Case number: 110158
Case 110158. The Senior Investigator affirmed the decision of the HSE.
Whether the Department was justified in deciding to refuse access to certain information relating to the identity of person(s) who made allegations against the applicants in accordance with sections 23(1)(b), 26(1)(a) and 28(1) of the FOI Act.
By letter dated 23 June 2011 the applicant requested copies of all relevant records held by the HSE as follows:
"all records, papers, notes, minutes and documents of any nature pertaining to, touching upon, concerning or in connection with statements, complaints and/or reports that were made to the HSE and/or Employees, Agents and/or Officers of the HSE within the previous 6 years concerning neglect, ill treatment of and/or abuse of children by ...[details.]..."
Following that request the HSE issued a decision on 19 July 2011. That decision, which included a schedule of records, granted full access to 36 of the 46 records in the HSE file and partial access to the remaining records. In relation to the redacted records, the HSE withheld from release information relating to the individual(s) who contacted the HSE regarding the applicants' children on the basis of the exemptions in sections 26(1)(a) and 28(1) of the Act. The applicants requested an internal review of that decision on 25 July 2011. In its decision following internal review dated 9 August 2011, the HSE confirmed its original decision. The applicants applied to this Office for a review of the HSE decision by letter dated 11 August 2011.
While the HSE initially relied on the exemptions in sections 26(1)(a) and 28(1) to refuse to grant access to the redacted information, during the course of the review it also invoked the exemption in section 23(1)(b) to withhold release of the redacted information.
In the course of this review, Mr Brian Murnane, an Investigator from this Office put forward his preliminary views that the HSE decision was likely to be affirmed by the Commissioner or her delegate. Mr Murnane outlined the approach taken by this Office in previous such cases, that is, that the name/identity of the person(s) who made the report to the HSE was exempt from release under section 23(1)(b) of the FOI Act. The applicants did not accept that view as a basis for a settlement of the case and requested that the review be brought to a close by the issue of a formal binding decision.
In conducting this review I have taken account of the HSE decisions on the matter and its communications with this Office; the applicants communications with this Office and the HSE, as well as the provisions of the FOI Act. I have also examined the records concerned which have been provided to this Office by the HSE.
Conducted in accordance with section 34(2) of the FOI Act by Mr Stephen Rafferty, Senior Investigator, Office of the Information Commissioner ( authorised by the Information Commissioner to conduct this review).
The scope of this review is concerned solely with whether the HSE is justified in its decision to refuse access to the redacted parts of 10 records ( Nos 4, 8, 10, 14, 16, 20, 22, 26, 30 and 35 on the schedule of records provided) on the basis that they are exempt from release under the provisions of the FOI Act.
Section 34(12)(b) of the FOI Act provides that in a review:-
"a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified".
This puts the burden of proof on the HSE to show to my satisfaction that its decision to refuse to grant the request is justified.
Section 23 (Law Enforcement and Public Safety)
The information withheld in this case comprises information relating to the identity of, and contact details for, the person(s) who made the allegations to the HSE. I consider section 23(1)(b) of the FOI Act to be of most relevance in this case. That section provides as follows:
"23(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...
..."reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence,"
Section 23(1)(b) is an exemption provision aimed at ensuring that members of the public are not discouraged from co-operating with agencies engaged in the enforcement or administration of the civil law, by providing information which might assist such agencies to perform their functions more effectively. For the exemption to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the public body in confidence while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.
It must be reasonable to expect that release of the information in the records could reveal, or lead to the revelation of, the identity of the person(s) who has given the information. Having examined the withheld information, I find that its release would reveal, or lead to the revelation of, the identity of person(s) who gave the information to the HSE. Therefore, I find that the first requirement under section 23(1)(b) is met.
In relation to the second requirement, I must now address the issue of whether the information was given to the HSE in confidence. It is clear to me, in considering the core statutory functions involved, that it is necessary for HSE Officials, in the course of their duties, to be in a position to receive necessary information in confidence from members of the public. I recognise that much of the information the HSE receives is received in confidence from people who do not wish to be identified. It is arguable that if people providing information to the HSE in such cases were not reassured as to confidentiality, the information gathering process would be compromised by the withholding of such information. I accept that without an assurance or understanding that information being provided was provided in confidence, such persons may be reluctant to provide information.
The development of a practice of revealing information relating to approaches to the HSE on child welfare issues could be seen as a barrier to people bringing their genuine concerns for children to the attention of the HSE. That carries a risk that genuine cases of child abuse or neglect might go undetected. In many cases, as emerged in this case, the HSE may find, on initial enquiry, that the circumstances are such as not to warrant any further intervention.
