VA6Q6J and Sunshine Coast Hospital and Health Service [2015] QICmr 18 (14 August 2015)

REASONS FOR DECISION

Summary

1. The applicant applied to Sunshine Coast Hospital and Health Service (SCHHS) under the Information Privacy Act 2009 (Qld) (IP Act) for access to all inpatient hospital notes, outpatient notes, community health notes and laboratory reports at the Sunshine Coast Hospital from 2011 to 1 October 2014¹.

2. SCHHS located 1,054 pages relevant to the access application. It released all of them, except for 23 full pages and 40 part pages. It refused access to this information on the ground that it comprised exempt information (as its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons or would found an action for breach of confidence) and/or its disclosure would, on balance, be contrary to the public interest.²

3. The applicant applied to the Office of the Information Commissioner (OIC) for external review of SCHHS’s decision to refuse access to the requested information.

4. Some additional information was released to the applicant on external review with SCHHS’s agreement.³ The remaining information in issue comprises 23 full pages and 33 part pages. It relates to a justices examination order (JEO) about the applicant and information provided by other individuals to SCHHS for the purpose of the applicant’s treatment and assessment.  For the reasons set out below, I find that access to the remaining information may be refused on the grounds that disclosure of information on:

• 23 full pages and 14 part pages could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment,⁴ and accordingly that information is exempt information;⁵ and
• 29 part pages⁶ would, on balance, be contrary to the public interest.⁷

Background

5. Significant procedural steps relating to the external review are set out in the Appendix to this decision.

Reviewable decision

6. The decision under review is SCHHS’s decision dated 5 December 2014.

Evidence considered

7. The evidence, submissions, legislation and other material I have considered in this decision are disclosed in these reasons (including footnotes and Appendix).

8. The applicant provided submissions to OIC supporting her case.  Whilst I have carefully considered all of the applicant’s submissions, not all matters raised are relevant to the issues for determination. I have summarised and addressed the applicant’s submissions below to the extent they are relevant to the issues for determination.

JEO Information

9. The JEO Information appears in 23 full pages and 14 part pages and comprises information relating to a JEO made under the Mental Health Act 2000 (Qld) (MH Act) concerning the applicant.⁸ The JEO Information identifies the JEO applicant/s and the information supplied in support of the JEO application.⁹

Relevant law

10. Under the IP Act, an individual has a right to access documents of an agency to the extent the documents contain the individual’s personal information.¹⁰ However, this right of access is subject to certain limitations, including the grounds for refusal of access set out in the RTI Act.¹¹

11. An agency may refuse access to documents to the extent they comprise exempt information.¹² Schedule 3 of the RTI Act sets out information which Parliament considers is exempt information on the basis that disclosure would, on balance, be contrary to the public interest.¹³

12. Information is exempt if its disclosure could reasonably be expected to¹⁴ prejudice a system or procedure for the protection of persons, property or the environment.¹⁵ This exemption will apply if each of the following requirements are met:¹⁶

(a)    there exists an identifiable system or procedure

(b)    it is a system or procedure for the protection of persons, property or environment; and

(c)    disclosing the information in issue could reasonably be expected to prejudice that system or procedure.

Findings

Is there an identifiable system or procedure?

13. Yes.

14. The objective of a JEO is to allow a person in the community to request a non-urgent, involuntary mental health assessment for a person they believe may be experiencing mental health problems.¹⁷

15. Chapter 2, part 3, division 2 of the MH Act relevantly provides:

• a person may apply to a Magistrate or Justice of the Peace for a JEO for another person¹⁸
• the Magistrate or Justice of the Peace may issue a JEO if he/she reasonably believes that the relevant person has a mental illness and should be examined¹⁹
• once a JEO has been issued and sent to the administrator of an authorised mental health service, a doctor or authorised mental health practitioner may conduct the examination²⁰
• the JEO authorises a doctor or authorised mental health practitioner to examine the person to decide whether a recommendation for assessment for the person should be made;²¹ and
• if a recommendation for assessment for the person is not made after the person’s examination under the JEO, the examining doctor or authorised mental health practitioner must give notice to the director.²²

16. In view of the above, I am satisfied that the JEO procedure prescribed by the MH Act is a system or procedure for the purpose of schedule 3 section 10(1)(i) of the RTI Act.

Is the system or procedure for the protection of persons, property or environment?

