Minogue v Information Commissioner & Queensland Health (No 2)
[2014] QCATA 101
•30 April 2014
| CITATION: | Minogue v Information Commissioner & Queensland Health (No 2) [2014] QCATA 101 |
| PARTIES: | Peter James Minogue (Appellant/Respondent) |
| v | |
| Information Commissioner (First Respondent) Queensland Health (Second Respondent/Applicant) |
| APPLICATION NUMBER: | APL427-13 |
| 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 application to amend portion of a document held by Queensland Health containing personal information about the applicant refused by Queensland Health on the ground that it was not satisfied the material information was inaccurate, incomplete, out of date or misleading – where finding by the Commissioner that the material portion of the document was not inaccurate, incomplete, out of date or misleading – where no evidence that finding was incorrect – whether appeal on a question of law – whether any error of law Information Privacy Act 2009 (Qld) s 44(1)(4), s 72(1)(a)(i), s 100(1), s 132 |
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 against a decision of the Information Commissioner (IC) affirming a decision by Queensland Health (QH) to refuse to amend a portion of a letter written by one of its officers containing personal information about the appellant together with an application by QH to dismiss or strike out the appellant’s appeal on the ground it disclosed no question of law.
Sections 41 and 44(1) of the Information Privacy Act 2009 (Qld) (‘IP Act’) make provision for the application the appellant made to QH. An applicant such as the appellant may apply for an amendment of any part of an applicant’s ‘personal information contained in a document that the individual claims is inaccurate, incomplete, out of date or misleading’.[1]
[1] Information Privacy Act 2009, s 44(1).
An appeal against a decision of the IC on an external review is only available on a question of law and must be by way of a re-hearing.[2] QH has the onus of establishing that the decision to refuse was justified.[3] However, an application for review is required to state the way in which the applicant claims the information to be inaccurate, incomplete, out of date or misleading and the grounds for the claim, to state the amendment the applicant claims are necessary and/or the other information the applicant claims necessary to complete or bring the information up to date.[4]
[2] Ibid, s 132.
[3] Ibid, s 100(1).
[4] Ibid, s 44(4).
Background
The appellant had been employed as a nurse at Townsville Hospital. He raised various issues and allegations which eventually led to QH conducting a formal investigation and preparing a report. QH then wrote to other persons including the appellant’s professional body the Queensland Nursing Council (QNC) noting the content of the investigation report. Included in the letter to the QNC was a passage summarising observations in the investigation report about the appellant as follows:
the ethical standards unit made a number of observations and recommendations in the investigation report including:
…
the complainant failed to meet his own obligations to report suspected official misconduct in a timely manner.
This passage in the letter is the passage which the appellant wished to have amended when he applied to QH. QH refused to amend the letter as it was not satisfied the information was inaccurate, incomplete, out of date or misleading.
Grounds of Appeal and Orders Sought
The appellant’s grounds of appeal were as follows:
·the office of the IC/QH recognise and acknowledge that the information in issue is inaccurate, incomplete, out of date and misleading;
·QH amends the employee record;
·QH informs AHPRA[5] that the information in issue is inaccurate, incomplete and misleading;
·the relevant employees are held accountable for their actions and disciplined.
[5] AHPRA is apparently the Australian Health Practitioner Regulation Agency.
The appellant sought the following orders:
I am applying to the tribunal in order that the information in issue is recognised and acknowledged as being out of date, inaccurate, incomplete and misleading and AHPRA is informed the information is amended and my nursing career registration body is informed of this.
Submissions
Under cover of a letter dated 14 October 2013 the appellant provided his submission on appeal to the Tribunal. On 24 October 2013 the Tribunal ordered QH be joined as a respondent and that the appellant file in the Tribunal and give to the IC and QH a submission which identified the question or questions of law sought to be the subject of the appeal proceedings. Under cover of a letter dated 20 November 2013 the appellant provided further submissions.
On 9 December 2013 QH lodged an application with the Tribunal to dismiss/strike out the appellant’s application to appeal. Under cover of a letter dated 15 February 2014 the appellant provided the Tribunal with submissions regarding QH’s application. I have read all the submissions.
Discussion
The essence of the appellant’s submissions is that he did not fail to meet his reporting obligations about official misconduct in a timely manner. Rather, it was another or others who failed to meet their reporting obligations. This is fleshed out in the submissions by the appellant’s version of events which were, at least in part, the subject of the investigation; how allegations he made were not followed up as they should have been, rather, he was the subject of unfair and biased investigation.
The IP Act provides grounds on which amendment of a document may be refused by an agency such as QH. Relevantly:
Grounds on which amendment may be refused
1.Without limiting the grounds on which the agency or minister may refuse to amend the document the agency or minister may refuse to amend the document because –
a.The agency or minister is not satisfied –
i.The personal information is inaccurate, incomplete, out of date or misleading.[6]
[6] Information Privacy Act 2009, s 72(1)(a)(i).
The delegate found that the part of the letter the appellant wished amended was ‘generally consistent with relevant content in the investigation report and there is no objective evidence to suggest it does not accurately reflect the author’s interpretation of that latter document’.[7]
[7] Paragraph 3 of the IC decision.
The delegate recorded that he had read the investigation report and compared it with the passage in the letter. He confirmed it contained ‘observations referring to the applicant’. He continued, ‘while not a word for word recitation of some of the information in issue it is generally consistent with those observations’. I agree. He concluded the applicant’s material before him had not shown that the words in issue were inaccurate, incomplete, out of date or misleading.
The material remark in QH’s letter was the author’s summation of a part of the Ethical Standards Unit investigation report. So long as it did not misrepresent what was in the report then it cannot be concluded that the material remark was inaccurate, incomplete, out of date or misleading.
This conclusion by the delegate is fatal to the appellant’s appeal. It is not sufficient to simply assert, as the appellant does, that the delegate erred in his findings. His findings were a matter of fact. Nothing emerges from a consideration of all the material, from the delegate’s reasons or the appellants submissions which raise any relevant question of law.
There is nothing in all the material before me which raises any question of law relevant to the IC decision. Accordingly, the appeal is dismissed and the decision of the IC is affirmed.
0
0
0