The Right to Information Act 2009 (RTI Act) gives people the right to apply for documents in the possession or control of an agency,1 including documents about deceased people. These applications cannot be made under the Information Privacy Act 2009 (IP Act).2
This guideline is intended to assist decision makers who are dealing with applications for information about deceased people. It does not cover the exempt information provisions in schedule 3 of the RTI Act or information of people other than the deceased. Refer to the Exempt information guidelines and Applications for third party personal information for guidance on those topics.
Decision makers should consider if the deceased person's information is exempt from release, as was the case in Michel and Department of Communities, Child Safety and Disability Services,3 before using this guideline and applying the public interest factors.
Applicant and document types
Applications for documents about deceased people are often made by family members who want access to a deceased relative's medical records and numerous Commissioner decisions concern these kinds of applications. However there is no limitation on who can apply for what kind of documents about deceased people.4 Agencies may receive applications from non-family members for deceased people's medical records and from family and non-family for other types of information about deceased people.
Applications from family members
Family of the deceased have no automatic entitlement to access information about a deceased person.5 Applications from family members must be dealt with in the same way as applications from any other applicant, although some family relationships may give rise to the eligible family member factors or impact the application or weighting of other factors.
Reasons for applying and supporting evidence
Applicants' reasons for seeking access to information about deceased people will vary, and they are not required to disclose them. However, sometimes those reasons will raise public interest factors favouring release, for example, where the applicant is an eligible family member or is seeking access to pursue a legal remedy.
Evidence of these reasons and/or evidence of the relationship is required before it can be considered by the decision maker. If this information is not present on the files, and the applicant does not include it with their application, the decision maker can ask for it. The OIC's information sheets may help applicants understand what they need to provide, eg Applying for a deceased person's information.6
A refusal to provide this information does not make an application non-compliant but it will affect the decision, because a decision maker cannot take into account evidence they do not have.
Applications for research purposes
Applicants seeking access to a deceased person's information for research purposes was considered by the Commissioner7 in Fotheringham and Department of Health8 and Watson and Department of Health9 In Fotheringham, the public interest in protection of the deceased's privacy outweighed the public interest in facilitating historical and cultural research. In Watson, the public interest in release outweighed the deceased's privacy. The views of the deceased's relatives were a factor considered in both decisions: in Fotheringham, they objected; in Watson they consented.
If an application seeking access to documents for research purposes is received, decision makers will need appropriate evidence to establish that purpose, apply and weight relevant public interest factors, and consult with the deceased's representative where appropriate.10
Applications for family health reasons
Generally, seeking access to a deceased relative's medical records for family health reasons will not raise strong public interest factors in favour of disclosure. In X19 and Metro South Hospital and Health Service,11 the applicant sought access to her deceased mother's records because of the possibility that they could assist in the ongoing management of the applicant and her family’s health affairs. The Commissioner noted that, while there might be a public interest in ensuring that successive generations have the best and most efficient health care available, she assigned it a low weight due to the applicant’s medical practitioner's ability to obtain a family medical history from the agency.
Applying the public interest factors
Personal information, privacy, and the deceased
Deceased people do not have personal information within the general definition in the IP and RTI Acts, as that definition excludes them.12 However, specific public interest factors13 in the RTI Act effectively create an exception, explicitly recognising information of the deceased as personal information14 for the application of those factors.
Decision makers should generally approach applications for information of the deceased in the same basic way as any other application for the purposes of identifying applicable public interest factors.
Some factors can't apply to a deceased person's information, and some can only apply to a deceased person's information, but beyond those the status of the person will generally be irrelevant when determining whether a factor applies. For example, if someone applied for accusations about a public service officer, the public interest factor that states unsubstantiated allegations of misconduct are likely to cause a public interest harm if released15 would apply whether the officer was living or dead.
However, the circumstances which influence the weighting of the public interest factors applied to a deceased person's information will often be different, for example, the length of time since the person died, the identity of the applicant and their relationship to the deceased, and/or the extent of their knowledge regarding the deceased's information.
The eligible family member factors
Where the applicant seeking access to a deceased person's information is an eligible family member of the deceased, two public interest factors become relevant: a factor favouring disclosure16 and a factor favouring non-disclosure.17
Eligible family member is defined in the RTI Act and only includes people with specific relationships to the deceased, giving some priority over others. If people higher in the priority list are available, people lower in the list cannot trigger the eligible family member public interest factors.
