Case number: 000128A
Request by a parent for access to medical records of a minor - primary position that presumption exists that the parent is entitled to access to the records - whether circumstances exist to rebut the presumption that release of information would best serve the minor's interests - section 28(6) - whether the public interest that the request be granted outweighs the public interest that the right of privacy of the individual be upheld - section 28(5)(a).
Please see the Supreme Court Judgment of 24 January 2006 in N.McK and the Information Commissioner  IESC 2 which remitted this case to the Commissioner for fresh review. Details of the identity of the parties are disclosed only to the extent that they appear in the Supreme Court's judgment.
See also case numbers 000137 and 99491 et al
The requester sought records relating to the hospitalisation in 2000 of his daughter who was then 12 years old. The Hospital was deemed to have refused access to the records and the requester made an application to the Commissioner for review. That review (Case Reference 000128) was completed on 12 August 2002 with a finding that the requester was not entitled to have access to the records. The requester than appealed to the High Court which allowed the appeal, directing that the matter be remitted to the Commissioner and that access to the records be granted to the requester. The High Court found that the Commissioner had erred in law in regard to the construction of the Freedom of Information Act, 1997 (section 28(6)) Regulations (S.I. No. 47 of 1999) ["the 1999 Regulations] and in the application of a test requiring the requester to furnish "tangible evidence" that his having access to his daughter's medical records would be in her best interests.
The Commissioner appealed the High Court's decision to the Supreme Court which delivered its judgment on 24 January 2006. The Supreme Court affirmed the High Court's decision but varied it in remitting the case back to the Commissioner "for review in accordance with the correct test and in light of all the circumstances." It found that section 28(6) of the Act ought to be interpreted in the light of the Constitution and that the requester, as a parent, enjoys a fundamental presumption that his actions are in the best interests of his child. It held that the Commissioner should have acknowledged this and should have then proceeded to consider any evidence which exists addressing the issue that release of the records would not be in the minor's best interests. The Court said that the position is not absolute and that the circumstances may be such that the presumption may be rebutted and evidence produced that release of the records would not serve the child's best interests. It stated that, in considering the cicumstances, the welfare of the minor is paramount. The Court made it clear that, as the child in question was nearing her majority, her views were very relevant.
In conducting a fresh review in the light of the Supreme Court's judgment, the Commissioner invited and considered submissions from the requester, his daughter, her joint guardian and the hospital. Her staff met with the minor whose records were at issue.
The Commissioner considered the argument advanced by the Hospital that, under the provisions of the Non- Fatal Offences Against the Person Act, 1997, a minor over the age of sixteen years has capacity to consent to medical treatment without parents or guardians having to consent to such treatment. She accepted that the Oireachtas has recognised the capacity of minors over the age of sixteen years to determine what is in their best interests with regard to medical treatment. However, she commented that the "parental primacy" enjoyed by the requester does not appear to be dependent on whether access to the medical records is necessary to enable him, as a parent, to act in the best interests of his child.
The Commissioner made several findings of fact based primarily on the direct evidence of the requester's daughter. The Commissioner had regard to the age and maturity of the individual involved and the cogent reasons she advanced in relation to her views. The Commissioner found that there was sufficient evidence to the effect that disclosure of the minor's medical records to her father would not serve her best interests in order to rebut the presumption that such release would serve her best interests. The Commissioner found that section 28(6) (a) does not apply in this case to set aside the prohibition on release of the records as provided for in section 28(1) of the Act. She further found that neither section 28(5)(a) - the public interest override - nor any of the other exceptions to section 28(1) applied in the circumstances of this case.
As the finding was that all of the records disclosed the personal information of the requester's daughter, it was not necessary to consider whether the personal information of third parties as disclosed in some of the records fell to be released in the public interest or otherwise.
The requester, Mr McK, made application to the Information Commissioner on 10 March 2000 for a review of the decision of the Hospital to refuse his request under the Freedom of Information ("FOI") Act for access to the medical records of his daughter, who had been admitted to the Hospital in January 2000.
The requester and his late wife, had been separated for some years prior to Mrs McK's death [date]. Following Mrs McK's death, a Circuit Family Court order [date] under the Guardianship of Infants Act, 1964, as amended, appointed "B" (Mrs McK's brother who subsequently died [date]) and "M"("B's" wife) to act with Mr McK as joint guardians of Ms McK and her brother "R" The court order placed the two children in the joint custody of B and M and Mr McK. It provided for limited, supervised access by Mr McK to the children who were to live with B and M.
The requester sought the records from the Hospital under the FOI Act on 17 January 2000. The Hospital failed to make a decision on that request or on the subsequent request for internal review and was deemed under section 41 of the FOI Act to have refused the request. However, following the requester's application to my Office, the Hospital wrote to the him on 29 January 2001 informing him that it was refusing his request for access to the records having regard, in particular, to section 28(6) of the FOI Act and the regulations made under that section. My Office made a decision on completion of the review on 12 August 2002. That decision found that the requester was not entitled under the FOI Act to have access to the records at issue.
The requester appealed the decision to the High Court and, having heard the appeal in November 2003, the Court delivered its judgment on 14 January 2004. Mr Justice Quirke allowed the appeal and directed that the matter be remitted to the Commissioner with a direction that the Commissioner grant the requester access to the records. The Court found that the Commissioner had erred in law in regard to the construction of the relevant regulations [the Freedom of Information Act, 1997 (section 28(6)) Regulations (S.I. No. 47 of 1999) - referred to as the "1999 Regulations" hereafter] and in the application of a test requiring the requester to furnish "tangible evidence" that his having access to his daughter's medical records would be in her best interests.
Subsequently, I appealed the High Court's decision to the Supreme Court. In its judgment, delivered on 24 January 2006, the Supreme Court affirmed the decision of the High Court. However, the Supreme Court varied the decision of the High Court on the matter of the remittal of the case to my Office. The Supreme Court remitted the case "for review in accordance with the correct test and in light of all of the circumstances".
The requester's original request was for "All records in all formats relating to myself and any members of my family system including my children [names] and my late wife [name]". In the course of the review, the Hospital identified for my Office thirty nine records which it held and which were created in connection with its treatment of the requester's children. It furnished my Office with copies of these records which it had numbered 1-39 and I adopt that numbering in this decision. During the original review process, the Hospital decided, following the intervention of my Office, to release the records relating to R and these were released to the requester in August 2002. Accordingly, these records (numbered 1-6 by the Hospital) will not be considered in this review.
My Office put it to the requester that it appeared from the judgment of Mr Justice Quirke in the High Court (whose findings on the facts were adopted by the Supreme Court), that the records the subject of the remittal are those records confined solely to personal information relating to the requester and/or his daughter. In this regard, I note that the judgment of Denham J. in the Supreme Court states that "It was agreed by the parties that a total of 26 of the records to which the requester seeks access comprise "joint personal information" which is confined to material relating to the requester's daughter and himself and it is those records which are the subject of this appeal." In fact, the majority of the records, relating as they do to her medical treatment, contain personal information relating solely to Ms McK; a few of the records mention the requester and some contain the personal information of other individuals.
