favouring nondisclosure outweighs the weight given to the factors favouring disclosure.
54. For these reasons, I am satisfied that access to the Witness Information may be refused, as its disclosure would, on balance, be contrary to the public interest.
Workplace Information
55. This category comprises a two page file note, as identified in Appendix B, recording information about the applicant’s time working at MSHHS. I am unable to describe the Workplace Information in any further detail, due to the restriction on what OIC can reveal about information in issue.70
Irrelevant factors
56. The applicant submits that, in assessing the Workplace Information, OIC has had regard to how he might interpret this information, and this is an irrelevant consideration.71 To the extent that this irrelevant factor arises in respect of the Workplace Information, I have disregarded it.72
Factors favouring disclosure
57. The Workplace Information comprises the applicant’s personal information, and I consider that substantial weight attaches to this factor favouring disclosure.73 I also acknowledge that a number of factors concerning accountability and transparency74 carry moderate weight in favour of disclosing the Workplace Information. I have considered whether disclosing the Workplace Information could reasonably be expected to reveal that the information is incorrect, out of date, misleading, gratuitous, unfairly subjective, or irrelevant.75 For similar reasons as given for the Witness Information above, I consider that this factor favouring disclosure does not arise in respect of the Workplace Information, as disclosing it would only potentially reveal that other individuals may have different recollections of events from the applicant’s own.
58. However, in relation to the other factors favouring disclosure raised by the applicant,76 I cannot see how disclosure of the Workplace Information could reasonably be expected to give rise to these factors. Further, I am unable to identify any other public interest factors favouring disclosure of the Witness Information.
Factors favouring nondisclosure
59. Weighing against disclosure is the fact that disclosing the Workplace Information would inhibit agency staff from recording this type of information, which in turn would prejudice the agency’s ability to fully assess its employees’ performance and manage its employees. The applicant asks how disclosure would inhibit staff in this way.77 I am prevented from giving more detailed reasoning behind my conclusion in this respect due to the prohibition on including information that is claimed to be contrary to the public interest information in a decision.78 I consider that significant weight should be given to the fact that disclosing the Workplace Information could reasonably be expected to prejudice the agency’s management function or the conduct of industrial relations by an agency.79
Balancing the public interest
60. I acknowledge the general public interest in furthering access to government held information.80 I have given substantial weight to the factor favouring disclosure relating to the applicant’s own personal information. I have also recognised that limited weight can be given to factors favouring disclosure regarding MSHHS’s accountability and transparency. Balanced against these factors is the significant weight to be given to the factor favouring nondisclosure concerning the prejudice to the agency’s management function or the conduct of industrial relations by an agency. On balance, I consider that the weight given to the factor favouring nondisclosure is greater than the weight to be given to the factors favouring disclosure.
61. For these reasons, I am satisfied that access may be refused to the Workplace Information, as disclosing it would, on balance, be contrary to the public interest.
Public Servant Information
62. This category appears in two part pages, as identified in Appendix B, and contains a public servant’s views and opinions. I am unable to describe this information in any further detail, due to the restriction on what OIC can reveal about information in issue.81
Factors favouring disclosure
63. I afford substantial weight to the factor favouring disclosure of the part of the Public Servant Information82 which comprises the applicant’s personal information.83 I also acknowledge that a number of factors concerning accountability and transparency84 arise in respect of the Public Servant Information, but they carry only very limited weight, in view of the small amount of information and the contextual information already released surrounding the Public Servant Information. However, in relation to the other factors favouring disclosure raised by the applicant,85 I cannot see how disclosure of the Public Servant Information could reasonably be expected to give rise to these factors. Further, I am unable to identify any other public interest factors favouring disclosure of the Public Servant Information.
