Case number: 99097
Letters containing allegations - whether information given in confidence - section 26(1)(a) - whether the public interest would be better served by granting rather than refusing access - section 26(3)
The requester sought access to two letters which included allegations that made reference to her in relation to the Murphy Inquiry into matters relating to child sexual abuse in swimming. The authors of the letters were parents who were not happy with the findings of the Murphy Report which they considered to be favourable to the swimming officials involved in the case of the former swimming coach, Mr. Derry O'Rourke. Access to the letters was refused on the basis of section 26(1)(a).
As the authors of the letters had not been given an express assurance of confidentiality, the Commissioner examined the relevant circumstances to determine whether an implied understanding of confidentiality existed. This entailed consideration of the nature of the information given to the Department and the purpose of the communication. Among other things, the Commissioner noted that, while the letters included allegations that made reference to the requester, the substance of the letters was not about the requester, but rather the authors, and in the case of the letter written by the parent of a victim of child sexual abuse, the author's family. The Commissioner was also satisfied that the information in the letters was given to the Department for the limited purpose of consideration by the Minister in connection with the Murphy Report. In the circumstances, the Commissioner found that both letters were given in confidence and on the understanding that they would be treated as confidential. The Commissioner also found that disclosure would be likely to prejudice the future supply of further similar information.
With respect to the fourth requirement of section 26(1)(a), the Commissioner considered that the Minister had a function in implementing the Inquiry's recommendations and that he also has a role in disbursing funding to sporting organisations from the National Lottery to facilitate their work in the promotion and development of sport in Ireland. The Commissioner therefore accepted that the Minister should be as fully informed as possible about matters that are relevant to the safety and well-being of those involved in sport, especially children. As the letters were from parents who were knowledgeable about the O'Rourke case and who challenged the adequacy of findings of the Murphy Report, the Commissioner was satisfied that the continued supply of the type of information in the letters is of importance to the Department.
In contrast to his recent decision in Mr. Daniel Reed and the Department of Enterprise Trade and Employment, Case Number 000041, the Commissioner indicated that the public interest in the preservation of confidences can prevail where the substance of the allegations is already known to the requester and no direct action has been taken to the requester's detriment. In the circumstances of this case, which were similar to Mr. AAY and the Department of Social, Community and Family Affairs, Case Number 98103, the Commissioner found that the public interest in disclosure on the basis of procedural fairness did not carry substantial weight. The Commissioner also distinguished Mr. Phelim McAleer of the Sunday Times and the Department of Justice, Equality and Law Reform, Case Number 98058, in relation to the public interest in an open and transparent process of government. The decision of the Department was affirmed.
[1.] The background to this case lies in the child sexual abuse controversy involving Mr. Derry O'Rourke, the former swimming coach who pleaded guilty in 1997 to various charges of unlawful carnal knowledge, indecent assault, and sexual assault committed between 1976 and 1992. Previously, in 1993, Mr. George Gibney, another former swimming coach, had been charged with similar offences, but proceedings against him were suspended in September 1994 on the bases of delay and the lack of precision with which the charges were defined. Allegations were made that swimming officials had known of complaints against the coaches and had failed to take appropriate action. In February 1998, in the wake of Mr. O'Rourke's conviction and sentencing by the Circuit Criminal Court, the Minister for Tourism, Sport and Recreation, Dr. James McDaid, T.D., suspended funding to the Irish Amateur Swimming Association (IASA) pending the outcome of an Independent Inquiry into matters relating to child sexual abuse in swimming. Dr. Roderick H. Murphy, S.C., was appointed to conduct the Inquiry and to report on the following:
[2.] Advertisements of the Inquiry at the time assured all interested parties that their enquiries would be dealt with in strict confidence. A related press release which issued on 10 February 1998 from the Press Office of the Department of Tourism, Sport and Recreation also stated that Dr. Murphy's findings would be made public "[s]ubject to the need to preserve the confidentiality of victims". The Murphy Report itself, which was submitted to the Minister in May 1998, specifically noted the confidential nature of the process, which was based in part on an order by the Circuit Criminal Court that neither the names of Mr. O'Rourke's victims nor the names of the club and school involved be published. [3.] In June 1998, the Murphy Report was published as an annex to the Interim Report on the Protection of Children in Sport by the Joint Oireachtas Committee on Tourism, Sport and Recreation. The Report was prefaced by a statement by Michael Ferris, T.D., Chairman of the Committee, which explained that the Report was intended "for submission to each House of the Oireachtas, in the public interest, to facilitate discussions on the implementation of the recommendations [made by Dr. Murphy] with the responsible Minister/s and Minister/s of State and to enable members of each House and interested parties to submit their observations thereon to the Committee, for the purpose of facilitating it in the preparation of a final report."
