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Greenleaf, Graham --- "Pau and Medical Board of Western Australia (WA)" [1995] PrivLawPRpr 47; (1995) 2(4) Privacy Law & Policy Reporter 72

Pau and Medical Board of Western Australia (WA)

Information Commissioner (WA), Decision D02394, 7 December 1994

Freedom of Information Act 1992 (WA) - Sched 1, cl 5(1)(a) - disclosure of investigative methods - Sched 1, cl 8(2) - prejudice to future supply of confidential information - public interest in applicant being informed of reasons for agency's decision

Pau complained about a medical practitioner to the Medical Board. The Board provided a copy of the complaint to the doctor concerned, who replied in writing to the Board. The Board then advised Pau that no disciplinary action would be taken against the doctor, but provided no explanation of its decision. Pau then applied for access to the doctor's letter to the Board.

The Commissioner obtained the view of the doctor, who stated that, if his letter was disclosed, he would be hesitant and reluctant to provide information in future. The Board argued that the relevant issue was not the views of one doctor, but rather 'the effect that access ... will have on the flow of information from other practitioners to the Board'.

The Board claimed that the document was exempt because, under Sched 1, cl 5(1)(a), its disclosure could reasonably be expected to 'impair the effectiveness of any lawful method or procedure for preventing, detecting, investigating or dealing with any contravention or possible contravention of the law'. The Commissioner held that the letter was not exempt under cl 5(1)(a) as it did not have any connection with investigative methods or procedures. As she said in her previous decision in Re Boyd and Medical Board of WA (unreported, 31 October 1994), 'Unless the matter in the documents is connected with investigative methods or procedures, or reveals what those methods or procedures might be, then the exemption ... does not apply'.

Under Sched 1, cl 8(2), information is exempt from disclosure if its disclosure:

(a) would reveal information of a confidential nature obtained in confidence; and

(b) could reasonably be expected to prejudice the future supply of information of that kind to the Government or to an agency.

However, cl 8(4) removes the exemption where disclosure 'would, on balance, be in the public interest'. Despite the fact that the letter contained nothing on its face to indicate that it was confidential and nor did its contents (an account of treatment given to Pau's daughter while she was present, and the doctor's opinion of her behaviour on that occasion), the Commissioner nevertheless held that, on the basis of the doctor's statement that he considered the letter to be confidential, and the board's statement that its usual practice was to receive such documents in confidence, it was within cl 8(2)(a).

However, the Commissioner held that cl 8(2)(b) was not satisfied, despite the Board's claims that it relied on the co-operativeness of doctors in its investigations, that the medical profession was very conscious of the FOI Act, and that the Board's view was that disclosure of doctor's responses to complaints would be very likely to lead to no responses being provided, or a reduction in the quality of information provided. The Commissioner took the same approach as she took in Re Boyd, endorsing the approach taken by the Victorian Administrative Appeals Tribunal in Re Barling and the Medical Board of Victoria; The Ombudsman (Party Joined) (1992) 5 VAR 542, that it would be necessary for the Board to consider each particular document to determine whether it contained information of such a sensitive nature that disclosure would mean that it was unlikely to be provided in future. Here, the Commissioner considered that there was nothing in the document of such a sensitive nature. The only material difference between this case and Re Boyd was that the medical practitioners there did not object to the disclosure, whereas the doctor here did object. The Commissioner considered that the views of one doctor as to how he would respond in future were insufficient evidence to support the agency's claim. In any event, the doctor here had only stated that he would be hesitant and reluctant to supply such information in future, not that he would not do so.

Although unnecessary for the decision, the Commissioner stated that, in any event, she would have found that, under cl 8(4), the public interest required disclosure of the document:

... there is a public interest in a complainant to the Medical Board being informed of the reasons why the agency has reached a particular decision upon his or her complaint ...[and] the minimum requirement to satisfy this public interest is the provision of a summary, to the extent possible, of a medical practitioner's response to the Medical Board, including an explanation of how the Medical Board resolved conflicts, if any, between the evidence of the parties.

Here, Pau had not been given any reasons for the Board's decision or summary of the doctor's response.


The Commissioner's approach to the public interest aspect of the 'confidentiality' exemption has, in effect, stated her intention to impose an 'ADJR-like' requirement for agencies to give reasons for their decisions concerning complaints by applicants. If they do not provide a statement of reasons, then the Commissioner considers that the public interest requires the 'next best thing' - disclosure of the documents on which the decision is based. The decision shows how potentially significant the 'public interest override' to some exemptions can be.

Graham Greenleaf

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