For more information, refer to the Eligible family member guideline.
Public interest factors favouring disclosure
There are certain public interest factors favouring disclosure that commonly arise in applications for a deceased person's information. These include:
- the applicant is an eligible family member and the information would have been the deceased's personal information when they were alive18
- promotion of the social and economic well-being of the community19
- promotion of open discussion of public affairs and enhance the Government’s accountability;20 and
- revealing the reason for a government decision and any background or contextual information that informed the decision.21
Eligible family member – favouring disclosure
The eligible family member factor favouring disclosure specifically recognises that there is a public interest in the eligible family member being given access to their deceased relative's information. This factor only applies to the eligible family member, not to other family members of the deceased.
Disclosing information under this factor enhances the public interest in the eligible family member being provided with information about the deceased's health and wellbeing.22 However, the weight given to this factor will vary depending on the circumstances, for example:
- the extent to which the eligible family member was in contact with and/or had a relationship with the deceased and the extent to which that overlaps with the time the information covers23
- the nature and sensitivity of the information; and
- the extent to which the information is or may be known to the applicant.24
The Commissioner observed in WEU27L and Mackay Hospital and Health Service25 that the applicant, father of the adult deceased, had only been in contact with the deceased for several months prior to his death, contact which occurred subsequent to the period covered by the information applied for. As such, she gave only moderate weight to this factor.
All relevant information should be considered when applying the factor; for example, in Lester and Department of Justice and Attorney-General26 the Commissioner gave little to no weight to this factor because the applicant was estranged from his wife at the time of her death and subsequently was convicted of her murder.
The circumstances that impact the weight given to this factor will generally be the same factors that affect the weight given to the eligible family member factor against disclosure.
Social and economic well-being of the community
The public interest factors in schedule 4 of the RTI Act are non-exhaustive, allowing additional factors the be identified. The Commissioner has recognised that there is a public interest in the social and economic well-being of the community, which includes:
- the ability of its members to improve their health and outlook
- assisting bereaved members to recover from their grief; and
- assisting people to function as productive members of society.27
It is relevant to consider whether disclosing information of the deceased to the applicant could contribute to the social and economic well-being in these ways. This factor will most often arise where the applicant is a close family member of the deceased. The benefit does not need to be guaranteed to result from the information being disclosed; it is only necessary that disclosure could have the positive effect.
In M96 and Queensland Police Service28 the Commissioner was satisfied that it was more probable than not that disclosure of the information would assist the applicant to move forward with her grieving process, which would contribute to the social and economic well-being of the community, and significant weight was given to this factor.
Advance fair treatment of individuals
It is a factor favouring disclosure that release of information will advance the fair treatment of individuals in their dealings with agencies.29 The Commissioner stated in Malfliet and Department of Education30 that this factor includes a 'justifiable need to know'. If an applicant's need to know the information is more compelling than other members of the public, they have a justifiable need to know.31 The Commissioner applied this to information of the deceased in OKP and LUE and Department of Police.32
In OKP, the applicant was a former child in care seeking information about why they were placed in care and about their parents and siblings, some or all of whom were deceased. The Commissioner decided that the applicant had a justifiable need to know the information and gave this significant weight, based on the well-established importance of people who had formerly been in State care accessing information about their family and the circumstances that led to their being placed in care.
Conversely, in LUE, the Commissioner gave limited weight to this factor because the information sought could not increase the applicant’s understanding of the circumstances surrounding the deceased’s death, did not show a link between the deceased's death and the issues which concerned the applicant, or was merely detailed procedural dealings between the deceased and QPS prior to his death.
A public interest factor favouring disclosure of information applies where the release of a deceased person's information would promote open discussion of public affairs and enhance government accountability.33 However, only a strong accountability interest will outweigh the public interest in protecting an individual's medical records, for example where the information will expose unsatisfactory or negligent performance and enable remedial and/or compensatory action to be taken.34 As such, the weight to be given to this factor will depend on the facts of each case.
In some circumstances, government accountability can be enhanced by an applicant having access to, for example, evidence of care provided to someone who is now deceased or information about how someone's death was investigated. There is also a public interest in maintaining the public’s confidence in public services, such as the health system and the police service.