[4.] According to contemporaneous media reports, parents and victims reacted to the Report with disappointment and frustration. Concerns were expressed over perceived inaccuracies in the Report, the limited scope of the Inquiry, and the lack of accountability on the part of those who allegedly "covered up" for Mr. Gibney and Mr. O'Rourke. At least one spokesperson for a group of parents and victims, Ms. Maura Cunningham, was named in the media.
[5.] Two other parents expressed their reactions in letters written directly to the Minister on 28 July 1998 and 6 August 1998, respectively. Subsequently, a request was filed under the Freedom of Information Act, 1997 ("the FOI Act"), for copies of all records held by the Department that related to "personal information" about the requester, including any record containing the requester's name or references to the requester's former position as a member of the Committee of the swimming club at which Mr. O'Rourke coached. The requester also sought records of discussions in which references were made to the potential resignation of officers of the IASA or the Leinster Branch of the IASA.
[6.] By notice dated 12 October 1998, the Department refused the request. The notice was accompanied by a schedule of records considered to be relevant to the request, but according to the notice, only the two letters referred to above contained references to the requester or the requester's position in the swimming club. The Department relied on section 26(1)(a) of the FOI Act in refusing access to the two letters.
[7.] On 29 October 1998, the requester applied for internal review of the Department's decision in relation to the two letters. In a notice dated 25 November 1998, the Department affirmed its original decision. In a letter received by my Office on 12 March 1999, the requester applied for a review of the Department's decision on internal review. I accepted the application for review on 24 March 1999.
[8.] In the course of this review, my staff initially contacted the Department and the third party who wrote the letter dated 28 July 1998. The purpose in contacting the third party was to ascertain whether she had any objection to the release of the contents of the letter with the deletion of all identifying information. In addition, the Department's files relating to the Inquiry were re-examined to respond to a concern raised by the requester as to whether other records containing the requester's name may exist. While no such records were located, other records falling within the scope of the original request came to light. The additional records are generally described as follows:
[9.] Subsequently, my staff also wrote to the requester to outline preliminary views on the issue of whether the requester was entitled to access to the two letters originally at issue, as well as the records numbered 1-5 above. The preliminary view letter noted that records 1-4 were created before 21 April 1998, the commencement date of the FOI Act, and that a right of access to these records only existed if access was necessary or expedient in order to understand records created after that date or if the letters related to personal information about requester. After explaining my approach to interpreting the phrase "necessary or expedient in order to understand", the letter stated that there appeared to be no records created after 21 April 1998 that could not be understood without access to the pre-commencement records. The requester was also advised that it was unlikely that the pre-commencement records contained "personal information" about her within the meaning of the FOI Act (section 2 refers).
[10.] In addition, the requester was advised of the preliminary view that both of the letters originally at issue qualified for exemption under section 26(1)(a) of the FOI Act and, furthermore, that disclosure of the contents of the letter dated 6 August 1998 would constitute a breach of an equitable duty of confidence and was thus prohibited under section 26(1)(b) of the FOI Act. It was also explained that section 28(1) of the FOI Act, which prohibits the release of personal information about third parties, appeared to be applicable in this case, especially in relation to the letter dated 6 August 1998.
[11.] The internal memoranda, on the other hand, numbered 5 above, were considered appropriate for partial release, subject to the deletion of the personal information about the individual who made the telephone calls. As records created by civil servants, they were not eligible for exemption under section 26(1)(a) of the FOI Act (section 26(2) refers). In any event, the individual also expressed her concerns publicly in the media.
[12.] The requester was invited to withdraw or modify her request in light of the explanations given. The requester was also provided with an opportunity to make a submission. In reply, the requester did not accept the preliminary views put forward by my Office with respect to the two letters originally at issue. However, she did not counter the preliminary view that a right of access did not apply to the pre-commencement records. Moreover, while she expressed an interest in having access to the internal memoranda, she did not oppose the deletion of the personal details about the individual concerned.
[13.] My staff contacted the Department again about the internal memoranda. The Department indicated that it was willing to release these records with the personal information deleted. Accordingly, I do not consider the pre-commencement records or the partial release of the internal memoranda to be at issue in this review.
[14.] The Department stressed that the letters at issue must be considered in the context of the confidentiality surrounding the Murphy Inquiry. According to the Department, the notations appearing on both of the letters supported the conclusion that the letters were given in confidence and on the understanding that they would be treated as confidential. The Department also argued that it was important for the Minister to continue to receive in confidence information of the nature contained in the letters, because it pertained to the safety and protection of young people in sport.
