Orth and Medical Board of Queensland; Cooke (Third Party)
(1998 S0028, 20 June 2003)
The matter in issue in this review consisted of a report which the third party had provided to the Medical Board of Queensland (MBQ) in response to a complaint which the applicant had made to the MBQ about medical treatment she received from the third party.
The third party provided his report to the MBQ in response to requisitions issued by the MBQ under s.37C(1) of the Medical Act 1939 Qld (now repealed). Hence, the report was compulsorily acquired by the MBQ through the exercise of its coercive powers.
The MBQ later constituted a Complaints Investigation Committee (CIC), under s.37(3) of the Medical Act, to investigate various complaints made against the third party by the applicant and three other patients.
Both the MBQ and the third party claimed that the third party's report was exempt from disclosure to the applicant under s.46(1) and s.50(b) of the FOI Act.
Section 46(1)(a) of the FOI Act
The third party argued that his report was subject to an equitable obligation binding the MBQ not to disclose the report to the applicant. Applying the same reasoning explained in Re Chand and Medical Board of Queensland; Dr Adam Cannon (Third Party) (2001) 6 QAR 159, the Deputy Information Commissioner rejected the third party's contentions and decided that equity would not impose on the MBQ an obligation of confidence, as against the applicant, in respect of any information in the report which was relevant and responsive to the applicant's complaint (to which the third party had been asked to respond). In dismissing the third party's arguments under s.46(1)(a), the Deputy Information Commissioner made findings that:
· the third party knew that he was responding to a formal complaint made against him by the applicant, and that the MBQ was investigating that complaint with a view to deciding whether or not to take further action. In those circumstances, it was not reasonable for the third party to expect that his report would be kept confidential from the applicant. Both the third party and the MBQ ought reasonably to have expected that, in properly dealing with the complaint, the MBQ might want or need to put the third party's response, or parts of it, to the applicant as part of the investigation process, or in explaining the outcome of the complaint.
· while the third party might reasonably have expected that the MBQ would treat his report in confidence as against the world at large, his expectation that a report responding to particular issues of complaint against him be treated in confidence, as against the complainant, was not a reasonable expectation, having regard to the functions of the MBQ and the uses it might properly wish to make of the information in the report in discharging its responsibility to deal fairly and properly with the complaint.
The MBQ mounted a different argument under s.46(1)(a) of the FOI Act. It argued that, because the third party's report was compulsorily acquired under s.37C(1) of the Medical Act, the MBQ was under a statutory duty to use and disclose the report only for purposes expressly or implicitly authorised by the Medical Act, and that disclosure of the report to the applicant would found an action for breach of a "statutory duty of confidence". The MBQ relied on the decisions of Johns v Australian Securities Commission (1993) 178 CLR 408 and Bray v Workers Rehabilitation and Compensation Corporation and Anor [1994] 62 SASR 218. After a careful analysis of those authorities, the Deputy Information Commissioner decided that:
· the scope of s.46(1)(a) of the FOI Act is confined to actions for breach of confidence under the general law, and does not extend to an action to enforce an implied statutory duty binding a government agency or official not to use or disclose information, acquired by the use of coercive statutory powers, for a purpose not authorised by the statute;
· in any event, disclosure of the third party's report to the applicant would not be alien to the purposes for which the MBQ was conferred with the statutory power which enabled it to compulsorily acquire a response from the third party to the applicant's complaint.
Section 46(1)(b) of the FOI Act
The Deputy Information Commissioner decided that the fact that the third party's report was obtained through the exercise of coercive statutory powers supported a finding that the MBQ and the third party had an implicit mutual understanding that the report would not be used or disclosed for a purpose not expressly or implicitly authorised by the Medical Act, and, to that extent, that it was "communicated in confidence" under s.46(1)(b) of the FOI Act. However, disclosure of the report to the applicant was an implicitly authorised exception to the MBQ's duty to treat the report in confidence, and the report was therefore not communicated in confidence as against the applicant.
The Deputy Information Commissioner also decided that the third requirement for exemption under s.46(1)(b) was not satisfied, because, given the MBQ's coercive powers, there was no reasonable basis for expecting that disclosure to the applicant of the third party's report could reasonably be expected to prejudice the future supply of like information to the MBQ.
Section 50(b) of the FOI Act
Both the MBQ and the third party argued that disclosure of the report to the applicant would be in breach of a non-publication order made by the CIC. The Medical Act conferred on the CIC the powers of a Commission of Inquiry under the Commissions of Inquiry Act 1950 Qld. The Deputy Information Commissioner decided that the non-publication order made by the CIC had to be read down to the extent necessary to ensure that it remained within the bounds of the relevant source of power available to the CIC under s.16(1) of the Commissions of Inquiry Act 1950 Qld, i.e., it must be read as if it were an order in the following terms:
This meeting of the Committee shall be conducted in camera and the Committee orders that any evidence given before it, or the contents of any book, document or writing produced at the Committee's inquiry, shall not be published except to the Board, the Medical Assessment Tribunal, or to the persons the Committee is required to consult to complete its investigations.
The Deputy Information Commissioner decided that the third party's report was not covered by the terms of the non-publication order because it had not been "produced" at the CIC's inquiry, but had merely been made available to the members of the CIC as part of a file to be reviewed in advance of the CIC's evidentiary hearing.
The Deputy Information Commissioner also observed that the terms of the CIC's non-publication order could not be construed as directed to, or binding upon, the MBQ.
The Deputy Information Commissioner decided that disclosure by the MBQ to the applicant of the third party's report would not be contrary to an order or direction given by a body mentioned in s.50(b), and that the third party's report did not qualify for exemption under s.50(b) of the FOI Act.
Section 44(1) of the FOI Act
The Deputy Information Commissioner decided that there were a number of references on page 5 of the report to the names of patients or former patients of the third party (other than the applicant) which comprised exempt matter under s.44(1) of the FOI Act. Those references comprised information concerning the personal affairs of those other patients. The Deputy Information Commissioner was unable to identify any public interest considerations weighing in favour of disclosure of those names which had sufficient strength to outweigh the public interest in protecting the privacy of medical information about identifiable individuals. He was satisfied that the applicant did not need to obtain access to the names in order to understand the third party's response to her complaint.
