Right to Information No.: RTI202223-004

Right to Information No.: RTI202223-004

Date of Decision:          7 February 2023

Information Requested

An application made pursuant to the Right to Information Act 2009 (‘the Act’), received the Department of Health (“the public authority”) on 4 July 2022 and accepted on 12 July 2022.

The applicant, pursuant to s15(4)(a) of the Act, agreed to grant an extension on the application for assessed disclosure.

The information requested:

We would like to request from our client's time at the Royal Hobart Hospital, specifically to do with burns, also in relation to any stiches our client received on her head. 

Application Fee

The prescribed application fee was waived in accordance with:

…

s16(2)(a) (the applicant is an impecunious).

Decision and Statement of Reasons

I have decided to release 643 pages of information to you, subject to exemptions under the Act. 

Section18 Provision of information

Section 18(5) provides:

…

(5) If –

(a) a request is made to a public authority or Minister for information of a medical or psychiatric nature concerning the person making the request; and

(b) it appears to the principal officer of the public authority or to that Minister that the provision of the information to that person might be prejudicial to the physical or mental health or wellbeing of that person –

the principal officer or Minister may direct that the information must not be provided to the person who made the request but must instead be provided to a medical practitioner nominated by that person.

The discretion conferred by s18(5) is similar to s41(3) of the Right to Information Act 2009 (Qld) where in S v Medical Board of Queensland [1] principles were endorsed for the application of the provision.

1. Does the document in issue contain information of a medical or psychiatric nature concerning the applicant?
2. If the information were disclosed direct to the applicant is there a real and tangible possibility as distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or well-being of the applicant?
3. If there is a real or tangible possibility of such prejudice the decision-maker is called upon to exercise his discretion whether to direct that access which would otherwise be given to the applicant should be given to a medical practitioner nominated by the applicant.

It is a matter of fact, the request is for medical information concerning the applicant. I am satisfied, if the information were disclosed direct to the applicant there is a possibility of prejudice to the mental health or well-being of the applicant. Well-being has a wide import that indicates a broad approach is to be taken when applying this provision.

Having studied the file, my view is the prejudice may be sufficient to be of concern but not of major concern. I am not convinced there is a real and tangible possibility of prejudice to the applicant’s physical or mental health or wellbeing if the applicant were to be given direct access to the information. On the range of concern from small to significant this is at the lower end of the scale.

I have decided not to exercise my discretion under s18(5).

Section 33 Public interest test

Section 33 provides

Public interest test

(1) In this Division, information is exempt information if the principal officer of the public authority or Minister considers, after taking into account all relevant matters, that it is contrary to the public interest to disclose the information.

(2) The matters which must be considered in deciding if the disclosure of the information is contrary to the public interest are specified in Schedule 1 but are not limited to those matters.

The section sets out how the decision maker determines if the disclosure of information is contrary to the public interest. For this the following matters of Schedule 1 have been applied in relation to the public interest test as required by s33:

Section 36 Personal Information

Section 36 provides:

Personal information of person

(1) Information is exempt information if its disclosure under this Act would involve the disclosure of the personal information of a person other than the person making an application under section 13.

The definition of personal information in s5 of the Act includes …any information or opinion in any recorded format about an individual whose identity is apparent or reasonably ascertainable from the information or opinion and who is alive, or has not been dead for more than 25 years.

Personal information can include a person’s name, address, telephone number,[2] date of birth, medical records, bank account details, taxation information [3] and signature.[4] Nevertheless the information needs to convey or say something about a person, rather than just identify them. Subsequently, where information that may seem individually harmless but capable of being combined with other pieces can generate a composite, a mosaic, which can be used to identify and say something about a person.[5] For example, the mere mention of a person’s name or signature may, however, reveal personal information about them depending on the context.[6]

The extent to which the information is well known and the availability from publicly accessible sources [7] are matters to be given regard as part of the assessment.

