Pentecost and Department of Health
(210590, 8 June 2010)
Section 44(1) Matter affecting personal affairs of other persons
The applicant sought access to documents containing concerns/allegations relating to him that were raised in communications between particular staff members. During the course of the review, the Department of Health (Department) withdrew its exemption claims over a number of documents, or parts of documents on the basis that the applicant had previously been provided with access to that information by Workcover Qld.
In relation to those parts of the documents not disclosed by the Department as a consequence of the above, the Department maintained a view that the Category A matter, comprising of a complainant’s signature, residential address, personal mobile phone number and date of birth qualified for exemption under section 44(1) of the Freedom of Information Act 1992 (Qld) (FOI Act).
Applying the reasoning set out in Stewart and Department of Transport (1993) 1 QAR 227, Pearce and Qld Rural Adjustment Authority; Various Landholders (Third Parties) (1999) 5 QAR 242 and OKP and Department of Communities (Unreported, Queensland Information Commissioner, 9 July 2009), Assistant Commissioner Corby decided that the Category A matter did qualify for exemption under section 44(1) of the FOI Act on the basis that the public interest considerations favouring disclosure did not outweigh the public interest considerations favouring non-disclosure of this information, particularly in view of the fact that whilst the privacy interests attaching to the information had been diminished by Workcover Qld’s disclosure, they had not been extinguished.
Section 40(c) Matter concerning certain operations of agencies – substantial adverse effect on the management or assessment by an agency of the agency’s personnel
The Department claimed that disclosure of the Category B matter which included complaints made or concerns expressed by other staff members about the applicant or references to the complaints made or concerns expressed, would result in a substantial adverse effect on the management or assessment by an agency of the agency’s personnel under section 40(c) of the FOI Act.
Assistant Commissioner Corby found that this exemption claim could not be sustained in relation to some of the Category B matter because:
· the applicant had previously been provided with access to the documents (or documents containing similar information) by Workcover Qld
· there was no evidence to suggest that any substantial adverse effect to the Department’s management or assessment of its personnel had occurred since the information had been disclosed
· the fact that there was no substantial adverse effect from the previous disclosure of the information was evidence that a substantial adverse effect could not reasonably be expected to follow on from its subsequent release (or the release of similar information) under the FOI Act.
However, in relation to the remainder of the Category B matter (which had not previously been disclosed to the applicant), Assistant Commissioner Corby found that section 40(c) of the FOI Act did apply because its disclosure could reasonably be expected to have a substantial adverse effect on the management or assessment by the Department of its personnel by:
· breaching the trust involved between those individuals and the Department
· inhibiting members of staff from raising concerns about the performance of colleagues with senior management of the Department in the future
· preventing the Department from being able to openly discuss performance management issues with members of its staff.
Assistant Commissioner Corby concluded by noting that in respect of the above information, the public interest considerations favouring disclosure were insufficient to outweigh the significant public interest in avoiding a substantial adverse effect on the management or assessment by the Department of its personnel.
