Case number: 050222

Case 050222. Request by parents for a copy of a videotape of interviews with their child as part of investigation of possible child sexual abuse - form of access to the records - whether provision of a copy of the videotape to the parents would conflict with legal duty or obligation - whether provision of a copy of the videotape to the parents would prejudice, impair or damage any interest protected by Part III - section 12(2)(b)(iii) and (iv) - personal information of a minor - section 28(6)(a) - presumption that parent is entitled to access to the records - McK v the Information Commissioner - whether provision of a copy of the videotape to the parents would be in the minor's best interests - whether provision of a copy of the videotape to the parents would constitute a breach of a duty of confidence - section 26(1)(b) - whether the effectiveness of investigations would be prejudiced - section 21(1)(a).

Case Summary

Facts

The parents of a young child made an FOI request for access to the child's records held by a hospital. The Hospital released the paper records and refused access to a copy of a videotape. Instead, it offered to allow the requesters to view the tape. When the case came to the Commissioner on review, the Hospital said that, in refusing access to the record in the form or manner sought, it was relying on section 12(2)(b) of the FOI Act. These provisions allow a decision maker to give access to a record in a form other than that sought where he or she is satisfied that the giving of access in the form sought would conflict with a legal duty or obligation on a public body or prejudice, impair or damage any interest protected by Part III or section 46 of the FOI Act.

Findings

The Commissioner found that the Hospital had already decided that the requesters had a right of access to their child's personal information, including the videotape. What was at issue in her de novo review was whether the release of the videotape in the form sought would conflict with the Hospital's legal duties or obligations or prejudice, impair or damage any interests protected by the FOI Act.

The Commissioner considered that, following the judgment of the Supreme Court in N.McK v the Information Commissioner [2006] 1 IRLM 504, she must apply the provisions of the FOI Act on the basis that the requesters are presumed, as parents, to have the welfare of their child at heart, to be acting in the child's best interests and to be entitled to access the record. She took the view that the presumption of "parental primacy" enjoyed by the requesters does not depend on whether access to the record in the manner sought is actually necessary to enable them to act in the best interests of their child.

Dealing with the perception that the content of a videotape is seen as being inherently more sensitive than that of a paper record, the Commissioner said that very sensitive personal information about children is regularly released by hospitals and others to parents - normally in paper form. Indeed, the requesters in this case had already had access to written reports and notes of the interviews with their child. The Commissioner did not accept that the Hospital was entitled to envisage a "worst case scenario" in all instances or to adopt a position whereby parents can never, under any circumstances, be given a copy of a videotape of interviews with their child. She acknowledged the concerns of the Hospital for its patients but considered that it was not justified, in its decision making, in taking as a starting point the fear that the content of the recording will inevitably, whether inadvertently or not, be put into circulation.

The Commissioner accepted that there will be cases where evidence is produced that the release of records to parents or to a parent will not serve the best interests of a minor. However, she found that evidence had not been produced that this was such a case. She did not accept that any assurances of confidentiality given in this case could have applied in relation to disclosure of the child's information to her parents. She appreciated that it is important for the Hospital to be able to give as much re-assurance as possible to children regarding future use of their taped interviews. However, she was not satisfied that the Hospital could ever give a categoric assurance to a child that his or her interview tape will never be released to another party e.g. to legal advisers, parents or guardians.

Having regard to the particular circumstances of the case, the submissions made, the content of the record and the extent to which its content and material related to it had already been released to the requesters, the Commissioner found that the provisions of section 12(2)(b)(iii) and (iv) did not apply. She directed that access to the record be given in the form requested by the parents i.e. by giving them a copy of the videotape.

Date of Decision: 12.06.2007

Our Reference: 050222

12.06.2007

Ms X & Mr Y

Dear Ms X & Mr Y

I refer to your application to my Office for a review of the decision of [a Hospital] on your request under the Freedom of Information (FOI) Acts, 1997 and 2003, for access to records relating to your daughter ("Z"). I am sorry that the review process has taken so long. As you know, this review was suspended pending the judgment of the Supreme Court in the case of N.McK v. The Information Commissioner. Since the Supreme Court delivered its judgment on 24 January 2006, you are aware also that efforts to agree a settlement of the case with the Hospital failed so that a formal, binding decision is now necessary. I note that, as recently as 5 May 2007, you responded to the Hospital's correspondence of 24 April 2007 which included a renewed offer in relation to the form of access to the record at issue. I understand that this offer is not acceptable to you.

