Case number: 99001

Case 99001. Personal information - the public interest - section 28 - consideration of section 28(2)(e) - information obtained in confidence - section 26 - contempt of court - section 22(1)(b) - the fairness of criminal or civil proceedings - section 23(1)(a)(iv).

Case Summary

Facts

The requester, who had been in the care of the Health Board as a minor, sought access to all files relating to her. The Board granted access to a large number of the records but refused access, pursuant to section 26 of the Act, to certain records containing information supplied to the Board by the requester's parents. The requester applied to the Commissioner for a review of the decision of the Board. The requester's parents were notified of the review and objected to the release of the information.

Decision

The Commissioner found that the records contained personal information about the members of the requester's family (other than the requester) or joint personal information relating both to the requester and other members of the family. He found that, in order to meet the test in section 28(2)(e) of the Act, there must be serious and imminent risk to life or health and the danger must be grave and impending or close at hand. A clear link must be established showing that disclosure of the information is necessary to avoid such harm.

The Commissioner found that there was a public interest in the provision of measures which protect and promote the health and psychological welfare of the public. He found that there was a public interest in individuals who had been in the care of the State having access to information relevant to the decisions made concerning them. He found that there was a public interest in members of the public knowing how public bodies perform their functions and in individuals ensuring that personal information held by public bodies about them is accurate. He also found that there was a public interest in protecting the right to privacy, in public bodies being able to continue to perform their functions in cases of this nature, in safeguarding the flow of information to public bodies and in persons being able to communicate with public bodies in confidence and without fear of disclosure in relation to personal or sensitive matters. He found that in certain limited cases there may be a public interest in a particular requester, due to his/her interest in the matter concerned, gaining access to information which would otherwise be exempt. He found that the protection of personal privacy afforded by section 28 was intended to be strong.

He found that the substance of the information relating to the requester, her family and the performance of the Board had been released. He did not accept the argument that by reason of their alleged behaviour, the right to privacy of the requester's parents should not be upheld. With the exception of records of meetings which the requester had attended, he decided that the public interest that the request be granted did not outweigh the public interest that the right to privacy should be upheld.

In considering the records of meetings attended by the requester, the Commissioner found that the invasion of privacy was minimised as the requester, having attended the meetings, ought to have been aware of the information. He also decided that there was a public interest in a participant at a meeting with a public body knowing that the public body accurately recorded the meeting. The Commissioner found that that the manner of access (which was by way of inspection of the records) also served to minimise the potential prejudice to the privacy interests involved.

The Commissioner considered the application of sections 26, 22(1)(b) and 23(1)(a)(iv) to the records of meetings attended by the requester and found that they did not apply to those records.

Date of Decision: 04.07.2001

DECISION UNDER SECTION 34(2) OF THE FREEDOM OF INFORMATION ACT, 1997 IN RELATION TO CASE NUMBER 99001 - MS ACF AND THE NORTH EASTERN HEALTH BOARD

Background:

[1.] The background to this request can very briefly be described as follows. The requester, Ms ACF, was born in 1974. In August 1991 she was placed in the voluntary foster care of the North Eastern Health Board (the Board) and in December 1991 the High Court made an order taking her into wardship. The requester alleged that she had been physically and sexually abused by her brother and father. There was ongoing contact between the requester and the Board after the requester reached the age of 18 years and the Board continued to assist the requester financially in her studies after that time. The requester's parents subsequently instituted proceedings in the High Court against the Board alleging negligence and breach of duty on the part of the Board in relation to the case. High Court proceedings were also instituted by Ms ACF, the requester, against her parents. Ms ACF also made a complaint to the Board with regard to her dealings with the Board.

[2.] On 21 October 1998 Ms ACF made a request under the Freedom of Information (FOI) Act, 1997 to the Board for access to all files pertaining to her which were in the possession of the Board. Ms ACF listed a number of specific files which she wished to include in her request. In her letter of request Ms ACF nominated two persons to read the records with her in the event that the Board required a person to do so. In its decision of the 9 December 1998, the Board granted access to all information on its files with the exception of information supplied by Ms ACF's parents which it refused pursuant to section 26 of the FOI Act (information obtained in confidence). It also refused access to the file held by the Board's solicitor on the basis that it did not come within the provisions or scope of the Act.

[3.] In her application for internal review, Ms ACF appealed the decision "to deny me access to the information supplied by my parents (Mr and Mrs ACG) to [a named psychologist] and D.C.C.'s and area medical officers, on the basis that they provided the information to the above named in confidence." This Office has since confirmed that Ms ACF's reference to the D.C.C. is a reference to the Director of Community Care. The Board made its decision on internal review on 22 December 1998 and upheld the initial decision under section 26(1) of the Act. Access to the records which the Board decided to release was granted to Ms ACF by providing her with an opportunity to inspect the records and Ms ACF availed of access in this manner.

In a letter dated 3 January 1999, Ms ACF applied to my Office for a review of the decision of the North Eastern Health Board and I accepted the matter for review.

