Case Citation: D v Health Service Provider; E v Health Service Provider; F v Health Service Provider; G v Health Service Provider [2005] PrivCmrA 4

Subject Heading: Application of charges for providing access to personal information.

Law:National Privacy Principle 6 of the Privacy Act 1988 (Cth).

The Commissioner has published the following case notes on four finalised complaints addressing a common issue, namely excessive charges for providing access. The Commissioner considers the publication of a series of case notes to be of assistance to the public. They illustrate the types of cases concerning excessive access charges and the pertinent factors considered when reaching a decision regarding whether the access charges imposed, in these instances by health service providers are excessive.

The Office has published information about access in the Guidelines to the National Privacy Principles and in Information Sheet 4.

When assessing whether charges imposed by an organisation for the granting of access are excessive, the Commissioner considers each complaint independently because access charges can vary widely due to a number of factors, including the type of record and the type of access sought. In assessing whether access charges set by organisations are excessive the Commissioner generally considers the following factors:

• the number of pages in the record;
• the method / medium of storage (electronic, paper based, audio, visual);
• the retrieval process involved (whether the file is stored off site, or archived);
• the cost incurred by the organisation for providing access, including staff time and photocopying costs;
• whether charges enforced are commensurate with the task performed rather than the commercial cost of the individual's time in performing the task (for example a specialist cannot carry out the task of photocopying documents and charge for this service at the specialist's hourly rate);
• the individual's capacity to pay for access (pensioner, student); and
• the form in which an individual requests access to documents.

The Commissioner also considers that costs incurred in obtaining legal advice regarding obligations under the Act should not be passed on to the applicant.

D v Health Service Provider

Facts: The complainant sought access to her medical records retained by a health service provider. The health service provider advised that the complainant's records had been archived and as such would take considerable time to retrieve. The health service provider further advised that the complainant's medical records contained a number of reports and copies of correspondence authored by other specialists. The health service provider was uncertain of his legal obligations under the Act to provide access to this information and for this reason obtained legal advice on the issues.

The health service provider advised that because he was personally responsible for retrieval of the records he charged the complainant his usual consultation fees. He also charged the complainant for the cost incurred in obtaining legal advice about granting access to the complainant. Charges for providing access were itemised as follows:

• 25 pages of photocopying ($12.50);
• staff wages ($30);
• 1 hour 30 minutes of the specialist's time to review file and obtain legal advice ($207);
• GST ($25).

The health service provider calculated the total cost at $275.

Issues: The Commissioner commenced an investigation into this matter to determine whether the charges calculated by the health service provider were excessive, and if so, to determine whether the charges imposed may have been a breach of the Act.

The Commissioner expressed the view that in preparing a record for access, administrative tasks such as retrieving and compiling documents could be performed capably by clerical staff and for this reason should not be completed by a medical practitioner at consultancy rates. The Commissioner was also of the view that costs associated with becoming familiar with legal obligations under the Act are not transferable to the individual requesting access. However the Commissioner was satisfied that in the given case reasonable costs incurred by the health service provider in photocopying and clerical staff time for retrieval of the records and the specialist's time for reviewing the file could be included in the access charge.

Outcome: The respondent advised that the cost of providing access would be reduced to $85 to more accurately reflect the cost of preparing the documents. Consequently the Commissioner decided under section 41(2)(a) of the Act to not investigate the matter further on the grounds that the respondent had dealt adequately with the complaint.

E v Health Service Provider

Facts: The complainant sought access to his medical records in the form of photocopies. The health service provider advised that the complete file would be available upon payment of $335.50. The cost quoted consisted of 70 pages of photocopying and the provision of a relevant written legal advice ($200), time spent seeking legal advice and the time spent by the practitioner in processing and addressing the complainant's access request and correspondence. The time spent was charged at the specialist's hourly rate.

Issues: The Commissioner commenced an investigation into this matter to determine whether the charges imposed by the health service provider were excessive, and if so, to determine whether these charges may have been a breach of the Act.

