Case number: 080279

Whether the HSE is justified under the provisions of section 26 of the FOI Act in its decision to grant access to social work records concerning (the school). The application arises from a decision to which, in the opinion of the HSE, the provisions of section 29 of the FOI Act apply.

Case Summary

Issue           

Whether the HSE is justified under the provisions of section 26 of the FOI Act in its decision to grant access to social work records concerning (the school).  The application arises from a decision to which, in the opinion of the HSE, the provisions of section 29 of the FOI Act apply. 

Decision           

The Senior Investigator found that the HSE is justified in its decision to grant access to the parts of the records at issue on the basis that section 26(2) dis-applies the exemptions at section 26(1) of the FOI Act where the records were created by the staff of a public body.  She affirmed the HSE's decision.

Date of Decision: 28.05.2009

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

The HSE's decision to release records concerning (the school) arose from an FOI request received by it on 23 June 2008. The requester sought  records pertaining to himself and his family's involvement with the HSE's Child Protection Team. On 17 October 2008, the HSE informed the applicant (the school) of this FOI request and said that it encompassed records relating to (the school). The HSE told the applicant that it was considering the release of certain records which release might affect the school's interests. I understand that the HSE provided the applicant with copies of these records with the relevant parts marked.  While it was not stated in its letter, the HSE implied that it had formed the view (subject only to hearing the applicant's view) that, whereas section 26 of the FOI Act would apply to exempt parts of the records from release, the public interest would, on balance, be better served by granting than by refusing to grant the request. Subsequently, the HSE received a letter from the applicant objecting to the release of the records which appear to have been from file 5 of the HSE's files on the case. The HSE, on 24 November 2008, advised the applicant that, having considered his views, it had decided to grant the requester access to parts of the records. The applicant applied to this Office for a review of the HSE's decision on 27 November 2008.

I note that Ms Alison McCulloch, Investigator of this Office, wrote to the applicant on 23 April 2009 setting out her preliminary views on this case. As no response was received from the applicant, I consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting this review I have had regard to the submissions of the HSE as well as those of the applicant (including those made to the HSE), the contents of the records and the provisions of the FOI Acts. this Office notified the original requester of the application for review and invited him to make submissions. No submissions were received from him.

Scope of the Review

The only matter for decision in this review is whether or not the HSE is correct, under the provisions of the FOI Act, in its decision to grant access to those parts of the records affecting the interests of the school.

The applicant's (the school's) right to seek a review of the HSE's decision arises on the basis that it is a decision on a request to which section 29 of the FOI Act applies. This rather complicated aspect of the FOI Act is explained below.

Section 29 applies to cases where the public body has decided that the record(s) in question are protected by one of the relevant exemptions in the FOI Act (i.e. sections 26, 27, 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that, based on the application of a public interest test, the record(s) should be released. Where section 29 applies, the public body is required to notify the affected third party before making a definite decision on whether or not the existing exemption, found to apply, should be set aside in the public interest. If the third party, on receiving notice of the final decision of the public body, so wishes, he or she may appeal that decision to this Office directly.

In this case it is not entirely clear whether, in writing to the applicant, the HSE had formed the view that the parts of the records at issue were exempt under section 26 (on the basis that the information in was given in confidence). If section 26 did not apply to the records at all, the question of release of exempt records in the public interest would not arise. However, given its notification to the applicant, the fact that the HSE informed the school of a right of appeal directly to the Commissioner and the fact that when queried by this Office before the application was accepted for review, the HSE stated that it considered that ''records involving the school are appropriate to release in the public interest'', I believe that this Office should make a decision on the review application.

The HSE said in its decision that it proposes to release parts of records which were enclosed with the decision. The HSE marked the parts of the records which would not be released. This decision will not deal with that information which did not form part of the notification to the school under section 29 of the Act.

Submissions

.

Findings

I draw attention to the fact that, under section 34(12) of the FOI Act, a decision to grant a request to which section 29 applies is presumed to have been justified unless the third party concerned shows to the satisfaction of the Information Commissioner that the decision was not justified. Therefore, in the present case, it is a matter for the applicant to satisfy the Commissioner that the decision of the HSE, to partially release the records is not justified.