Scope of the Review

[4.] In her letter seeking internal review of the decision of the Board, the requester narrowed the scope of her request to information supplied by her parents to the persons named in that letter. In a letter to the requester, my Office set out the records which appeared to fall within the narrower request. It was unclear whether, in referring to "D.C.C.'s" , Ms ACF intended to include all community care services under the control or jurisdiction of the D.C.C. My Office clarified the matter with Ms ACF and she confirmed that she wished to have the records of those services included. I have therefore included the records of all services under the control of the D.C.C. in the scope of this review. Ms ACF in reply to the correspondence from this Office asked that the records of the Family Therapy Unit be included within the scope of this review. She noted that the Family Therapy services were under the auspices of the North Eastern Health Board and her intention was to seek all information held by the Board relating to her. I have considered this matter and while I have some sympathy for Ms ACF given the fact that it is not always clear to individual members of the public the exact manner in which the services of a health board are organised, I am of the view that I cannot include the records of the Family Therapy Unit services within the scope of this review. The Family Therapy Unit in this case operates within St. Brigid's Hospital which is part of the hospital services run by the Board and is not a service falling under the control of the D.C.C. A review under section 34 of the FOI Act in a case of this nature is a review of the internal review decision of the public body. In her letter seeking internal review, the requester narrowed the scope of her request. I am of the view therefore that the records falling within the scope of this review are the records falling within that narrower scope. However, it is of course open to the requester to proceed by way of a fresh request to the Board for any records which do not fall within the scope of this review.

[5.] The records falling within the scope of this review may be described in broad terms as those records which have not been released to the requester which contain information given by her parents (or their solicitors) to a named psychologist, community care social workers/ psychologists, and to staff of other services under the control of the D.C.C. including area medical officers. These records include notes made by any of these members of staff of the Board concerning direct contact between the requester's parents and those members of staff. Also included are reports prepared by those members of staff which contain information given by her parents or her parents' lawyers. In addition, the records include communications from her parents' lawyers to the Board including copies of court pleadings in a case being brought by her parents against the Board.

[6.] The records supplied to this Office by the Board are on numbered files. In describing the records within the scope of this review, I refer to the file number and file description used by the Board. In the case of certain records, the Board granted partial access to the records and only parts (or paragraphs) of the records fall within the scope of the review. In the case of some other records, only certain parts (or paragraphs) fall within the scope of the narrower request made at internal review. The records on each file have been scheduled and numbered by the Board and I refer to the record numbers as used by the Board. The following records fall within the scope of this review:

Records within the scope of this review:

File 1: Social Work File - records 4 (certain paragraphs), 5 (certain paragraphs), 6, 7 (certain paragraphs); File 7: Social Work File - record 23 (certain paragraphs); File 9: Social Work File - records 8, 9, 13, 17, 19, 24, and enclosure in record 31; File 12: Psychology File - an enclosure in record 11, record 15 (certain paragraphs)*; File 13: Psychology File - record 5 (certain paragraphs); Senior Clinical Psychologist File - record 7.*Record 15 is a replicate of records 4, 5 and 6, File 1. [7.] In reviewing this case, the Board and the requester made submissions to me. In accordance with section 34(6) of the FOI Act, I notified the requester's parents of this review and I received a submission from their solicitors. These submissions have been considered by me in making this decision and I refer to them below.

[8.] The Board supplied copies of all records falling within the scope of the original request to this Office including all records which were released and those which were not released. It is worth noting that there are over 590 records in total in this case (comprising over 1,000 pages). The number of records falling within the scope of this review has been very considerably reduced given the narrower focus of the request at internal review. I acknowledge that the requirements of FOI in cases of this nature, where there is a large volume of records, can be a considerable task for health boards. The proper scheduling and description of records in these cases enhances the quality of decision making and assists considerably if the matter comes on appeal to my Office. In this case, the North Eastern Health Board supplied the records to my Office duly scheduled and with a note on each schedule describing the records, specifying whether the records were released or refused and, in the case where a record was refused, the section relied on by the Board for its decision to refuse access to the record in question. This has aided my Office in the conduct of this review.

[9.] My Office wrote to the requester expressing the preliminary view that the records falling within the scope of the review contained personal information relating to her parents or personal information relating jointly to her parents (or others) and the requester. The requester was asked to consider the preliminary observation that, in the case of most of these records, the public interest did not, on balance, favour the release of the records in question. The requester disagreed with this preliminary view expressed by my Office and I have considered her response in making my decision in this matter.

[10.] My Office also wrote to the requester's parents during the course of this review expressing the preliminary view that access should be granted to a certain limited number of records. In response, the solicitors for the requester's parents noted the preliminary view which had been given and indicated that their clients sought access to any records which were being released to the requester. The issue of whether access to any record should be granted to the requester's parents is not something which I can decide in the course of this review. This review is concerned solely with whether the decision made by the Board in response to Ms ACF's request was justified. It is, of course, open to the requester's parents to make an FOI request to the Board for access to any records which they may wish to seek.