Background

You made your request on 24 March 2005 for copies of records "held by [a unit of the hospital] in relation to the notification of, investigation of and decisions made concerning allegations made against [MrY] in the matter of the protection of minors and in relation to the imposition of a child protection plan for our child during the course of the investigations."

The Hospital's decision of 30 May 2005 was to grant access to copies of the records subject to the deletion of some material containing the personal information of a third party. This decision did not refer to video recordings made of two interviews that the Hospital had with "Z". Your request for internal review dated 12 June 2005 drew attention to this omission and stated that you wished to appeal the decision to withhold a copy of the videotape involved. The Hospital's internal review decision of 28 June 2005 dealt specifically with the video recordings insofar as it offered you the opportunity to come in and view the videotape. You made your application for review to my Office on 23 July 2005.

In carrying out my review, I have had regard to your application for review, to your contacts with my Office and with the Hospital and to the submissions made by the Hospital. As you know, my staff has discussed aspects of the case with yourselves and with the Hospital and has examined the record at issue.

Scope of Review

In the course of my review, it was pointed out to the Hospital on several occasions that the only point at issue is the manner of access which it has granted to the videotape. In its submissions of 6 April 2006, 16 June 2006 and 19 September 2006, the Hospital acknowledged that arguments to the effect that you do not have any right of access to the record are not relevant.

You take the view that, because the original decision of the Hospital (30 May 2005) was to grant the request subject to certain exclusions while making no reference to the videotape, it is reasonable to assume that the decision maker intended to grant access to the videotape. I accept that this is a possibility. However, the apparent failure on the part of the decision maker to identify the videotape as a relevant record, and its omission from the schedule attached to his decision, could arguably be taken as his not having given any decision on that element of the request. On this construction, this would result in a "deemed refusal" of access to a copy of the record [section 41(1) of the FOI Act]. In any event, I note that your internal review application of 12 June 2005 is expressed as being an appeal against the decision of the Hospital not to release a copy of the videotape to you. Accordingly, I propose to proceed on the basis that the initial decision was to refuse access to the videotape and that the internal review decision was to grant access to the videotape by way of inspection, or viewing (rather than by way of the provision of a copy, as specified in your request).

My review in this case is concerned solely with the question of whether the decision of the Hospital, to grant access to the videotape in a manner other than that specified in your request, is justified. It is not necessary for me to make a finding as to whether you have a right of access, under the FOI Acts, to the videotape; the Hospital has already decided that you do have such a right.

Findings

Manner of Access

The Hospital's decision makes no reference to section 12 of the FOI Act which deals with cases where a public body decides to give access to a record in a manner other than that sought by the requester. When my Office put this to the Hospital, it said that it was relying on section 12(2)(b)(iii) and (iv) of the FOI Act. Section 12(2) reads as follows:

(2) Where a head decides to grant a request under section 7 and the request is for access in a particular form or manner to a record, such access shall be given in that form or manner unless the head concerned is satisfied-

( a ) that such access in another form or manner specified in or determined under subsection (1) would be significantly more efficient, or

( b ) that the giving of access in the form or manner requested would-

(i) be physically detrimental to the record,

(ii) involve an infringement of copyright (other than copyright owned by the State, the Government or the public body concerned),

(iii) conflict with a legal duty or obligation of a public body, or

(iv) prejudice, impair or damage any interest protected by Part III or section 46.

(3) Where a head decides to grant a request under section 7 but not to give access to the record concerned in the form or manner specified in the request, he or she shall give such access-

( a ) [...]

( b ) if the case is one to which paragraph (b) of that subsection applies, in such other form or manner specified in or determined under subsection (1) as may be agreed by the head and the requester or, if those persons are unable to agree upon such a form, in such form specified in subsection (1) as the head considers appropriate.

Section 12(3)(b) makes clear that, where paragraph (2)(b) is being applied, access shall be granted in such other form or manner as may be agreed with the requester or, in default of such agreement, in such form as the public body considers appropriate. As I understand it, the Hospital did not consult with you in the course of its decision making with a view to getting your agreement to having access provided other than in the manner specified by you.

