Parsons v Office of the Information Commissioner
[2021] QCATA 75
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- Parsons v Office of the Information Commissioner[2021] QCATA 75
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Parsons v Office of the Information Commissioner[2021] QCATA 75
Parsons v Office of the Information Commissioner[2021] QCATA 75
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Parsons v Office of the Information Commissioner [2021] QCATA 75 |
PARTIES: | gary michael parsons (applicant/appellant) v office of the information commissioner metro north hospital and health service (respondents) |
APPLICATION NO/S: | APL207-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 29 June 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Judicial Member D J McGill SC |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – FREEDOM OF INFORMATION – REVIEW OF DECISIONS – OTHER STATES – Queensland – appeal on a question of law – whether submissions raised questions of law – whether any seniority of officer whose personal information is in issue is relevant consideration – appeal dismissed Right to Information Act 2009 (Qld) s 49, s 119, Schedule 4 Part 1 s 4 Kelson v Queensland Police Service [2019] QCATA 67 Marshall-Holst v Office of the Information Commissioner [2017] QCATA 28 Osland v Secretary, Department of Justice (2010) 241 CLR 320 Powell v Queensland University of Technology [2017] QCA 200 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
First Respondent: Second Respondent | Self-represented Metro North Hospital and Health Services Legal Service |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]This is an appeal under the Right to Information Act 2009 (Qld) (“the Act”) s 119 from a decision of the first respondent on 26 June 2020. The decision dealt with two issues: whether to disclose to the appellant certain personal information redacted from disclosed documents, and whether the second respondent had made a sufficient search for documents within the scope of the appellant’s request. The appellant was unsuccessful on both issues before the first respondent. The appeal challenges the decision on the first issue only.
Nature of the appeal
- [2]The appeal to the Appeal Tribunal is an appeal on a question of law only: s 119(2). That means that the Appeal Tribunal must identify an error of the decision maker which is properly characterised as one of law before it can act in the appeal, and can only make such orders as are necessary to correct any error of law by the decision maker. This is made clear by a decision of the High Court,[1] which has been treated as applying in such matters by the Court of Appeal.[2] It follows that an issue about the amount of weight given by the decision maker to a relevant factor cannot be challenged on such an appeal as it does not involve any question of law.[3] This point is relevant here, because much of the appellant’s submissions were directed to challenging the amount of weight the first respondent gave to particular factors.
Background
- [3]The appellant’s son passed away while under the care of the second respondent. The appellant sought access under the Act to information concerning the son, including information about blood tests, pathology records, scans, his complaint to the Office of the Health Ombudsman and any review by the hospital of the death. A number of documents have been provided, but staff personal information has been redacted from them. The appellant is seeking in particular to identify certain individual staff members who have been involved in the matter in various ways. There is no challenge to the proposition that the relevant information is personal information for the purposes of the Act.
Submissions of the appellant
- [4]The appellant submitted that the first respondent had not complied with the requirements of the Act in making her decision on the external review, and had not objectively balanced facts and evidence in determining whether disclosure of the relevant information would be contrary to the public interest. The way in which the relevant provisions of the Act are to be applied was set out by Thomas J, the then president of the Tribunal, in Marshall-Holst v Office of the Information Commissioner [2017] QCATA 28. The reasons of the decision maker show that those provisions have been closely followed by the decision maker in the present case. That decision also shows that the effect of s 44(4) of the Act is not that, so long as any factor favouring disclosure has been identified, the relevant information must be disclosed.
- [5]The appellant submitted that the decision maker’s identification of him as a grieving father meant that she was not considering the balancing exercise by reference to a balancing of public interest, but by reference to his personal interest. He referred to authority that the public interest is not concerned with the interest of an individual,[4] which is correct, but the reasons of the decision maker do not suggest that she was taking his personal interest in the matter into account in an inappropriate way. Rather she was generalising from his situation by reference to a category of persons with whom certain staff members of the hospital have to deal in the course of their duties. This does not disclose any error of law. A number of the appellant’s submissions on the appeal were based on his personal interest, and on his proposed use of the information, and if as I expect the same applied to his submissions to the first respondent, it was reasonable to deal with such submissions in the reasons.
- [6]He also challenged some of the analysis and reasoning used by the first respondent. In particular, he was critical of the amount of weight given to the public interest harm attributed by the Act to the disclosure of personal information.[5] The decision maker said that she attributed greater weight to this factor because it involved the personal information of “staff dealing with end of life care and serious illness, either as a frontline service-provider, or in dealing with concerns/complaints the applicant raised after his son’s death, as a grieving family member.”[6] The decision maker contrasted this with the “harm arising from the disclosure of routine personal work information of public servants”, which was said to be generally low.