[15.] The author of the letter dated 28 July 1998 responded through her solicitors to the query put to her by my staff. She acknowledged that the issue of child sexual abuse in sport was the subject of public controversy at the time. However, she stated that she was opposed to the disclosure of the information her letter would impart about her purported knowledge of matters relating to the controversy.
[16.] The requester insisted that, since the letters contained references to her, she should have access to them. She disputed that the letters met the requirements for exemption under section 26 of the FOI Act. She contended in relation to the letter dated 6 August 1998 in particular that "the Department is merely advancing arguments after the fact, to meet its preferred outcome." She maintained that the letters contained erroneous information of a sort that it could not be important for the Minister to receive. She suggested that the release of the letters would serve the public interest by deterring individuals from making "spurious allegations" about others. She also argued that she had a right to respond to any allegations made in writing about her to the Minister.
[17.] Section 26(1) states that "Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to the 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".
[18.] For section 26(1)(a) to apply, it is necessary for the Department to show four things, namely:
[19.] In Mr. Michael Grange and the Department of Enterprise, Trade and Employment, Case Number 98179, 2 OIC 203 (1999), I interpreted the first two requirements of section 26(1)(a) by reference to the following definition of the term "confidence", which is derived from the law relating to breach of duty of confidence: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." ("B" v. Brisbane North Regional Health Authority, (1994) 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.). Based on this definition, I found that, first, information given in confidence is concerned with private or secret matters rather than information which is trite or which is already in the public domain, i.e. that it is necessary to establish that the information has the necessary quality of confidence. Second, the communication must be for a restricted or limited purpose. Third, there must be an understanding that the information is being communicated for a restricted purpose.
[20.] In Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works, Case Number 98049, 2 OIC Dec. 144 (1999), I interpreted the term "understanding" in the context of section 26(1)(a) as meaning a mutual understanding between the confider and the confidant. The Department does not contend that either author in this case was given an express assurance of confidentiality in relation to the letters at issue. Therefore, I must examine the relevant circumstances to determine whether an implied understanding of confidentiality existed. As the Queensland Information Commissioner explained in McCann and Queensland Police Service, (1997) 4 QAR 30, at paragraph 23:
"Where no express assurance of confidentiality is sought by the supplier and given by the recipient, the relevant circumstances attending the communication of information must be examined to ascertain whether they evidence a need, desire or requirement, on the part of the supplier of information, for confidential treatment (of the supplier's identity, or information supplied, or both) which, in all the relevant circumstances, the supplier could reasonably expect of the recipient, and which was understood and accepted by the recipient, thereby giving rise to an implicit mutual understanding that confidentiality would be observed."
An examination of the relevant circumstances necessarily involves consideration of the nature of the information given to the Department and the purpose of the communication in accordance with the guidance given in Case Number 98179.
[21.] The letters at issue convey, in essence, the authors' reactions to the Murphy Report and its immediate aftermath. I do not feel that I would be revealing exempt information in violation of section 43(3) of the FOI Act by stating that the letters indicate that, like many other parents involved in the swimming controversy, the authors were not happy with the findings of the Murphy Report which they considered to be favourable to the swimming officials involved in the O'Rourke case, particularly members of the Committee of the club at which Mr. O'Rourke coached. The Report noted that allegations were made by some parents against members of the Committee at an Annual General Meeting of the club held in early 1995 and that similar allegations were made during the course of the Inquiry. However, while the Inquiry found that the supervision of the coach by the Committee fell short of an adequate standard, the Inquiry did not accept that the specific allegations were substantiated in relation to members of the Committee other than the person holding the office of President at the relevant time.
[22.] The requester was a member of the Committee, and she is of the belief that the letters contain false allegations about her. However, the substance of the letters is not about the requester; it is about the authors, and in the case of the letter dated 6 August 1998, the author's family. Both letters, to a greater or lesser extent, touch upon matters that are publicly known, but they do so from the authors' own individual perspectives. Moreover, the letter dated 6 August 1998, is inherently personal and, as was explained to the requester during the process of review, would fall to be protected in its entirety under section 28(1) of the FOI Act. While the requester has obviously formed her own views about what the authors have written in reference to her, it appears that she has no actual knowledge of the contents of the letters. In the circumstances, I am satisfied that the information concerns private or secret matters and thus has the necessary quality of confidence for purposes of section 26(1)(a).
