VHL and Department of Health
(210239, 20 February 2009)
The applicant sought access to documents concerning the Justice Examination Order (JEO), pursuant to which she had been examined under the Mental Health Act 2000 (Qld) (MHA 2000), and following which, no further action had been taken.
The Department of Health (Department) claimed that of the documents responding to the FOI Application, 4 folios qualified for partial or full exemption under sections 44(1), 42(1)(b) and 42(1)(ca) of the Freedom of Information Act 1992 (Qld) (FOI Act).
During the course of the review, the applicant indicated that she no longer sought access to the information which was the subject of the Department’s section 44(1) exemption claim. Accordingly, that folio was no longer considered in the external review.
The Department also reconsidered its position in response to preliminary views issued by the Office and decided to withdraw its section 42(1)(b) claim in preference for a claim under section 42(1)(h) of the FOI Act. Submissions from the third parties (the JEO applicant and the Justice of the Peace (JP)) were also considered during the review.
In view of the above developments, the only matters requiring consideration in the external review were the application of sections 42(1)(h) and 42(1)(ca) of the FOI Act to the 3 folios remaining in issue - including a 2 page JEO application and a 1 page JEO.
Section 42(1)(h) Prejudice a system or procedure
In respect of the JEO application, the Acting Information Commissioner applied the principles established in ROSK and Brisbane North Regional Health Authority; Others (Third Parties) (1996) 3 QAR 393 and “TQN” and Royal Brisbane Health Service District (Unreported, Queensland Information Commissioner, 31 October 2002) and found that:
· the JEO procedure set up under the MHA 2000 was a system or procedure set up for the protection of persons
· disclosure of the JEO application could reasonably be expected to result in other potential informants being less likely to provide relevant information, thereby prejudicing the system or procedure for the protection of persons which is established by the provisions of the MHA 2000.
Accordingly, the Acting Information Commissioner decided that the JEO application qualified for exemption from disclosure under section 42(1)(h) of the FOI Act
Section 42(1)(ca) Serious act of harassment or intimidation
The Acting Information Commissioner then considered whether identifying information about the JP (who had authorised the JEO), as that matter appeared within the JEO application and JEO qualified for exemption under section 42(1)(ca) of the FOI Act.
Having regard to parliament’s intention for enacting section 42(1)(ca) of the FOI Act and the plain meaning of the words used in that provision, the Acting Information Commissioner found that information contained within the JEO and JEO application that identified the JP qualified for exemption under section 42(1)(ca) of the FOI Act in the current circumstances because:
· the applicant had publicly indicated during a national television program an intention to pursue and harass the person/s responsible for the JEO, including the JP
· disclosure of the identity of the JP as it appears in the JEO and JEO application could reasonably be expected to result in the JP being subjected to a serious act of harassment or intimidation.