Submissions

The Requester

[11.] Ms ACF argued that her parents had never co-operated with the Board nor had they been forthcoming with the Board. She doubted they would furnish information to the Board in the future. She argued that the confidentiality which the Board sought to protect was the fact that her parents never admitted to, or took responsibility for, the reasons she was admitted to foster care. She mentioned the need for openness and accountability. She stated that her parents should not be afforded the right of confidentiality over her need to know her personal history and background. She stated that the Board failed to "allow the truth to prevail by protecting the confidentiality of people who fail to accept or admit to the truth". She felt that the decision of the Board had grave implications for the child welfare system. She argued that the Board had acted in breach of her constitutional rights. She argued that the decision under FOI should be based on the specific facts of her case.

[12.] The requester argued she had a need to know her family history and to understand how decisions were reached by the Board in her case. She believed that decisions were made which had placed her at risk. She said that she has serious questions about the performance of the Board and that she endured serious abuse as a result of its failure to act. She argued that her lack of knowledge in relation to the events in question posed a serious risk to her mental health and that section 28(2)(e) of the FOI Act applied - that disclosure of the information was necessary in order to avoid a serious and imminent danger to the life or health of an individual. She argued that a health board's investigation in cases of sexual abuse is not a criminal one and whether or not there has been a criminal conviction in the case should not be a criterion in deciding whether information should be released or whether the privacy of persons against whom allegations have been made is protected.

The North Eastern Health Board

[13.] In its submission, the Board claimed that the principal basis for refusing access to the information obtained from the requester's parents was that the information was exempt under section 26 of the FOI Act (information obtained in confidence).

[14.] In relation to section 26(1)(a) of the Act, the Board argued that on a daily basis its staff establish patient/ client relationships with members of the public as service users and with third parties who supply information to the health professional in relation to the patient/client. It argued that such information is supplied in confidence and on the understanding that it be treated as confidential i.e. that it will not be disclosed to the patient/ client. It stressed the need for information from third parties in order to form an objective assessment and for a necessary care plan to be put in place. It stated that there was a mutuality of confidence with regard to such information. In the particular case, the Board stated that the information supplied was intended to be confidential and was imparted in circumstances which required the Board to regard it as confidential. Given the nature of the allegations which had been made, the Board was of the opinion that the information would "satisfy any test of significance or sensitivity".

[15.] The Board also argued that the information was exempt pursuant to section 26(1)(b) of the Act. It argued that there was an implicit contractual agreement between the requester's parents and the Board to treat the information as confidential. The Board further argued that release of the information could lead to an action for breach of confidence at common law. On the public interest, the Board took into account the benefit of releasing the information to the requester, the impact of the release of the information on the future of third party/ health professional relationships and the future potential relationship between the requester and her parents.

[16.] In its initial decision and decision on internal review the Board relied only on section 26. However, in the schedules of records prepared by the Board, the particular provisions of the FOI Act relied upon for refusing access to the records are specified. In the case of the majority of records falling within the scope of this review, the Board has specified section 28 in the schedule of records provided. In its submission, the Board argued that it had been discovered that some of the information on the family therapist file, and to a lesser extent on the social work files, could be regarded as personal information about the requester's parents and as such should be considered exempt under section 28 of the Act. Where meetings were attended only by the requester's parents the records of the meetings contained personal information about them. It stated that, given the fact that the requester had sought files pertaining to her, there were grounds for the opinion that the records relating solely to her parents should not have been considered when processing the request. In considering the public interest factors in the release of such information, the Board took account of the rights of the parents to have their privacy respected.

[17.] The Board also relied on section 22(1)(a) - legal professional privilege - for its decision not to release correspondence between its staff and the Board's solicitor. However, those records do not fall within the scope of this review.

The Requester's Parents

[18.] In a submission to this Office, solicitors on behalf of the requester's parents stated that legal proceedings had been issued by the parents against the Board which related to the "treatment prescribed by the Board" to the requester. They argued that, in such circumstances, no information should be furnished to the requester. They argued that the matter was sub judice and disclosure of the information could reasonably be expected to prejudice or impair the outcome of the civil proceedings before the courts.

Findings

[19.] The requester has made a number of points in her submissions to me which I wish to address. At the outset, however, I should state clearly that it is not part of my functions as Information Commissioner to adjudicate on how public bodies perform their functions generally.

[20.] In her application for review, Ms ACF stated that the decision to refuse access to the records was in breach of her constitutional rights. She also stated that she had serious questions about the performance of the Board and its failure to act. I think I should make clear that these issues are only relevant to my review insofar as they may possibly be factors to be taken into account in deciding whether the decision of the public body under FOI Act was correct. The requester has also argued that the Board failed to make an independent decision on the facts of her case. However, it seems to me that the Board released a considerable number of records in its initial decision and applied the Act in good faith in its decision with regard to the remaining records. I am also mindful that the FOI Act was in its infancy at the time of the Board's decisions in this matter. However, I note that in its decisions which issued to the requester it does not appear to have distinguished between section 26(1)(a) and 26(1)(b) of the Act. Further, its letters of decision do not contain a reference to the public interest test which should be addressed under section 26(3) of the Act. Section 8(2)(d) of the FOI Act provides that, where access to records is refused, the notice of the decision of the public body must contain the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. In this respect, the notices of the Board's decisions which issued to the requester are less than satisfactory.