The requester disagreed with the proposal to confine the scope of this new review to those records comprising the Hospital's records of Ms McK's admission and treatment numbered 7-39 but excluding the personal information of individuals other than the requester and his daughter. His contention is that if this is a "de novo" review, I must consider all of the records.
Having considered the matter, I have decided to include all of the information in records 7-39 in my review and to include in my decision a finding on whether the FOI Act entitles the requester to have access to such personal information of persons other than himself and Ms McK as appears in the records held by the Hospital. I take this approach in the interests of completeness and having regard to the fact that the order of the Supreme Court (made on 7 February 2006 and perfected on 28 February 2006) appears to have the effect of quashing the decision of 12 August 2002 which dealt with all of the records in their entirety.
Section 28(6) of the FOI Act provides that, notwithstanding the general prohibition in section 28(1) on the release of records which disclose personal information about individuals other the requester, the Minister may provide by regulations for the grant of a request where the requester concerned is a parent or guardian of the individual to whom the records relate. The 1999 Regulations, provide, inter alia, for the granting of a request, subject to other provisions of the FOI Act, where the requester is a parent or guardian, where the information relates to individuals who, on the date of the request, have not reached the age of majority and where, in the decision maker's opinion, access to the record would be in the best interests of the minor concerned. The Supreme Court affirmed the High Court's judgment that section 28(6) of the FOI Act ought to be interpreted in the light of the Constitution (particularly Article 41) and that the requester, as a parent, enjoys a fundamental presumption that his actions are in the best interests of his child. The Court found that the Commissioner had erred in requiring the requester to show that release of the records would be in his daughter's best interests. It held that the Commissioner should have acknowledged that a parent is presumed to be entitled to the information and should have then proceeded to consider any evidence which exists addressing the issue that release of the records would not be in the minor's best interests.
On consideration of the Supreme Court judgment, I decided to begin the fresh review immediately and to conduct it in the light of the judgment delivered on 24 January 2006. I noted the Court's reference to the fact that Ms McK will reach her majority in late May 2006 and I was anxious to conduct the review as expeditiously as practicable without compromising on fair procedures. By letter dated 2 February 2006, my Office informed the requester, Ms McK, M and the Hospital of my proposals for the carrying out of the review. It was explained to the parties that the Supreme Court had made it clear that "the primary position" is that the presumption exists that the requester, as a parent, is entitled to access information about the medical care his child has received. The Court held the correct approach to be that the "presumption is that the release of such medical information would best serve the interests of the minor". However, the Court also made clear that the position is not absolute and that the "circumstances may be such that the presumption may be rebutted" and that "...evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."
The parties were invited to make submissions on the matter. It was explained to them that such submissions need not be confined to the provisions of section 28 of the FOI Act and the regulations made thereunder as described above. My Office pointed out to the parties that the Supreme Court found that the Commissioner "...should have approached the request by acknowledging that a parent is presumed to be entitled to access the information" and that "... the Commissioner may then proceed to consider any evidence which exists addressing the issue that it would not be in the minor's best interests that the parent should be furnished with such information". In addition, the Supreme Court made it clear that Ms McK's views on the matter "now are very relevant". In affording the parties an opportunity to have submissions considered, my Office reminded them that, depending on the nature of any responses received, it might be necessary to put the issues raised to the other parties if these are to be relied upon in my decision.
In writing to Ms McK, my Office made it clear that it was her own views that were being sought. Ms McK contacted my Office on 10 February 2006 and stated that she wished to meet with my staff in order to convey her views. A meeting was arranged for 15 February 2006; this was put forward by Ms McK as a suitable date during the mid-term break from school. The requester was informed of this arrangement by letter dated 10 February 2006. At the meeting, my staff outlined to Ms McK the background to the fresh review and set out the main points of the Supreme Court judgment. Ms McK said that she understood the position. Having examined the records at issue (which, apparently, she had seen previously at the Hospital), Ms McK gave her views on her father being granted access to them. As agreed at the meeting, a contemporaneous note of what she had said was prepared and sent to Ms McK for her agreement and signature. On 20 February 2006 Ms McK returned a signed copy of the note of the meeting with some hand-written amendments.
On 15 February 2006, the Hospital responded to my Office's letter by way of a written statement setting out its views on the matter.
By letter dated 19 February 2006, the requester responded to my Office's letter of 2 February 2006 setting out his observations. In acknowledging his submission on 21 February 2006, my Office apologised for the error made in the original decision and rejected the requester's contentions that the decision on his application was taken as a result of prejudice against him or that "a deliberate strategy" was being adopted by my Office to cause delays in this case. In addition, my Office's reply clarified certain issues raised by the requester which I address later in this decision.
On 20 February 2006, M, joint guardian of Ms McK, attended at my Office and made her submissions to the same members of my staff as had met with Ms McK. Again, the background to the case was outlined and M indicated that she had read and understood the judgment of the Supreme Court. In regard to the presumption that release of the records to Ms McK's father is in Ms McK's best interests, my staff explained to M that the lack of agreement by the co-guardian would not be sufficient in itself to rebut the presumption. A contemporaneous note of the meeting was made and forwarded to M. She returned this, having made some amendments, on 5 March 2006.
Summaries of the submissions described above were sent to the requester on 6 March 2006 and he was invited to make further observations in response to these submissions and/or to my Office's letter of 21 February 2006. It was pointed out that inclusion of any material in the summaries did not mean that, at that stage, I was accepting or giving any particular weighting to any element of the evidence given and that no assessment or recommendation in relation to what decision I might make had yet been carried out. The requester indicated in an email to my Office on 15 March 2006 that he would make further submissions no later than 24 March 2006.
On 24 March 2006, the requester submitted a letter addressed to Elizabeth Dolan, the investigator assigned to the case in my Office. The letter, which referred to the minors involved by name, had been copied by email to all members of the Oireachtas. A further letter also dated 24 March 2006 referred in general to this review and in particular to other separate but related review applications by Mr McK which are being considered in my Office. This letter too had been circulated to members of the Oireachtas under a heading "Removal of Commissioner". In these letters, certain allegations about my conduct of the review were made and it was alleged that delays in the case were part of a "deliberate strategy" by my Office of delaying the decision until Ms McK had reached her eighteenth birthday. The requester said that he was pursuing the taking of the decision process out of my Office's hands so that it could be dealt with by the Minister for Justice. He further claimed that my Office held a "gender specific misanthropic position".
My Office's responses to the points made in the requester's submissions issued on 27 March and 30 March 2006. The responses clarified the nature of the records and the scope of the review and confirmed that, as requested, the written legal submissions prepared by Mr McK's legal advisers for the High Court and for the Supreme Court would be considered in this review. My Office advised the requester that I was required under section 34(6) of the FOI Act to notify the Hospital of the review and to consider its submissions. Furthermore, my Office's response expressed my deep concern at the nature of the requester's engagement in the review, including his unwarranted attacks on my integrity and that of my staff. It made the point that we accept absolutely the Supreme Court's judgment that the original decision relied on a test which has now been found to be unconstitutional. It said that to have made a mistake in law is an entirely different thing to being biased or prejudiced.