[23.] I am also satisfied that the information in the letters was given to the Department for a limited purpose and was not intended for disclosure to the requester or to any other third parties. The contents of the letters indicate that the letters were sent to the Department for consideration by the Minister in connection with the Murphy Report. Both letters are addressed directly to the Minister. The letter dated 28 July 1998 is marked "STRICTLY PRIVATE & CONFIDENTIAL, PERSONAL ADDRESSEE ONLY". The manner in which the letter dated 6 August 1998 was handled by the Department strongly suggests that the envelope in which the letter was sent had likewise been marked private and confidential. In any event, the highly sensitive nature of the information included in the letter also indicates that the author expected that the letter would treated as confidential. This was confirmed by the Department through consultation with the author in response to the FOI request.
[24.] I consider the expectation on the part of the authors that their letters would be treated as confidential to be reasonable under the circumstances. At the time, the Murphy Inquiry had only recently concluded. As discussed in the Background to this decision, the Inquiry had been conducted on the basis of strict confidentiality. Moreover, the Murphy Report, when published, preserved not only the confidentiality of the victims, but also all other parties who had given evidence. In this context, a concerned individual could have reasonably believed that she could express her concerns about the Murphy Report to the Minister in confidence. I further note that the author of the letter dated 6 August 1998 is not just a concerned individual; she is the parent of a victim of Mr. O'Rourke. Therefore, in all likelihood, she believed that her identity was protected by virtue of the order of the Circuit Criminal Court.
[25.] The evidence shows that the authors' need or desire for confidential treatment was understood and accepted by the Department. In its decision on internal review, the Department explained that both letters were dealt with and stored by the Department in accordance with procedures for confidential correspondence to the Minister. This is supported by the notations appearing on the letters: The letter dated 28 July 1998 has a stamp that says, "SEEN BY MINISTER". The letter dated 6 August 1998 includes a notation dated 18 August 1998 stating that it is private and confidential and that it was opened by the Minister. In the circumstances, I find that both letters were given in confidence and on the understanding that they would be treated as confidential.
[26.] It follows from my discussion of the nature of the information given to the Department and the purpose of the communication that disclosure would be likely to prejudice the future supply of further similar information to the Department. Briefly restated, the letters concern private or secret matters and the authors had a reasonable expectation of confidential treatment. I further note that the authors gave the information to the Department voluntarily and did not stand to benefit directly in return in any tangible manner. In these circumstances, a person whose reasonable expectation of privacy or confidentiality has been violated is likely to be deterred from making similar submissions in the future. Others in her position are also likely to be deterred.
[27.] The question is whether it is important to the Department to continue to receive such further similar information in the future. Recently, in Mr. Daniel Reed and the Department of Enterprise Trade and Employment, Case Number 000041, To Be Published (9 April 2001), I took the view that the purpose of section 26(1)(a) is to protect the flow of information which relates to the exercise by the body of its statutory powers and functions. I explained that in the case of a Department, this purpose extends to its Minister's statutory powers and functions, including those arising as a member of Government.
[28.] According to the Department's files, the Minister has no statutory or regulatory powers or functions in relation to sporting organisations such as the IASA and its affiliated clubs. However, as stated in the preface to the Interim Report on the Protection of Children in Sport, quoted in full above, part of the purpose of publishing the Murphy Report as an annex to the Interim Report was "to facilitate discussions on the implementation of the recommendations with the responsible Minister/s", which I take to include the Minister for Tourism, Sport and Recreation, as well as, among others, the Minister for Enterprise, Trade and Employment, who would also have a function in implementing some of the Inquiry's recommendations. Moreover, as the Minister with responsibility for sport, the Minister for Tourism, Sport and Recreation has a role in disbursing funding to sporting organisations from the National Lottery to facilitate their work in the promotion and development of sport in Ireland.
[29.] As noted above, in February 1998, the Minister suspended funding to the IASA pending the outcome of the Murphy Inquiry. According to a press release and the Department's Annual Report for 1998, the Minister's decision to restore funding to swimming in June 1999 through the newly established Sports Council was only made following a complete restructuring of the governing body for swimming, now called Swim Ireland, based on the recommendations in the Murphy Report. In addition, any funding approved by the Sports Council was made conditional on the promulgation and implementation of the revised Code of Ethics and Good Practice for Children's Sport in Ireland.
[30.] In view of the Minister's responsibility for sport and his role in relation to funding, I accept that the Minister should be as fully informed as possible about matters that are relevant to the safety and well-being of those involved in sport, especially children. The letters at issue are from parents who are knowledgeable about the O'Rourke case and who challenge the adequacy of the findings made by Dr. Murphy in his report. Despite the conflict with Dr. Murphy's findings, I find nothing to suggest that any of the statements in the letters are untruthful. Dr. Murphy's findings formed the basis of his recommendations, upon which the restoration of funding to swimming was dependent. I am therefore satisfied that the continued supply of the type of information contained in the letters is of importance to the Department.