It is, generally considered that the names and related information of State Service employees acting in the course of their duties and who are publicly identifiable will be disclosed if the person is not placed at risk by disclosure.[8]

In ‘BA’ and Merit Protection Commissioner,[9] the Australian Information Commissioner reconsidered several earlier cases dealing with the disclosure of certain vocational information whereby:

… the notion of disclosure to the world at large has a different meaning with developments in information technology. It is now considerably easier for a person who has obtained information under the FOI Act to disseminate that information widely, to do so anonymously and to comment upon or even alter that information. …

… There is also a growing and understandable concern that personal information that is made available on the web can be misused or used differently by others …

These statements about the impact of technology and current attitudes to privacy, in particular, are relevant to employees’ personal information, regardless of whether they are public or private sector employees.

In addition to the statements in ‘BA’, the disclosure of the identity of officers now has much greater privacy impacts than in the past. Before the broad community use of social media, the disclosure of an officer’s name on a document might have permitted an applicant to determine an individual’s telephone number or address. Today, an individual’s identity may be connected effortlessly with a vast range of personal information available through social networks, such as: photographs; friends’ and family members’ identities and photographs; employment histories; social activities and interests; personal opinions, including political opinions, and so on.

Under the Act, disclosure to an applicant of the information is considered to be, in effect, disclosure to the world at large because no restrictions can be placed on the use that may be made of the information to which access is given.[10]

Conversely, the Department of Health is a public authority that for business and security reasons does not display personal employee contact details in the public view function of the directory.[11] Additionally, the area of work associated with the delivery of a health service warrants a cautionary approach to the management of personal information.

It is for this reason I am satisfied the information regarding the officers and other parties is personal information and exempt information.

The personal information regarding the subject of the request is not exempt information.

Public Interest

There has been drawn a distinction between the public interest in disclosure and matters that are of interest to members of the general public. The fact that there is a section of the public interested in a certain activity will not necessarily lead to the conclusion that disclosure of information relating to it will be in the public interest.[12]

Public interest has been variously described as the sum of special interests, the sum of all private interests, the net result of individuals pursuing their self-interest, the broad shared interests of society, and the shared or collective values of the community – the goals or values on which there is consensus. 

The meaning of the term was considered in some detail by the Full Court of the Federal Court of Australia in its decision McKinnon v Secretary, Department of Treasury [13] where Tamberlin J noted:

9     The expression in the public interest directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances. There will, as in the present case, often be competing facets of the public interest that call for consideration when making a final determination as to where the public interest lies and these are sometimes loosely referred to, in my view, as opposing public interests…

10   The expression the public interest is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination...

The High Court considered the phrase public interest in O’Sullivan v Farrer,[14] and described it as:

... the expression in the public interest, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only …in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view…

Who may be considered the relevant public when public interest is at issue has also been considered by the High Court, which found that the public need not include the entire population, but rather, it may include only the interests of a substantial section of the public.[15]

So, the public interest test requires a balancing of the public interest in citizens being informed of the processes of their government and its agencies on the one hand against the public interest in the proper workings of government and its agencies on the other.[16]

The (a), (m), (p) and (q) matters of Schedule 1 have been applied in relation to the Public Interest Test as required by s33 to the personal information of the information custodian.

I accept that the disclosure of the information reflects public interest with the community having an understanding of and an involvement in the democratic processes. I am satisfied the information held by the public authority should be accessible (a).

However, as to matter (m), I consider disclosure would harm the interests of third parties by the mere fact that disclosure of the information could create apprehension in the mind of the person concerned is enough to render disclosure unreasonable.[17]. As to (p), this matter relates to the broader issue of human resources. If the public authority officers become aware that their communication and comments are attributed to them, they may not be as open and frank in their communications as they otherwise would. This would have a significant adverse effect on the public authority’s ability to manage matters.

I consider that for (q), disclosure would have an adverse effect on the industrial relations of the public authority. Industrial relations covers the operation of the public authority. The public authority maintains specific channels for the public at large to make contact. The disclosing of names and other details would enable members of the public to contact individual public authority officers directly outside the public authority’s preferred contact points.

In my view, it is contrary to the public interest to disclose the information relating to third parties. It is not contrary to the public interest to disclosure the personal information of the applicant.