In its letter of 30 March 2006, my Office informed the requester that our legal team had indicated to the Supreme Court that, in the event that the case was referred back to me for a fresh review, I would deal with it as expeditiously as possible having regard to the fact that the principal subject of the records - Ms McK - will reach her majority in late May 2006. The letter stated that our experience had been that the manner in which the requester had chosen to engage with us for the purposes of conducting the review was not helping to expedite the process. My Office asked the requester to desist from any further copying of correspondence which was part of the review process to outside parties. It expressed concern that the identifying of the children and the linking of them to previous court proceedings may have been a breach of the in camera rule. The requester was asked to make a clear, unambiguous statement that he wished to have this review (and other cases in which he is involved) completed by me.
On 29 March 2006, the requester submitted comments in response to my Office's letter of 27 March 2006 and on 31 March 2006 he forwarded a message which read "Make your decisions."
In a further communication received in my Office on 3 April 2006, the requester indicated that he wished my Office to make decisions in his cases. However, he went on to request that one of my staff cease communicating with him and made serious unsubstantiated accusations against that senior staff member. The requester said that he apologised for any breaches of the in camera rule. Once again, this communication was copied by email to all members of the Oireachtas.
At this stage, I gave serious thought to whether the requester's behaviour had rendered it impossible for me to continue with the review. Having considered my position and consulted with my legal advisers, I decided, notwithstanding the attitude of the requester, to proceed with a formal decision in this case - not least because, as I understand it, the order of the Supreme Court quashed the previous decision on the matter and required me to determine the matter having conducted a fresh review. My position was explained to the requester in a letter dated 4 April 2006.
In setting out in summary form the material submitted in this review, I do not address explicitly each and every one of the points made; however, all submissions have been carefully considered. Lest there should be any doubt about it, neither does the inclusion in this summary of a particular point made by any of the parties imply that I accept its accuracy or relevance. However, I am satisfied that all the relevant matters are considered and dealt with in the analysis contained in the "Findings" section of this decision.
Much of the content of the requester's most recent submissions is referred to above under "Process of Review". This section will deal primarily with the arguments advanced by the requester on his right of access to the records. In his submission of 19 February 2006, the requester asked that all of his previous submissions on all applications for review to my Office, arising from various requests for access to records about his family which are held by public bodies, be taken into consideration in this case. He also specified that the written submissions of his legal advisers in the High Court and Supreme Court be treated as part of his submissions. To this end, in addition to the submissions detailed above and made since the remittal of the case for a fresh review, I have considered the following:
The requester asked in his submission of 19 February 2006 that I recognise that release of the records would not be detrimental to Ms McK's welfare. He sought confirmation from me also that his Constitutional rights and responsibilities and his right to "unhindered parenthood" had been breached by the State and by me. He went on to say that there is a constitutional obligation on me to do all in my power "to rectify the wrong doing that [my] office has perpetrated." He referred to his right "to inculcate" in his children his own moral and ethical standards and to make decisions concerning their medical treatment, educational, religious and other activities. He required me to furnish him with tangible evidence as to why these rights and responsibilities should not be upheld. He expressed the view that if the request had been made by Ms McK's mother, it is doubtful if she would still be waiting for the records.
In one of his earlier submissions dated 3 February 2003, the requester set out his understanding of the position of parental rights under the Irish Constitution. He argued that the State is required to show by clear and convincing evidence that a compelling state interest is at stake before it can terminate parental rights. He said that parental rights protect the interests of parents and children in a relationship that is natural and independent of the existence of the state and that their interests must be protected from undue state interference in the relationship. He stated that individuals will often make choices contrary to their own best interests or the best interests of their children but it does not follow from this that "government interference" to enforce the preferred course of action will be in the best interest of the individual or the child. He said that it is only upon showing clear and convincing evidence, that interference with parental rights is necessary to prevent harm to the children, that the State should interfere while still protecting the children's right to "a parenting relationship". The requester said that the prime issue for the post-bereavement stability and mental health for his children is continued close, frequent and meaningful interaction with their sole remaining parent.
The legal submissions of the requester's legal advisers were submitted to the High Court and the Supreme Court. It is clear from their judgments that both Courts accepted the requester's arguments in relation to the constitutional provision, the presumption that the father is acting in the best interests of his child and the claim that the Commissioner's approach, in requiring "tangible evidence" that the parent was acting in the child's best interests, was incorrect.
In his submissions of 24 March 2006 and 29 March 2006, the requester asked that the case be considered from the position of his original request of March 2000 and that I should make a decision on all of the records held by the Hospital. He requested that my Office provide him with a schedule identifying each record and the reasons for refusal. He referred to a particular record which he wished to have amended and accused my Office of being an accessory to an act of fraud.
The requester argued that the Hospital has no right to be heard in this review.
The requester responded to the submissions of M by sharing her concern that this review was being conducted in the period leading up to Ms McK's Leaving Certificate examination. However, he stated that the remainder of M's submissions was irrelevant to consideration of the rebuttal of the presumption that the requester has a right of access to his daughter's medical records. He referred to the comments of Mr Justice Quirke in the High Court when he said that "Reluctance by another family member to agree to access does not, in the absence of any supporting evidence, amount to rebuttal sufficient to displace the presumption referred to."
On the question of custody of the children, the requester stated that M was incorrect in her belief that he was given joint custody with the [names] so as to ensure that he exercised his parental duties. He pointed out that he had already had custody at the time and that the [names] were given, with Mr McK, the responsibility of joint custody. The requester said that M was making unsubstantiated and vexatious accusations to support her position. He claimed that the [names] had "consistently tried to alienate" his children from him and from "their extended family". He said that he did not believe that M has any evidence to suggest any failure of duty on the requester's part of the kind contemplated by Article 42.5 of the Constitution. Since, in his view, M's submission painted the requester in a poor light, the requester stated that the submission should not have been included in my Office's correspondence to him. He commented that "...it is consistent with the Commissioner's gender specific misanthropic view" of him.
The requester applied under section 37(5) of the FOI Act for expenses incurred by him and for compensation for the loss of his time due to the length of the review process.
In regard to records containing personal information of individuals other than the requester and his children, the requester made a number of submissions and directed several questions to my Office on the application of the FOI Act to such "third party" information. He queried whether references to third parties could be deliberately inserted into records so as to make them qualify for exemption. He questioned whether a third party's name "or some inconsequential information" should be enough to make a record exempt. He said that, particularly in its application of the FOI Act to "joint personal information", my Office is not upholding the spirit of the Act.
In her oral submission to my Office, Ms McK stated that she did not want her father to have access to her medical records. She stated that she had not spoken to the requester in over two and a half years and that any communications he sent to her were through her brother. Ms McK recalled that the last time she had spoken to her father was when she was fifteen and a half years old. She referred in some detail to a row they had had and she said that afterwards she was so distraught by the things her father had said about herself, her brother and her "foster parents" that she began cutting herself. According to Ms McK, she had scars as a result of this and a doctor recommended that she see a counsellor. She said that she did not go for counselling then because she felt she had had enough of counsellors over the years.
Ms McK described how she found it difficult to understand why her father would want the records. She said that he already knows the information. In her view, seeking the records amounted to an attack on her through "information about my body" being sought. She said that, if access to the records was given to the requester, "he would make my life hell" and that the records would be something to "dangle over" her.