Factors favouring nondisclosure
64. The Public Servant Information comprises that public servant’s personal information. Although I am prohibited from describing it any further detail, I confirm that it is highly sensitive. Accordingly, I am satisfied that disclosing the Witness Information could reasonably be expected to significantly prejudice the protection of the other individual’s right to privacy86 and cause significant public interest harm by disclosing that individual’s personal information.87
Balancing the public interest
65. I acknowledge the general public interest in furthering access to government held information.88 I have given substantial weight to the factor favouring disclosure relating to the part of the Public Servant Information which contains his own personal information. I have also recognised that very limited weight can be given to factors favouring disclosure regarding MSHHS’s accountability and transparency. Balanced against these factors is the significant weight to be given to the factors favouring nondisclosure concerning the public servant’s personal information and privacy. I consider that the significant weight given to these factors favouring nondisclosure outweighs the weight given to the factors favouring disclosure.
66. For these reasons, I am satisfied that access may be refused to the Public Servant Information, as disclosing it would, on balance, be contrary to the public interest.
DECISION
67. For the reasons set out above, I:
- vary MSHHS’s decision for review 312978, and find that access to the remaining information in issue may be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act, as its disclosure would, on balance, be contrary to the public interest
- vary MSHHS’s decision for review 313109, and find that access to the remaining information in issue may be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act, as its disclosure would, on balance, be contrary to the public interest
- affirm MSHHS’s decision for review 313190, and find that access to the remaining information in issue may be refused under section 67(1) of the IP Act and section 47(3)(b) of the RTI Act, as its disclosure would, on balance, be contrary to the public interest; and
- vary MSHHS’s decision for review 313228, and find that access to the remaining information in issue may be refused under section 67(1) of the IP Act and section 47(3)(a) and (b) of the RTI Act, as it either comprises exempt information or its disclosure would, on balance, be contrary to the public interest.
68. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.
J Mead
Right to Information Commissioner
Date: 11 August 2017
APPENDIX A
Significant procedural steps
| Date | Event |
|---|---|
| 26 September 2016 | OIC received the external review application for review 312978. |
| 27 September 2016 | OIC notified MSHHS of the external review application for review 312978, and requested procedural documents. |
| 11 October 2016 | OIC received from MSHHS the requested procedural documents for review 312978. |
| 14 October 2016 | OIC notified the applicant and MSHHS that the external review application for review 312978 had been accepted. OIC also asked MSHHS to provide the documents located in response to that access application. |
| 1 November 2016 | OIC received from MSHHS a copy of the documents located in response to the application relevant to review 312978. |
| 23 November 2016 | The applicant discussed review 312978 with OIC. |
| 11 December 2016 | OIC received the external review application for review 313109. |
| 12 December 2016 | OIC notified MSHHS of the external review application for review 313109, and requested procedural documents. |
| 19 December 2016 | OIC received from MSHHS the requested procedural documents for review 313109. |
| 22 December 2016 | OIC notified the applicant and MSHHS that the external review application for review 313109 had been accepted. OIC also asked MSHHS to provide the documents located in response to that access application. |
| 18 January 2017 | OIC received from MSHHS a copy of the documents located in response to the application relevant to review 313109. |
| 20 January 2017 | The applicant discussed review 312978 with OIC. OIC received from the applicant copies of witness statements taken by QPS. |
| 31 January 2017 | OIC received the external review application for review 313190. |
| 2 February 2017 | OIC notified MSHHS of the external review application for review 313190, and requested procedural documents. |
| 9 February 2017 | OIC received from MSHHS the requested procedural documents for review 313190. |
| 10 February 2017 | OIC asked MSHHS to provide the documents located in response to the access application for review 313190. |
| 14 February 2017 | OIC received from MSHHS a copy of the documents located in response to the application relevant to review 313190. |