17. Yes.

18. The Information Commissioner has previously decided that the JEO procedure is an identifiable procedure for the protection of persons.²³

19. In 74KDLG,²⁴ the Right to Information Commissioner relevantly explained that the JEO process is an important mechanism by which persons in need of appropriate mental health care may be removed from the community for the purposes of assessment and treatment, thereby minimising the potential for harm to themselves and others.

20. I am satisfied that the procedure for making a JEO application is a procedure for the protection of persons.

Could disclosing the JEO Information reasonably be expected to prejudice the system or procedure?

21. Yes.

22. The Information Commissioner has previously explained that people applying for a JEO provide information on the understanding that it is confidential and will only be used for the limited purpose of ensuring the proper administration of the MH Act.²⁵ I agree with that view and consider that confidentiality is integral to the JEO process.  I consider that the prospect of disclosure of information about a JEO could render future JEO applicants reluctant to supply information that might lead to their identification and, as a consequence, diminish the quality of information upon which JEO assessments and decisions are made. Also, some potential JEO applicants may be deterred from using the JEO process at all.

23. As noted above, the JEO Information in this review identifies the JEO applicant/s and the information supplied in support of the JEO application.  I am satisfied that disclosing the JEO Information in this review could reasonably be expected to prejudice the JEO procedure prescribed in the MH Act.

24. The applicant’s submissions²⁶ indicate that she:

• has great concerns about the JEO process, which has caused her significant distress
• believes the JEO application was made dishonestly and that there are discrepancies within it
• is concerned about the contents of the JEO Information and the way she has been treated as a result of the JEO
• believes she should have full access to her personal records held by SCHHS on the grounds they were funded by tax payers; and
• considers the JEO process should be truthful and transparent.

25. I have carefully considered the applicant’s submissions. I acknowledge that the JEO process and treatment following it have caused the applicant great distress. However, the applicant’s submissions explain the reasons for her request and provide background information about her interactions with SCHHS. While I recognise the importance of these matters to the applicant, they do not relate to the application of the exemption to the JEO Information, and I am unable to take them into account in the circumstances.²⁷

Conclusion

26. For the reasons set out above, I am satisfied that the JEO Information meets each of the requirements of schedule 3, section 10(1)(i) of the RTI Act.  As a result, I find that access to the JEO Information can be refused.

Healthcare Information

27. The relevant information appears in 29 part pages and comprises information provided by other individuals to SCHHS for the purpose of the applicant’s assessment and treatment (Healthcare Information).²⁸ It comprises specific information provided by multiple third parties, including but not limited to their names, telephone numbers, experiences, concerns and general comments that, if released, would identify the person/s.

Relevant law

28. An agency may refuse access to documents to the extent they comprise information where its disclosure would, on balance, be contrary to the public interest.²⁹ The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest³⁰ and explains the steps that a decision-maker must take³¹ in deciding the public interest as follows:

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure
• balance the relevant factors favouring disclosure and nondisclosure; and
• decide whether disclosure of the information would, on balance, be contrary to the public interest.

Findings

29. No irrelevant factors arise in the circumstances of this case and I have not taken any into account. I will now address the relevant factors favouring disclosure and nondisclosure of this information.

Accountability and transparency

30. I have considered whether disclosing the information could reasonably be expected to:

• promote open discussion of public affairs and enhance the Government’s accountability³²
• advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies;³³ and
• reveal the reason for a government decision and any background or contextual information that informed the decision.³⁴

31.  I am satisfied that disclosing the Healthcare Information would provide the applicant with a better understanding of her medical treatment and the reasons for certain treatment actions taken by her doctors, by giving her access to the background information that the doctors had before them.

32.  However, I note that, of the 1,054 pages identified by SCHHS as falling within the scope of the applicant’s application, 998 have been released in full, and 33 in part.³⁵ I also note that the substance of the 33 part pages is, in the majority of cases, clear. In these circumstances, I consider the information already disclosed to the applicant provides her with a comprehensive understanding of the actions taken by SCHHS in treating her, and largely satisfies the public interest factors identified above. Also, given the relatively small amount of the information that comprises the Healthcare Information and its nature, I do not consider its disclosure would advance these public interest factors to any significant degree.  Accordingly, while I find the factors mentioned above are relevant, they warrant limited weight.