- [7]The appellant challenged this analysis on the basis that it involved a breach of the principles of procedural fairness, in that the decision maker did not offer evidence in support of this analysis.[7] He also said that no case law authority was cited for it. If a decision maker makes a finding of fact which is contested and not supported by evidence, that can be an error of law, but that was not the situation here. That the information in question is personal information is a question of fact, but was uncontentious, and obvious. But the decision maker, in this passage, was not making a finding of fact, she was providing an evaluative analysis explaining her assignment of a particular weight to this relevant factor. That is not something which requires support by evidence.
- [8]The appellant referred to the proposition that there are a large number of public servants who are involved in stressful, end-of-life situations, and that, for such people, such matters are an ordinary part of their work. That may well be true, but it is not to the point. No doubt there are a large number of public servants who are not involved in such situations. I expect most interactions between the public and public servants do not involve stressful, end-of-life situations. The evaluation in a particular case of the significance of this harm factor, which involves the right to privacy of the individual public servant, does not involve any question of law which can be challenged on appeal.
- [9]The material cited by the appellant shows that, within the general learning involving freedom of information systems, the position seems to be that the personal information of individual public servants sometimes is and sometimes is not disclosable. It follows that the decision on weighting adopted by the decision maker was one which was in law open to her. The appellant submitted that the conclusion was unreasonable in the Wednesbury sense. I do not agree. I consider the approach of the decision maker is which was reasonably open to her, and was not unreasonable in the relevant sense.
- [10]The appellant submitted that the decision maker had taken into account his intended use of the information, which was an irrelevant factor. The decision maker expressly found that the proposition that disclosure of the information could reasonably be expected to result in staff being subjected to a serious act of harassment or intimidation could not be made out.[8] There is nothing else in the reasons which involves any consideration of the intended use of the required information as a relevant factor. There is some discussion, in the context of factors favouring disclosure, of the potential use which persons in general might make of such information, based on submissions advanced by the appellant related to his reasons for wanting access to the information in question. It would not be possible for the decision maker to give proper reasons without addressing such submissions, but they were addressed at the level of generality appropriate to the terms of the factors listed in Part 2 of Schedule 4 of the Act. There was no error of law by the decision maker in this respect.
- [11]The appellant submitted that the decision maker had taken into account the seniority of some of the staff members concerned, in a way which was contrary to Schedule 4 Part 1 s 4, which provided that it was irrelevant that the person who created the document was or is of high seniority within the agency. The appellant treated this as requiring that the level of seniority of the staff concerned be disregarded, whatever its level, but that is not what the section says. It is clearly concerned with countering any tendency to protect those in senior positions in an agency. Taking into account that some of the staff identified in the information are of low seniority did not breach that provision. There was no error of law in this way.
- [12]The appellant submitted that failure to disclose the names of the staff concerned was in conflict with the law in Schedule 4 of the Act. He identified in particular Part 2 sections 1, 3, 5 and 6. The decision maker in her reasons accepted that sections 1, 5, 6, 10, 11, 16 and 17 in Schedule 4 Part 2 were relevant. Section 3 refers to operations, including policies, guidelines and codes of conduct. That has nothing to do with disclosing personal information, so there was no error of law in treating it as not relevant. What weight is to be attributed to these factors is not a question of law.
- [13]Much of the appellant’s submissions are concerned with arguing the merits of the process of evaluating the relevant factors undertaken by the decision maker.[9] This is in effect arguing about the amount of weight give to various factors by the decision maker, which is not a question of law, for reasons stated earlier. The appellant referred at length to the decision of the first respondent in another matter,[10] but did not relate it to the issues in the present matter. There is nothing in that decision which shows any error of law on the part of the decision maker.[11]
- [14]The appellant submitted that the decision maker, in her reasons at [30], had stepped outside her role in deciding what evidence was relevant to any inquiry into the relevant circumstances.[12] It was no part of the function of the decision maker to be considering whether information would or would not be relevant to any particular inquiry into the circumstances of an individual case, and there is no reason to think that the decision maker was doing so. What the decision maker was doing was considering the weight to be attributed to various relevant factors favouring disclosure. The decision maker appears to have been distinguishing between the public interest in “what happened” and the public interest in “which individuals were responsible,” and considered that the former had been adequately satisfied by the existing disclosure, without the personal information. That is a rational form of analysis; hence the fact that it was undertaken, and the result in terms of the weight attributed to these factors, do not give rise to questions of law.
- [15]This does not involve any feature of natural justice, or (as it is sometimes described) procedural fairness; the two things mean the same. The procedure adopted by the first respondent in dealing with this matter, set out in the appendix to the reasons, show clearly that the decision maker afforded the appellant a fair hearing. The appellant has also used the word “biased”[13] without providing any rational justification for that complaint. It appears to have been based simply on the fact that his submissions were not accepted by her. That does not show bias.