| 17 February 2017 | OIC notified the applicant and MSHHS that the external review application for review 313190 had been accepted. |
| 24 February 2017 | OIC sought the applicant’s agreement to exclude certain categories of information from further consideration in reviews 312978, 313109 and 313190. The applicant agreed to exclude this information. |
| 6 March 2017 | OIC received the external review application for review 313228. |
| 7 March 2017 | OIC notified MSHHS of the external review application for review 313228, and requested procedural documents. |
| 14 March 2017 | OIC asked MSHHS to provide the documents located in response to the access application for review 313228. |
| 15 March 2017 | OIC received from MSHHS the requested procedural documents for, and the documents located in response to the access application for, review 313228. |
| 27 March 2017 | OIC notified the applicant and MSHHS that the external review application for review 313228 had been accepted. OIC also sought the applicant’s agreement to exclude certain categories of information from further consideration in review 313228. The applicant discussed reviews 312978, 313109, 313190 and 313228 with OIC. The applicant agreed to exclude certain information in review 313228. |
| 11 April 2017 | OIC discussed reviews 312978, 313109, 313190 and 313228 with MSHHS. |
| 13 April 2017 | OIC conveyed a preliminary view to MSHHS about reviews 312978, 313109, 313190 and 313228, and invited MSHHS to provide submissions in response. |
| 5 May 2017 | OIC received from MSHHS a response confirming its agreement with the preliminary view about reviews 312978, 313109, 313190 and 313228. |
| 18 May 2017 | OIC conveyed a preliminary view to the applicant about reviews 312978, 313109, 313190 and 313228, and invited him to provide submissions in response. OIC asked MSHHS to release to the applicant the agreed information for reviews 312978, 313109 and 313228. |
| 23 May 2017 | The applicant discussed reviews 312978, 313109, 313190 and 313228 with OIC. OIC received from the applicant a written submission for reviews 312978, 313109, 313190 and 313228. |
| 25 May 2017 | OIC wrote to the applicant about reviews 312978, 313109, 313190 and 313228. The applicant responded to this correspondence. |
| 1 June 2017 | OIC discussed reviews 312978, 313109, 313190 and 313228 with MSHHS. OIC discussed with a third party certain information in review 313109. The third party agreed for this information to be released to the applicant. |
| 6 June 2017 | OIC wrote to the applicant about reviews 312978, 313109, 313190 and 313228. OIC asked MSHHS to release to the applicant the agreed information for review 313109. |
| 8 June 2017 | OIC received from the applicant a written submission for reviews 312978, 313109, 313190 and 313228. |
| 13 June 2017 | The applicant discussed reviews 312978, 313109, 313190 and 313228 with OIC. |
| 20 June 2017 | OIC wrote to the applicant about reviews 312978, 313109, 313190 and 313228. The applicant responded to OIC. |
APPENDIX B
Legal Information
| No. of pages | Location |
|---|---|
| Review 313228 | |
| 37 full pages | Staff Complaints Unit, pp 103-105, 131, 157-158, 228-244, 276-289 |
Patient Information
| No. of pages | Location |
|---|---|
| Review 312978 | |
| 1 part page | Executive Services Unit, p 138*89 |
| 33 full pages | Executive Services Unit, pp 51-52, 77-107 |
| Review 313109 | |
| 88 full pages | Medical Education Unit Volume 1, pp 154-163, 166, 186-187, 201-211, 291-301; and Medical Education Unit Volume 2, pp 96-97, 111-141, 281-294, 334-339 |
| Review 313190 | |
| 78 full pages | Workforce Services Volume 1, pp 71-72, 107, 265, 280-283, 489-517, 520-524, 543-547; and Workforce Services Volume 2, pp 30-60 |
| Review 313228 | |
| 8 full pages | Staff Complaints Unit, pp 7-8, 12, 16-19, 32 |
Witness Information
| No. of pages | Location |
|---|---|
| Review 312978 | |
| 8 part pages | Executive Services Unit, pp 118, 120, 121, 122, 124, 125, 141, 142* |
| 14 full pages | Executive Services Unit, pp 205-214, 217-220 |
| Review 313228 | |
| 20 part pages | Staff Complaints Unit, pp 58, 59, 68, 69, 73, 75, 76, 108, 112, 159, 161, 162, 163, 165, 166, 183, 184, 206, 207*, 208* |
| 33 full pages | Staff Complaints Unit, pp 34-37, 53-55, 62-67, 92, 95-98, 155-156, 192-204 |
Workplace Information
| No. of pages | Location |
|---|---|
| Review 313109 | |
| 2 full pages | Medical Education Unit Volume 1, pp 1-2 |
Public Servant Information
| No. of pages | Location |
|---|---|
| Review 313190 | |
| 2 part pages | Workforce Services Volume 1, p 260*; and Workforce Services Volume 2, p 130 |
1 294 pages for review 312978, 781 pages for review 313109, 682 pages for review 313190, and 295 pages for review 313228.
