Dead persons' documents rise again

A request to access information about a deceased person can give rise to complex issues. Last October I wrote about the case for reform in this area and the opportunity lost when the Federal Government rejected an Australian Law Reform Commission recommendation to develop nationally consistent principles that would apply in common circumstances, particularly where family members seek access to information about a deceased relative under privacy or freedom of information laws. As those with the most direct interest aren't in a position to join the discussion, I'm not surprised I didn't see or hear a peep in response.

Recent decisions by the Freedom of Information Commissioner and the NSW Administrative Decisions Tribunal illustrate some of the issues that can arise. Elements of the cases were markedly different as were the outcomes. In the Commonwealth case, a son was refused access to information in the aged care assessment file of his deceased mother, although Commissioner Popple, bound by a precedent, seemed somewhat uncomfortable with the limitation on his powers that prevented disclosure in this case; in the NSW ADT (an FOI matter that predates commencement of the GIPA act on 1 July 2010) a mother was granted access to the hospital records of a deceased son, including names of staff involved in his treatment, the Tribunal finding insufficient evidence to support objections that disclosure could endanger their life and safety. As to complexity, read on, but be warned...

Commonwealth FOI

In ‘A’ and Department of Health and Ageing [2011] AICmr4 FOI Commissioner Popple affirmed the decision of the Commonwealth Department of Health and Ageing to refuse the applicant access to documents about his deceased mother on the basis that the documents were exempt under s 38 of the  Freedom of Information Act 1982. The documents were the ‘ACAT assessment documentation, which includes the “full notes” relating to your mother ... compiled by the [named] District Hospital and the Aged Care Client Record ... signed by your mother and completed by the [named] ACAT on 30 July 2001."

Section 38-the secrecy exemption-provides that a document is exempt where disclosure is prohibited under a provision of an enactment specified in Schedule 3. The offence provisions in Part 6.2 of the Aged Care Act are specified in Schedule 3. These include provisions that make it an offence to disclose protected information defined to include information that was acquired under or for the purposes of [the AC Act] and is ‘personal information’. The documents requested contained protected information for the purposes of Part 6.2 of the AC Act, because that information was acquired under or for the purposes of that Act and was personal information about the applicant’s mother.


Section 86-3 provides that the Secretary of the Department may disclose protected information in certain circumstances. However the Secretary's Delegate had refused to exercise the discretion to release the documents under the AC Act. No reasons were required or given.

Section 11A(4) of the FOI Act provides that an agency or minister is not required by the FOI Act to give a person access to a document if it is an exempt document. Section 55L of the FOI Act prevents the disclosure of exempt information by the Information Commissioner in the course of an IC review. As the Commissioner summarised the situation [10], unless other provisions apply:

• an agency or minister is not required by the FOI Act to give a person access to a document that contains protected information for the purposes of Part 6.2 of the AC Act;
• the Information Commissioner does not have the power to grant access to that document in an IC review; 

Commissioner Popple considered whether the fact that Section 38(1) is expressly subject to s 38(1A) was relevant. Section 38(1A) provides:

(1A) A person’s right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment.

But as he pointed out [13] s 38(1A) "does not make exempt documents not exempt. A document that is exempt under s 38(1) remains exempt, even though a person’s right of access to it is not affected if disclosure to that person of information in that document is not prohibited by an enactment." In addition:

16. Although ministers and agencies are not required to disclose exempt documents in these circumstances, they still have the power to do so. The Information Commissioner and the Tribunal do not have that power.

Commissioner Popple also considered whether the Information Commissioner could exercise the power in s 86-3 of the AC Act. While there is no judicial guidance on the Commissioner's powers that came into effect on 1 November, precedents concerning the same powers long exercised by the Administrative Appeals Tribunal indicate that "the Information Commissioner when conducting an IC review—like the Tribunal when conducting a review—is armed with all the powers and discretions of the original decision maker that are relevant to the review [26]. The Commissioner continued:

27. But, although the exercise of the power in s 86-3 of the AC Act would clearly be relevant to the current IC review, there are two reasons why I cannot exercise that power: the decision of Branson J in Illawarra Retirement Trust, and the operation of s 55L.
28. In Illawarra Retirement Trust v Secretary, Department of Health and Ageing [2005] FCA 170; (2005) 143 FCR 461, Branson J considered the interaction of s 86-3 of the AC Act with the FOI Act. Her Honour concluded that:

When the Secretary discloses protected information in circumstances authorised by s 86-3 of the Aged Care Act, the disclosure is made under the Aged Care Act, not under the FOI Act. Section 86-3 has no relevance, in my view, to the operation of s 38(1A) of the FOI Act as it does not affect a person’s right to access to a document under the FOI Act. It is only the Secretary, acting under the Aged Care Act, who s 86-3 exempts from the prohibition contained in s 86-2. No other person may rely on the exception contained in s 86-3.

