Queensland Health v Information Commissioner and Crutcher
[2011] QCATA 66
•8 April 2011
| CITATION: | Queensland Health v Information Commissioner and Crutcher [2011] QCATA 066 |
| PARTIES: | Queensland Health (Appellant) |
| v | |
| Clare Smith, Right to Information Commissioner (First Respondent) And Michael Crutcher (Second Respondent) |
| APPLICATION NUMBER: | APL095-11 |
| MATTER TYPE: | Application for stay pending appeal |
| HEARING DATE: | On the papers (decision delivered 4 April 2011) |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 8 April 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for stay refused. |
| CATCHWORDS: | APPEAL – APPLICATION TO STAY DECISION PENDING APPEAL – RIGHT TO INFORMATION – where a journalist applied to Queensland Health for access to documents – where access to certain documents was refused – where a subsequent application was made to the Office of the Information Commissioner for external review of the refusal – where the Commissioner found that the information should be disclosed to the journalist as it was not exempt information under the Right to Information Act 2009 and disclosure would not be contrary to the public interest – where Queensland Health now seeks to appeal that decision on a question of law – where Queensland Health alleges that a stay pending the outcome of the appeal is necessary to ensure that the appeal would not lose any force or effect and that the Tribunal’s orders would be fully effective – whether the stay should be granted Queensland Civil and Administrative Tribunal Act 2009, ss 142, 145 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined and on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Crutcher is a journalist with The Courier Mail. In mid 2009 he applied to Queensland Health (QH) for access to any documents relating to hospital emergency departments which reviewed in-unit deaths between 1 July 2008 and 30 June 2009, and pregnancy miscarriages 1 July 2004 to 30 June 2009; and, which showed investigations into performance relating to patients in the triage category of resuscitation, who had not been seen immediately at emergency, during the period 1 July 2007 to 30 June 2009.
After discussions between Mr Crutcher and QH the scope of the application was reduced to the emergency departments of four particular Queensland hospitals, and some of the time periods were shortened. In particular, Mr Crutcher agreed not to pursue access to ‘patient identifying information’.
In November 2009 QH notified him that it had identified some documents relevant to the request, but was refusing access to all of them under certain provisions of the Right to Information Act 2009 (RTI Act).
Mr Crutcher applied to the Office of the Information Commissioner for what the RTI Act calls ‘external review’ of QH’s refusal. Ms Smith, the Commissioner, undertook the review and on 22 February 2011 published an 18 page decision in which she set aside QH’s decision and found that the information Mr Crutcher sought should be disclosed to him because it was not exempt information under the RTI Act, and its disclosure would not be contrary to the public interest.
The RTI Act gives QH the right to appeal to QCAT’s Appeal Tribunal, but only on a question of law.[1] QH filed its appeal on 21 March 2011 and, on the same day sought an order that the operation of the Commissioner’s decision of 22 February 2011 should be stayed pending the outcome of the appeal.
[1] RTI Act, s 119(2).
The Appeal Tribunal may make an order of that kind under s 145(2) of the QCAT Act. A stay is necessary, QH says, to ensure its appeal does not, before it is heard, lose any force or effect (is rendered nugatory) and to ensure that, if the appeal succeeds, the Appeal Tribunal’s orders are fully effective.
On 23 March 2011 I ordered that the stay application would be determined on the papers, set a timetable for the exchange of written submissions up to 29 March and, in the interim, ordered a stay of the Commissioner’s decision until 4pm on 1 April 2011. Later, the parties agreed to extend that time to 4pm on 4 April 2011, and to allow the applicant to file and serve supplementary submissions. After considering the written submissions I ordered, on 4 April 2011, that the stay be refused – in effect, lifted.
In the appeal proper the parties have been ordered to exchange submissions on a timetable up to 18 April. Then, a directions hearing will be held to determine how the appeal will progress and, if necessary, to set a hearing date.
QH (through Crown Law, and Counsel) and Mr Crutcher (through his solicitors, and Counsel) have provided written submissions (including supplementary submissions in reply from QH). The Commissioner has said that she will simply abide the Appeal Tribunal’s order.
[10] The discretion to order a stay under s 145(2) will arise for consideration in a wide range of circumstances. The RTI Act gives the Commissioner a wide discretion, and wide powers, which are not dissimilar to those given to QCAT Members in the Tribunal’s review jurisdiction:[2] for example, the Commissioner can require better reasons from a government agency, or Minister; demand documents; and, examine witnesses. The Commissioner’s powers, under s 110, to affirm, vary or set aside and substitute her own decision for that of the original decision-maker are also akin to the review powers of members under QCAT (and also, of course, to those generally attached to judicial review). The appeal process from the Commissioner’s decisions to QCAT’s Appeal Tribunal, also limited to questions of law, closely mirrors QCAT’s internal processes.[3]
[2] RTI Act, ch 3, pt 9, divs 4, 5.
