Minogue v Information Commissioner & Queensland Health
[2014] QCATA 98
•30 April 2014
| CITATION: | Minogue v Information Commissioner & Queensland Health [2014] QCATA 98 |
| PARTIES: | Peter James Minogue (Appellant/Respondent) |
| v | |
| Information Commissioner (First Respondent) Queensland Health (Second Respondent/Applicant) |
| APPLICATION NUMBER: | APL269-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judicial Member Dodds |
| DELIVERED ON: | 30 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed. 2. The decision of the Information Commissioner is affirmed. |
| CATCHWORDS: | APPEAL – FREEDOM OF INFORMATION –where findings by commissioner that some of information sought: was exempt because was subject to legal professional privilege; some other information sought was contrary to public interest; some other information sought was outside the scope of the access application – where no evidence that findings were incorrect – whether appeal on question of law – whether any error of law Information Privacy Act 2009 (Qld), s 67, s 100, s 118(1)(2), s 132(2)(5), s 139 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
REASONS FOR DECISION
This matter comprises an appeal by the appellant Peter James Minogue lodged on 26 March 2013 against a decision of first respondent the Information Commissioner (IC) and an application by the second respondent Queensland Health (QH) to dismiss the appeal on the ground it disclosed no question of law.
The IC decision was given by a delegate of the IC[1] on an external review of a decision of QH whereby access was refused to some of the information sought by the appellant under the Information Privacy Act 2009 (Qld) (‘IP Act’). The IC decision refused access to some of the information sought because it was subject to legal professional privilege, to other information sought because its disclosure would, on balance, be contrary to public interest. It also found other information sought was outside the scope of the access application.
[1] Information Privacy Act 2009 (Qld), s 139(s)(5).
Such an appeal is only available on a question of law and must be by way of a re-hearing.[2]
[2] Ibid, s 132.
The appellant is apparently not legally represented. His grounds of appeal were:
·QH terminated my employment for misconduct and contravening a direction and I require all documentation naming myself for my defence in my re-instatement case.
·QH is using the dismissed appeals that I have submitted as supportive evidence to object to my re-instatement before the Queensland Industrial Relations Commission.
·It is my right to be given access to adverse and detrimental comment about myself which has supported reprisal and which was created in my dismissed appeals and under unjust and unwarranted discipline process.
·QH terminates the employment of employees who report public interest disclosures which has occurred to me and I have been granted whistleblower status.
·It is in the public interest to have employees conduct assessed and held to the standards as legislated.
He sought the following order
·I am applying to the tribunal in order that I am provided with a copy/access of all the information in category A, B and C which I am being refused access by QH and IC.
On 30 August 2013 the Tribunal ordered QH be joined as a respondent to the applicant’s appeal.
On 1 October 2013 QH lodged its application in the Tribunal to dismiss or strike out the appeal on the ground that the Tribunal’s jurisdiction was limited to an appeal on a question of law and the appellant had not identified any arguable question of law in his appeal.
The appellant has provided written submissions on his present appeal and in response to QH’s application to dismiss or strike out the appeal. I have read those submissions with a view to identifying any question of law relevant to the IC decision. QH has provided submissions regarding its application.
The IP Act
The appellant’s right to be given access to personal information held by QH is regulated by the IP Act and the Right to Information Act 2009 (Qld) (‘RTI Act’). Both Acts have a bias towards access but provide for refusal of access if legal professional privilege applies to information or if the public interest is against access. The IC has jurisdiction to review the deemed decision and decide any matter in relation to the access application that could have been decided by QH.[3] However, if it be established that information is exempt or contrary to public interest the IC does not have the power to direct access be given.[4]
[3] Ibid, s 118(1).
[4] Ibid, s 118(2).
The Decision of the IC
I have read the delegate’s reasons for the IC decision on the external review with a view to identifying any legal error or question of law which arises and to assist in understanding the appellant’s written submissions.
The external review was concerned with three categories of documents or information labelled A, B and C.
The delegate’s reasons include an appendix which sets out the history of the application for access, its process with QH and the IC on external review. They identify the issues on the external review as:
·whether QH was entitled to exclude from consideration or refuse access to the information in issue under s 67 of the IP Act:
·for category A information, because it comprised exempt information because it was subject to legal professional privilege;
·for category B information because on balance providing access to it would be contrary to public interest;
·for category C information because it was outside the scope of the access application.