Ms McK described how contact with her father caused her stress and anxiety. She gave some examples of how her father's behaviour in the past had upset her. She stated that, in the past, incidents with her father and the anticipation of contacts with him caused her fear and nightmares. One incident referred to involved a visit by her father to the Hospital during the period covered by the records under review. In Ms McK's opinion, her father did not have due regard for her privacy. She said that she regarded this behaviour as intimidation.
Describing herself as being "in bits" when she read about the High Court and Supreme Court appeal proceedings in the newspaper, Ms McK said that that "the build up to the whole thing" has caused her a lot of stress. She said that any contact was an attempt by her father to exercise control and that she has "had enough". She stated that she has a clear mind and does not want the requester to have her records under any circumstances.
M said that she had read the Supreme Court judgment, was fully aware of the position and was giving her views in her capacity as joint guardian to Ms McK. She said that she understood that the disagreement of the co-guardian would not be sufficient in itself to rebut the presumption that release of the records to the requester would be in his daughter's best interests.
M said that she accepts that, in the normal course, a father should have access to his child's medical records. However, she commented that this situation "is very far from normal". She is very concerned that this process is being conducted coming up to Ms McK's Leaving Certificate examinations. She said that Ms McK deserves a fair chance before the June exams and that, if the matter is not sorted out before Easter, M objects to any approaches being made to Ms McK in relation to the FOI review until after her Leaving Certificate.
M stated that she believes that to grant the requester access to Ms McK's medical records from her admission to [name] Hospital in 2000 would not be in Ms McK's best interests. She recalled how the [name] Health Board had found in its assessment that it was in Ms McK's best interests that she should live with B and M.
M set out some of the family background and sequence of events. She said that Mr McK and Mrs [name] McK had lived apart since 1992 and that Mrs McK had got a barring order against her husband on [date]. According to M, Mrs McK had had sole custody of the two children. Just before Mrs McK died in [date], the requester issued court proceedings to get custody of the children. M stated that it was at this point that she and her husband put themselves forward to look after the children. She recalled that a social worker from the [name] Health Board went to visit Mrs McK in hospital as the Board was to look after the children's interests. M said that Mrs McK told the social worker "to fight for her children and protect them from their father." When Mrs McK died, M and her husband B (who has since died) were given, with the requester, joint custody and guardianship of the children. M holds the view that the retention of guardianship rights was allowed by the Court in respect of the requester mainly to ensure that he exercised his parental duties, including maintenance.
M said that Ms McK does not have a normal relationship with her father; she has not lived with him since 1992 and he did not avail of his access rights to the full extent. The requester's access to his daughter since she was four years old has been supervised. In Ms McK's mind, he is "always there to torment her". An unsupervised visit by the requester, when Ms McK was in hospital in 2000, was referred to by M. She said that the requester would not have regarded this as wrong because "he never sees anything he does as wrong." His unsupervised visit was, according to M, in breach of a court order.
M said that a Child Psychologist in 1999 had indicated that Ms McK felt a lack of safety and security with male figures.
M described Ms McK as articulate and being able to see things clearly. She said that Ms McK feels "tormented by her Dad who is always out to get her". She put forward some examples of the requester's behaviour in the past which, in M's view, indicated that he was inclined to push everything to the limit. She also described incidents which she felt showed that the requester had caused disappointment and uncertainty for Ms McK which, according to M, had been very upsetting.
M stated that Ms McK has not spoken to or seen her father in over two and a half years. She saw him on access visits once a month until she was 16 years old. M said that she felt it was important that Ms McK went on access visits because she did not want to be accused of alienating Ms McK from her father. However, M said that since Ms McK turned 16, she (M) is respecting her wishes not to go on access visits.
M referred to her view that the requester caused stress and uncertainty for Ms McK over the issue of which school she would attend. M said she felt that at that time Ms McK lacked security and that after the difficulties she had been through, including her mother's illness and death, this was "totally unnecessary torment". M expressed the view that the requester can be "quite aggressive" and that there is a "controlling" aspect to his behaviour.
M said that she objects to release of the records because this would not be in Ms McK's best interests and would affect her schooling in this very important year. She stated that it is not the content of the records that is important - it is the fact that they are Ms McK's records. According to M, Ms McK feels that there is no way of escaping her father and that everything that comes from him "comes with a catch" - nothing is ever unconditional. M said that she accepts Ms McK's views absolutely. She said that Ms McK's views are well grounded; her experiences in relation to her father have been negative and controlling.
M told my Office that Ms McK had spoken to her about some memories she had of her early childhood. M stated that [name] (Ms McK's mother) kept diaries of that time and had put the entries in these diaries for a reason. M indicated that she wished to make the diaries available for the purposes of this review. She did not have copies of these diary entries with her at the time of making her submission. However, she arranged for copies to be forwarded to my Office. The documents at issue comprise some pages of hand-written notes and letters which have various dates between 1992 and 1996. I return to these later in addressing the relevance of these submissions to my findings.
In its submission to my Office, the Hospital said that, having reviewed the records that it holds, the provisions of the FOI Acts and the regulations made under section 28(6) and the Supreme Court decision in this case, it is opposed to the disclosure of the records to the requester. It stated that it " has at all times been aware" of Ms McK's opposition to the release of the records to her father. The Hospital said that it met Ms McK in November 2000 and established that she was firmly opposed to the disclosure of her hospital records. The Hospital expressed the view that its position is supported by the Supreme Court's finding that Ms McK's views will now be "very relevant" in light of the fact that she will shortly be eighteen.
In addressing the question of whether there is evidence which rebuts the presumption that disclosure of his daughter's medical records to the requester would be in the best interests of Ms McK, the Hospital stated that this should be considered in the context of what is in Ms McK's best interests at the present time and not at the time of the original request. It drew attention to Section 23(1) of the Non-Fatal Offences against the Person Act, 1997. The Hospital said that it is satisfied that, if Ms McK were to seek treatment in the Hospital, she has the legal capacity to consent to this treatment. Accordingly, the Hospital argued that it seems to follow from this that Ms McK must also have the capacity to make a decision concerning the disclosure of her medical records. It is the Hospital's view that, as Ms McK is legally responsible for consenting to her own medical treatment, disclosure of her records to her father is not necessary "to enable him to act in her best interests".
The Hospital considered that, in the light of Ms McK's age and the importance which the Supreme Court and the Hospital attached to her wishes, it was appropriate to consider the provisions of section 26(1)(a) of the FOI Act. The Hospital was satisfied that the information in the medical records was given to it in confidence. It also said that disclosure of such information would be likely to prejudice the giving of further similar information to the Hospital as it would undermine the principle of medical confidentiality which exists between doctor and patient and patient and hospital.
It stated that, as Ms McK has the capacity to consent to medical treatment, the Hospital is satisfied that it has a related duty to maintain the confidentiality of the records relating to the treatment she received. In the Hospital's view, it seems logical to expect that where a minor over the age of 16 has the capacity to determine what is in her best interest with regard to medical treatment, the same recognition can be given to the wishes of that minor with regard to the disclosure of her medical records. On this basis, the Hospital said that the wishes of Ms McK would be sufficient evidence to rebut the presumption that it is in her best interests to release her medical records to her father.