It is relevant when applying this factor to consider whether disclosure would enhance government accountability or simply provide information about a single individual's circumstances. The Commissioner discussed this in C98 and Cairns and Hinterland Hospital and Health Service,35 observing that the release of one individual's medical records would not inform the community in any great detail about the agency's "general treatment of mental health concerns nor would it indicate any systemic issues." In combination with the fact that the deceased's death was being investigated by the Coroner, she assigned a low weight to this factor.
Reasons for a government decision
If the disclosure of information about a deceased person would reveal the reasons for a government decision, and any background or contextual information that informed the decision, it raises a public interest factor favouring disclosure.
When applying this factor, the extent to which the applicant has already been informed of the information will affect the weight it is given. Where the applicant already has information about the decision, for example the agency met with them or provided them with a written explanation, this will significantly reduce the weight given to this factor. In C98, the Commissioner gave only moderate weight to this factor, due to the fact that the deceased’s diagnosis and treatment were discussed with the applicant during a meeting with the agency.
In Keogh,36 the applicant had been involved in end of life decision making for the deceased. The Commissioner noted that “end of life decision making is a significant process, and it is in the public interest for there to be public scrutiny of it so that public confidence in the health system is maintained."37 The applicant's involvement in the decision to end the deceased person’s life support meant that this factor weighed in favour of disclosure to her.
Public interest factors against disclosure
Depending on the circumstances and the nature of the information, various factors against disclosure can apply on an application for a deceased person's information. However, there are only two public interest factors against disclosure which recognise a deceased person's privacy:
- The personal information factor – this factor always applies if the information is about the deceased person, regardless of the relationship between the applicant and the deceased.38
- The eligible family member disclosure factor – this factor only applies where the applicant is an eligible family member, the information was personal information when the deceased was alive, and disclosure would impact the deceased person's privacy.39
Where the applicant is an eligible family member, the two factors can often be considered together.
Decision makers may find these decisions helpful: Cherry and Department of Justice and Attorney-General,40 C98 and Cairns and Hinterland Hospital and Health Service,41 Parnell and Queensland Police Service,42 TFN20S and Gold Coast Hospital and Health Service43 and C47 and Cairns and Hinterlands Hospital Service  QICmr 29 (9 June 2022).
Decision makers may also find it helpful to refer to the medical records section below, even when considering non-medical information.
Eligible family member factor against disclosure
If the applicant is an eligible family member, it is a factor against disclosure that the information being applied for would have been personal information when the deceased person was alive and disclosing it would reasonably impact on the deceased's privacy.
The considerations relevant to applying the eligible family member factor favouring disclosure are also relevant here. Generally, the more sensitive the information, the less the applicant knows it, and the more limited the relationship between the applicant and the deceased, the greater the impact release of the information would have on the deceased's privacy.
As discussed above in the factor favouring disclosure, the applicant in WEU27L was refused access to sensitive medical information, including medical tests and treatment provided to the deceased and medical practitioners’ views on the deceased’s health. Given the nature of the information and the fact that the applicant was not familiar with it and had a limited relationship with the deceased, the Commissioner found that disclosing it would impact significantly on the deceased’s privacy and, consequently, gave this factor significant weight.
The personal information factor
The personal information factor states that disclosing personal information causes a public interest harm, and explicitly extends this to information of deceased people. The higher the sensitivity of the information, the greater the weight given to this public interest factor.
Disclosure of information under the RTI Act is not release to the world at large.44 However, when making a decision, decision makers should not exclude from consideration evidence about the intended or likely extent of dissemination of information by the applicant.45 This is discussed in more detail in Access applications and third party personal information, but is as relevant to information of the deceased as to the living, particularly where an applicant has expressed intentions to publish the information, for example by uploading it to a personal website or social media.
When considering disclosure of information, it is important to differentiate between information that is known to the applicant and information that is not. Where an applicant already knows information about a deceased person, this can reduce the weighting of the personal information and eligible family member factors against disclosure in relation to that information. This includes highly sensitive information, such as medical records (discussed below) or information about the circumstances of the deceased's death.
How much the weighting is reduced for a given factor will vary based on the circumstances of the application. For example, in Swales and Department of Health46 the applicant was familiar with the deceased's medical information, to which access was granted. However, the Commissioner observed that there was no evidence that the applicant was familiar with other personal, non-medical information on the files, which related to the deceased's thoughts and feelings. As such there was a strong public interest in its non-disclosure and access was refused.
