Pope and Department of Health; Hammond (Third Party)

Application number:
1993 S0189
Decision date:
Monday, Jul 18, 1994
Reported:
(1994) 1 QAR 616

Pope and Queensland Health; Hammond (Third Party)
(1993 S0189, 18 July 1994) 

Pope and Queensland Health; Robbins (Third Party)
(1993 S0215, 18 July 1994)

 

This was a ‘reverse-FOI’ application by Dr Pope who opposed the release of a report (the 'Seawright Report') summarising the findings of an investigation which cleared him of allegations that, when employed as a Research Fellow at the Queensland Institute of Medical Research (QIMR), he had engaged in scientific fraud.  One of the persons who had applied for access to the report was a journalist for The Courier-Mail, and the other, Dr Robbins, was a former colleague of Dr Pope who had made the allegations of scientific fraud.  Dr Pope asserted that the Seawright Report was exempt under s.45(1)(c) of the FOI Act because its disclosure could reasonably be expected to have an adverse effect on his professional affairs, and its disclosure would not, on balance, be in the public interest.  Dr Pope also argued that the Seawright Report was exempt under s.44(1) of the FOI Act, because it would disclose information concerning Dr Pope’s personal affairs and its disclosure would not, on balance, be in the public interest.  Ultimately, the Information Commissioner affirmed the respondent’s decision that the Seawright Report was not exempt from disclosure under the FOI Act.

 

At paragraph 17, the Information Commissioner explained that, even though in a ‘reverse-FOI’ case a respondent agency still carries the onus under s.81 of the FOI Act of justifying the decision under review, it can discharge that onus by demonstrating that any one of the elements which must be established to found the application of a particular exemption provision cannot be made out.  Thus, the applicant in a ‘reverse-FOI’ case, while carrying no formal legal onus, must nevertheless in practical terms be careful to ensure that there is material before the Information Commissioner sufficient to demonstrate that all elements of the exemption provisions relied upon are established, with respect to the information in issue.

 

In the interpretation of s.45(1)(c) of the FOI Act, the Information Commissioner held that the word 'professional' takes its colour from the surrounding words 'business', 'commercial' and 'financial', and the common link among the words is to activities carried on for the purpose of generating income or profits.  The words 'professional affairs' are intended to cover the work activities of persons who are admitted to a recognised profession, and who ordinarily offer their professional services to the community at large for a fee, i.e., to the running of a professional practice for the purpose of generating income.  Thus, persons who practise their profession as salaried employees of a government agency do not ordinarily have 'professional affairs' for the purposes of s.45(1)(c).  The information contained in the Seawright Report related to Dr Pope’s activities as a salaried employee of the QIMR, and thus was not information concerning his 'professional affairs' for the purposes of s.45(1)(c).

 

At paragraphs 52-74, there is extensive discussion of the kinds of vocation which may qualify as professions for the purposes of s.45(1)(c), with a list of 'indicators' given at paragraph 62.

 

At paragraph 79, the Information Commissioner expressed the view that, because the allegations against Dr Pope had been put in the public domain, the Commissioner could not see how disclosure of those parts of the Seawright Report which cleared Dr Pope of scientific fraud or misconduct could reasonably be expected to have an adverse effect on Dr Pope’s reputation as a research scientist.

 

At paragraphs 83-101, there is extensive discussion of public interest considerations favouring disclosure or non-disclosure of the Seawright Report.  At paragraph 96, the Information Commissioner acknowledged that the public interest in fair treatment of individuals might be a consideration favouring non-disclosure of matter comprising allegations of improper conduct against an individual where the allegations are clearly unfounded and damaging, and indeed might even tell against the premature disclosure of matter comprising allegations of improper conduct against an individual which appear to have some reasonable basis, but which are still to be investigated and tested by a proper authority.  However, the Information Commissioner found that in this case other public interest considerations overwhelmingly favoured disclosure, principally, accountability of government employees for the conduct of research projects designed to benefit the public, and carried on with public funding, and accountability for the process and outcome of an investigation into alleged breaches of acceptable standards of research.

 

In respect of Dr Pope’s reliance on s.44(1) of the FOI Act (the 'personal affairs' exemption), the Information Commissioner held that the contents of the Seawright Report were properly to be characterised as information concerning the performance by Dr Pope of his duties and functions as an employee of a government agency, rather than as information concerning his personal affairs.  After reviewing relevant authorities, the Information Commissioner held (at paragraph 116) that it should be accepted in Queensland that information which merely concerns the performance by a government employee of his or her employment duties (ie which does not stray into the realm of personal affairs in the manner contemplated in Department of Social Security v Dyrenfurth (1988) 80 ALR 533)  is ordinarily incapable of being properly characterised as information concerning the employee’s 'personal affairs' for the purposes of the FOI Act.