29. I am bound by her Honour’s decision, because it relates to the same provisions of the FOI Act and the AC Act as are relevant to the current IC review. But, with respect, I do not agree that s 86-3 of the AC Act has no relevance to the operation of the FOI Act, which would seem to be her Honour’s reason for concluding that only the Secretary can exercise the power in s 86-3. It is true that a decision made under s 86-3 in relation to the protected information contained in some documents does not change the fact that those documents are exempt for the purposes of the FOI Act. But, a minister or an agency can give access to an exempt document, in response to an FOI application, so long as that disclosure is otherwise permitted (s 3A). Only the Information Commissioner and the Tribunal are prevented from deciding to disclose documents in these circumstances (by s 55L and s 58(2)).
30. So, for example, if a decision is made under s 86-3(b) of the AC Act that an FOI applicant is expressly or impliedly authorised by the person to whom protected information relates to obtain it, then the prohibition in s 86-2 would not apply: disclosure of that information to that FOI applicant would not be prohibited by the AC Act. This would mean that, although a document containing that information would still be an exempt document under the FOI Act, a minister or an agency could decide that the document be disclosed to that FOI applicant.
31. Applying the usual principles, the powers of the Tribunal or the Information Commissioner on review of a decision under the FOI Act would normally include those powers and discretions of the original decision maker that are relevant to the review. The exercise of the power under s 86-3 of the AC Act is clearly relevant to IC reviews like the current one. But Branson J’s view in Illawarra Retirement Trust is clear from the passage I have quoted at [28] above: it is the Secretary alone who s 86-3 of the AC Act exempts from the prohibition contained in s 86-2, and it is the Secretary alone who can exercise a discretion under s 86-3.
32. In any event, even if I were able to exercise the discretion under s 86-3 of the AC Act, s 55L of the FOI Act prevents me from deciding that the documents that the applicant seeks should be disclosed to him.

Comment
Schedule 3 escaped attention in the FOI reforms of 2009-2010 and is overdue for review. Some issues about the exemptions conferred in this way are discussed in Chapter 16 of the Australian Law Reform Commission Report 112 Secrecy Laws and Open Government in Australia. The schedule lists more than 65 secrecy provisions from over 28 Acts and one sub-regulation. In addition, the ALRC identified four provisions that expressly apply s 38 but which are not listed in the schedule. There has been no Government response to the report completed in December 2009.

NSW ADT
In Psychopoulos v Northern SydneyCentral Coast Area Health Service [2011] NSWADT 151 Deputy President Higgins reviewed a decision to refuse the applicant access to the complete clinical notes of her son, a former patient in a facility attached to a hospital operated by agency.The applicant's son had been a patient there since 2001 and he had been an inpatient at the facility attached to the hospital since early 2007. The diagnosis of the applicant's son was treatment resistant schizophrenia and polydipsia. He died on 20 August 2009 while an inpatient at the facility. Subsequent to his death, the applicant made her request for access to her son's clinical notes for the period 18 May 2009 to 20 August 2009.

The respondent initially refused the applicant access to the clinical notes on the grounds that they were an exempt document as they contained 'matter, the disclosure of which would reasonably be expected to endanger the life of physical safety of a person' (clause 4(1)(c) of Schedule 1 of the FOI Act). On internal review the agency decided to provide the applicant with a newly created document, a verbatim record of her son's handwritten clinical notes, with deletions of the names of staff members contained in the handwritten notes. The only exempt matter in the clinical notes was said to be the names of staff members. The respondent had not provided the applicant with a copy of her son's handwritten clinical notes with the names of staff members being deleted as it had formed the view that the applicant would be able to identify, from the handwriting, which staff member had made each entry. The reason why she would be able to do this was because she had previously been provided with complete copies of earlier entries in her son's handwritten clinical notes.

Deputy President Higgins noted that the FOI Act makes no provision for access to be given in this form and that the issue for decision was whether the handwritten documents were exempt documents under paragraph 4(1)(c) of Schedule 1 of the FOI Act, the exempt matter being the names of staff members.

Evidence was presented about the applicant's concerns and criticisms of the treatment given, and Deputy President Higgins accepted that a threat against a staff member had been made in 2008. However she concluded

Although the respondent has provided material, including that provided on a confidential basis, from which it might be inferred that there were concerns about how the applicant might behave towards staff members, in my view that material does not go so far to make a finding that disclosure of the handwritten clinical notes of the applicant's son could expect to endanger the life or physical safety of staff members. Even if I am wrong, in my view the expectation, if assessed objectively from the material, is not a reasonable."(sic) [40].

Deputy President Higgins granted the applicant access to a copy of her son's handwritten clinical notes subject to deletion of matter concerning the personal affairs of a person other than the applicant or her son, accepted by both parties as exempt under the personal affairs exemption (clause 6 of Schedule 1) of the FOI Act.

Comment:
Some differences to the law when dealing with a similar matter under the GIPA act, in force in NSW since 1 July 2010, include:

Create a new record
 Section 75 provides that an agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information, although it cannot be required to do so.

Weight to be given to the identity of the applicant:
Section 55 provides:

(a)  the applicant’s identity and relationship with any other person,

(b)  the applicant’s motives for making the access application,

(c)  any other factors particular to the applicant

may be taken into account in deciding that the public interest favours disclosure or non disclosure of requested information to the applicant.

Lower threshold replaces harm to life and safety
The Table to Section 14 provides (3(f)) that a public interest consideration against disclosure, to be weighed against competing factors that might favour disclosure is if disclosure of the information could reasonably be expected to expose a person to a risk of harm or of serious harassment or serious intimidation.