While the identity of the original requester is not normally disclosed, I think it is relevant to point out that the requester is the father of the children. Under the FOI Acts the parents of children would normally be entitled to have access to personal information relating to them and their children unless any of the exemptions set out in the Act apply.  Regulations made under section 28(6) of the Act [SI No. 47 of 1999] provide for the release of their child's information to parents or guardians if this would be in the best interests of the child. The Supreme Court held in N.McK v the Information Commissioner [2006] 1 IRLM 504 that parents are presumed to be acting in the best interests of their child unless there is evidence to the contrary.

The records are case notes by HSE social workers including their accounts of what teachers said in relation to the children. In his application to this Office, the applicant argued that the records at issue contain information given in confidence to employees of the HSE. He said that to release these records would constitute a breach of confidence and would jeopardise the quality of future communication with the HSE. 

Section 26 - Information obtained in confidence

Section 26 states that

"(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if_

(a) the record contains information given to a public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

Section 26(2) serves to render section 26(1)(a) inapplicable to a record which is prepared by

"a head or any other person (being a director, or member of the staff of, a public body or a person who is providing aservice for a public body under a contract for services) in the course of the performance his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."

In a judgment of the High Court in The Health Service Executive and the Information Commissioner and BK [2008] IEHC 298, in dismissing an appeal against a decision of the Commissioner directing the release of records, Mr Justice McMahon ruled that records prepared by a social worker of contacts and telephone calls with teachers were records which fell within the section 26(2) provision. He held that the 'breach of a duty of confidence' could not be claimed where the confider of information was a person who could not have an agreement of confidentiality with the member of staff of a public body to whom information was being given. Mr Justice McMahon said:

"The purpose of section 26(2) is to make available to the requester internal records prepared by staff in public bodies in the course of the performance of their functions. There can be no doubt that the social worker in the case before the court was indeed acting in such capacity when she was investigating and following up concerns expressed for the welfare of a child in her jurisdiction.

The subsection, however, goes on to add that such records although usually subject to disclosure will not have to be disclosed if "disclosure of the information concerned would constitute a breach of duty of confidence that is provided for by an agreement or statute or otherwise by law to" a third party. This escape clause does not apply in the present case for although the teachers, etc, may be third parties, there would be no "breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law". Teachers have no legal duty, either statutory or otherwise, to report on students in their care. It would also be very difficult to argue that an agreement of confidentiality existed between the teacher and the social worker in this case. ......There is nothing in the notes or records kept by the social worker suggesting that the teachers insisted or expected confidentiality when interfacing with the social worker. There was certainly no clear agreement to that effect......Moreover, the HSE and the school must have been very conscious of the "National Guidelines for the Protection and Welfare of Children" ("Children First") published by the department of Health and Children in September 1999. These guidelines are intended in particular:-

"....to support and guide health professionals, teachers, members of the Garda Síochána and the many people in sporting, cultural, community and voluntary organisations who come into regular contact with children and are therefore in a position of responsibility in recognising and responding to possible child abuse..."

These guidelines were widely debated and contain references to the rights of the members of the public to have access to documents held by the HSE in certain circumstances and that decisions made by public bodies in respect of such requests can be "reviewed" by the Information Commissioner with the possibility of an appeal on a point of law to the High Court. The very nature of the functions being performed by the HSE and the information being gathered, must have caused the HSE and both the school and the teachers to realise that this information may eventually have to be disclosed, in the best interest, and to satisfy the constitutional rights, of the parent. In such circumstances any expectation of confidentiality entertained by the school would lack the requirement of mutuality and reasonable foundation on which to base an argument for breach of confidence."

Thus, the judgment concluded that, by virtue of section 26(2), the exemptions at section 26(1) did not apply to the records in question. This High Court approval of the Commissioner's position was brought to the attention of the applicant in this case in Office's preliminary views.

The records the subject of this review were prepared by social workers and contain information deriving from exchanges between HSE social workers and the teachers in the school. Given the provisions of section 26(2), the exemptions at section 26(1) cannot apply to these records and they fall to be released to the requester. Accordingly, it is not necessary for me to consider under section 26(3) of the FOI Act whether the public interest would be better served by granting than by refusing the request. I find that section 26(1) of the Act does not apply in relation to the parts of the records at issue in this review.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the HSE in this case.

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 a review must be initiated not later than eight weeks from the date of this letter.

Elizabeth Dolan

Senior Investigator

28 May 2009