The Commissioner expressed the view that access should generally be provided in the form requested by the individual unless there are significant reasons for not doing so. The Commissioner also concluded that because the complainant in this instance had only requested photocopies of the documents held by the health service provider, a further charge for providing an additional written legal advice could not be imposed upon the complainant. Additionally the Commissioner was of the view that it was not reasonable for the health service provider to impose charges upon the complainant for advice obtained relating to its legal obligations under the Act.

The health service provider amended its access policy for charges imposed for providing access to reflect that access requests would be processed primarily by the secretarial staff at the medical centre, with only brief supervisory involvement from the doctor. In addition the complainant was not provided with the additional legal advice nor was payment required for this advice.

Outcome: The health service provider reduced the cost of access to $155.50 in accordance with the revised access policy. As such the Commissioner decided under section 41(2)(a) of the Act to not investigate the matter further on the grounds that the respondent had dealt adequately with the complaint.

F v Health Service Provider

Facts: The complainant sought access to his personal information. The health service provider initially advised that access to the requested information would be provided upon payment of a standard administration fee of $25. The health service provider subsequently took into consideration the individual's capacity to pay for access. As the individual seeking access was a student the access charge was reduced to $15.

Issues: The Commissioner considered the details of the matter to determine whether the flat fee imposed by the health service provider for providing access was excessive in the current instance.

The health service provider advised that the fee for providing access included the cost of time spent by administrative staff in processing the request, photocopying fees (40 cents per page) and the time spent by the medical practitioner reviewing the information in the file.

Outcome: The Commissioner was of the view that flat fees for granting access will be considered to be excessive in cases where the particular costs associated with providing access to an individual do not justify the flat fee. However the Commissioner was satisfied that the charge imposed for access in this instance ($15) was commensurate with the costs incurred by the health service provider in providing access and were therefore not excessive. For this reason the Commissioner decided under section 41(2)(a) of the Act not to investigate the matter on the grounds that the respondent had dealt adequately with the complaint.

G v Health Service Provider

Facts: The complainant sought to have his medical information transferred directly to his legal representatives and provided the medical practitioner with the requisite consent. The health service provider advised that access would only be provided directly to the complainant at the cost of $66. This included the cost of a consultation with the practitioner and $1 per page for photocopying and administrative costs (32 pages).

Issues: The Commissioner commenced preliminary enquiries into this matter under section 42 of the Act to determine whether the charges imposed by the health service provider were excessive, and if so, to determine whether there had been a breach of the Act.

The health service provider argued that since the Act is silent on the method of providing access to medical records it is open to the health service provider to decide the manner in which access is provided. The health service provider whilst not enforcing the consultation with the practitioner as a mandatory pre-requisite to the granting of access considered that it was in the best interests of the individual to provide access to health information in the context of a consultation. The health service provider also advised that access would only be provided directly to the individual upon verification of their identity and that the information was not to be passed onto third parties.

The health service provider advised that the photocopying fee was flexible and depended upon the number of pages to be copied so that the cost per page decreased in proportion to the number of pages copied.

The Commissioner's view was that whilst the Act does not prevent a health service provider from offering or recommending that access be provided in a certain way, access should generally be provided in the form requested by the individual unless there are significant reasons for not doing so. The Commissioner also stated that the lack of regulation in relation to the mode of access in the Act should not be used to limit individuals' capacity to access their records.

Outcome: The health service provider agreed to consider amending its privacy policy to reflect the flexible rates for photocopying and forwarded the 32 pages of personal information sought by the complainant to his legal representatives for the cost of $32 and did not require that the complainant attend a consultation. As such the Commissioner was satisfied that access was provided to the complainant in the form sought and the charges for access in this instance were not excessive. The Commissioner decided under section 41(2)(a) of the Act to not investigate the matter on the grounds that the respondent had dealt adequately with the complaint.

OFFICE OF THE PRIVACY COMMISSIONERFebruary 2005