[21.] The records covered by this review were created between 1991 and 1996 and were, therefore, created prior to the commencement of the FOI Act. A right of access to records created prior to the commencement of the Act arises where access is necessary or expedient in order to understand records created after such commencement [section 6(5)(a)] or where the records relate to personal information about the person seeking access to them [section 6(5)(b)]. Having reviewed the records in question, I am satisfied that the records relate to the requester's history, the decision by the Board to take her into care, issues within her family which arose from allegations made by the requester and other related matters. Subject to what I say later about joint personal information, I am satisfied that the records relate to personal information about the requester and, subject to the other provisions of the Act, a right of access to the records arises pursuant to section 6(5)(b).

I propose to deal firstly with the application of section 28 to the records in this case.

Section 28 - Personal Information

[22.] Section 28 of the FOI Act provides that access to records shall be refused where it would involve the disclosure of personal information but this does not apply where the information concerned relates to the requester. Section 2 of the 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, " Section 2 also lists certain types of information which are specifically included in this definition of personal information, including, for example, information relating to the educational, medical, psychiatric or psychological history of the individual as well as the views or opinions of another person about the individual.

[23.] The records falling within the scope of this review relate to the involvement of the Board with this family in relation to, what may be described as, child care issues. They relate to the contact between the requester or the requester's parents and the Board and they concern the allegations of abuse (including sexual abuse) made by the requester concerning members of her family, the wardship proceedings taken by the Board and the requester's foster care. They also relate to proceedings taken by the requester's parents against the Board concerning the actions of the Board in this context. The records include notes or reports of social workers and psychologists relating to the requester, her parents and other members of her family in the context of these events. The requester has laid emphasis on her view that her parents had failed to co-operate with the Board. I should add that the fact that a private individual has or has not co-operated with a public body, especially in cases of this nature, is personal information about that individual. The fact that an allegation of sexual abuse has been made against an individual, and the individual's response to those allegations, is personal information about that individual. I am satisfied that this information constitutes personal information, as defined by the FOI Act about the members of the family concerned (including the requester).

[24.] The requester has argued that her parents did not admit to, or take responsibility for, the reasons for her being taken into care. She implies that information which, in her view, is not the truth does not attract protection. It is, of course, difficult for a requester who cannot know the actual contents of the records at issue to make arguments relating to their content. In complex cases of this nature there is frequently conflicting information given by third parties to public bodies. To the extent that the information reflected the views or opinions of another person about the requester, it is personal information about the requester which is accessible under the Act but subject to the various exemptions in the Act. It is neither necessary nor practicable for me as Information Commissioner to decide on the truth or accuracy of such information. Indeed, even if it were established that information provided to a public body was not the "truth", as the requester puts it, I might still be satisfied that, given the context in which the information was provided to the public body, the information was personal information about the requester's family within the meaning of the Act.

[25.] Where such personal information relating to members of the family other than the requester can be separated from the rest of the record, section 28(1) applies and, subject to the other provisions of section 28, access to the information must be refused. Where information relates both to the requester and other member(s) of the family and the information relating to the requester cannot be separated from the information relating to the other family member, the information is referred to as joint personal information.

[26.] The Board in its original decision decided to grant the requester access to a large number of records relating to personal information about her. It is possible to extract occasional sentences or parts of sentences from the records within the scope of this review and argue that they comprise personal information relating solely to the requester. However, such information arose in the context of discussions between the Board personnel and the requester's parents. It is clear to me that although such discussions may have related to the requester, they also related to the requester's parents. In my view, given the context of the information, it may be more correctly described as joint personal information. I am satisfied that, given their context and content, none of the records within the scope of this review contain information which is personal information relating solely to the requester. I am satisfied that these records contain information which constitutes either (a) personal information relating to other members of the requester's family solely or (b) joint personal information relating both to the requester and those other members of the family. I am confirmed in this view by the consideration that if sentences or parts of sentences were extracted on the basis that they contained personal information relating solely to the requester, their release would be misleading - section 13(2).

[27.] The provisions of the Freedom of Information Act, 1997 (Section 28(1)) (Amendment) Regulations, 1998 (SI No. 521 of 1998) apply to joint personal information. Paragraph 3 of the Regulations provides as follows: "3. Notwithstanding the provisions of section 28(2)(a), for the purposes of section 28(1) a head shall, subject to the provisions of sections 28(2)(b) to (e), 28(5) and 28(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 disclosure of personal information relating to the requester, also involve disclosure of personal information relating to an individual or individuals other than the requester. " The effect of these Regulations is that a record containing joint personal information cannot be released to one of the individuals to whom it relates unless one of the other relevant provisions of section 28 apply, i.e. 28(2)(b) to (e), 28(5) or 28(6). These other provisions of section 28 must also be considered in relation to the release of personal information relating solely to individuals other than the requester and must therefore be considered in relation to all the records within the scope of this review. I will now consider each of these provisions in turn.

Section 28(2)(b) - (e)

[28.] Section 28(2)(b) to (e) provides as follows: 28(2) Subsection (1) does not apply if ..... (b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester, (c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public, (d) the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, 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, In a letter to the requester my Office expressed the preliminary view that these provisions did not apply.