Personal information and privacy

33. The Healthcare Information was provided by other individuals to SCHHS for the purpose of the applicant’s assessment and treatment.  The majority of it is about the applicant and her health, and I am satisfied that this information comprises the applicant’s personal information.³⁶ The RTI Act recognises that, generally, it is in the public interest for individuals to access their personal information that is held by government agencies.³⁷ More particularly, it is in the public interest for individuals to access such information so that they can ensure its accuracy. I acknowledge the importance of providing individuals with access to their personal information held by public authorities, and note that the Healthcare Information forms part of the applicant’s medical records. In these circumstances, I afford significant weight to this factor favouring disclosure.

34. However, the Healthcare Information also comprises the names, contact details, thoughts and opinions of the individuals who provided it.  Accordingly, I consider that the Healthcare Information is the other individuals’ personal information as well.

35. In this regard, the RTI Act recognises that:

• a factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice the protection of an individual’s right to privacy;³⁸ and
• disclosing information could reasonably be expected to cause a public interest harm if it would disclose personal information of a person, whether living or dead.³⁹

36. I am unable to separate the Healthcare Information from the applicant’s personal information. It is therefore relevant to consider the extent of the harm that could result from disclosing the personal information of other individuals under the IP Act. I am satisfied that the information is personal and sensitive in nature, given the context in which it was provided, and given that much of it comprises the opinions, thoughts, feelings and concerns of individuals other than the applicant.  I consider that disclosure of the Healthcare Information under the IP Act would be a significant intrusion into the privacy of these individuals and the extent of the public interest harm that could be anticipated from disclosure is significant.  As a result, I attribute this factor favouring nondisclosure significant weight.

Prejudice future supply of confidential information

37. The Healthcare Information was provided by other individuals to the applicant’s treating doctors to assist them with her treatment during times that she was perceived to be in need of medical assistance.

38. The RTI Act recognises:

• a factor favouring nondisclosure will arise where disclosing information could reasonably be expected to prejudice an agency’s ability to obtain confidential information;⁴⁰ and
• disclosing information could reasonably be expected to cause a public interest harm if:
• • the information consists of information of a confidential nature that was communicated in confidence; and
  • disclosing it could reasonably be expected to prejudice the future supply of information of this type.⁴¹

39. Healthcare agencies such as SCHHS frequently rely on information provided by third parties to inform patient care and treatment. In some instances, the information is sought from the third party by the healthcare agency, and in other instances it is provided voluntarily. In both instances, it is reasonable to expect that, in the future, third parties may be deterred from providing this type of information if they are aware that it would be disclosed to the patient under the IP Act.  This, in turn, could prejudice the ability of healthcare providers to effectively treat patients, by reducing the likelihood that they have all relevant information about the patient before them.

40. Taking into account the sensitivity of the information provided to SCHHS and the importance of this type of information for treating healthcare providers (so that they may, after assessing its accuracy and relevance, act on it where necessary), I consider the public interest harm arising from disclosure of the Healthcare Information would be significant and accordingly afford the factor favouring nondisclosure significant weight.

Other factors favouring disclosure

41. I have carefully considered the applicant’s submissions which are summarised at paragraph 24 above. I am unable to consider or comment on the appropriateness of the JEO process, or the applicant’s concerns about the treatment provided to her by SCHHS, as these issues are beyond OIC’s jurisdiction. In terms of the question of whether access to the Healthcare Information can be granted under the IP Act, the issues raised by the applicant in her submissions require my consideration of whether the following public interest factors favouring disclosure apply to the Healthcare Information:

• disclosure could reasonably be expected to allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official⁴²
• disclosure could reasonably be expected to reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;⁴³ and
• disclosure could reasonably be expected to reveal that the information was incorrect⁴⁴ or misleading.⁴⁵

42. While I acknowledge the applicant’s concerns, on careful consideration of all material before me (including the applicant’s submissions and the Healthcare Information), there is no evidence available to me to support the application of these public interest factors, and I find that they do not apply in the circumstances of this review.

Balancing the public interest

43. I consider there is a significant public interest in the applicant having access to those parts of the Healthcare Information that comprise her personal information, particularly given that the information forms part of her medical records. However, the Healthcare Information also comprises the personal information of other individuals, and its disclosure would be a significant intrusion into the privacy of these individuals, given its personal and sensitive nature. Both of these factors favouring nondisclosure carry significant weight.

44. I afford limited weight to the factors relating to accountability and transparency. These factors have been advanced substantially by the large amount of information released to the applicant. Given the small amount and nature of the Healthcare Information, I do not consider that its disclosure would further enhance these factors to any significant degree.