Lest there be any doubt about the nature of the review which I am conducting, it is important to be clear that my role is not simply one of testing whether the Hospital had some grounds for taking the view that section 12(2)(b) applied. Rather, my review is a de novo review, involving a re-consideration of all the facts and circumstances as well as of the law. In effect, I am in the same position as was the head of the public body in terms of the decision to be made. Accordingly, my starting point in this review is that you, as requesters, are entitled to be given access to the record in the manner or form sought by you unless I can be satisfied that one or other of the provisions at section 12(2)(a) or (b) apply.

Hospital's Position

The Hospital's position is that it has not refused access to the record but has merely refused to grant access in the precise manner sought by you. The Hospital says that it is precluded from granting access to a copy of the videotape and that the interests of the child concerned, other patients, other identifiable persons and the Hospital itself are protected by Part III of the FOI Act and by "wider legal duties". The Hospital submits that this is a case in which it is appropriate to apply section 12(2) of the FOI Act "in a reasonably flexible manner" in order to give effect to the rights which are protected under FOI, under "public general law" and under the Constitution. It says that it has a duty of care to children, including the child to whom the record relates, and that it stands over its right to protect, to the greatest extent possible, confidentiality in video interviews.

The Hospital has made a number of submissions all of which I have considered carefully. While I do not address explicitly each and every one of the points made, I am satisfied that all the relevant matters have been considered and dealt with in this decision.

The Hospital states in its submission of 19 September 2006 that, in regard to interests protected by Part III of the FOI Act, the exemptions at sections 21 [investigations by public bodies], 23 [law enforcement] and 26 [information obtained in confidence] are of the utmost relevance; it also argues that sections 20 [deliberative process], 29 [procedures in relation to certain requests involving third party information], 30 [research] and 31 [financial and economic interests of public bodies] are also applicable. I note that the only exemption referred to in the Hospital's internal review decision in relation to the videotape record was section 26 - information obtained in confidence. However, I understand that the other provisions now being relied upon were brought to your attention by my staff when they met with you recently.

In an earlier submission from the Hospital, the provisions of section 22(1)(b) [contempt of court] and section 27 [commercially sensitive information] were also cited. Although the Hospital does not explicitly state this, I take it that the latter two provisions are no longer being relied upon following consideration by the Hospital of the preliminary views of my Investigator as set out in her letter to the Hospital of 1 August 2006.

The Hospital also sets out why it is satisfied that release of a copy of the videotape would conflict with its legal duties or obligations.

Personal Information and Privacy Interests

It is not in dispute that the information in the record is "Z's" personal information in that it comes within the definition of "personal information" at section 2 of the FOI Act. The Hospital's submissions emphasise issues of privacy and trust in the relationship between it and the child. Accordingly, it seems to me that section 28 of the FOI Act and the protection of privacy interests are most relevant in this case and it is appropriate that I address this issue first. I also consider the arguments made by the Hospital under the heading of "Legal Duties and Obligations" where these relate to privacy. The Hospital points to the recognition of the right to privacy in Article 40 of the Constitution and in the European Convention on Human Rights. It says that a particular recognition of privacy is accorded to the medical practitioner/patient relationship. It says that, even with the best will in the world, the videotape could go missing outside of the secure environment of the Hospital and there is a possibility that persons other than the parents could view it.

Section 28

Privacy is one of the interests protected by Part III of the FOI Act, as envisaged at section 12(2)(b)(iv) of the Act. Specifically, protection for personal privacy is provided for at section 28 of the FOI Act which reads:

"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, the section 28 protection of privacy is not absolute; contained within it is a number of exceptions, 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 belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual...".

The Minister for Finance has made regulations under section 28(6) in the form of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999 (SI No. 47 of 1999), referred to hereafter as "the 1999 Regulations". 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 records 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, ...".

It is clear that the FOI Act, as filled out by the 1999 Regulations, envisages that a parent will have access to the personal information of a minor child where the grant of such access is judged to be in the best interests of the minor. Clearly also, this provision involves some encroachment on the privacy rights of the minor but this is justified as being in the best interests of the minor. I note that the term "best interests" is not defined or clarified in FOI or other legislation.