[29.] It is quite clear that paragraph (b) does not apply in this case as the individuals to whom the information relates have not consented to the release of the information. No case has been made that paragraphs (c) and (d) apply in this case and I am satisfied that they do not.

[30.] In her response to my Office, the requester referred to section 28(2)(e) stating that she believed that, due to the prolonged difficulties she has endured and the unanswered questions that remain at the forefront of her mind, there is a risk to her mental health. It is clear that the requester feels she has unanswered questions regarding her history. The requester has also informed my Office of certain difficulties and self-destructive behaviours in which she has engaged and which, she argues, are related to her lack of knowledge concerning her parents and family and the circumstances in which she went into care. I have a great deal of sympathy for the requester; however, the test to be met in section 28(2)(e) is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes. I am of the view that the requirements of this provision are not met where disclosure would merely be of assistance to an individual or an individual's mental health by giving him or her an understanding or knowledge of an issue which is of great concern to them. The requester has not elaborated on her contention regarding the risk to her health, nor has she provided any professional opinion in support of it. Accordingly I am not satisfied, on the information available, that disclosure of the information in these records is necessary to order to avoid serious or imminent danger to the life or health of the requester. Section 28(5) - the Public Interest[31.] Section 28(5) provides as follows: (5) 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.

In my view the granting of the request in this case would not benefit the requester's parents or other members of the requester's family to whom the information relates. There is nothing to suggest that the grant of the request would benefit them and the requester's parents have not consented to the release of the information. I therefore find that section 28(5)(b) does not apply.

[32.] I must now consider the question of the public interest as provided in section 28(5)(a). I consider that there is a number of public interest arguments in favour of release of this information. There is a public interest in the provision of measures which protect and promote the health and psychological welfare of the public. Measures which provide individuals with access to information about their own history and family history assist in the protection and promotion of such well-being. Where individuals have been in the care of the State, there is a public interest in such individuals having access to information relevant to the decision to take them into care/ wardship and to decisions made by or on behalf of the State regarding their welfare while in such care/ wardship. There is a public interest in members of the public knowing how public bodies perform their functions. There is also a public interest in individuals ensuring that personal information held by public bodies about them is accurate.

[33.] I also consider that there is a number of public interest arguments against the release of this information. Section 28(5)(a) itself recognises that there is a public interest in upholding or protecting the right to privacy. There is also a public interest in public bodies being able to continue to perform their functions in cases of this nature; release of information of this type could make the performance of such functions more difficult. There is a public interest in safeguarding the flow of information to public bodies. There is a public interest in persons being able to communicate with public bodies in confidence and without fear of disclosure in relation to personal or sensitive matters.

The Public Interest and the Identity of the Requester

[34.] In considering the relative weight that I should attach to these public interest arguments I have also considered other factors. The FOI Act provides at section 8(4) that in deciding whether or not to grant a request under the Act - "(a) any reason that the requester gives for the request, and (b) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded." This means that any motive which the requester may have in seeking the information must be disregarded for the purpose of the decision under FOI. It also means that a requester need not show that he or she has any particular standing in order to make an FOI request. It could be argued, therefore, that little or no weight should be attached to the arguments that the requester, as a person who was in the care of the Board, should have access to information concerning her care. It seems to me, however, that section 8(4) does not necessarily mean that in certain particular cases the identity or history of the requester may not be relevant to a decision regarding the public interest in the release of information. In this case the requester was placed in the voluntary foster care of the Board and subsequently taken into wardship by the High Court following an application to the High Court by the Board. There is a public interest in the requester (and any person who might be in a similar situation) having access to information which would enable them to assess the performance of the Board in its dealings with them. Any actions, or indeed inaction, of a health board in cases of this nature would be matters of concern to the individuals and families involved and in some cases may be of concern to the public at large. There is already a distinction drawn between on the one hand, the grant to requesters of access to personal information about themselves (and the refusal to other requesters of access to that same information) and, on the other hand, the grant of access to other types of information to requesters generally irrespective of their identities.

[35.] At the same time, 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 cases of sexual abuse or sexual assault come before the courts or where child care cases are heard by the courts. Statutory provisions governing the conduct of such cases allow for the proceedings to be held otherwise than in public or for the exclusion from court of all persons except those directly concerned with the case. There is also statutory provision enabling the identity of both the complainant and accused to be protected and for the prohibition of publication or broadcast of certain matters. Documents furnished in the course of such proceedings may be similarly restricted. These provisions reflect a public interest in protecting the privacy of the persons involved. There is no restriction or qualification on the dissemination of information released under FOI. Thus, release of information to a particular requester is not qualified and any further use made of the information released cannot be restricted. Of course, section 45(5) does not give immunity from legal proceedings for defamation or breach of confidence if the requester or any other person publishes the records to which he/she has been granted access.

