A guide to applying s 47F (5) of the FOI Act – release of personal information to a qualified person

In some circumstances, an FOI decision-maker may be concerned about releasing certain material (such as a medical or psychiatric report) to an FOI applicant, due to the impact the disclosure of the material may have on that applicant’s health or well-being. If such a situation arises, the decision-maker should consider whether release under s 47F(5) of the FOI Act may be appropriate in the circumstances.

Section 47F(5) provides that in certain circumstances, a decision-maker may provide documents to an intermediary, rather than providing them directly to the FOI applicant.

For s 47F(5) to be used, the information to be disclosed must meet the following requirements:

1. the material at issue must contain the personal information of the applicant
2. the material at issue must have originally been provided by a “qualified person” acting in that capacity, and
3. it appears to the decision-maker that direct disclosure to the applicant might be detrimental to the applicant’s physical or mental health.

Who is a qualified person?

Relevantly, a qualified person is defined at s 47F(7) of the FOI Act as:

A person who carries on, and is entitled to carry on, an occupation that involves the provision of care for the physical or mental health of people or for their well‑being, and, without limiting the generality of the foregoing, includes any of the following:

 (a) a medical practitioner;

 (b) a psychiatrist;

 (c) a psychologist;

 (d) a counsellor;

 (e) a social worker.

Importantly, the categories of who can be a ‘qualified person’ are not limited to the examples provided in s 47F(7) of the FOI Act. However, as outlined above, the qualified person must be of an occupation ‘that involves the provision of care for the physical or mental health of people or for their well-being’.

What material does s 47F (5) apply to?

The provision covers material produced by individuals providing care for the well-being, physical or mental health of people such as medical practitioners, psychiatrists, psychologists, counsellors and social workers. As noted above, this list is not exhaustive, and the kinds of documents contemplated by decision makers applying the provision have included: aged care facility progress notes, treatment and care plans, Job Capacity Assessment Reports, psychological or psychiatric reports and Employment Services Assessment Reports.

Determining potential detriment to health and well-being

The decision-maker may only divert s 47F personal information away from the applicant to a qualified professional where it appears to the decision maker that disclosure to the applicant might be ‘detrimental to the applicant’s physical or mental health, or well‑being’ (s 47F(4)(b) of the FOI Act). The FOI Guidelines at paragraph 6.172 provide that a broad approach should be taken in contemplating an FOI applicant’s health or wellbeing, with the general health, welfare and good of the person to be considered.

The FOI Guidelines additionally outline that the possibility of detriment must appear to be real or tangible, as ‘distinct from a fanciful, remote or far-fetched possibility of prejudice to the physical or mental health or well-being of the applicant.’ As noted in Re K and Director-General of Social Security [1984] AATA 252 at [4] (Re K), in deciding whether or not to exercise the 47F(5) discretion, the decision maker may also balance the likelihood of the detriment occurring against the ‘gravity of the possible consequences’.

Application of the test is largely contextual and should reflect the mental and physical state of the applicant in the relevant circumstances. In PT and Aged Care Quality and Safety Commission (Freedom of information) [2019] AICmr 3 at [24] - [26],  the Information Commissioner qualified access to information on the basis that a previous release of similar information had caused an adverse effect on the applicant, with evidence from the Aged Care provider that receipt of a previous FOI decision had a ‘noticeable negative effect on the applicant’s wellbeing’.

In Re K, the Tribunal placed considerable weight on the applicant’s history of non-adherence to his medication routine and consequent psychotic or impulsive episodes. The Tribunal found that the applicant could not be relied upon to be taking his medication appropriately and therefore the risk of impulsive behaviour weighed against direct disclosure.

The Tribunal also considered the importance of doctors being free to write confidential reports designed to assist in the management of their patients, without fear that the information be later disclosed to vulnerable patients. Once disclosed to the nominated practitioner, it is left to their individual, professional discretion as to how the applicant will access information contained in the documents (FOI Guidelines paragraph 6.175).

Alternate routes for disclosure

It is important to note that, under s 47F(5) of the FOI Act, for an applicant’s personal information to be disclosed to an intermediary, the applicant must nominate a recipient who carries on the same occupation as the qualified person who initially provided the document.

In some circumstances, a decision maker may seek an applicant’s agreement to instead give access to the relevant material under Australian Privacy Principle (APP) 12.6, which enables agencies to give an individual access to their personal information through a mutually agreed intermediary. In light of this, the FOI Guidelines suggest that where an FOI Applicant’s needs may be met more satisfactorily under APP 12.6, an agency or minister may wish to suggest they request the information they seek under APP 12.6.

Key takeaways

1. Section 47F(5) should always be considered in circumstances where release of the applicant’s own personal information appears as though it may be detrimental to an applicant’s mental or physical health, or wellbeing.
2. Where s 47F(5) is used, the material at issue must be provided to a ‘qualified person’ nominated by the applicant to receive the material.
3. While the categories of who can be considered a ‘qualified person’ are not limited by the legislation, importantly, the qualified person who receives the documents must be of the same occupation as the person who authored the relevant material at issue. For example, if a document subject to s 47F(5) is a psychologist’s report, the qualified person nominated by the applicant would have to also be a psychologist.
4. Where an FOI applicant’s needs may be met more satisfactorily under APP 12.6, an agency or minister may wish to suggest they request the information they seek under APP 12.6.

If your agency requires advice or assistance with the processing of FOI requests, please reach out to Chantal Tipene and our team of FOI specialists would be happy to assist.