Springborg, MP and Office of the Premier; A WorkCover Claimant (Third Party); A Minister (Fourth Party); A Former Parliamentary Secretary (Fifth Party)
(2004 F0088, 16 March 2006)
Springborg, MP and WorkCover Queensland; A WorkCover Claimant (Third Party); A Minister (Fourth Party); A Former Parliamentary Secretary (Fifth Party)
(2004 F0102, 16 March 2006)
In these related reviews, the applicant sought access under the FOI Act to documents concerning a workers compensation claim made by the third party (a former public servant). The claim contained allegations of bullying and/or sexual harassment made by the third party against the fourth party (a Queensland government minister) and the fifth party (a former Parliamentary Secretary).
The decisions turned on the application of s.44(1) of the FOI Act. The third party indicated that she consented to the disclosure to the applicant of the matter in issue on the condition that all information that could reasonably be expected to identify her (including all information that could reasonably be expected to identify the fourth and fifth parties) was deleted. The applicant and WorkCover were in agreement with that proposal. The Office of the Premier advised that it had no objection to the disclosure of the relevant documents, subject to any objections raised by the affected parties in the review. Both the fourth and fifth parties objected to disclosure. The applicant and the fourth and fifth parties lodged extensive submissions in support of their respective positions.
The bulk of the matter in issue concerned the shared personal affairs of the third party and the fourth and/or fifth parties.
As regards the allegations of sexual harassment made by the third party against both the fourth and fifth parties, AC Moss decided, following the decisions in NHL and The University of Queensland (1997) 3 QAR 436 and JSD and The Medical Board of Queensland (2003) 6 QAR 189, that such information was properly to be characterised as concerning the personal affairs of the fourth and fifth parties and was prima facie exempt from disclosure under s.44(1) of the FOI Act, subject to the application of the public interest balancing test.
As regards the allegations of bullying made by the third party against the fifth party, AC Moss decided that, having reviewed the particular nature of the allegations, the matter in issue was properly to be characterised as concerning the fifth party's employment affairs, rather than their personal affairs. AC Moss stated that even if she was incorrect in that characterisation, she was of the view that disclosure of the matter in issue nevertheless would, on balance, be in the public interest.
Turning to the application of the public interest balancing test contained in s.44(1), AC Moss discussed at length the competing public interest considerations identified by the participants. AC Moss accorded significant weight to the privacy interests of the fourth and fifth parties and accepted that disclosure of the matter in issue might cause them distress or embarrassment. She also accepted that the allegations against the fourth and fifth parties were untested, and that it was unfortunate that the fourth and fifth parties had not previously been given an opportunity to respond to the allegations. However, when those and the other considerations AC Moss accepted as weighing against disclosure, were balanced against the considerations that weighed in favour of disclosure, AC Moss was satisfied that the latter group (particularly the public interest in the accountability of the fourth and fifth parties as elected representatives holding senior positions within the government, and the associated high level of scrutiny attaching to their conduct, as well as the public interest in the accountability of government regarding its duty to investigate allegations of misconduct made against senior government officials) tilted the balance in favour of disclosure.
Accordingly, AC Moss decided to set aside the decisions under review. In substitution for them, she found that the matter in issue in the two reviews (which excluded any identifying matter) did not qualify for exemption under the FOI Act and that the applicant was therefore entitled to obtain access to it.