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Privacy Law and Policy Reporter (PLPR)
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Greenleaf, Graham --- "Fotheringham and Qld Health" [1995] PrivLawPRpr 98; (1995) 2(8) Privacy Law & Policy Reporter 151

Fotheringham and Qld Health

Information Commissioner (Queensland), Decision 95024, 19 October 1995

Privacy of deceased persons - Freedom of Information Act 1992 (Qld) s44(1)

Dr Fotheringham, a senior lecturer in English at the University of Queensland, sought access to hospital records concerning Violet Christina Davis who for 33 years before her death in 1952 resided in institutions controlled by the respondent agency. Dr Fotheringham was preparing a biography of her husband Arthur Hoey Davis (the author, 'Steele Rudd'). The next of kin of Mrs Davis, her grand-daughter, did not agree to the disclosure. The agency refused access.

The Act provides in s 44(1) that 'Matter is exempt matter if its disclosure would disclose information concerning the personal affairs of a person, whether living or dead, unless its disclosure would, on balance, be in the public interest.' It was not disputed that the document in question concerned the personal affairs of Mrs Davis. Dr Fotheringham argued that it was in the public interest to 'put an end to rumours concerning the nature of the illness suffered by Violet Christina Davis, and whether she received support from her family and in particular Arther Hoey Davis.' The Commissioner considered that the issue was whether disclosure of Mrs Davis' medical records was in the public interest because Mr Davis was 'a major figure in Queensland's literary and cultural history'.

The Commissioner ultimately concluded that the public interest considerations favouring disclosure were not sufficiently strong to justify intrusion into Mrs Davis' medical records. Elements in the Commissioner's reasoning were:

  1. The views expressed by the deceased's closest relative may be entitled to some weight in the s 44(1) public interest balancing test (and are ordinarily relevant when an agency is deciding under s 28(1) whether to claim an available exemption).
  2. It is relevant to consider the study's public interest purpose, the researcher's skills, and the likelihood of the proposed study being completed without the requested information.
  3. The Commissioner was confident, after examining the material, that most of it 'could have no conceivable benefit or significance for the study', so 'its disclosure would be merely invasive of personal privacy with no compensating benefit' to the study.
  4. There was, however, a small amount of information which would shed light on the illness suffered by Mrs Davis. The Commissioner accepted that there is a public interest in the publication of a detailed and accurate biography of Arthur Hoey Davis.
  5. Queensland Health's argument that persons suffering mental illness might fail to provide information to health workers 'for fear that it may become public (during their life or after their death)' should not be discounted entirely, but had little weight in the circumstances of this case.
  6. Although information about Mrs Davis' mental illness was already in the public domain, 'details of [her] diagnosis, and ongoing health and treatment', such as found in the document in issue, were not in the public domain, and were not 'mere details or particulars of information already in the public domain' (distinguishing Re Urski and Redcliffe City Council, Information Commissioner Qld, Decision No 95018, 16 June 1995).
  7. The age of the documents is a relevant factor. 'Privacy concerns of deceased persons may lose their potency with the passage of time, such that even sensitive personal information eventually reaches a stage where its primary interest or significance is merely historical.'

The Commissioner concluded that 'the public interest considerations favouring disclosure ... are not sufficiently strong to justify intrusion into the medical records' of Mrs Davis.


The Commissioner's decision, which identifying factors taken into account in the s 44(1) test in respect of deceased persons, gives little insight into why the decision against disclosure was reached in this instance. The significance of the next of kin's opposition, and the age of the documents, for example, are left open to speculation. It is also not clear from the decision whether information about mental illness is regarded as having a higher degree of sensitivity than most other information about a person's personal affairs, such that the public interest considerations must be accordingly stronger before publication is justified. For example, we might ask whether the Commissioner would have reached the same conclusion if Mrs Davis' business dealings were the subject of the documents.

Graham Greenleaf.

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