- [16]The appellant referred to the guidelines issued by the first respondent as to what is and what is not “routine personal work information”. However, these are just guidelines, and what matters, in terms of showing an error of law, is whether the decision maker has complied with the terms of the Act. The term defined there is “personal information”,[14] and there is no reason to doubt that the redacted information fell within that definition.[15] Standards, guidelines and the like are not legally binding, and indeed cannot confine the operation of any exercise of discretion or judgment under a statute. They exist simply to provide guidance, but there is no error of law in deciding a particular case in a way which is inconsistent with them,[16] so long as due notice has been given to an affected person of the possibility of doing so, as did happen here.
- [17]The appellant also set out a lengthy complaint about the process by which the matter moved to the first respondent from the second respondent. The relevance of this does not emerge. That the late decision of the original agency decision maker was treated by the first respondent as a submission at the initiative of the first respondent did not involve any breach of the principles of natural justice, at least as far as the appellant was concerned.[17] Nor did it breach the Act s 95. In any case, it is apparent that the “submission” was based on a different ground for non-disclosure, which was rejected by the first respondent. These are not matters which give rise to any question of law. There was no error of law in the process set out in the reasons of the first respondent. It is not the situation that there was no decision from which an external review to the first respondent could be brought.
- [18]The appellant complained about the form of the decision of the first respondent, and apparently sought to argue that that decision was invalid because it was a purported variation of the deemed decision (to refuse access) under the Act s 46(1). This was the decision which the first respondent was varying, under the Act s 110(1)(b). The effect of the decision of the first respondent is clear enough: access to the staff personal information (as defined in the decision) may be refused, and (by inference) access may not be refused to the remaining identified documents; and access may be refused to other documents on the ground that they were non-existent.[18]
- [19]At one point the appellant was critical of the reasoning of the decision maker, on the basis that the documents disclosed were “mainly irrelevant documents”.[19] The appellant here appears to be assessing relevance by reference to his personal purposes in seeking disclosure, rather than by reference to what information was relevant to the public interest considerations favouring disclosure in terms of the Schedule to the Act. As the appellant himself pointed out earlier in his submissions, the personal interest of the appellant, and the particular purposes for which he wanted the information, were not relevant to the process of balancing of the public interests.
- [20]The appellant complained of the failure of the first respondent to have regard to the provisions of and requirements under the Health Quality and Complaints Commission Act 2006 (Qld). There is nothing in the submissions of the appellant to suggest that that Act has anything to do with the operation of the Act, or the balancing of public interests under it. It was not the function of the decision maker to consider whether someone had, or might have, breached that Act or those requirements,[20] and any references to them in submissions were appropriately ignored. The decision maker took into account the Act Schedule 4 Part 2 s 6, in an appropriately generalised way. This submission does not raise any question of law.
- [21]The appellant has not shown any error of law in the decision of the first respondent. The appeal is therefore dismissed. I shall give directions about any application for costs.
Footnotes
[1] Osland v Secretary, Department of Justice (2010) 241 CLR 320 at [18] – [20].
[2] Powell v Queensland University of Technology [2017] QCA 100. That case involved the Information Privacy Act 2019 (Qld) s 132, but that is relevantly in the same terms at the Act s 119.
[3] Subject only to a challenge to the conclusion of the decision maker on the basis of bad faith or Wednesbury unreasonableness: Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 at [83].
[4] Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75.
[5] The Act Schedule 4 Part 4 s 6(1); and see Kelson v Queensland Police Service [2019] QCATA 67 at [90] – [95].
[6] Reasons [28].
[7] Submissions of the Appellant para [28].
[8] Reasons [12].
[9] See for example submissions paragraphs [103], [105], [220].
[10] Courier-Mail and Department of Health [2011] QICmr 3 (22.2.11). The point seems to be directed to showing some wrongdoing on the part of the second respondent, which is not relevant to this appeal. Whether something ought to have existed is different from whether something did exist. It is the latter which is relevant to the question of disclosure of information.
[11] As acknowledged by the appellant at paragraph [124].
[12] Submissions of the appellant paragraphs [135], [136].
[13] For example, in submissions paragraph [134].
[14] In Schedule 5, by reference to the Information Privacy Act 2009 (Qld) s 12.
[15] In any case, whether or not it did in a particular case is a question of fact, not a question of law, unless the finding was affected by an incorrect interpretation of the definition.
[16] It follows that paragraph [61] of the appellant’s submissions in reply is wrong.
[17] There is no complaint about this from the second respondent.
[18] I expect this wording was used because the Act does contemplate that access to documents applies only to those in existence when the application was made: s 27(1).
[19] Submissions of the appellant paragraph [200]. This referred to the decision [59]. There is no reason to think that the “significant volume of information” was a reference to anything other than the content of the redacted documents.
[20] For that matter, it is also not my function. The appellant’s submissions paragraphs [241], [242] are irrelevant.