The applicants' solicitors have indicated that there is circumstantial evidence to support their view that the report was maliciously motivated and cannot have been made in confidence. They refer, for example, to a copy of a record which was released and which contains the Duty Social Worker's opinion that "it appears likely that the report was malicious". They refer to the case of Cruise V Bourke  2 IR 182 where Madden J. held that malice could be inferred if it could be shown that the Defendant had no reasonable or probable cause for advancing the prosecution and had no honest belief in the Plaintiff's guilt. I take this as an argument that it can be inferred that the report to the HSE in this case was maliciously motivated as there is evidence to suggest that the person(s) making the report had no reasonable cause for doing so.
These views were conveyed by Mr Murnane to the HSE who, in response, informed this Office that every such report it receives is acted upon in good faith. It explained that as the facts of this particular case presented themselves to the investigating Social Worker, she was of the opinion that it appeared likely that the report was malicious. The HSE argues that it is not in a position to take a more unequivocal view of the matter. The Principal Social Worker for the HSE added that he was not in a position to know definitively whether the person(s) who made the report was acting in good faith and that no reason arose or was identified during the course of contact with the complainant(s) to suggest that the complainant(s) was acting in bad faith. I also note from records numbered 22, 26 and 30 that the HSE accepted that the complainant(s) wished to remain anonymous.
The Commissioner has previously indicated that the issue of whether information was provided in good faith is a factor to be considered in the determination of whether or not information has been given in confidence. On the matter of whether a report which appears to have been maliciously motivated can have been made in confidence, I consider that the findings of the Queensland Information Commissioner in the case of Gifford and Redland Shire Council,(29 January 2007), Application number 210004,while of no precedent, help to inform my thinking on the matter. In that case the Information Commissioner commented as follows:
"I acknowledge that a process whereby confidentiality of identity is extended to complainants (when the complaint can be properly investigated without disclosing identity), can provide the means by which malicious complaints can be made. However, in general, Australian law places more importance on encouraging the flow of information to law enforcement and regulatory agencies, even though some people may have to endure an agency investigation of false and malicious allegations. Some agencies, such as the police, have been given power to take action against people who make false and malicious allegations, as distinct from a mistaken allegation made in good faith. The law favours the agency, rather than the affected person, taking appropriate action in these cases. That potential annoyance to the subjects to such complaints must be measured against the prejudice that the alternative approach would cause to the flow of information from the public, on which the Council relies to carry out its functions."
In this case, while I accept that some circumstantial evidence exists to suggest that the report to the HSE may have been maliciously motivated, I am not convinced that sufficient evidence exists to state categorically that this was the case. In any event, I accept that the HSE acts upon every report such as the type at issue in this case in good faith. Indeed, when one considers the person who, in good faith, supplies information which is subsequently found on investigation to be inaccurate or mistaken, the difficulty for the HSE in handling such reports in any other manner become apparent. I accept that the disclosure of the identity of complainants, even where the evidence suggests that the complaint was maliciously motivated, could prejudice the flow of information from the public and that the HSE relies upon such information to carry out its functions. In the present case I give significant weight to safeguarding the inherent importance in protecting the free flow of information to the HSE and I accept the HSE's position that the information was given in confidence in this case, notwithstanding the fact that the allegations were subsequently regarded as unfounded. Accordingly, I find that the second requirement of section 23(1)(b) has been met.
I should add that the applicants' solicitors also refer to the fact that the false reporting of child abuse is a criminal offence under section 5 of the Protection for Persons Reporting Child Abuse Act 1998. In my view, this is not an argument which supports the view that a report of alleged child abuse or neglect which appears to have been maliciously motivated cannot have been made in confidence and that the identity of the complainant(s) should, therefore, be released. Indeed, if the HSE had any such concerns, it would be open to that body to pursue the matter, while continuing to protect the free flow of information to allow it to carry out its functions.
Finally, the Child Care Act 1991 imposes a legal obligation on the HSE to investigate allegations of child abuse or neglect. Sections 3(1) and 3(2) of the Child Care Act, 1991 oblige the HSE to "promote the welfare of children in its area who are not receiving adequate care and protection" and provide that, in the performance of this function, it shall "co-ordinate information from all relevant sources relating to children in its area. Accordingly, it is my view that the information given relates to the enforcement or administration of the civil law. On this basis I find that the third requirement of section 23(1)(b) has been met.
However, that is not the end of the matter as section 23(3) provides that section 23(1)(b) does not apply in certain specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection, or investigation of breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply. On this basis, all of the requirements for the application of section 23(1)(b) have been satisfied.
I find, therefore, that the HSE is justified in its decision to refuse access to the withheld parts of records on the grounds that section 23(1)(b) applies. Having so found, it is not necessary to consider any other exemptions claimed by the HSE.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.
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 on which notice of the decision was given to the person bringing the appeal.