2 Made following an extension of time granted by OIC under section 106(2) of the IP Act.
3 MSHHS’s decision notice dated 2 December 2016 was issued outside the statutory timeframe which ended on 15 November 2016.
4 This reflects the applicant’s agreement to exclude certain information in all four reviews and MSHHS’s agreement to release certain information in reviews 312978, 313109 and 313228.
5 Section 121(3) of the IP Act.
6 Section 40(1)(a) of the IP Act.
7 Grounds for refusal of access are set out in section 47 of the RTI Act. Section 67(1) of the IP Act provides that access to information may be refused under the IP Act on the same grounds as in section 47 of the RTI Act.
8 Sections 47(3)(a) and 48 of the RTI Act. Schedule 3 of the RTI Act sets out the categories of exempt information.
9 Sections 47(3)(b) and 49 of the RTI Act.
10 Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest. However, these lists of factors are not exhaustive; in other words, factors that are not listed may also be relevant in a particular case.
11 Section 49(3) of the RTI Act.
12 With the exception of one irrelevant factor raised by the applicant in the context of the Workplace Information, I consider that no irrelevant factors arise in the circumstances of these reviews, and I have not taken any into account in making my decision.
13 Including the external review applications for 312978 and 313228, submissions received on 20 January 2017, 23 May 2017, 8 June 2017 and 20 June 2017, and submissions made by telephone on 23 November 2016, 20 January 2017, 27 March 2017, 23 May 2017 and 13 June 2017.
14 Submission received on 23 May 2017.
15 Schedule 4, part 2, item 1 of the RTI Act.
16 Schedule 4, part 2, item 2 of the RTI Act.
17 Schedule 4, part 2, item 3 of the RTI Act.
18 Schedule 4, part 2, item 4 of the RTI Act.
19 Schedule 4, part 2, item 5 of the RTI Act.
20 Schedule 4, part 2, item 6 of the RTI Act.
21 Schedule 4, part 2, item 7 of the RTI Act.
22 Schedule 4, part 2, item 10 of the RTI Act.
23 Schedule 4, part 2, item 11 of the RTI Act.
24 Schedule 4, part 2, item 12 of the RTI Act.
25 Schedule 4, part 2, item 16 of the RTI Act.
26 Schedule 4, part 2, item 17 of the RTI Act.
27 Schedule 4, part 2, item 18 of the RTI Act.
28 Submission received on 23 May 2017.
29 Schedule 4, part 3, items 3, 16 and 19 of the RTI Act.
30 Schedule 3, section 7 of the RTI Act.
31 The Electoral and Administrative Review Commission, Report on Freedom of Information, Report No 90/R6 (1990) at [7.152] states that ‘[t]he exemption incorporates the common law concept of legal professional privilege’. This statement was confirmed in the context of the RTI Act in Ozcare and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 13 May 2011) at [12].
32 Such as waiver or improper purpose.
33 Submission received on 8 June 2017.
34 Further, I find that no other exception or qualification to Privilege applies.
35 Submissions received on 23 May 2017 and 8 June 2017.
36 Section 58(4) of the IP Act.
37 Section 118(2) of the IP Act.
38 Schedule 4, part 3, item 3 of the RTI Act.
39 Schedule 4, part 4, item 6(1) of the RTI Act.
40 Submission received on 23 May 2017.
41 Section 12 of the IP Act.
42 Mahoney and Ipswich City Council (Unreported, Queensland Information Commissioner, 17 June 2011) at [21].
43 Schedule 4, part 2, item 7 of the RTI Act.
44 Including schedule 4, part 2, items 1, 2, 3, 4, 5, 6, 10, 11, 12, 16, 17 and 18 of the RTI Act.
45 For example, schedule 4, part 2, items 1, 2, 3 and 11 of the RTI Act.
46 For example, schedule 4, part 2, items 4, 5, 6, 10, 12, 16, 17 and 18 of the RTI Act.
47 Implicit in, for example, the primary object set out in section 3 of the IP Act, and the pro-disclosure bias enshrined in section 58 of the IP Act.