It was noted by the Hospital that Ms McK's joint guardian, M, remains opposed to the disclosure of the medical records to the requester. The Hospital said that it had met with M in November 2000 to discuss her views.
In his submissions, the requester has made a number of points about the conduct of the review which I wish to address at this stage.
The requester has argued that I should have regard to the position as at the date of his request i.e. 17 January 2000. He argues that if the records were released to him now "this does not change the position that Ms McK would have enjoyed had they been released in January 2000 ...when Ms McK was twelve years old". I have considered whether the review can be confined to a consideration of the circumstances at that time.
It has been my practice and that of my predecessor to base review decisions on the circumstances and the law as they pertain at the time of the decision. This approach would appear to have found support in the High Court judgment given on 31 July 2001 in the case of Minister for Education and Science v Information Commissioner (1999 No.99 MCA) where Mr. Justice Ó Caoimh, commenting on the nature of a review under section 34 of the FOI Act, said that "importance must be attached to the fact that the nature of the appeal agreed between the parties arising under Section 34 of the Act is by way of a hearing de novo by the Information Commissioner" and that "the decision that was to be made by the Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision". As I understand it, the basis for this aspect of Mr. Justice Ó Caoimh's decision was that rights under the FOI Act do not constitute "vested" rights until the completion of the overall FOI process, including the completion of the review process (where necessary) by my Office, and that this approach does not involve the breaching of a "vested" right. Furthermore, Mr. Justice Ó Caoimh supported the view that the review process engaged in by my Office does not constitute the "administration of justice".
Even if the above position did not obtain generally, I am conscious that this fresh review is being carried out on foot of an Order of the Supreme Court. It is clear to me that the judgment was made on the basis that I must have regard to all the circumstances of the case as they obtain in 2006. I note especially that the Supreme Court stated that "the considerable elapse of time since the requester sought this information in 2000" was a regrettable factor and that "[t]he elapse of time has special relevance where a minor child is involved." It referred to the fact that "[s]ix years later she is in her 18th year" and stated that "[her] views now are very relevant". I take it from this that it is not open to me to consider the case solely in the light of the circumstances which prevailed in 2000.
The requester asked that my Office provide him with a schedule describing each individual record, specifying whether it is a medical or other record and giving reasons why it is being released or withheld. The provision of such a schedule is not a requirement of the FOI Act; however, it is recommended as good practice for public bodies to prepare such schedules, especially where the number of records is large or where the records are held in various files. The Hospital did not provide a schedule in this case. The records are described above under "Scope of the Review". They comprise a single file of medical records relating to Ms McK and have been numbered 7-39 by the Hospital. The requester is aware that records 1-6, which have been released to him, comprise his son's medical records.
Whilst it might be appropriate in some cases to treat a patient's medical file as a single, composite record, this has not happened in this case. It has been made clear to the requester in the original review decision, in the subsequent court proceedings and in the course of this review that all of the records are medical records and that all relate to Ms McK's admission to the Hospital in January 2000. The particular exemption cited in my Office's original decision and relied on in respect of all of the records (section 28) has been identified and thoroughly examined in the court proceedings. Furthermore, the requester has been informed that some of the records contain references to himself and to third parties and that admission, consent, diagnostic and treatment records are included. Particular records containing references to third parties are examined later in my decision. Accordingly, I consider that the number and nature of the records have been adequately identified for the purposes of this review and I do not find it necessary to supply a further description in the form of a schedule. In this regard, I agree with Ms Dolan's (of my staff) view as put to the requester on 27 March 2006, that the provision of more detail as to the nature of each record could be in breach of section 43(3) of the FOI Act which provides that I must take reasonable precautions to prevent disclosure of information in an exempt record and must refrain from disclosing information which a public body or other party contends is contained in an exempt record so as to preserve that party's right of appeal to the High Court.
I fully accept and have apologised to the requester for the error of law contained in the original review decision of 12 August 2002. I recognise, as the Supreme Court has pointed out, that the considerable elapse of time since the requester sought access to the records has given rise to serious consequences. However, I reject as absolutely unfounded the requester's repeated allegations that the delay which has occurred since he first made his application in 2000 was the result of a "deliberate strategy" by my Office. I note that, in a telephone conversation with Mr Fintan Butler of my Office on 17 January 2003 and in my letter to the requester on 3 March 2004, it was explained that consideration of the outstanding review applications had been suspended pending the outcome of the appeal to the High Court in this particular case.
In a telephone conversation with a member of the staff of my Office on 15 April 2002 in the course of the original review, and in letters of 14 November 2002 and 3 February 2003 in relation to his other review applications, the requester expressed the view that any attempt to seek the views of his children in this matter is "in itself abusive as defined by the national guidelines for the Protection and Welfare of Children." In fact, up to the time of this new review, my Office had had no contact with Ms McK. In this regard, I believe that my Office's recent contacts with Ms McK were effectively sanctioned by the Supreme Court when it found that, in the circumstances of the case and in view of the fact that she is nearly 18 years of age, Ms McK's views "now are very relevant" and remitted the matter to me "to enable the matter to be reconsidered in accordance with the correct test and the circumstances of the case." Furthermore, the Supreme Court found that "... in considering the circumstances, her welfare is paramount."
I consider that it would be impossible for my Office to conduct the review in accordance with the terms of the Supreme Court judgment without making contact with Ms McK and hearing her views. My Office informed the requester by letters of 2 February 2006 and 10 February 2006 of our proposals for contacting Ms McK and it also notified her joint guardian, M, of the arrangements. Having regard to the limited time available before she reaches her majority, I did not consider it feasible to defer the hearing of Ms McK's views. At all times, my staff endeavoured to facilitate Ms McK in a manner consistent with her welfare and convenience. I accept that it is most unfortunate that the review falls to be determined in the period immediately before Ms McK's Leaving Certificate examinations. However, my Office's contact with her by way of correspondence, telephone calls or meeting was kept to the minimum level practicable so as not to upset her unduly or interfere with her studies. Ms McK was advised that she might wish to consult with legal or other advisers or arrange for someone to accompany her if she choose to make an oral submission. However, she stated that she was comfortable in meeting with my staff without accompaniment.
The requester indicated that he would be responding to Ms McK's views as put to him by my Office. However, the submissions received from him to date have not included such response.
The requester asked that I disregard the submissions of the Hospital on the basis that it was precluded from involving itself in this process because of its failure to respond to his original request within the period specified in the FOI Act. My Office explained to the requester why I could not agree to such request. Regarding the reasons for taking the Hospital's submissions into account, I concur with the explanation given to the requester in Ms Dolan's letters of 21 February 2006 and 27 March 2006. She pointed out that the fresh review to be carried out, following the remittal of the case by the Supreme Court, falls to be carried out under the FOI Acts and that section 34(6) of the FOI Act requires me to notify the head of the public body involved of the review. In addition, section 34(8) of the Act provides for the making of submissions by the Hospital in relation to any matter relevant to the review and requires me to take such submissions into account. Accordingly, I find that the Hospital's submissions were properly sought and are validly before me. I note that the requester had indicated that he would take legal advice on this matter, that he was informed by my Office on 27 March 2006 and on 3 April 2006 that the review process would not be suspended indefinitely and that submissions in response to the Hospital's views have not been received from him to date.
