WRT and Department of Corrective Services
(1998 S0182, 26 April 2002)
The applicant sought access under the FOI Act to a number of documents relating to his imprisonment. As a result of concessions made by the Department of Corrective Services (DCS), the only matter remaining in issue comprised parts of a psychiatric report on the applicant, prepared in connection with his application for parole. DCS had reluctantly withdrawn its claims for exemption in respect of the psychiatric report, accepting that they could not be sustained in law. However, the psychiatrist who authored the report had been granted status as a participant in the review, and maintained his claims that the matter in issue was exempt from disclosure to the applicant under the FOI Act.
The psychiatrist claimed that his report had been communicated in confidence to the Queensland Community Corrections Board (QCCB), and that the report qualified for exemption under s.46(1)(a) of the FOI Act. The Deputy Information Commissioner reviewed a number of Queensland Supreme Court decisions which had held that procedural fairness applied to proceedings of parole boards, and would ordinarily require the parole board to bring to the notice of the applicant for parole, who might be adversely affected by the board's determination, the critical issues or factors on which the determination was likely to turn, so that he or she might have an opportunity of dealing with them.
The Deputy Information Commissioner observed that the state of the law in Queensland was such that, in the ordinary case, neither a psychiatrist submitting a report adverse to an applicant for parole, nor the QCCB receiving such a report, could reasonably have an expectation that the report was to be treated in confidence as against the subject of the report. Equity would not ordinarily find a parole board conscience-bound to treat a psychiatric report as confidential from the subject of the report, in a situation where the common law principles of procedures fairness required disclosure of information in the psychiatric report to the subject of the report.
The Deputy Information Commissioner observed it was arguable that, in exceptional circumstances, equity might impose a binding obligation of confidence restraining a parole board from disclosing an adverse psychiatric report to the subject of the report (e.g., where the subject of the report had a demonstrated propensity to violence or retribution against persons perceived to have wronged the subject, and certain information in the report was so sensitive in nature that its disclosure to the subject could reasonably be expected to pose a genuine danger to the physical safety of others). In such circumstances, the common law requirements of procedural fairness might not extend to requiring disclosure of the adverse material, or equity might hold that conscionable conduct on the part of the parole board required non-disclosure regardless of the usual rules of procedural fairness.
However, the Deputy Information Commissioner was not satisfied from his examination of the matter in issue, and the applicant's known criminal history, that there were any circumstances which took this case outside of the ordinary one where equity would hold that conscionable conduct on the part of the QCCB and DCS required compliance with the principles of procedural fairness (and in this instance, disclosure to the applicant of at least the substance of the adverse material in the psychiatrist's report). The Deputy Information Commissioner decided that disclosure to the applicant of the matter remaining in issue would not found an action for breach of confidence, and hence that it did not qualify for exemption from disclosure to the applicant under s.46(1) of the FOI Act.
He also made a finding that he was not satisfied, on the material before him, that disclosure to the applicant of the matter in issue could reasonably be expected to endanger the physical safety of the psychiatrist or any other person.
He observed that it was arguable that the system by which prisoners can apply for release from custody into a community based program was a system or procedure for the protection of persons or property, within the terms of s.42(1)(h) of the FOI Act, but noted that he was not satisfied that there was a reasonable basis for expecting that disclosure of the matter in issue could prejudice that system. He was not satisfied that disclosure to the applicant of the particular matter remaining in issue could reasonably be expected to cause psychiatrists to decline to provide parole boards with psychiatric assessments of prisoners, or to provide less frank and candid assessments, or to otherwise prejudice the parole system.
The psychiatrist also contended, in the alternative, that the matter in issue should not be disclosed to the applicant, but should be disclosed to a qualified medical practitioner in accordance with s.44(3) of the FOI Act. The Deputy Information Commissioner observed that he had not been provided with information that satisfied him that disclosure of the matter in issue might be prejudicial to the applicant's physical or mental health or wellbeing, and declined to order that access be given to a qualified medical practitioner nominated by the applicant in accordance with s.44(3) of the FOI Act.