[3] RTI Act, s 119(2); QCAT Act, s 142.
[11] This analysis suggests that, in considering the nature of the discretion attached to QH’s request for a stay, it is not inappropriate to accord the Commissioner’s decision the weight, and significance, which will ordinarily attach to a decision reached after a judicial process, tempered by an acknowledgement that the Commissioner’s decision-making exercise is not, ordinarily, quite so stringent as the adversarial trial process undertaken in a court.
[12] Subject to that distinction there is no apparent reason why decisions concerning stays in appellate courts, arising in cases involving appeals from judges, cannot be considered for guidance about the nature of the discretion here.
[13] Hence, guidance can be found in the judgment of Keane JA (as his Honour then was) in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453[4] when he observed that an applicant for a stay will have to establish a sufficient basis to outweigh the consideration that the judgment at first instance should not be treated as merely provisional, and that a successful party is entitled to the fruits of its judgment.[5]
[4] At 455.
[5] Berry v Green [1999] QCA 213; Croney v Nand [1999] 2 Qd R 343 at 348.
[14] As his Honour went on to observe, if it is possible to make a preliminary assessment of the strength of the appellant’s case, the possibility of success on appeal ‘… may weigh significantly in the balance of relevant considerations’; and poor prospects will obviously tend to favour the refusal of a stay.
[15] Cook’s Construction also shows that questions like the appellant’s prospects in the appeal have to be considered in tandem with other factors which may arise, in different forms and with different emphasis, in each case – for example, will a refusal of the stay render the appeal ‘nugatory’; and will the appellant suffer irremediable harm if the stay is refused but the appeal is ultimately successful?
[16] Here, the question of QH’s prospects is squarely in issue. Mr Crutcher’s submissions argue that QH’s stated grounds of appeal, as outlined in its application and the submissions it filed in the stay proceeding, are very poor.
[17] While any preliminary assessment of a party’s prospects on appeal must be approached cautiously, this is a case in which the exercise can be undertaken in some detail, and on a larger scale than might be usual, because both parties’ submissions helpfully address, at length, the questions of law which QH says provide proper grounds for its appeal and, rather, give it good prospects of success.[6]
[6] RTI Act, s 119(2).
[18] QH’s grounds 1 and 2 assert that the Commissioner ‘constructively’ failed to apply certain tests contained in schedules to the RTI Act which were integral to her decision; ground 3 asserts, in the alternative, that by reason of the facts particularised in relation to grounds 1 and 2 the Commissioner wrongly denied QH the necessary measure of natural justice, by misunderstanding its claim about the effect of disclosure of the information in issue.
[19] Ground 4 involves another assertion of a failure to comply with a part of a schedule in the RTI Act; ground 5 alleges that the Commissioner misconceived the meaning of an individual’s ‘right to privacy’ and ‘privacy’ as those terms are used in Schedule 4 of the RTI Act; and ground 6 is advanced in the alternative to ground 5, and involves an allegation that the Commissioner wrongly applied other parts of Schedule 4.
[20] These grounds can be more readily understood if the learned Commissioner’s decision is summarised. She considered the request for information on two grounds: possible prejudice to a system or procedure, or to persons; and, whether or not disclosure would be contrary to the public interest. She undertook, with respect, a careful and detailed investigation of QH’s policies about the reporting and investigation of deaths and concluded that a ‘system’ did exist.
[21] As the legislation required, she then considered whether or not that system was for the protection of persons and, again, decided that it was. She then went on to consider whether disclosure could reasonably be expected to prejudice that process and, for reasons which have all the appearance of logic, and persuasive argument, found that disclosure would not have that adverse effect.[7]
[7]Commissioner’s Reasons: Exhibit LMR-6, Affidavit of Lauren Reibelt filed 25 March 2011.
[22] She then went on to consider the question of public interest and determined, again for reasons which appear to be logical and the product of appropriate consideration of the legislation, that there was no reason to expect, in particular, that the public interest might be compromised in that meaningful participation, by staff including clinicians, in QH’s ‘death review process’ could be compromised.
[23] At the core of QH’s submissions, commencing with its first ground, is an allegation that there is a real risk that clinicians will withdraw their voluntary participation in QH’s death review process, because of a risk to confidentiality. It says that the Commissioner’s finding failed to deal with its submission that clinicians would, in fact, expect information to be kept confidential and will not voluntarily participate in the process if that expectation is not met.[8]
[8] Applicant’s submissions filed 25 March 2011, [18].
[24] This ground, and the submissions advanced in support of it, have all the flavour of a dispute about factual findings by the Commissioner and very little of a question of law. QH is plainly disappointed with the Commission’s findings of fact about these issues which were adverse to it, but that disappointment cannot be disguised as a question of law.