45. I am satisfied the Healthcare Information was provided by other individuals specifically for the purpose of the applicant’s treatment, and in circumstances where they would reasonably expect that the information would be treated confidentially. I am also satisfied that disclosing the Healthcare Information could reasonably be expected to prejudice the free flow of information by individuals to health care providers in the circumstances of someone needing medical treatment. In these circumstances, I afford significant weight to these factors favouring nondisclosure.

46. Balancing the weight of these factors against one another, I find that the factors favouring nondisclosure of the Healthcare Information outweigh the factors favoring its disclosure. Accordingly, I find that access to the Healthcare Information can be refused under section 47(3)(b) of the RTI Act as its disclosure would, on balance, be contrary to the public interest.⁴⁶

DECISION

47. For the reasons set out above, I vary SCHHS’s decision and find that:

• access to the JEO Information can be refused on the ground that it comprises exempt information because its disclosure could reasonably be expected to prejudice a system or procedure for the protection of persons, property or the environment;⁴⁷ and
• access to the Healthcare Information can be refused on the ground that its disclosure would, on balance, be contrary to the public interest.⁴⁸

48. I have made this decision as a delegate of the Information Commissioner, under section 139 of the IP Act.

________________________
A Rickard
Acting Assistant Information Commissioner

Date: 14 August 2015

APPENDIX

Significant procedural steps

[1] The applicant initially specified a period ending at September 2014, but on 13 October 2014 requested that SCHHS extend the period to include October 2014. As the applicant’s access application was received by SCHHS on 1 October 2014, it is taken to apply to all relevant documents in existence on that date – section 47(1) of the IP Act.
[2] SCHHS decided that nine part pages contained both exempt information and information that would, on balance, be contrary to the public interest to disclose.
[3] That is, seven full pages and three part pages.
[4] Schedule 3, section 10(1)(i) of the Right to Information Act 2009 (Qld) (RTI Act).
[5] Section 67(1) of the IP Act and section 47(3)(a) of the RTI Act.
[6] Ten of which also contain exempt information.
[7] Section 67(1) of the IP Act and section 47(3)(b) of the RTI Act.
[8] Community Mental Health Records – pages 35-42, 73-74 and 79 and parts of pages 58, 67, 77-78, 92, 97 and 102; Nambour General Hospital Records Vol 2. – parts of pages 21 and 87; and Nambour General Hospital Records Vol 3 – pages 113-122 and 308-309 and parts of pages 262, 270, 280 and 306-307.
[9] Section 121 of the IP Act prevents me from revealing information that is claimed to be exempt information or contrary to the public interest information and I am unable to describe the JEO Information in more detail.
[10] Section 40 of the IP Act. 
[11] Section 47 of the RTI Act. Section 67(1) of the IP Act provides that an agency may refuse access to a document in the same way and to the same extent the agency could refuse access to a document under section 47 of the RTI Act if the application had been made under the RTI Act.
[12] Under section 47(3)(a) and section 48 of the RTI Act. 
[13] Section 48(2) of the RTI Act.
[14] The term ‘could reasonably be expected to’ requires that the expectation be reasonably based, that it is neither irrational, absurd or ridiculous, nor merely a possibility. The expectation must arise as a result of disclosure, rather than from other circumstances. Whether the expected consequence is reasonable requires an objective examination of the relevant evidence.  It is not necessary for a decision‑maker to be satisfied upon a balance of probabilities that disclosing the document will produce the anticipated prejudice. See Nine Network Australia Pty Ltd and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 14 February 2012) at [31].
[15] Schedule 3, section 10(1)(i) of the RTI Act.
[16] Ferrier and Queensland Police Service (1996) 3 QAR 350 at [27]-[36] regarding section 42(1)(h) of the repealed Freedom of Information Act 1992 (Qld) (FOI Act), which preceded and is replicated in schedule 3, section 10(1)(i) of the RTI Act.
[17] Page 2 of Queensland Government (Queensland Health), Information about Justice Examination Orders at http://www.health.qld.gov.au/mha2000/documents/jeo_brochure.pdf.
[18] Section 27 of the MH Act.
[19] Section 28 of the MH Act.
[20] Section 29 and 30 of the MH Act.
[21] Section 30 of the MH Act.
[22] Section 32 of the MH Act.
