Complex questions about access to information about a child

New access to government information laws in Queensland and NSW ( yet to commence) include provisions (slight differences in wording) that attach weight to the public interest in non-disclosure of information concerning a child where disclosure would not be in the child's best interests. In both cases this is a consideration to be assessed against any competing public interests in disclosure.

A similar but less conditional provision in the Western Australian Freedom of Information Act was the subject of a decision by Information Commissioner Bluemmel in Re "M" and Child and Adolescent Health Service [2009] WAICmr 16 to refuse access to a father who sought the medical records of his four year old daughter. Section 23(4) of the WA Act provides:

“ If a document contains personal information and the applicant, or the person to whom the information relates, is a child who has not turned 16, the agency may refuse access to the document if it is satisfied that access would not be in the best interests of the child and that the child does not have the capacity to appreciate the circumstances and make a mature judgment as to what might be in his or her best interests.”

Commissioner Bluemmel was satisfied the documents contained personal information about a child and, with regard to the child's best interests said [15]

"I am of the view I should give weight to the professional expertise of the relevant officers of the agency. In this case, I am advised that the decision on internal review was made by an officer who has extensive experience and qualifications in the area of child health and, before making her decision, the decision-maker sought the views of the senior medical officer in charge of the CPU. I am also advised that it is a longstanding policy of the agency to put the interests of the child above the interests of another party, including the parents of the child. This is particularly relevant where the requested documents contain detailed private and sensitive information about a child."

Important considerations in the minds of the officers concerned [16] , supported by the Commissioner, were that disclosure to the applicant was "disclosure to the world" and the inability to attach conditions to disclosure. No special factors or circumstances appear from the decision to have been argued by the applicant and in any event in WA would seem to be irrelevant. In Victoria and NSW case law has ruled that disclosure to the world cannot be automatically assumed.

The NSW Government Information (Public Access) Act when in force will not allow conditions to be attached to an FOI disclosure, but will provide that conditions can be attached to informal disclosure in response to an informal application (Section 8). Section 54 also will entitle an agency, in responding to an application under the Act, to take into account, for or against disclosure, the applicant's identity and relationship with any other person, the applicant's motives for making the application and any other factors particular to the applicant, to the extent the applicant chooses to make them known to the agency.I can't see anything similar in Queensland's Right to Information Act, but glad to hear from anyone if I missed it. The Federal Government's Exposure Draft wasn't clear about whether any change to "disclosure to the world" or the irrelevance of special applicant factors was contemplated (Submission 21 page 13).

The take from the WA decision is that when it comes to review of decisions about the best interests of a child, the views of the experts will loom large, and won't be lightly dismissed.In NSW at least the new Act specifically will provide for consideration of special factors that may justify disclosure to a particular applicant, but possibly not to others. This may or may not have changed anything in the West, if it had been a relevant consideration, but its a good move by mine.