[25] There appears to be an attempt to construct a question of law by referring to the reasonableness of the decision but the Commissioner outlined carefully, and at length, the steps she undertook in considering whether the information in issue was exempt for any reasons to do with the Act and, in particular, exposed the reasoning which underpinned her finding that there was no reasonable basis to expect that the disclosure of the information in issue could prejudice QH’s death review process.[9]
[9]The test to be applied under the RTI Act, sch 3, s 10(1)(i) – upon which Ground 1 relies.
[26] Ground 2 suffers the same difficulty. It is alleged the Commissioner failed to apply another test[10] which required a determination whether disclosure could reasonably be expected to prejudice the effectiveness of testing or auditing procedures. The Commissioner plainly considered that issue, and QH has not identified any error with her construction of the relevant provision. Again, this ground appears to be an attack upon a finding of fact.
[10] RTI Act, sch 4, pt 3, s 21.
[27] Ground 3 asserts that the Commissioner misunderstood QH’s claim about the effect of disclosure – but, in her Reasons the Commissioner expanded at great length about the issues she had to address and, in the face of what she said, it is very difficult to see how it could ever be successfully contended that she did not have a complete (or at least necessary and sufficient) understanding of the arguments before her. In addition, of course, she had the benefit of QH’s own initial decision refusing to disclose the information, and its submissions to her about that.
[28] Ground 4 involves another assertion that the Commissioner failed to observe requirements arising under schedules in the RTI Act here – that she failed to consider whether disclosure of the information could reasonably be expected to cause a ‘public interest harm’ (if disclosure would prejudice the effectiveness of a method or procedure for the conducts of tests, examinations or audits or prejudice achieving the objects of those things). Again, however, the Commissioner expressly dealt with that issue in her Reasons[11] and found, as a matter of fact, that the consideration did not apply. It is simply impossible to say that she overlooked the issue.
[11] [55], [56].
[29] Grounds 5 and 6 involve an assertion by QH that the Commissioner misconceived the meaning of the words ‘privacy’ and ‘right to privacy’ in Schedule 4[12] by assuming that redacting information which identifies individuals in the documents meant there was no remaining information to which those terms, as they are used in the Schedule, might apply. It is said that the Commissioner drew a ‘bright line distinction’ in finding that there was no legitimate public interest in the privacy of information that does not identify individuals or lead to their identification.
[12] RTI Act, sch 4, pt 3 ss 3, 5.
[30] It cannot be said that the Commissioner suggested, either expressly or by implication, that disclosure of personal health information would not intrude on privacy; nor that she somehow misunderstood the meaning of the term. She specifically found that, because some material was to be excluded, disclosure of the information would not raise a legitimate public interest in protecting the privacy of individuals in this case. That does not involve a finding that personal health information does not concern, or cannot attract the right to privacy. Rather, it was a simple finding of fact – that no disclosure of private health information was contemplated here, because this identifying information was to be redacted.
[31] This analysis points quite strongly to the conclusion that QH’s appeal grounds do not involve questions of law but, largely, seek to re-ventilate the Commissioner’s findings of fact which were adverse to QH’s submissions to her.
[32] The test to distinguish between questions of law and fact is nebulous but, in the case of statutes in which words are used in a way which might be expected to reflect common understanding, their actual meaning is usually a question of fact.[13] The Commissioner’s references to, and use of, words and phrases in the RTI Act and its schedules is uncontentious. QH’s dissatisfaction is, really, with factual findings she made with reference to the questions and issues arising under the legislation. Those findings of fact are not open to attack on appeal. I am satisfied for these reasons that QH’s prospects of success in the appeal can, not unreasonably, be described as poor.
[13]Hope v Bathurst City Council (1980) 144 CLR 1; Vetter v Lake Macquarie City Council (2001) 202 CLR 439.
[33] The principal grounds advanced for the stay (a claimed loss of confidentiality) do not withstand analysis in the face of the findings of fact made by the Commissioner that disclosure will not, in truth, breach any confidentiality, and will not cause prejudice.
[34] Once that is appreciated, and because it is clear from the analysis set out above that the appellant’s prospects in the appeal are not strong, it cannot be said that a stay is either an appropriate exercise of the discretion or necessary here. It is also appropriate to observe that, even if the appellant’s prospects are stronger than this assessment suggests, the absence of any apparent basis for a genuine concern about breaches of confidentiality or actual prejudice would, by themselves, be sufficient to warrant a refusal of the stay.
[35] Nor can it be said the removal of a stay renders the appeal pointless, or academic. This application for information involved only four hospitals, and has all the appearance of a test case. This factor rather fades, in any event, as something to which much weight would be given here in light of the other conclusions drawn about QH’s prospects, and the Commissioner’s findings that prejudice is not a material issue.
[36] In her submissions the Commissioner signified the possibility she might wish to claim costs. If costs are to be sought any applicant for them should file and serve submissions within seven days, and any respondent within seven days thereafter.
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