[23] See for example ROSK and Brisbane North Regional Health Authority; Others (Third Parties) (1996) 3 QAR 393 (ROSK) at [13]–[15] and VHL and Department of Health (Unreported, Queensland Information Commissioner, 20 February 2009) at [49] and QPF and Department of Health (Unreported, Queensland Information Commissioner, 29 June 2009) at [26] regarding section 42(1)(h) of the repealed FOI Act; and SQD and Department of Justice and Attorney-General (Unreported, Queensland Information Commissioner, 2 September 2010) (SQD) at [16], 74KDLG and Department of Health (Unreported, Queensland Information Commissioner, 25 February 2011) (74KDLG) at [15] and B7TG4G and Gold Coast Hospital and Health Service (Unreported, Queensland Information Commissioner, 1 May 2015) at [20] regarding schedule 3, section 10(1)(i) of the RTI Act.
[24] At [17]; see also ROSK at [15].  
[25] SQD at [17]; see also ROSK at [21].
[26] The applicant’s submissions were provided in her external review application dated 5 January 2015 and letters to OIC received on 4 May 2015 and 22 June 2015.
[27] Schedule 3 of the RTI Act sets out the types of information the disclosure of which Parliament has decided would, on balance, be contrary to the public interest: section 48(2) of the RTI Act.  If the information meets the requirements of one of the exemptions in schedule 3 of the RTI Act, access can be refused and there is no scope for a decision-maker to take into account any public interest considerations or an applicant’s reasons for seeking access to the information, no matter how compelling they may be.
[28] Community Mental Health Records – parts of pages 33, 58, 67, 84-85, 92, 97, 102, 111, 121, 128, 141, 149, 151-152 and 162; Nambour General Hospital Records Vol 2. – parts of pages 14, 16, 21, 28, 87 and 130; and Nambour General Hospital Records Vol 3. – parts of pages 131, 262, 270, 280 and 301-303. As noted at paragraph 26 of this decision, I consider that ten of these part pages contain portions of JEO Information (that is, Community Mental Health Records – parts of pages 58, 67, 92, 97 and 102; Nambour General Hospital Records Vol 2. – parts of pages 21 and 87; and Nambour General Hospital Records Vol 3. – parts of pages 262, 270 and 280).
[29] Section 47(3)(b) and 49 of the RTI Act.  The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens.  This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests.  However, there are some recognised public interest considerations that may apply for the benefit of an individual.
[30] Schedule 4 of the RTI Act sets out the factors for deciding whether disclosing information would, on balance, be contrary to the public interest.  However, this list of factors is not exhaustive.  In other words, factors that are not listed may also be relevant.
[31] Section 49(3) of the RTI Act.
[32] Schedule 4, part 2, item 1 of the RTI Act.
[33] Schedule 4, part 2, item 10 of the RTI Act.
[34] Schedule 4, part 2, item 11 of the RTI Act.
[35] Considering both the information released pursuant to SCHHS’s decision and the information released as a result of informal resolution processes during the external review.
[36] ‘Personal information’ is defined in section 12 of the IP Act as ‘information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion’.
[37] Schedule 4, part 2, item 7  of the RTI Act
[38] Schedule 4, part 3, item 3 of the RTI Act.
[39] Schedule 4, part 4, item 6(1) of the RTI Act.
[40] Schedule 4, part 3, item 16 of the RTI Act.
[41] Schedule 4, part 4, item 8(1) of the RTI Act.
[42] Schedule 4, part 2, item 5 of the RTI Act.
[43] Schedule 4, part 2, item 6 of the RTI Act.
[44] Schedule 4, part 2, item 12(a) of the RTI Act.
[45] Schedule 4, part 2, item 12(c) of the RTI Act.
[46] Note: SCHHS decided that two of the part pages that comprise the Healthcare Information (Community Mental Health Records – parts of pages 121 and 141) comprised exempt information on the ground that disclosure of the information would found an action for breach of confidence – however, I prefer the ground that disclosure would, on balance, be contrary to the public interest. Also, SCHHS decided that nine part pages contained portions of Healthcare Information and portions of JEO information (Community Mental Health Records – parts of pages 58, 92, 97 and 102; Nambour General Hospital Records Vol 2. – parts of pages 21 and 87; and Nambour General Hospital Records Vol 3. – parts of pages 262, 270 and 280). I agree with this – however, I find that one additional page (Community Mental Health Records – part of page 67) also contains portions of Healthcare Information as well as portions of JEO Information.
[47] Section 67(1) of the IP Act and section 47(3)(a) and schedule 3, section 10(1)(i) of the RTI Act.
[48] Section 67(1) of the IP Act and sections 47(3)(b) of the RTI Act.