[36.] I note that the FOI Act is silent on the question of whether a particular requester's interest in the matters referred to in the records is something which may be taken into account in considering the public interest. This contrasts with the position in Queensland where section 6 of the Freedom of Information Act, 1992 (Qld) provides that the fact that a document contains matter relating to the personal affairs of the applicant is an element to be taken into account in deciding "(a) whether it is in the public interest to grant access to the applicant and (b) the effect that the disclosure of the matter might have." Having taken account of these matters, I am of the view that in certain limited cases there may be a public interest in a particular requester, due to his/ her interest in the matter concerned, gaining access to information which would otherwise be exempt. In my view, this will arise where the interest of the individual requester concerned is of such a nature that it is not merely a matter of private interests or rights but involves principles of public interest. The degree of weight attaching to such a public interest would depend very much on the facts of the case.

The Public Interest and the Right to Privacy

[37.] Section 28(5) refers to the public interest in upholding the right to privacy. The Long Title of the Act refers to members of the public obtaining access to the greatest extent possible "consistent with the public interest and the right to privacy". The public interest in protecting the right to privacy is a strong one. In my view, in the context of FOI, the protection of an individual's privacy is also a public interest and not a matter of protecting private rights.

[38.] Section 28 is a mandatory exemption which means that a request for records falling within the terms of the section must be refused unless other provisions in the section are met. I also note that section 28 provides that access shall be refused where it would "involve the disclosure of personal information". This wording is significantly different from the wording of the FOI Act of the Commonwealth of Australia which refers to the "unreasonable disclosure" of personal information. I am of the view that the protection of personal privacy afforded by the section 28 exemption is intended to be a strong one.

[39.] I should add that the right of a requester to seek access under the FOI Act to personal information relating to him or her held by a public body is subject to the provisions of the Act itself. The right of access to personal information is not an absolute right and requesters do not have an automatic right of access to such information (e.g. section 23 or section 26 could serve to prevent release of personal information).

The Public Interest - Balancing of Conflicting Rights and Interests

[40.] In the Case No. 98187 Ms ABH and the Office of the Local Appointments Commissioners, I said that I could - "envisage a case in which information of great use or value to the requester is sought and its disclosure might have a minimal impact on the privacy of another individual and, in such circumstances, disclosure might be appropriate in the public interest." (30 March 1999, Decisions under Section 34 of the Freedom of Information Act, 1997, Office of the Information Commissioner, Volume 2, page 103, at page 112). I am of the view that the degree of invasion of privacy and the value of the possible benefit that may accrue from release of information are factors that must be taken into account in weighing up the public interest in cases of this nature.

[41.] Having reviewed the contents of those records, I am satisfied that the requester has been granted access to the substance of the relevant information relating to the Board's actions in her case, its decision to take her into care and the involvement of the Board with the other members of her family in that context. The requester has argued that she has a need to know her family history and a need to know and understand how decisions were reached by the Board which affected her. Such a "need to know", even if it were to be accepted, would not in my view amount to a public interest in having access to each and every record. In this case, I find that the substance of the information relating to the requester and her family and the actions of the Board has already been released to the requester. Thus I find, in this case, that the public interest in individuals having access to information relevant to the decisions made by or on behalf of the State regarding their welfare has already been substantially served. In the circumstances, the weight to be given to this particular public interest, in this particular case, is considerably reduced.

The Public Interest and Privacy Interests Warranting Protection

[42.] It could, of course, be argued that the privacy interests which the Act seeks to protect in these circumstances is the privacy of victims of abuse, not the perpetrators. Indeed, this seems to be part of the requester's arguments in this case. If the sole purpose is to protect the privacy of victims alone, it would be open to the victim to waive his or her right to privacy. However, I am not satisfied that, in this context, the public interest in the protection of privacy is solely one of protecting victims. Where the matters at issue are in the nature of allegations, there is also the public interest in protecting the privacy of others involved.

[43.] In a letter to the requester, my Office suggested that, although the position might possibly be different if there had been a criminal conviction, the right to privacy remained in this case. In her reply, the requester said that it is extremely difficult to obtain a conviction in sexual abuse cases. She argued that a health board's investigation of sexual abuse is not a criminal one and the criterion of whether there has been a criminal conviction should not be used. I accept fully that the health board is not involved in a criminal investigation when engaged in an investigation of child abuse (including child sexual abuse). The role of a health board in such a matter is quite different from the role of the Garda Síochána in such matters. As I have said already, it seems to me that it is neither necessary nor practicable for me as Information Commissioner to decide on the truth or accuracy of information provided in this case. I should also add that, even where there is a criminal conviction, the Act specifically provides in section 2 that personal information includes information "relating to the criminal history" of an individual. I also note that where matters of sexual assault come before the courts, steps are taken to protect the identity of the persons accused prior to conviction.

[44.] While a criminal conviction is not a determining criterion in deciding whether information about an accused person should be released, it seems to me that as an independent finding of criminal behaviour made by the courts it could in some cases be a factor in favour of release. Indeed, in the case of a criminal conviction where publication of details has been permitted by the court, the identity of the accused and the substance of much of the information may have become a matter of public record. It is not my role as Information Commissioner to make findings of, what is essentially, criminal behaviour. For these reasons, I do not accept the argument that, by reason of the alleged behaviour of the requester's parents in this matter, their right to privacy has been removed or that their right to privacy should not be upheld.