The importance of having evidence as to the applicant's knowledge was made clear in C98, in which the Commissioner was not satisfied on that point and found that, despite the close relationship between the applicant and the deceased, the information remained his private and personal information.
Disclosure of a deceased person's sensitive personal information can reasonably be expected to cause a public interest harm for more than its impact on the deceased's privacy. Its release can also reduce the public's confidence in public systems and a reduction in effective and efficient public services where those systems and services rely on full and frank disclosure by members of the public, as discussed by the Commissioner in X19 in relation to the public health system.47
Specific kinds of information
Information about a deceased person created after they died falls within the personal information factors and, with an eligible family member applicant, the eligible family member factors. Other factors may also apply.
Given its nature, this kind of information will often be highly sensitive and generally unknown to the applicant. For example, post-mortem forensic information48 and crime scene photographs49 have both been found by the Commissioner to be sensitive and contrary to the public interest to release.
Records related to suicide
When considering documents that include description of methods or locations of suicides or suicide attempts, decision makers should refer to The Courier-Mail and Queensland Police Service50 and 9X5DUG and Queensland Corrective Services.51 In those decisions the Commissioner refused access, taking into account the inability to control dissemination of information released under the Act and the potential for release to contribute to the risk of increased suicide attempts.
Suicide notes or similar documents will often contain extremely sensitive personal information of people other than the applicant, including the deceased, and will often be directed to someone other than the applicant. In these circumstances, they will generally be contrary to the public interest to release.
In F&K,52 the Commissioner considered the contents of a Post-It note addressed to the deceased's husband and written shortly before the deceased took her own life. He found there was no public interest in the note's release due to:
- the high weight given to protection of the deceased and the husband's privacy; and
- the contents of the note failing to contribute to police accountability.
Medical and health information is generally considered to be sensitive personal information which is subject to strong privacy protections, to which the above considerations and public interest factors for and against disclosure apply.
Additionally, in Summers and Cairns District Health Service,53 the Commissioner recognised that the privacy interest of a deceased person in their medical records may be lessened:
- if there is evidence of the applicant’s involvement in the deceased’s care
- based on the extent of the applicant’s knowledge of the deceased’s medical history; or
- where there is evidence of the deceased’s special dependence on, or relationship with, the applicant.
How much consideration, if any, an agency gives to these will depend on the specific circumstances of the application and the relationship between the applicant and the deceased. Generally, if the applicant and the deceased were very close and the applicant was heavily involved in the healthcare of the deceased person, this will weigh in favour of release of the information, with the reverse tending to weigh in favour of refusal.
In Keogh, the applicant’s involvement in making healthcare decisions for the deceased (her son) was a significant aspect in reducing the weight given to the deceased person’s privacy interests. She was involved in the doctor's decisions, including the decision to cease life support, and the deceased was incapacitated and reliant on the applicant to make his health care decisions for the entirety of his admission. The applicant’s presence and involvement in the deceased's care gave her detailed knowledge of the deceased's ill health and prognosis and as a result, the deceased's privacy interests were substantially diminished.
In Swales, the Information Commissioner found the deceased person’s privacy interests in relation to her medical information was greatly diminished because the applicant (the deceased's mother), in addition to other factors, knew about her daughter’s medical condition and was involved in her care. As noted above, however, access to other information was refused because the applicant lacked knowledge of it.
Conversely, in X19, the applicant was living interstate and as such was not closely involved in her deceased's mother's care. Despite evidence of telephone contact with her mother and siblings, the Commissioner found that the applicant was not involved in a sufficiently detailed way in decisions concerning her mother's day to day health care to reduce the impact on the deceased's privacy.
Publicly available information
If the deceased person's information is of a kind that is generally available to the public, for example matters that are heard in open court or information about property ownership, this can reduce the weighting of the personal information and eligible family member factors against disclosure.
In some circumstances, however, information may have been released or made available for a limited purpose only, or not widely disseminated, which can impact any reduction to a public interest factor's weighting. Refer to the discussion in 44ZNEO and Department of Health54 and Copley and Department of Justice and Attorney-General55 for more information.
- 1 Agency in this guideline includes a Minister.
- 2 IP Act applications can only be made by, or on behalf of, an individual for their own personal information.
- 3  QICmr 24 (4 September 2013).