Insofar as the Hospital has decided that you have a right of access under the FOI Act to your daughter's personal information (including the videotape), it must be the case that it accepts that such a grant of access is in your daughter's best interests. However, the Hospital appears to be saying that granting you access to the videotape, by means of the provision of a copy, is not in your daughter's best interests.

I am not at all sure that the protection of the best interests of the child is an "interest protected by Part III" of the FOI Act in as much as it features in the 1999 Regulations rather than in the Act itself. Furthermore, its inclusion in the 1999 Regulations is as a basis for breaching the privacy rights of the child rather than as an interest to be protected in its own right. However, I can accept that the Hospital may have a legal duty or obligation to act in a manner which respects the best interests of the child. In what follows, I find it convenient to treat "interest[s] protected by Part III" of the FOI Act and legal duties and obligations of the Hospital together.

N. McK and the Information Commissioner

In N.McK v the Information Commissioner [2006] 1 IRLM 504, the Supreme Court upheld the High Court judgment that my Office had erred in determining that the release of the medical records of a minor to her father would only be directed where there is tangible evidence that such release would actually serve the best interests of the minor. In accordance with the Supreme Court's judgment, I consider that I must apply the provisions of the FOI Act in this case (albeit that the point at issue is the manner of access as opposed to the principle of access) on the basis that requesters are presumed, as parents, to have the welfare of their child at heart, to be acting in the child's best interests and, accordingly, to be entitled to access the record.

A fundamental consideration in this review, therefore, is an acknowledgement of your constitutional rights as parents and of the enjoyment by you of "parental primacy" in relation to access to records about your daughter. Given "Z's" age, I have decided that this is not a case in which her wishes and views should be obtained and considered.

In the course of the review, my staff put the Hospital on notice of its view that any decision on the manner of access in this case fell to be determined in the context of the Supreme Court's finding that the relevant provisions of the FOI Act ought to be interpreted in the light of the Constitution. I note that, at the time of the Hospital's decisions, the High Court's decision in N.McK v The Information Commissioner [ 2004] 1 I.R.12] (but not the Supreme Court's judgment on the appeal) had been handed down. The Supreme Court upheld the decision of Quirke J. in the High Court 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.

Hospital's Position on McK Case

The Hospital disputes my Office's view that the presumption applied in the McK case should apply in the circumstances of this case. It says that the record at issue here is of a different class to that in McK which pertained to "routine medical treatment". It argues that, in this case, the interests of the child and the parent cannot be said to be ad idem "as they clearly were in McK". The Hospital's submission goes on to say that, in the present case, the parents have not given "any reasonable explanation" as to what interests of the child would be protected by their having access to a copy of the videotape. In addition, the Hospital distinguishes this case from the McK case on the basis that its offer of access by way of inspection of the videotape is "equally fulsome (in an informational sense)" when compared to the manner of access sought by you.

While I accept that the McK records related to medical treatment, it is clear from its judgment in that case that the Supreme Court did not place any particular emphasis on the content of the records. I have considered the Hospital's contention that this case should be distinguished from McK because, according to the Hospital, the information in the record relates to an allegation of child sexual abuse. Clearly, the interview with your child took place because certain allegations were made. In the videotape itself, neither the child nor the person interviewing her make any specific references to allegations of abuse. I accept that the record does not pertain to "routine medical treatment". However, I note that the Hospital's hand-written notes of its interviews with "Z" are on notepaper with the heading "INPATIENT CLINICAL NOTES"; and it is clear that the making of the videotape arose from the involvement of the Hospital's professional staff in assessing your daughter, who is a minor, and the interviews at issue took place within the Hospital. While "Z" was not ill, she was receiving care and professional services from the Hospital insofar as it had been recommended that she be assessed there, and you, as her guardians, would have had to make appropriate decisions for her. I do not consider that there is anything in the Supreme Court's findings in McK which entitles me to give less weight to the rights and duties of parents in circumstances where the records concerned are not routine medical records.

In McK, the High Court, having acknowledged that a complaint [of child sexual abuse] had been made in the past about the father of the child, found that it remained unsubstantiated and that the appellant came before the Court enjoying the presumption of innocence which is enjoyed by every citizen of the State. I have to proceed on the basis that the father in this case enjoys a similar position; it appears not to be in dispute that the allegations in this case were unsubstantiated also.