In his submission dated 24 March 2006, the requester referred to a particular record which he says that he saw, when he visited Ms McK in the Hospital, and which includes a reference to a third party. My Office confirmed to the requester that his right of access to this record was amongst the matters within the scope of my review. However, the requester also alleged that an entry in that record was incorrect and misleading. He sought to exercise his right to have this record amended under section 17 of the FOI Act and was informed by my Office that it was open to him to make such an application to the Hospital.
The requester argues that he cannot be expected to make an application to amend a record where he does not have access to that record. I deal with this point later in this decision when examining "third party" information in the records. I am satisfied that the issue of whether this particular record falls to be amended under section 17(1) of the FOI Act is not before me in this review.
The requester applied to my Office under section 37(5) of the FOI Act for expenses incurred by him and for compensation for the loss of his time due to the length of the review process. I have considered this application and have decided that I am unable to accede to it.
Section 37(5) provides that that
" The Commissioner may, if he or she thinks fit, pay to any person who, for the purposes of a review under section 34, or an investigation under section 36, attends before the Commissioner or furnishes information or a record or other thing to him or her -
(a) sums in respect of travelling and subsistence expenses properly incurred by the person, and
(b) allowances by way of compensation for loss of his or her time,
of such amount as may be determined by the Minister."
I would envisage that such payments would arise where a person is required by me pursuant to section 37(1) of the FOI Act to attend at my Office and/ or to furnish material to me for the purposes of a review. No such requirement arose in this case. Even if I was to consider it appropriate to direct the making of payments to the requester, I note that the Minister for Finance has not made any determination of the amount of such payments as required by the Act.
Section 28 (1) of the FOI Act provides that:
"28(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information ..." .
However, section 28 contains within it a number of exceptions to this prohibition, one of which is particularly relevant in this case. Section 28(6) provides that:
" 28(6) Notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request under section 7 where:- (a) the individual to whom the record concerned relates to belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual...".
Article 3(1) of the 1999 Regulations provides that:
" 3.(1) Notwithstanding section 28(1), a request under section 7 in relation to a record access to which involves the disclosure of personal information (including personal information relating to a deceased individual) shall, subject to the other provisions of the Freedom of Information Act, 1997, be granted where:
(a) the requester is a parent or guardian of the individual to whom the record concerned relates and that individual belongs to one of the following classes of individual:
(i) individuals who, on the date of the request, have not attained full age (within the meaning of the Age of Majority Act, 1985 (No. 2 of 1985)), or
(ii) individuals who have attained full age (within the meaning aforesaid), who at the time of the request have a mental condition or mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner and who, by reason thereof, are incapable of exercising their rights under the Act,
being individuals specified in clauses (i) and (ii) access to whose recordswould, in the opinion of the head having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in their best interests, or ...".
In addition, there are other potentially relevant exceptions to the provisions of section 28(1) which, although not specifically addressed in the court proceedings, should be considered in the circumstances of this case. Section 28(2) provides that section 28(1) does not apply if -
" (b) ...any individual to whom the information relates consents...to its disclosure to the requester" or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual".
Section 28(5) provides two separate grounds on which the normal protection for personal information will be set aside; firstly, on the basis of the public interest and, secondly, where release of the personal information will benefit the person to whom it relates. Section 28(5) reads as follows:
"Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance -
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the request would benefit the individual aforesaid,
the head may, subject to section 29, grant the request."
Finally, it is of relevance that Section 28(5B) provides:
"Notwithstanding paragraph (a) of subsection (2), a head shall, subject to subsections (b) to (e) of that subsection and subsections (5) and (6), refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester."
Firstly, I find as a matter of fact that (i) none of the records in this case relates solely to the requester; (ii) all of the records contain information about Ms McK and a number also contain personal information relating to the requester which is inextricably linked with that of his daughter. There are references to third parties in some of the records; the latter information is examined in more detail later in this section of my decision.
Article 3(1) of the 1999 Regulations provides that access to records containing the personal information of a minor shall be granted to that individual's parent or guardian where access "would, in the opinion of the head having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in their best interests".
I note that the term "best interests" is not defined or clarified in FOI or other legislation.
The Supreme Court upheld the High Court judgment that my Office had erred in the previous decision in determining that the release of the records would only be directed where there is tangible evidence that such release would actually serve the best interests of the minor who is the subject of the records. In accordance with the Supreme Court's judgment, I am proceeding to apply the provisions of the FOI Act on the basis that the requester is presumed, as a parent, to have the welfare of his child at heart, to be acting in the child's best interests and, accordingly, to be entitled to access records containing medical information in order to exercise his constitutional rights and duties as a parent and guardian regarding the child's medical care.
I refer to Denham J's comments in the Supreme Court judgment in this case - "As it is so quintessentially a matter arising in family law it may be that it is a matter more appropriately considered in a Family Law Court. However, this matter proceeded under the Act of 1997 procedures." The parties have made serious allegations and raised issues concerning access to, and alleged alienation of, the children involved. I think I should make clear that these issues are only relevant to my review insofar as they may be factors to be taken into account in considering whether evidence exists to rebut the presumption that release of his daughter's medical records to the requester is in her best interests. I take this opportunity to reiterate that my starting point in this review is an acknowledgement of the requester's constitutional rights as a parent and of the enjoyment by him of "parental primacy" in relation to access to records containing medical information about his daughter.
It is clear from the Supreme Court's decision that it is very relevant that Ms McK is nearing the age of majority. Apart from any other evidence adduced which might be capable of displacing the presumption that the requester is entitled to have access to his daughter's medical records, the wishes, attitude and views of Ms McK herself require careful and detailed consideration.
Three members of my staff met with Ms McK and much of my conclusions are based on the direct evidence provided by her. The interview which my staff had with Ms McK focused exclusively on the subject matter of this review.
Arising from the submissions of Ms McK and her meeting with my staff, the following are the findings of fact which I have made relevant to the issues which I have to determine:
It is extremely regrettable that Ms McK and her father have become estranged and that, according to both M, there is antagonism between the requester and the joint guardian of his children. However, it is clearly outside of my jurisdiction to make any comment on the issues of guardianship, custody or access in this situation or to purport to make findings as to any allegations made. Instead, I am relying primarily on what I have ascertained from Ms McK herself in relation to how she perceives the situation vis à vis the release of the records to her father.
Some of the evidence of M is relevant insofar as she draws attention to her concerns for Ms McK's welfare and happiness and objects very strongly to anything which would interfere with her progress in school and with her preparation for her Leaving Certificate examinations. In general, M's perception, as her joint guardian and the person with whom she lives, of how Ms McK feels in relation to the release of her medical records to her father corresponds with Ms McK's own submission. Whilst the objection of the joint guardian to release of the records would not, in itself, be sufficient to rebut the presumption that the requester is acting in his daughter's best interests, I regard M's views and concerns to be genuinely felt and it is clear to me that, as one of the minor's legal guardians, she believes that she is acting in Ms McK's best interests.
