NPT and Department of Health
(210512, 19 May 2009)
Section 28A – refusal of access – document nonexistent or unlocatable
During the course of the external review the applicant indicated she wished to pursue access to four photographs which she believed were taken of her at her admission to Nambour General Hospital. The Department of Health, also known as Queensland Health (QH) had previously advised the applicant that it was unable to locate the requested photographs on her medical file. Accordingly Acting Assistant Commissioner (A/AC) Jefferies considered whether QH could refuse the applicant access to the photographs under section 28A of the Freedom of Information Act 1992 (Qld) (FOI Act).
The applicant argued that in a recent interview with a staff member of QH she had been led to believe that the photographs were in existence and would be provided to her. This was disputed by QH who indicated that the relevant staff member confirmed that no such representations had been made to the applicant.
In considering whether there were reasonable grounds for QH to be satisfied that the photographs did not exist, A/AC Jefferies applied the principles set out in PDE and University of Queensland (unreported decision of 9 February 2009). That is, that for the purposes of section 28A(1) of the FOI Act, whether an agency is ‘satisfied’ that a document exists or not is an evaluative judgement based on the knowledge and experience of the agency with respect to, among other key factors, relevant administrative practices and procedures.
QH provided this Office with an excerpt of its procedure manual which noted that on admission to the relevant unit the applicant would have had to provide consent to the taking of any photograph for identification purposes. If such consent was not provided, an identification band would be applied. QH submitted that in view of the applicant’s state of mind on admission, it was possible that no photographs were taken.
As QH had used searches to satisfy itself that the photographs did not exist, it was necessary to determine whether QH had taken all reasonable steps to locate the photographs. In making this determination, A/AC Jefferies found that in the circumstances of this matter it was appropriate to have regard to:
· the applicable procedures for patient admission to the relevant unit at Nambour General Hospital
· any additional documentation that might point to the existence of the photographs as well as the location at which this documentation, if it existed, would be filed
· the location in which the documents, if they existed, would be filed
· any other relevant information concerning the patient’s admission.
A/AC Jefferies found that there were reasonable grounds for QH to be satisfied that the requested documents did not exist and that access to the photographs may be refused under section 28A(1) of the FOI Act on the basis that:
· if the photographs existed they would be located on the applicant’s medical file, as would any consent form
· QH had searched the applicant’s medical file and was unable to locate the photographs or any evidence of a consent form indicating that photographs were taken
· QH had undertaken appropriate searches for the photographs
· its staff had not made any representations to the applicant relating to the existence or provision of the photographs.
Section 44(1) – personal affairs – identifying information about complainants
In her application for external review, the applicant applied for a review of QH’s decision to refuse her access to 10 documents which QH claimed were either fully or partially exempt under sections 42(1)(h) and 46(1)(b) of the FOI Act (Matter in Issue).
During the course of the external review, QH withdrew its claim for exemption under section 42(1)(h) of the FOI Act, and instead only sought to claim that the Matter in Issue qualified for partial exemption under section 44(1) of the FOI Act.
In relation to the Matter in Issue, A/AC Jefferies applied the principles in Stewart and Department of Transport (1993) 1 QAR 227 and Byrne and Gold Coast City Council (1994) 1 QAR 477, and found that the Matter in Issue comprised identifying information about complainants. As such, it concerned the personal affairs of persons other than the applicant and was prima facie, exempt from disclosure under section 44(1) of the FOI Act, subject to the application of the public interest balancing test. In considering the parties’ submissions, A/AC Jefferies found that the following public interest considerations favouring disclosure were relevant:
· the public interest in persons accessing information concerning their personal affairs
· the public interest in persons being able to ensure the accuracy of a public record that concerns them
· the public interest in persons having the opportunity to dispute and/or defend adverse allegations made against them
· QH’s accountability for the delivery of public sector health services.
The above public interest considerations were then weighed against public interest considerations favouring non-disclosure (as submitted by QH) which included:
· the public interest in protecting personal privacy
· the continued need for health services to receive information that can assist with client care
· the potential prejudice to the future supply of similar information to QH
In this case, A/AC Jefferies found that the public interest consideration favoring disclosure, although significant was not sufficient to outweigh the public interest considerations weighing against disclosure of the Matter in Issue in this case. Accordingly, the Matter in Issue was found to qualify for exemption under section 44(1) of the FOI Act.