Furthermore, it would appear from some of its submissions that the Hospital has not, in its consideration of the request, taken account of the fact that this is also a request by the mother of the child who is her joint guardian. In McK, where marital breakdown and bereavement had occurred, issues arose regarding the objection of the minor's joint guardian to the father having access to the records. This is not the situation in the current case. Although you were not married when the Hospital first dealt with the FOI request, I am satisfied that you are now married to one another and are thus a family protected by Article 41 of the Constitution. I consider that for FOI purposes, and in Constitutional terms, you must be considered to be joint requesters/applicants and parents of the child to whom the information relates.

I note in particular the Hospital's reliance on the argument that you have not given "any reasonable explanation" as to what interests of the child would be protected by your having access to a copy of the videotape. Essentially, the Hospital is saying that you, as the requesters, have not shown to its satisfaction how obtaining a copy of the videotape would be in the best interests of the child. In my view, this line of argument comes very close to that rejected by the High Court and the Supreme Court in McK when it was held that the approach of my Office, in its original decision, was in error when it required the parent to provide "tangible evidence" that the release of the information would serve the best interests of the minor. My understanding of the "parental primacy" enjoyed by you is that the presumptions involved do not depend upon whether access to the record, in the manner sought, is actually necessary to enable you as parents to act in the best interests of your child. In other words, it seems to me that the Supreme Court's judgment does not permit the introduction of a test along the lines of considering what possible "use" the record might be to the parents.

Parents' Position

You say that you wish to be given the time and space to view the videotape if and when you consider this necessary. You say that the Hospital appears not to trust you to do this in a manner which serves the best interests of your child. I have considered the question of whether the Hospital's affording you an opportunity of viewing the videotape satisfies the fundamental presumption that parents are entitled to have access to information about their child. As explained above, the FOI Act provides that access shall be in the manner requested unless one of the grounds for altering the manner of access, as identified in section 12(2), is satisfied. You specified in your original FOI request that you wanted to be provided with a copy of the record. It is fair to say that section 12 is invoked only rarely by decision makers and that its provisions are in the nature of exceptions to the rule.

I cannot accept that your rejection of access in another manner (i.e. by inspection of the record) rebuts the presumption that you are acting in the best interests of your child. You say that, prior to your FOI request, you already had an invitation from the staff in [the] unit of the Hospital to view the videotape so that the decision under FOI did not make any difference to your position. You state that you, or your daughter, might wish to view the video at some stage in the future and that you believe the Hospital is applying a general rule without reference to the particulars of your situation. You have already had access to the content of the videotape inasmuch as the Hospital has given you a written version of its interview with your child. You reject any inference that you cannot be trusted with the information in the record and state that obtaining a complete copy of records covering the investigation into the allegations of abuse will assist you in trying to come to terms with the traumatic experience that the family has gone through as a result of the allegations made and the investigation which followed.

I should say here that I am conscious of section 8(4) of the FOI Act which requires that a decision maker, in deciding whether to grant or refuse a request under section 7, shall "[s]ubject to the provisions of this Act" disregard any reasons a requester might have for the request. I consider that, in this case, the decision to grant the request has already been made and that I am not prohibited, in considering whether access can be given in the manner requested, from having regard, inter alia, to the importance placed by the requesters on the manner of access to the record.

I have some sympathy with the view that the content of a video recording may, by its nature, be inherently more sensitive than that in a paper record. It cannot be assumed, however, that this is always the case. It is fair to say that very sensitive personal information about children is regularly released, normally in paper copy form, to parents and guardians by hospitals and other public bodies - both inside and outside of the FOI Act. In this case, you have already had access to written reports prepared by the Hospital regarding the investigation of allegations of child sexual abuse involving "Z".  Indeed, you already have a copy of the notes of the interviews with your child. As regards the supply to you of a copy of the videotape, I cannot accept that, in applying the provisions of the FOI Act, one is entitled to envisage a "worst case scenario" in all instances and to take as a starting point the fear that you will allow copies of the record to be circulated.