The Public Interest and the Performance of Public Bodies

[45.] The requester also said that her request for information related "solely to the health board who are not investigating crime". The real issue here is whether the information relevant to the performance by the Board of its functions should be released. This is a different matter, in my view, to the issue of whether the full details of what the requester's parents said to representatives of the Board should be released. The requester has referred to the values of openness and accountability. Indeed, these are matters of public interest. However the strength of the public interest in openness and accountability must be evaluated in the context of the particular records. It seems to me that if the result was to be full disclosure of each and every record of this nature it could reasonably be expected to have a negative effect on other public interests such as the public interest in the flow of information to health boards and health boards being able to perform their functions. It could reasonably be expected that full disclosure of all records would operate to deter persons from co-operating with boards or making complaints to health boards. To the extent that the records contain information relating to the performance by the Board of its functions in this case, I am satisfied that sufficient information has already been released to the requester to enable her to be informed about the substance of the Board's performance.

[46.] In exceptional circumstances the public interest may require disclosure of sensitive personal information where serious questions are raised about the performance by a public body of its functions. The requester has argued that she has serious questions about the performance of the Board in her case and she argues that she suffered serious harm as a result of its failure to act. As I said above, I am satisfied that the substance of all relevant information has in fact been released to the requester. In my view, the circumstances must be very exceptional indeed before disclosure of sensitive family information would be required. Even in such grave situations where, for example, an inquiry may be called, steps are generally taken to protect the identity of the families involved. [This was the case, for example, with the 1993 Kilkenny Incest Investigation]. I am satisfied that exceptional circumstances do not arise in this case and that the release of the records is not required because of such a public interest.

Meetings Attended by the Requester

[47.] As I have said already, a great deal of information has been released to the requester in this case. I note from reviewing the records within the scope of this review that there are some records which contain details of meetings with members of the requester's family at which the requester was present. The Board has now indicated its willingness to release these records. The information in these records is joint personal information relating to those members of the requester's family who attended the meetings in question. The requester has argued that because of her frame of mind at such meetings she has a very vague memory of what transpired at them. She wishes to have access to those records.

[48.] In weighing up the various public interest factors in the release of these particular records, I take the view that the degree of invasion of privacy of the other individuals involved (the other members of her family who attended those meetings) is considerably less than in the case of the other records. The meetings took place in the presence of the requester and therefore the requester is, or ought to be, already aware of the information contained in the records. Anything said by those individuals at those meetings was said in the knowledge that the requester was present. Further, there is a public interest in a participant at a meeting with a public body knowing that the public body accurately recorded the meeting. I note that in this case the Board has already granted access by means of inspection of the records already released; and the requester has availed of access in that manner. It appears that this was satisfactory to the requester. However, in any event, access by means of inspection is the appropriate form of access because it serves to minimise potential prejudice to the privacy interests protected by section 28. I believe that this is an appropriate manner of access in a case of this nature where the records contain joint personal information concerning matters of a sensitive nature.

[49.] I note that the requester has already seen two of the records of meetings which she attended. I note that during a meeting with Board personnel on 29 November 1996 the requester referred to record 5, File 13 and, in fact, made a complaint in relation to the contents of the record. The Board has indicated to my Office that it has no objection to the release of this record. I also note that the Board in its original decision granted the requester access to a further record of a meeting which she attended - record 5, File 1 (page 4 - Meeting with Parents) as access to a copy of this record appearing on record 15, File 12 was granted.

Access to Records

[50.] I find that the information in the records of meetings attended by the requester constitutes joint personal information. I find that the public interest that the requester be granted access to these records outweighs the public interest that the right to privacy of the requester's parents, being the other individuals to whom the information relates, be upheld. I find that the requester should have access by being provided with a reasonable opportunity to inspect the following records:File 1 - Social Work File:Record 4 (page 4, from "Meeting with Mrs ACG: May 6th" to the words "hurt and rejected"). This will also cover the same extract in record 15, File 12. Record 5, (page 4, third paragraph - Meeting with Parents) Record 6 (page 2, second last paragraph; page 3, paragraph relating to meeting on 3 September 1991; and pages 3/4 paragraph relating to meeting on 12 September 1991)File 7 - Social Work File:Record 23 (page 3, entry of 23/8/91).File 13 -Pyschology FileRecord 5 (two paragraphs)

With the exception of those records of meetings listed above, I find, for the reasons set out above, that the public interest that the request be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

Section 22, 23 and 26

[51.] The Board in its decision and in its submission to my Office relied heavily on section 26 of the FOI Act for its refusal to grant access to the records. However, given my findings that the majority of the records are exempt under section 28, I do not consider it necessary to examine the application of section 26 to those records. The same is true in relation to the arguments advanced by the solicitors for the requester's parents that the records should not be released. However, given my findings with regard to the records of meetings listed above which were attended by the requester, access to which I have found should be granted in the public interest, I must consider the application of section 26 and the arguments of the solicitors for the requester's parents, with regard to these latter records.