48 The applicant provided copies of those QPS statements to OIC with his email on 20 January 2017.
49 Schedule 4, part 3, item 3 of the RTI Act.
50 Schedule 4, part 4, item 6(1) of the RTI Act.
51 Submission received on 23 May 2017.
52 Generally, information relating to the day-to-day work duties of a public servant may be disclosed under the RTI Act, despite it falling within the definition of personal information. However, agency documents can also contain personal information of public servants which is not routine work information: see Gapsa and Department of Transport and Main Roads (Unreported, Queensland Information Commissioner, 12 April 2013) at [71].
53 Schedule 4, part 3, item 19 of the RTI Act.
54 Submission received on 23 May 2017.
55 I6XD0H and Department of Community Safety (Unreported, Queensland Information Commissioner, 26 June 2012) at [35].
56 As the Witness Information was gathered in early 2014 and there is no current MSHHS matter against which the applicant must defend himself, no procedural fairness issues arise in these circumstances.
57 Schedule 4, part 3, item 16 of the RTI Act.
58 Schedule 4, part 2, item 7 of the RTI Act.
59 Submission received on 23 May 2017.
60 Schedule 4, part 2, items 16 and 17 of the RTI Act.
61 (1996) 3 QAR 368.
62 I make no finding on whether or not there is a legal remedy available to the applicant in the circumstances of these reviews.
63 Schedule 4, part 2, item 12 of the RTI Act.
64 Submission received on 23 May 2017.
65 Attorney-General’s Department v Cockcroft (1986) 64 ALR 97 at [29].
66 Marshall and Department of Police (Unreported, Queensland Information Commissioner, 25 February 2011) at [15] [20].
67 For example, schedule 4, part 2, items 1, 2, 3 and 11 of the RTI Act.
68 For example, schedule 4, part 2, items 4, 5, 6, 10 and 18 of the RTI Act.
69 Implicit in, for example, the primary object set out in section 3 of the IP Act, and the pro-disclosure bias enshrined in section 58 of the IP Act.
70 Section 121(3) of the IP Act.
71 Submission received on 23 May 2017, referring to schedule 4, part 1, item 2 of the RTI Act.
72 Section 49(3)(d) of the RTI Act.
73 Schedule 4, part 2, item 7 of the RTI Act.
74 For example, schedule 4, part 2, items 1, 2, 3 and 11 of the RTI Act.
75 Schedule 4, part 2, item 12 of the RTI Act.
76 For example, schedule 4, part 2, items 4, 5, 6, 10, 16, 17 and 18 of the RTI Act.
77 Submission received on 23 May 2017.
78 Section 121(3) of the IP Act.
79 Schedule 4, part 3, item 19 of the RTI Act.
80 Implicit in, for example, the primary object set out in section 3 of the IP Act, and the pro-disclosure bias enshrined in section 58 of the IP Act.
81 Section 121(3) of the IP Act.
82 Being the first redaction box on 313190 Workforce Services Volume 1, p 260.
83 Schedule 4, part 2, item 7 of the RTI Act.
84 For example, schedule 4, part 2, items 1, 2, 3 and 11 of the RTI Act.
85 For example, schedule 4, part 2, items 4, 5, 6, 10, 12 16, 17 and 18 of the RTI Act.
86 Schedule 4, part 3, item 3 of the RTI Act.
87 Schedule 4, part 4, item 6(1) of the RTI Act.
88 Implicit in, for example, the primary object set out in section 3 of the IP Act, and the pro-disclosure bias enshrined in section 58 of the IP Act.
89 Pages marked with an asterisk (*) indicate pages which also contain information which the applicant agreed to exclude from further consideration in these reviews, as indicated at footnote 4.