I mentioned earlier in this decision that M forwarded to my Office copies of diary entries which she said were made by the late Mrs [name] McK - Ms McK's mother. Having considered the matter in the context of the review and of the Supreme Court's decision, I have decided that these documents are not relevant to my examination of whether evidence exists which would set aside the presumption that the requester is entitled to have access to his child's medical records. My decision in this regard is based on the fact that, as the late Mrs McK's views relate to events in the past, it would not be appropriate for me to have regard to them as evidence in the present circumstances. In any case, given Ms McK's age and maturity, it has been possible to ascertain her own views which means that it is unnecessary for me to speculate as to what, if any, bearing on the matter, her late mother's attitude might have. I have not, therefore, taken these documents into account.
Turning to the Hospital's views, I note that the Hospital says that in November 2000 Ms McK had informed it of her firm opposition to the disclosure of her medical records to her father. Its view is that, in those circumstances, it would not be in Ms McK's best interests to grant access to the records as sought by the requester. By way of background, I should explain here that Ms McK's position, which was made known by the Hospital to my Office in the course of the previous review, was not relied on in the original decision (the subject of the appeal to the High Court and to the Supreme Court) because, at that time, Ms McK did not wish her father to know her views on the matter. The situation has since changed in that Ms McK has informed my Office that she now has no objection to her views being communicated to her father.
One of the factors which the Hospital relies on, in its argument that there is sufficient evidence to rebut the presumption that release of the records to the requester would be in Ms McK's best interests, centres around the provisions of section 23(1) of the Non-Fatal Offences Against the Person Act, 1997 which provides as follows:
"23.(1) The consent of a minor who has attained the age of 16 years to anysurgical, medical or dental treatment which, in the absence of consent, wouldconstitute a trespass to his or her person, shall be as effective as it wouldbe if he or she were of full age; and where a minor has by virtue of thissection given an effective consent to any treatment it shall not be necessaryto obtain any consent for it from his or her parent or guardian."
The Hospital says that, in the event that Ms McK were to seek treatment in the Hospital, she has the legal capacity as a person over the age of sixteen years, to consent to such treatment without her parent or guardian having to consent to the treatment. I agree that on, the face of it, this is what the statute provides. I accept that the legislation recognises the capacity of minors over the age of sixteen years to determine what is in their best interests with regard to medical treatment.
The Hospital further submits that, since section 23(1) of the 1997 Act provides that as Ms McK and not her father will be responsible for any decisions with regard to her current and future healthcare, disclosure of her medical records to the requester is not necessary "to enable [the requester] to act in her best interests". However, I consider that I must treat this argument with caution. The finding of the Supreme Court was that, as a consequence of the rights and duties given to a parent under the Constitution and the special status of the relationship between parent and child in Ireland, a parent is presumed to be entitled to information about the medical care which his or her child is receiving so as to enable him or her to make decisions as to the child's care. My understanding of the "parental primacy" enjoyed by the requester is that the presumptions involved do not necessarily depend upon whether access to the medical records is necessary to enable the father to act in the best interests of his child. In other words, it seems to me that, in this particular case, the Supreme Court did not attach any particular weight to the content of the records or to what possible "use" they might be to him.
Accordingly, I consider that the relevance of the Non-Fatal Offences Against the Person Act, 1997 to the circumstances to which I must have regard in my decision lies primarily in the recognition by the Oireachtas of the capacity of minors, who have attained the age of sixteen, to make major decisions in relation to their own best interests in the area of medical treatment. I consider this to be further evidence of the importance of Ms McK's views and an indication of the weight which I must give to what she has decided is in her best interests.
In its submissions, the Hospital has also put forward its position in relation to confidence as a factor to be considered as part of the circumstances of this case. I refer further to this in the context of section 26 of the FOI Act later in my decision.
In assessing the views of Ms McK and the circumstances as described above, I must bear in mind the findings of the courts that Ms McK's objections to the release of the records, even when supported by the views of M and the Hospital, do not, of themselves, amount to rebuttal sufficient to displace the presumption of "parental primacy" identified by Hardiman J. in North Western Health Board v. HW.  3 I.R. 622. What I must do now, in accordance with the Supreme Court's remittal of the case for review "in accordance with the correct test and in light of all the circumstances" is consider whether, on balance, there is evidence which tends to show that, in fact and in all the circumstances, it would not be in Ms McK's best interests for the records to be released to her father - the paramount consideration being the welfare of the child.
Having considered the matter carefully, I am satisfied, based on the facts established and listed above, that the evidence given by Ms McK to the effect that disclosure of her medical records to the requester would not serve her best interests is sufficient in all the circumstances of this case to rebut the presumption that release of these records to her father would serve her best interests.
I make this finding having regard to the age and maturity of the minor involved and the cogent reasons that she has advanced in relation to her views. I recognise that this is an unusual and difficult case and that the fundamental presumptions operating in favour of the requester cannot be lightly displaced. I am satisfied that Ms McK's fear and anger in relation to what she perceives as her father's controlling behaviour towards her, allied to her concerns about personal privacy issues, are real and genuinely held, regardless of whether they are well founded. I am further satisfied that the issue of whether the requester should have access to medical records relating to a hospital admission in 2000 when Ms McK was aged 12, has caused and is continuing to cause her great stress and anxiety. In saying that, I totally accept that the delays involved were not of the requester's making and I very much regret the error made by my Office in its reliance in the original decision on a test that has since been found to be unconstitutional. Given that Ms McK's welfare is paramount, I am convinced by the evidence that to grant her father access to the records at this time would, as a matter of probability, cause damage to her educationally and emotionally. I find, in all the circumstances, that it would not be in Ms McK's best interests that the requester be furnished with the records. Thus, I make a finding of fact that section 28(6) (a) does not apply in this case to set aside the prohibition on release of the records provided for in section 28(1) of the FOI Act.
There is a limited number of other exceptions to the provisions of section 28(1) of the FOI Act. One exception is where the person (or persons) to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act. Clearly, this is not a relevant provision in this case. Potential release of personal information is also provided for at section 28(5)(b) of the FOI Act in a situation where release of the information would "benefit the individual" (Ms McK, in this case) to whom it relates. The requester has said that his children would benefit from interaction with him as their parent. However, I have no evidence to suggest that release of her medical records to him would result in Ms McK having increased contact with her father. The FOI Act also contains a mechanism for the release of one person's personal information where such release is necessary "in order to avoid a serious and imminent danger to the life or health of an individual" [section 28(2)(e)]. I have no evidence either to support the view that section 28(2)(e) applies.
Section 28(5)(a) provides that a record containing the personal information of a third party may be released if on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual, to whom the information relates, should be upheld.
