Pentecost and Department of Health
(210906, 30 November 2010)
Section 28A, 44(1) and 40(c) of the Freedom of Information Act 1992 (Qld)
The applicant applied to the Department of Health (also known as Queensland Health) (QH) for numerous documents relating to the Douglas Shire Multi-Purpose Health Service (DSMPHS) review (FOI Application).
In its decision, QH chose to refuse access to most of the sought documents under section 28A of the Freedom of Information Act 1992 (Qld) (FOI Act) on the basis that they did not exist and to refuse to deal with parts of the FOI Application under section 29B of the FOI Act because it was of the view that the applicant had previously applied for the same documents.
During the course of the review, the Office determined that a number of documents located by QH in external review 210590 (relating to an earlier FOI application by the applicant to QH) were relevant to the current review. In response to a preliminary view of the Office, QH withdrew its claim under section 29B of the FOI Act but confirmed it still wished to maintain most of its exemption claims under sections 44(1) and 40(c) of the FOI Act in respect of those documents it had previously located in external review 210590.
In relation to QH’s claim under section 28A of the FOI Act, Assistant Information Commissioner Corby requested further submissions and searches to be performed by QH in respect of parts of the FOI Application. As a consequence of undertaking further and more specific searches, QH located a number of documents which it agreed to release to the applicant (except for a small part of one document). Assistant Information Commissioner Corby also sought further information from the external consultant who performed the DSMPHS review who confirmed that she had destroyed all documents created by or provided to her. In relation to those documents which could not be located by QH, Assistant Information Commissioner Corby noted that:
· QH had undertaken extensive searches for the documents in locations where the documents, if in existence, would likely be found
· QH had confirmed that its records management practices at the time the documents sought would have been created were poor and also that its tendering and contracting practices in the Cairns region at the relevant time were quite informal
· there was a lack of evidence to support an argument that the information sought would exist in a document form.
In conclusion, Assistant Information Commissioner Corby decided that access to the documents could be refused under section 28A of the FOI Act because the documents were either never created or that all reasonable steps had been taken to find the documents but they could not be found.
Assistant Information Commissioner Corby agreed that the complaint letter and Q-COMP letter qualified for exemption under section 44(1) of the FOI Act on the basis that the information concerned the personal affairs of persons other than the applicant and there were no public interest considerations which would favour the full disclosure of those documents in this case.
In respect of QH’s claim under section 40(c) of the FOI Act, Assistant Information Commissioner Corby decided that most of the information (namely, the Category B information and parts of the Category A information) qualified for exemption because its disclosure could reasonably be expected to have a substantial adverse effect on the management or assessment by QH of its personnel by:
· inhibiting members of staff from raising concerns about workplace matters with senior management of QH in the future
· preventing QH from assessing and managing poor staff performance in a confidential manner.
In relation to the remainder of the Category A information, Assistant Information Commissioner Corby decided that disclosure of this information would not have a substantial adverse effect on the management or assessment by QH of its personnel because:
· the applicant had previously been provided with access to similar information
· there was no evidence before her to suggest that any substantial adverse effect to QH’s management or assessment of its personnel had occurred since that information was disclosed to the applicant
· the fact that there was no substantial adverse effect from the previous disclosure of similar information was evidence that a substantial adverse effect could not reasonably be expected to follow on from its subsequent release under the FOI Act.