The delegate set aside the deemed decision under review and found that QH was entitled to:
·refuse access to category A information as it was subject to legal professional privilege;
·refuse access to category B information as its disclosure would, on balance, be contrary to public interest;
·exclude the category C information from consideration as it was outside the scope of the access application.
Regarding the category A information, the delegate’s reasons indicate she correctly directed herself about legal professional privilege and the provisions of the IP Act and the RTI Act[5] whereby access to documents containing personal information may be refused if the information would be privileged from production in a legal proceeding on the ground of legal professional privilege. She examined the documents in question. She summarised the applicant’s submissions and considered whether the privilege had been waived expressly or impliedly or was displaced by some improper purpose underlying the information.
[5] Ibid, s 67; RTI Act, s 47.
She concluded the information was subject to legal professional privilege and there was no basis shown to deny that privilege. The RTI Act deems such information to be exempt information. Once the delegate found that, she had no power to direct access to the information.[6]
[6] IP Act, s 118.
Regarding the category B information, the delegate’s reasons indicate she correctly directed herself about the provisions of the IP Act and the RTI Act insofar as they related to the refusal of access as contrary to the public interest. She described the category B information as:
·information provided by other staff in relation to their emotions, team morale and incidents involving the applicant;
·communications between management personnel regarding options and procedures for dealing with staffing issues largely initiated by the applicant or, to a less extent, otherwise involving the applicant, arising from the applicant’s employment with QH.
She then proceeded to identify and consider relevant factors favouring disclosure and non-disclosure. She concluded that on balance disclosure of the category B information would be contrary to the public interest.
Regarding the category C information the delegate’s reasons indicate she concluded this information fell outside the scope of the application:
·some of the information did not mention the applicant or contain his personal information. Under the IP Act the right to access information only applies to the applicant’s personal information;
·during the processing of the application the applicant notified QH that he excluded from his application any documents QH had received from the applicant and provided to the applicant. The balance of category C information comprised this material.
The above comprises a summary of the delegate’s thorough reasons for the IC decision. No error of law is apparent from the reasons.
The Appellant’s Submissions
The appellant provided written submissions in his appeal under cover of a letter dated 18 September 2013 and in his response to QH’s application under cover of a letter dated 4 November 2013.
It is appropriate to examine these submissions to discern whether any question of law arises regarding the IC decision.
The 4 November 2013 Submissions
The appellant’s submissions under the heading ‘background’ relate to his interpretation of events which occurred when he was employed by QH. They are irrelevant to the present enquiry.
The submissions are then arranged under the three categories of information in the delegate’s reasons.
The appellant’s submissions comprise a number of questions with respect to the category A information: firstly, whether the IC had the power or discretion to deny the information the protection of legal professional privilege. He advanced reasons for denying protection; the information was brought into existence for an improper purpose and the public interest in exposing the improper purpose.
For information to be exempt it must fall into a category provided in Schedule 3 of the RTI Act one of which is information the subject of legal professional privilege. Schedule 3 sets out the type of information the disclosure of which the parliament has considered would, on balance, be contrary to the public interest.[7] In her reasons the delegate considered whether privilege should be denied because the information was brought into existence for an improper purpose. There was no evidence that the information in question was gathered or kept for an improper purpose. The delegate, correctly in my view, concluded that the privilege attached to the information. Once she reached that conclusion the information was exempt and she had no power to direct its release.
[7] RTI Act, s 48(3).
The appellant’s submissions also comprise a number of questions regarding the category B information.
The first question queried whether the category B information was collected in accordance with National Privacy Principles (NPP). These are in Schedule 4 of the IP Act. QH is required to adhere to them in its collection and use of personal information of persons.
This question is irrelevant in the present context. The IC was undertaking an external review of an application for access under the IP Act. It was not engaged in a hearing or conciliation about some breach of the NPP. Whether or not information was collected in breach of the NPP had no bearing on the process of balancing the factors in favour of disclosure of information and against. The question does not raise a question of law against the IP decision.
Another question asked whether QH and its employees were held accountable for breaches in IP legislation. This question is also irrelevant in the present context. It does not raise a question of law.
Another question asked whether the appellant was given his natural justice right to reply to comment and accusations which could be inaccurate, incomplete, out of date or misleading placed on his personal record detrimental to his personal or professional interest/reputation.