- 4 Other than documents excluded from the operation of the RTI Act.
- 5 Lue and Department of Police (Unreported, Queensland Information Commissioner, 24 March 2010), under the now repealed FOI Act.
- 6 The suite of OIC Information Sheets can be viewed here: Access and amendment.
- 7 Under the now repealed Freedom of Information Act 1992 (FOI Act).
- 8 (1995) 2 QAR 799 (Fotheringham) .
- 9 (2005) 7 QAR 66 (Watson).
- 10 Provided for in section 37(2) of the RTI Act; refer to Consulting with a relevant third party for more information.
- 11  QICmr 12 (26 February 2020) (X19).
- 12 Section 12 of the IP Act and schedule 5 of the RTI Act; under the definition only individuals have personal information and a deceased person does not fall within the definition of individual.
- 13 Schedule 4, part 2, item 9, part 3, item 5, and part 4, item 6.
- 14 Or requiring it to be treated as if it would have been personal information if the deceased were still alive.
- 15 Schedule 4, part 3, item 6.
- 16 Schedule 4, part 2, item 9.
- 17 Schedule 4, part 3, item 5.
- 18 Schedule 4, part 2, item 9 of the RTI Act.
- 19 OKP and Department of Communities (Unreported, Queensland Information Commissioner, 9 July 2009), under the now repealed FOI Act (OKP).
- 20 Schedule 4, part 2, item 1 of the RTI Act.
- 21 Schedule 4, part 2, item 11 of the RTI Act.
- 22 WEU27L and Mackay Hospital and Health Service  QICmr 44 (11 September 2017) (WEU27L)
- 23 WEU27L.
- 24 WEU27L.
- 25 WEU27L.
- 26  QICmr 6 (7 February 2018) (Lester).
- 27 OKP.
- 28  QICmr 48 (23 September 2021).
- 29 Schedule 4, part 2, item 10 - Disclosure of the information could reasonably be expected to advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies.
- 30 Malfliet and Department of Education, Training and Employment  QICmr 31 (17 July 2014), footnote 13.
- 31 Pemberton and the University of Queensland (1994) 2 QAR 293 (Pemberton), under the now repealed FOI Act, discussing Re Barkhordar and Australian Capital Territory Schools Authority (1987) 12 ALD 332.
- 32 (Unreported, Queensland Information Commissioner, 24 March 2010) (LUE), under the now repealed FOI Act.
- 33 Schedule 4, part 2, item 1 of the RTI Act.
- 34 (1997) 3 QAR 479 at paragraphs 28 and 29, under the now repealed FOI Act.
- 35  QICmr 46 (9 September 2021) (C98).
- 36 Keogh and Department of Health (Unreported, Queensland information Commissioner, 31 August 2010) (Keogh), under the now repealed FOI Act..
- 37 At paragraph 25.
- 38 Schedule 4, part 4, item 6 of the RTI Act.
- 39 Schedule 4, part 2, item 9.
- 40  QICmr 26 (4 June 2021).
- 41  QICmr 46 (9 September 2021).
- 42  QICmr 8 (7 March 2017).
- 43  QICmr 37 (20 August 2018).
- 44 OKP referring to the Victorian Court of Appeal decision in Victoria Police v Marke  VSCA 218.
- 45 OKP; F60XCX and Queensland Ombudsman  QICmr 28 (13 June 2014) (F60XCX).
- 46 (Unreported, Queensland information Commissioner 9 March 2011) (Swales).
- 47 X19 and Metro South Hospital and Health Service  QICmr 12 (26 February 2020) (X19) at paragraphs 31 and 32.
- 48 Knibb and Queensland Health  QICmr 20 (29 June 2007), under the now repealed FOI Act.
- 49 Lester.
- 50  QICmr 3 (15 February 2013).
- 51  QICmr 26 (1 August 2017), although note the information sought was not that of a deceased individual.
- 52 (Unreported, Queensland Information Commissioner, 5 September 1997) (F&K), under the now repealed FOI Act.
- 53 (1997) 3 QAR 479, under the now repealed FOI Act.
- 54 (Unreported, Queensland Information Commissioner, 31 March 2010) at 124-128, under the now repealed FOI Act.
- 55 (Unreported, Queensland Information Commissioner, 24 May 2010) at 52-57, under the now repealed FOI Act.
Current as at: June 21, 2022