I consider the public interest factors, in favour of the release of this information to the requester, can be set out as follows in this case:
On the other hand, the FOI Act recognises the right to privacy of individuals as a very strong right and that it is in the public interest that this right should be protected. I am mindful of the Long Title to the FOI Act which states that its purpose is "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies . . . " (my emphasis). Furthermore, since the Supreme Court has recognised that the wishes of a minor in her eighteenth year are most relevant and that, in considering the circumstances, her welfare is paramount, I take it that Ms McK's views as described above must also be given very serious consideration in weighing up the relative strengths of these opposing public interests. I am satisfied that this is a case in which the interest of the individual concerned is of such a nature that it is not merely a matter of private interests or rights but involves principles of public interest. Ms McK's submissions emphasise her wish to have her privacy respected. Having considered the matter carefully, I consider that the public interest in preserving the privacy of the individual involved in this case outweighs the public interest which would be served were the records to be released to the requester. I find, accordingly, that section 28(5)(a) does not apply in this case. As explained earlier in this decision, my finding is based primarily on the evidence given by Ms McK that disclosure of her records to the requester would not serve her best interests.
As outlined earlier in this decision under the heading "Scope of Review", I have decided to examine, as the requester has asked me to do, the position as regards the "third party" information as it appears in some of the records at issue.
It appears from the requester's submissions that he disputes whether the references in the records to persons other than himself and his daughter constitute personal information about those other individuals. In the course of the review my Office referred the requester to a decision of my predecessor (Case No. 99001 - Ms. ACF and the North Eastern Health Board - the full text of the decision is on www.oic.gov.ie) which sets out the position generally in relation to "joint personal information". I deal here primarily with the requester's view that my Office has not been properly applying the provisions of the FOI Act in relation to "third party information".
Section 2(1) of the FOI Act defines "personal information" as :
"... information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential,"
Clauses (i) to (xii) of section 2(1) go on to list categories of information which may be considered as being personal information. This list includes information relating to an individual's financial affairs, medical history, employment history, age, sex, property, tax affairs and the views and opinions of another person about the individual. However, these categories of information must also satisfy the requirements of either (a) or (b) above in order to meet the definition of personal information set out in the Act.
I am satisfied from my examination of the records that there is information in the following records which constitutes personal information, as defined by the FOI Act, about individuals other than the requester and his daughter:
Records numbered 7, 14, 15, 16, 18, 19, 20, 27, 30, 37, 38 and 39.
I have found no evidence to support the suggestion made by the requester that the inclusion of any third party's name or other identifying material in these records could have been done deliberately in order to cause the records to be exempt from release. On the admission of a minor to Hospital, I consider that it is reasonable to assume that the records created by the Hospital would contain references to adults connected with the patient.
It is clear to me that where such personal information is found in these records, it arises in the context of Ms McK's admission to the Hospital and it may be more correctly described as joint personal information. The requester has argued that it should be possible to "blank out" the names so that the individual would no longer be identifiable. Given the context of the information, I consider that the persons involved would be identifiable even if their names were deleted from the copies of the records. I am further satisfied, having regard to section 13(2) of the FOI Act, that, given their context and content, if sentences or parts of sentences relating to third parties were extracted from the records, their release would be misleading. Section 13 of the FOI Act provides as follows:
" (1) Where a request under section 7 would fall to be granted but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the public body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy.
(2) Subsection (1) shall not apply in relation to a record if the copy provided for thereby would be misleading".
The requester has implied in submissions to my Office that the fact that the third parties involved may be known to him is of relevance to my consideration of whether the records contain their personal information. In relation to this, I would point out that there is nothing in the FOI Act which qualifies or restricts the use by requesters of information released to them under the FOI Act. This contrasts with the situation that generally arises, for example, where child care cases are heard by the courts. There is no restriction or qualification on the dissemination of information released under FOI and although certain information may seem inconsequential or of little sensitivity, it is, nonetheless, the personal information of the individual. As such, it would, ordinarily, be known only to the individual or members of the family, or friends, of the individual, or held by a public body on the understanding that it would be treated by it as confidential.
The requester posed the question as to how he could be expected to make an application under section 17 of the FOI Act to have information in one of the records, involving a named "third party", amended under section 17 of the FOI Act. He claimed that certain information was misleading and incorrect. In his decision in Case Number 98169 - Ms ABY and the Minister for Education and Science, my predecessor, Mr Kevin Murphy considered this question. He concluded that, regardless of how an individual became aware of the contents of the information, the right to apply to a public body for amendment of the information under section 17 would still apply. He said that the question "How am I supposed to challenge something I am not allowed to view?" highlighted the fact that records containing personal information are subject to exemptions and exclusions. In this case, I adopt his finding that:
" The effect of this is that, in certain circumstances, an individual may not be enabled to exercise the right to have personal information amended in accordance with the provisions of section 17 simply because the record containing the information is exempt and, as a consequence, the individual is unable to establish whether the information is incomplete, incorrect or misleading. Section 6 of the Act which confers a right of access on every person to records held by public bodies provides at subsection (7) that -
' (7) Nothing in this section shall be construed as applying the right of access to an exempt record.' "
The full text of the decision in Case Number 98169 can be found on www.oic.gov.ie.
In the present case, it is clear that the requester has seen the content of the record with which he takes issue and is in a position to identify it for the purposes of making an application to the Hospital under section 17 of the FOI Act. I find that there is nothing in the FOI Act which entitles him to have access to that record for the purposes of such application.
As I have found above, all of the records disclose, to a greater or lesser extent, the personal information of Ms McK. Therefore, the situation is that the release of any record will involve the disclosure of her personal information. Accordingly, the key issue in this review is whether any of the personal information of Ms McK's should be released to the requester. As, for the reasons stated earlier in this decision, the answer to this is in the negative, I am not directing the release of any of the records. Therefore, it is not necessary for me to consider whether the personal information of third parties as disclosed in any record falls to be released in the public interest of otherwise under the provisions of section 28 of the FOI Act.
In its submissions, the Hospital also relied on section 26 of the FOI Act in urging that access to the records should be refused. The Hospital's position is that the information contained in Ms McK's medical records is information which was given to it in confidence. It says that disclosure of the information "would undermine the principle of medical confidentiality which exists between doctor and patient and patient and hospital."
Whilst the Hospital's submissions make reference to section 26(1)(a) of the Act, it seems to me that, in circumstances where the records at issue were created by the Hospital's own staff, section 26(1)(b) would be the more appropriate exemption for consideration having regard to section 26(2). In the normal course, I would expect that a strong argument could be made for the position that disclosure of a patient's information by a Hospital would constitute a breach of a duty of confidence as envisaged by the section 26(1)(b) exemption. However, it is by no means clear whether the disclosure of a minor's medical records to a parent could breach such a duty of confidence. Given my findings above that the records are exempt under section 28, I do not consider it necessary to examine the application of section 26 to these particular records. Furthermore, I note that the Supreme Court judgment does not address the matter of whether the existence of a duty of confidence which might be owed by the Hospital to a patient who is a minor could, in any circumstances, amount to a rebuttal of the presumption that it is in the best interests of the minor that such records be released to his or her parent,
My finding is that all of the records in question are exempt by virtue of section 28(1) of the FOI Act and that this exemption is not displaced by any of the exceptions contained in section 28.
Having completed my review under section 34(2) of the FOI Act, as amended, I have decided to annul the decision deemed to have been made by the Hospital and to make a new decision to refuse the requester's request for access to the records for the reasons set out above.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date of this decision.
27 April 2006