Privacy Law and Policy Reporter
A newspaper reporter requested the Ministry of Health to provide access to all records relating to the suicide of a resident of an Adolescent Treatment Centre (patient X, the third party), including patient X's diary. The Ministry decided to withhold or sever most of the records, so the reporter requested a review by the Commissioner.
The issue under s 22 was whether the requested disclosures would constitute an unreasonable invasion of privacy. The applicant has the burden of proof that it would not (s 57(2)).
The Commissioner held that patient X's privacy rights 'survive her death substantially intact', rejecting the view that a person's privacy interests are diminished by their death. This was supported by the definition of 'personal information' in the Act ('recorded information about an identifiable individual') which does not require such an individual to be alive, and by
reg 323/93 which provides that a deceased person's 'nearest relative or personal representative' can exercise their access and correction rights. He was also concerned with the privacy rights of her surviving family, relatives and other care-givers.
The Commissioner considered that, under s 22, he had to balance X's privacy rights against the desirability of subjecting the activities of the Ministry to public scrutiny. He considered that this latter interest required more disclosure than the Ministry had previously made of 'the treatment and handling of her case and the quality and level of care provided to her, particularly in light of his reading of parts of her diary'. Such interests did not justify the disclosure of her diary, 'because of its intimate nature and patient X's expectations of confidentiality in writing it'. The public interest did justify disclosure of other records, but not those relating to her 'core zone of privacy [which] consists of her behaviour, her feelings, her therapy sessions, her medical diagnosis, and her innermost thoughts that might be revealed through her diaries and other record's. On the other hand, 'general remarks about patient X's behaviour, actions, interactions with staff and external events leading up to her death serve to subject to public scrutiny the level of care and treatment that patient X received from the Ministry, which is the goal of the applicant'. He proposed to edit the documents for disclosure in light of these criteria.
The situation in some Australian FOI and Privacy Acts in relation to deceased persons is similar to that in British Columbia. For example, the Privacy Act 1988 (Cth) has a similar definition of 'personal information', and Tasmania's FOI Act has explicit provision for next-of-kin and others to exercise a deceased person's rights (see Legislation and Guidelines this issue) (1 PLPR 175).