The delegate touched upon this question in her reasons under the heading ‘Administration of Justice and Procedural Fairness’ when considering this category of information. She said ‘on careful consideration of the small amount of information that could possibly be construed as comprising adverse allegations against the applicant, in each instance I am satisfied from the content of the documents that the substance of such information was put to the applicant either during QH’s internal investigation of grievances against others or proceedings before the Public Service Commissioner or Industrial Relations Commission’.[8] No question of law is identified. The delegate’s finding is factual.
[8] Delegate’s Reasons at [40] to [41].
Another question asked whether the IC erred in denying the appellant his legislated right to access his personal information.
The appellant’s right to access his personal information held by QH is legislated for and regulated by the IP Act and RTI Act.[9] The delegate proceeded to the IC decision in accordance with the provisions of the Act. No error of law is apparent on a consideration of the reasons for the IC decision.
[9] IP Act, s 40.
Another question asks whether the public or employees will lose confidence in government departments for breaching relevant information legislation in relation to the collection, storage and use of personal information involving the public or employees.
This question raises no relevant question of law.
There are three more questions. They ask whether it is in the public interest for personal information to be managed in accordance with the IP Act, to hold employees of government departments accountable for disregarding legislation and NPP in dealing with personal information, to have personal information disclosed when requested especially in relation to the investigation of reprisals against an employee who reported public interest disclosures.
None of these three questions raise any relevant question of law.
Regarding the category C information, the appellant’s submission again comprises questions. There is a reference to a requirement that QH comply with NPP, whether non-disclosure of the information would prevent investigation of non-compliance with NPP, whether non-disclosure would prejudice the appellant’s right to amend inaccurate, out of date, incomplete or misleading information on his personal record or to seek redress for crimes against whistleblowers, whether it would lead to the public or employees losing confidence in government departments.
None of these raise any question of law regarding the IC decision. The category C documents were plainly outside the scope of his access application.
The appellant’s submission under the heading ‘Summation’ comprises further questions. These are essentially a re-hash of what has gone before. None of them raise any question of law.
The 18 September 2013 Submissions
Regarding the category A information, the appellant’s submission is that minimal consideration and weight was given by the delegate to the fact the information arose in the context of an unfair dismissal process, of an unwarranted disciplinary penalty under the Public Service Act 2008 (Qld), to the appellant’s whistleblower status under the Public Interest Disclosure Act 2010 (Qld) and to the information being used against him in his application for reinstatement before the Queensland Industrial Relations Commission.
None of this raises any relevant question of law. None of the appellant’s assertions raise any question of law touching the delegate’s finding that the category A information was exempt information under the legislation.
Regarding the category B information, the appellant’s first submission argues that because QH had disclosed some other similar information to the appellant which was inaccurate, incomplete, fabricated, lies and defamatory and which was then removed from his personal file, a precedent had been set which favoured him accessing this sort of information for assessment and removal if inaccurate, incomplete, fabricated or misleading.
The second submission comprised material similar to that already mentioned about QH breaching the NPP.
The third submission involved the assertion that QH had created a secret employee record detrimental to the appellant’s interests during a QH investigation into the appellant’s reported public interest disclosures whilst he had whistleblower status.
None of these submissions raise any questions of law relevant to the IC decision.
The appellant also listed a number of the factors set out in Schedule 4, Part 2 RTI Act which favour disclosure of information and submitted that not enough weight or consideration was given to them by the IC decision.
I have considered this submission. The delegate’s reasons regarding the category B information are quite comprehensive. She examined the various category B information the subject of the external review, a number of the legislated factors favouring disclosure and non-disclosure and balanced them in the process of reaching her decision.
It is not apparent to me that she gave insufficient weight or consideration to any of the factor’s set out in the appellant’s submission. To the contrary it appears thorough consideration was given to the legislated factors favouring disclosure and non-disclosure. It cannot be said the conclusion reached is incorrect.
Regarding the category C information it is sufficient to say the submissions do not disclose any question of law arising out of the IC decision.
Decision
The appellant’s right to appeal is limited to a question of law. The grounds of appeal set out above, on their face, appear not to identify any question of law. The appellant’s submissions raise no relevant question of law. I agree with the delegate’s reasons. They expose no question of law.
The appellant’s appeal is not based on any question of law. Accordingly the appeal is dismissed. The decision of the Information Commissioner is affirmed.
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