The Hospital appears to be taking the position that parents can never, under any circumstances, be given a copy of a videotape of interviews with their child in relation to allegations of sexual abuse. I cannot accept that this represents sound decision making. I accept, of course, that there will be cases where evidence is produced that the release of records, in a particular format, to the parents will not serve the best interests of a minor. However, I am not satisfied that this is such a case. The arguments made by the Hospital are general in nature and have not been demonstrated to have any particular relevance to your specific case. In determining where the best interests of the child lie, the Constitutional presumption in favour of a parent is rebuttable only by reference to the circumstances of the particular case. In the absence of solid arguments which relate to this specific case, and in a situation where the Hospital has failed to identify circumstances arising in this case which suggest that the grant of access (by way of a copy) would not be in your child's best interests, I must take the view that the Constitutional presumption applies in your favour.

Information Obtained in Confidence

In its submissions, the Hospital refers to section 26 of the FOI Act in urging that confidentiality interests be protected. It also lays some emphasis on the duty of confidence owed by it to those persons whom its staff assess or treat. It makes reference to duties of confidence and trust arising from ethical codes and standards including the Hippocratic Oath and the Irish Medical Council's Guide to Ethical Conduct and Behaviour. It says that, without assurances of confidentiality, the assessment process would be unworkable. Thus, both the equitable and common law duty to respect patient confidences and the interests protected by the exemption at section 26 of the FOI Act are relied upon here.

I agree with the Hospital that the interests protected by section 26 of the Act are of relevance. In circumstances where the record at issue was 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. By definition, where a Hospital holds an individual's personal information, it is usually obtained and held in confidence. However, it is by no means certain that, in all cases, disclosure of a minor's medical records to a parent would breach such a duty of confidence even where disclosure is by way of copy rather than the provision of inspection facilities.  I do not accept that any assurances of confidentiality given to "Z" at the time of her interviews were intended to apply, or could have applied, in relation to disclosure to her parents. Clearly, a decision has already been taken to disclose to you the information or "confidences" imparted by "Z" to the Hospital's social workers. The fact that the Hospital has already given you a written copy of the content of the videotape, and has decided to grant access to the videotape by way of a viewing, can only mean that the Hospital accepts that it did not give your child a categoric assurance that her information would not be released to her parents. This is not to say that the records of a child - and, in particular sensitive information provided by the child herself - will always be released to a parent; rather, it is to say that decisions of this kind must be taken on a case by case basis. Applying this to the present case, I am satisfied that the Hospital could not, at the outset, have given your child a categoric assurance that her information would not be disclosed to you, her parents. Presumably, the Hospital's concern is that the information would remain confidential vis à vis the world at large. Clearly, the provisions of the FOI Act envisage and the Hospital accepts that, in certain circumstances, confidential information falls to be released. Apart from disclosure under FOI, the requirements of natural justice will sometimes require disclosure to other parties of information received where, for example, allegations have to be put to an accused person.

I note that the Supreme Court judgment in McK 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. Section 28(6) - as discussed above- envisages that such confidential material will be released and, to this extent, appears to be at odds with the protections provided for at section 26 (information obtained in confidence). I take the view that, where release of records is found to be warranted under section 28(6) and the 1999 Regulations, then this amounts to an authorised release. In this situation, where disclosure is not unauthorised, one of the key requirements necessary to establish a breach of a duty of confidence - and the activation of section 26 - is missing.

In relation to the broader legal and ethical situation put forward by the Hospital, I am not convinced, for the reasons set out earlier under the "Privacy" heading, that release to the child's parents of the videotape in copy form in this instance causes the Hospital to fail in any of its duties toward its patient or otherwise. Clearly this is not a case where the social workers or other staff involved disclosed particulars of the child's interview to third parties in breach of their professional and ethical codes. Instead, disclosure of the videotape to you as parents, in the manner that you seek, arises from the exercise by you of your statutory rights under the FOI Act and of your Constitutional rights as parents.

Interests of other Parties

In its submissions, the Hospital identifies parties other than "Z" whose interests might be affected by the release of a copy of the videotape. It makes reference to the privacy of its professional staff. This is not an interest which is protected by Part III of the FOI Act in that the definition of personal information at section 2 excludes anything written or recorded by an ndividual as a member of the staff of a public body for the purpose of the performance of its functions. In addition, section 26(2) of the Act provides that the protection for information obtained in confidence does not apply to a record prepared by a member of the staff of a public body unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than the staff of a public body.