[31.] As I have found that the four requirements of section 26(1)(a) are met with respect to the two letters at issue, I must now decide whether access should nevertheless be granted in the public interest (section 26(3) refers). I find that the factors weighing against disclosure are the public interest in the proper preservation of confidences and the public interest in protecting the right to privacy of third parties. The public interest in protecting the right to privacy is particularly strong in relation to the letter dated 6 August 1998, because it concerns a victim of child sexual abuse and her family. I also note that deletion of the personal information from the letter dated 6 August 1998 would not be practicable (section 13 refers). [32.] On the other hand, the letters include allegations that make reference to the requester. These allegations underlie the authors' negative reactions to the Murphy Report and its aftermath. The requester contends that she has a right to know what allegations have been made about her to the Minister, and that she should be given an opportunity to respond. As she believes that the allegations are false, she also suggests that individuals should be deterred from making such allegations about others. I will address these arguments in turn.
[33.] In Case Number 000041, I had regard to the following quotation from the decision of the Queensland Information Commissioner in the case of Coventry and Cairns City Council, (1996) 3 QAR 191: "If action prejudicial to a person's interests is proposed to be taken by reference to adverse comments from third parties, the common law duty to accord procedural fairness would ordinarily require that the person be informed of the substance of those adverse comments and be given an opportunity of responding to them." I made it clear that the public interest in the proper preservation of confidences cannot be at the expense of fair procedures.
[34.] However, I consider the present case similar to Mr. AAY and the Department of Social, Community and Family Affairs, Case Number 98103, 2 OIC Dec. 34 (1999), in which I found that the public interest would not be better served by the release of the confidential information at issue. In this case, the letters at issue simply restate allegations that were investigated during the Murphy Inquiry. Therefore, the requester is already aware of the substance of the allegations. In any event, the Minister has no authority to take any direct action against the requester or any other swimming official even if he so desired. Rather, his role is limited to the disbursement of funding and the evidence indicates that the letters have been overtaken by events in this regard. For instance, while the letters call into question the adequacy of the findings made by Dr. Murphy, the Minister decided nevertheless to restore funding for swimming once the recommendations in the Murphy Report were followed. In the circumstances, the public interest in disclosure on the basis of procedural fairness does not carry substantial weight.
[35.] In Case Number 98103, I also recognised that there is a public interest in discouraging the making of allegations which are false, malicious, and designed only to cause distress to the party involved without providing any assistance to the public body. I noted that it is questionable whether section 26 would apply to such allegations, since it would not be important to the body to continue to receive such further similar information in the future. In this case, I accept that there are differences of opinion regarding some of Dr. Murphy's findings, but I do not see that the authors of the letters have knowingly made any false allegations. Therefore, as in Case Number 98103, I find that the public interest in discouraging false allegations is not present.
[36.] Although not argued by the requester, I consider that another possible factor weighing in favour of release in this case is the public interest in an open and transparent process of government. In Mr. Phelim McAleer of the Sunday Times and the Department of Justice, Equality and Law Reform, Case Number 98058, To Be Published (16 June 2000), I found that records of correspondence with the Law Society relating to the drafting of the Solicitors Amendment Bill, 1998, met the requirements of section 26(1)(a), but that the public interest would be better served by their release. In reaching this conclusion, I noted that, as a general principle, "it is in the public interest that views and representations which influence the legislative process should be open to public scrutiny especially where that process relates to an important and influential profession on whose behalf its representative body is providing the views or making the representations." I also did not accept that, "as a matter of course, parties who are consulted in the course of the legislative process and whose views are taken into account so as to influence the legislation, are entitled to have their views treated as totally confidential."
[37.] Unlike the Law Society, however, the third parties in this case are private individuals. While their views on matters that are relevant to the safety and well-being of children in sport are important, their influence on the Minister's decision-making process is minimal compared to the influence of a statutory body such as the Law Society on the legislative process. I also consider that a private individual whose need or desire for confidential treatment is disregarded by a public body is far more likely than the Law Society to be unwilling to share his or her views in the future in similar circumstances.
[38.] In short, I find that the public interest in releasing the two letters at issue would, on balance, be outweighed by the public interest in the proper preservation of confidences and the protection of the right to privacy of the individuals concerned. Accordingly, section 26(1)(a) of the FOI Act applies. As I have found that the letters are exempt from disclosure under section 26(1)(a), I consider it unnecessary to make any further observations regarding the applicability of section 26(1)(b) or section 28 of the FOI Act.
[39.] Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department of Tourism, Sport and Recreation.