Section 26 - Information Obtained in Confidence

[52.] I am of the view that section 26(2) applies to the records of meetings attended by the requester as they are all records prepared by members of staff of the health board. Thus, section 26(1) does not apply unless disclosure would constitute a breach of a duty of confidence as provided in that section. It is also clear that disclosure to the requester who had attended the meetings in question would not constitute a breach of a duty of confidence even if such a duty of confidence was found to exist. It is also clear to me that any information given to the Board by someone other than the requester, but in the presence of the requester, cannot be regarded as having been given on the understanding that it would be treated as confidential vis-à-vis the requester. I am also of the view that release of the information to the requester would not be an unauthorised use of the information. For these reasons, I find that section 26(1) does not apply to the records of meetings attended by the requester.

Section 22(1)(b) - Contempt of Court

[53.] The solicitors for the requester's parents have argued that this matter is sub judice. They have also argued that disclosure could reasonably be expected to prejudice or impair the outcome of civil proceedings before the courts. Unless a record is exempt pursuant to a particular provision of the FOI Act, access to the record must be granted. Although not specifically claimed, it seems to me that in arguing that the matter was sub judice, the solicitors were seeking to invoke section 22(1)(b) - where disclosure of a record would constitute a contempt of court. Sub judicearises where a matter is before the courts and has not yet been decided. According to Murdoch's Dictionary of Irish Law (2nd Edition), when a matter is before a court and is sub judice, any words or action which have a tendency to interfere with the fair administration of justice may amount to a contempt of court and the courts may act to prevent the publication in the media of anything which may prejudice the fair trial of an action.

[54.] In making their claims, the solicitors have drawn my attention to the fact that there are, apparently, two sets of proceedings pending before the courts at the moment - proceedings instituted by the requester's parents against the Board and by the requester against her parents. However, the solicitors have not explained how release of the records would be a breach of the sub judice rule. I note that in the High Court case of Desmond -v- Glackin (No. 1) [1993] 3 IR 1, O'Hanlon J. referred to the definition of contempt by way of publication interfering with particular legal proceedings in the New South Wales case of Attorney General for New South Wales -v- John Fairfax & Sons which read: "[C]ontempt will be established if a publication has a tendency to interfere with the due administration in the particular proceedings." O'Hanlon J. also said: "It has been stated in other decided cases that there is a need to show a real risk as opposed to a merely remote possibility of prejudice."

I have considered the application of section 22(1)(b) to the specified records listed above of meetings attended by the requester, access to which I have decided should be granted by way of inspection in the public interest. As I said above, the solicitors have not explained how release of the records would be a breach of the sub judice rule. The mere fact that proceedings have been issued is not sufficient, of itself, to make out the case that breach of the sub judice rule would arise by release of the records or that their disclosure would constitute a contempt of court.

Section 23(1)(a)(iv) - the fairness of criminal or civil proceedings

[55.] The solicitors for the requester's parents appear to rely on section 23(1)(a)(iv) in making the argument that disclosure of information could reasonably be expected to prejudice or impair the outcome of the civil proceedings before the courts. It is not entirely clear to me whether they were referring to the proceedings instituted by the requester against her parents or by her parents against the Board or both proceedings. The solicitors have not brought any particular restriction or prohibition against release of the records of joint meetings listed above to my attention. It seems to me that there would be nothing to prevent the Board from releasing these records to the requester outside of FOI. In any event, it has not been shown how disclosure of the specified records listed above relating to meetings which were attended by the requester, access to which I have decided should be granted in the public interest by way of inspection, could reasonably be expected to prejudice or impair the fairness of civil proceedings.

[56.] Section 34(12)(b) of the Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless it is shown to my satisfaction that the decision was justified. It has not been shown to me how release to the requester of the records of meetings listed above, attended by the requester, would constitute a contempt of court. Nor has it been shown to my satisfaction that release to her of those records could reasonably be expected to prejudice or impair the fairness of civil proceedings in a court. I am satisfied that the records of meetings attended by the requester listed above, access to which I have decided should be granted in the public interest by way of inspection, are not exempt pursuant to either of these provisions. The granting of access to such records by means of inspection provides additional safeguards for the protection of any relevant interest in this case.

[57.] Given my finding that the remainder of the records (other than the specified records of meetings attended by the requester) are exempt under section 28, I do not consider it necessary to examine the application of sections 22, 23 and 26 to those remaining records.

Decision

[58.] Having completed my review under section 34(2) of the Act, I have decided to annul the decision made by the Board regarding the records listed at page 2 above as falling within the scope of this review and I make the following decision. The requester should be granted access to the following records comprising information relating to meetings which she attended. File 1 - Social Work File:Record 4 (page 4, from "Meeting with Mrs ACG: May 6th" to the words "hurt and rejected"), Record 5 (page 4, third paragraph - Meeting with Parents) Record 6 (page 2, second last paragraph; page 3, paragraph relating to meeting on 3 September 1991; and pages 3/4 paragraph relating to meeting on 12 September 1991)File 7 - Social Work File:Record 23 (page 3, entry of 23/8/91).File 13 - Psychology FileRecord 5 (two paragraphs).

Access should be granted by providing the requester with a reasonable opportunity to inspect the records. Access to the remaining records which are the subject of this review should be refused.

Information Commissioner

04 July 2001