The Hospital also states that the granting of access to the record in the manner sought would prejudice, impair or damage the interests of other persons named in or identifiable from the videotape. I accept that, in her interviews, "Z" mentions family members, friends and others. The context in which references are made to these persons is in conversation about routine matters. The information relating to them could not, on the face of it, be deemed sensitive or intimate and there is no discussion of allegations of sexual abuse. These persons are generally referred to by their first names; surnames and addresses are not disclosed so that they would not be identifiable to the world at large. The individuals mentioned are clearly known to you and your family. The decision to grant access to the videotape by way of viewing, together with the access you have been given to the interview notes and other records, already discloses the identify of these persons to you. Accordingly, I am not satisfied that the granting of access to a copy of the recording would harm the interests of those persons mentioned by "Z".

The third group of affected "other persons" is described by the Hospital as "other infant children in the actual and prospective patient cohort of the Hospital". The Hospital argues that persons being assessed would be unwilling to talk openly if they did not have assurances of confidence and that, without such assurances, the ability of the Hospital to assess and treat such persons effectively will be diminished. It says that prospective patients and their advisers would cease to have confidence in the Hospital and its staff if the videotape was released by way of giving a copy to you.

I fully acknowledge the concerns of the Hospital for its patients. Nonetheless, I consider that the contention that release of the videotape to you would have adverse consequences for other children who may be patients of the Hospital, presupposes that the content of the recording and the fact that it is in your possession will be disseminated. As I have observed above, I am not at all sure that your fundamental rights as parents can be set aside on the basis of a scenario which presumes that the information in the videotape will somehow, whether inadvertently or not, be put into circulation. I am prepared to accept that there is always a risk of material falling into the wrong hands; however, such risk exists with any records relating to children including records in paper format, and including records held by hospitals.  In addition, it is evident from the Supreme Court's findings in McK and from my subsequent decisions under the FOI Act on cases involving access by a parent to records relating to their children, that the fundamental presumption of parental primacy in these matters can be displaced where evidence is produced to rebut the presumption. It is by no means certain that in any future case or in all circumstances a copy of a videotape would fall to be released to another parent or guardian should they seek it.  

Other Interests Protected under the FOI Act

In addition to the privacy and confidentiality interests of individuals discussed above, the Hospital puts forward a series of arguments based on various exemptions in the FOI Act. Its position is that, without prejudice to sections 26 and sections 28, there are other interests of the Hospital and the public which are relevant and must be protected. I now consider these in the context of section 12(2)(b)(iii) and (iv). Many of the points made have already been addressed earlier in this decision and I will not repeat them here. In particular, I reiterate my belief that this case must be considered in the light of the Supreme Court 's guidance in the McK case. I deal here with the various "interests" in the sequence in which the relevant provision appears in the FOI Act; I acknowledge that the structure of the Hospital's submission appears to give some of these more weight than others.

Section 20 - Deliberative Process

I agree with the view expressed by my Investigator in the course of this review that the Hospital has failed to identify any specific process of deliberation that it is engaged in and to explain how the granting of your request would interfere with such process. The Hospital states that the child might require further services from the Hospital in future and that this, allied to the possibility that policy decisions might be influenced by the content of the record, justifies the application of section 20 of the FOI Act. My understanding is that the investigation in this case has been completed and that the process and the outcome have already been disclosed to you. I find that the Hospital has not satisfied me that section 20 is of any relevance to whether or not the videotape should be released in the manner sought.

Section 21 - Effectiveness of Investigations

I agree with the Hospital that, in interviewing "Z", it was engaged in an examination, investigation or inquiry process. In principle, these are functions capable of being protected by section 21(1)(a) of the FOI Act which provides:

"21.-(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to-

( a ) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof, ..."

I have no difficulty in accepting the Hospital's view that recording of assessment interviews with children is widely regarded as a most effective and accurate means of recording the experiences of the child. However, in circumstances where the investigation has concluded, and its procedures made known to the parents involved, I do not accept that access to a copy of the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, enquiries or audits conducted by the Hospital at this stage. As I have stated above, I do not consider that it is tenable to approach a case such as this on the basis that the information disclosed to you as parents, about the procedures and processes involved in investigations of child sexual abuse, will inevitably be circulated. In addition, the procedures followed have already been disclosed to you through the release of the paper records and your right to view the videotape without, apparently, the robustness or effectiveness of the Hospital's process being undermined.

The Hospital has stated that, if access to the record is granted to you by way of a copy, staff of the Hospital will not in future be in a position to give assurances to children that their interview tapes will not be copied. This could be construed as an argument that the effectiveness of its investigations in the future could be prejudiced. I accept that it is of great importance to the Hospital that a relationship of trust is built up between the children interviewed and the staff who work with them. I appreciate that it is important for the Hospital to be in a position to give as much re-assurance as possible to children regarding future use of their taped interviews. However, I am not satisfied that the Hospital could ever give a categoric assurance to a child that his or her interview tape will never be released to another party. Indeed, the Hospital says that it is sometimes necessary to give copies of videotapes to the legal advisers of parents, guardians or others and that this is done on receipt of an undertaking that no one other than the client and legal advisers will view the material, that no copies will be made and that the copy will be returned at the conclusion of proceedings.

I am not at all sure that the outcome of this particular case will result in any fundamental change in the capacity of the Hospital to give assurances to children regarding the making available of their interview tapes. Since the coming into effect of the FOI Act, 1997, persons who make requests under the FOI Acts have had potential rights of access to records (including those in video format) held by public bodies such as the Hospital. As pointed out earlier in this decision, parents are presumed, because of their status under the Constitution, to have rights in relation to information about their children. The existence of these related rights - under the Constitution and under FOI - inevitably condition the capacity of the Hospital to give categoric assurances to a child regarding interview tapes; and the decision in this present case will make no appreciable difference to the present status quo. While the circumstances in which such videotapes may be released will continue to be tightly defined, and while parents or a parent alone may not always have a right to access such a videotape (this will depend on the particular circumstances), I am satisfied that the Hospital is not in a position to give categoric assurances in relation such videotapes.

In the circumstances of this case, I am not satisfied that release of a copy of the videotape will have the negative consequences which trigger the possible application of section 21(1)(a) and I find that that exemption does not apply.

Section 23 - Law Enforcement and the Administration of Justice

I have considered the assertion made by the Hospital that any criminal or civil proceedings might be prejudiced by the release to you of a copy of the record and that the identity of persons who gave information in relation to the enforcement or administration of the civil law might be revealed. Having regard to the content of the videotape, and the fact that you have already been given the right to view it and have a copy of the interview notes and other records relating to the investigation, I do not accept that such prejudice could reasonably be expected to occur. I find, therefore, that none of the exemptions contained in section 23 applies.

Section 29 - Notification of Third Parties in Certain Circumstances

I cannot see the relevance of section 29 to this case since release of a record in the public interest under 26(3), 27(3) or 28(5) is not, and was not, being contemplated. Accordingly, I do not intend to deal further with this point.

Section 30 - Research

I agree with the view expressed earlier in this review by my Investigator, Ms Dunne, that the information in the videotape does not fall into the category of research. Even if it did, the information has already been disclosed since you have already been given the right to view the videotape and have access to its content in paper format.

Section 31 - Financial and Economic Interests of the State and Public bodies

I agree with Ms Dunne that the argument, that release of the videotape in copy form to you would have a serious adverse affect on the financial interests of the State or of the Hospital, cannot be sustained in the circumstances of this case.

Conclusion

Having considered the matter carefully, I am not satisfied, having regard to the particular circumstances of this case, including the submissions made, the content of the record and the extent to which its content and material related to it have already been released to you, that the provisions of section 12(2)(b)(iii) and (iv) apply here. I find that the giving of access in the form requested will not conflict with a legal duty or obligation of a public body or prejudice, impair or damage any interest protected by Part III of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act as amended, I hereby annul the decision of the Hospital and direct instead that the right of access to the videotape, already granted by the Hospital, be given in the form requested by you i.e. by way of the provision to you of a copy of the videotape.

Right of Appeal

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 letter.

Yours sincerely




Emily O'Reilly
Information Commissioner