This judgement was given by the High Court on 4 April 2001 on two separate appeals by E.H. and E.P.H. (the same person) against the Commissioner's decision in Case Number 99011 - Mr. ABK and the Eastern Health Board - and his letter decision in Case Number 99156. (Note: In this judgement the Court made no ruling in relation to the refusal of records under section 6(4) and 6(5) of the Act, pending inspection of these records by the Court. The High Court's judgement in relation to that aspect of the appeals was given on 21 December 2001).
The full text of the High Court's judgement of 4 April 2001 (text approved by the Courts Service) is shown below:
THE HIGH COURT
No. 96 M.C.A./1999
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997
THE INFORMATION COMMISSIONER
THE HIGH COURT
No. 107 M.C.A./1999
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997
THE INFORMATION COMMISSIONER
JUDGMENT of O’Neill J. delivered the 4th day of April, 2001.
This matter comes before the Court by way of an appeal pursuant to Section 42(1) of the Freedom of Information Act 1997 (hereinandafter referred to as “the Act”) against two decisions made by the Respondent the Information Commissioner (hereinafter referred to as “the Commissioner”) under Section 34(2) of the Act.
Allegations of sexual abuse were made against the Appellant. As a result of these allegations which were strenuously denied by him the Appellant instituted proceedings in which he claimed damages for negligence against Ireland, The Minister for Health and Children (hereinafter referred to as “the Minister”) and the Eastern Health Board (hereinafter referred to as “the Board”).
In the course of these proceedings the Appellant obtained an order for discovery against the Defendants from the Master of the High Court. In order to have obtained this discovery the Appellant gave to the Court an undertaking in the following terms
“To preserve the total confidentiality of all documents hereinafter discovered and to obtain a similar undertaking from each and every person to whom the documents or any of them are submitted in the course and preparation for hearing of this action.”
On the 12th of November, 1998 under the provisions of the Freedom of Information Act 1997, the Appellant applied to the Board for all records held by the Board relating to himself, his former partner and his daughter. The Board refused his request on the basis that all relevant information had already been made available to him by means of discovery.
The Appellant sought an internal review of this decision on the 11th of December, 1998. The initial decision was upheld on the basis that the reviewer was satisfied that all the relevant documentation had been furnished to the Appellant and that in those circumstances there was no obligation to produce documentation which had been furnished to the Appellant’s legal representatives and was already in his possession.
On the 7th of January, 1999 the Appellant requested from the Commissioner a review of the decision of the Board and the Commissioner accepted a case for such review.
On the 22nd of January, 1999 the Appellant applied to the Minister again under the Freedom of Information Act for all records in the possession or power of the Minister relating to the Appellant, the Department of Health, the Eastern Health Board, the Registered Medical Practitioner Dr. W. and the Sexual Assault Treatment Unit of the Rotunda Hospital and the Office of the Ombudsman and specifically the following records
1. All records, reports, reviews in relation to the setting up of the Sexual Treatment Unit of the Rotunda including terms of reference, protocols and procedures.
2. All records relating to the Appellant and R.K. of the Eastern Health Board.
3. All records relating to the Minister for Health, the Appellant, the Eastern Health Board and Dr. W.
4. All records notes or memoranda relating to the meeting of the 8th of September, 1992 or thereabouts between the Minister for Health, and in relation to the Appellant, Dr. W. and his former partner and daughter.
5. All records relating to Minister for Health, the Appellant, his former partner and his daughter.
6. Records relating to an application for funding by the Appellant to the Department of Health.
7. Files number C10.03.07 and C20.02.06 in relation to Dr. W.
8. All records containing legal advice in relation to the Appellant, his former partner and daughter.
The Minister refused access to the records detailed at 1 above on the basis that they were created pre the 21st of April, 1998 and did not contain personal information about the Appellant. Access was refused to one record at 2 above on the basis that it contained personal information about parties other than the Appellant. There were 12 records at category 3 above and 10 of these were released to the Appellant. Two records withheld were withheld on the basis that they related to personal information about parties other than the Appellant. The records described at 4 and 5 above are encompassed by the decision on category 3. above. Access to the records described at 6 and 7 above were refused as these records were pre commencement and did not relate to personal information about the Appellant. The Minister claims that Section 22(1)(a) of the Act applied to the records at 8 above as they attracted legal professional privilege. This decision was upheld on internal review.
The Applicant applied to the Commissioner for a review of this decision on the 14th of April, 1999 and the Commissioner accepted the application for review.
THE DECISION OF THE COMMISSIONER ON REVIEW OF APPELLANT’S APPLICATION TO THE BOARD (CASE NO 99011)
The Commissioner divided the records in issue in this review into four categories as follows:-
This category comprised of 119 records numbered and described in the first part of the first schedule to the Affidavit of Discovery sworn by P. H. in the High Court proceedings between the Appellant and Ireland, the Attorney General and the Minister for Health and the Board. These records were made available to the Appellant on foot of the High Court Order.
These were 17 documents listed in the second part of the first schedule to the Affidavit of Discovery of P. H.. These records were not made available to the Appellant on Discovery as privilege was claimed in respect of them by the Board.
These are 28 documents consisting of copies of Summonses, Motions, High Court Orders and Affidavits in connection with the above mentioned legal proceedings and also certain Judicial Review proceedings involving the Board as Applicant and the Fitness to Practice Committee of the Medical Council as Respondent. The Appellant required the Commissioner to rule on only two of these, namely an Affidavit of Dr. W. (a Notice Party to the Judicial Review proceedings), and an Affidavit of Mr. H. C., who acted as Solicitor to the Board in relation to these proceedings.
There were 43 documents in this category which consisted in the main of correspondence between the Appellant or public representatives acting on his behalf, internal memoranda between Board officials and/or their legal advisors and correspondence from the Department of Health in reply to same. There was also a small number of documents in this category which are copies of those listed in category A. The Appellant indicated to the Commissioner that he required a ruling only in respect of 19 of these documents which are listed in the schedule attached to the decision of the Commissioner appealed against herein.
In the portion of decision heading “findings” the Commissioner in summary made the following findings:-
1. That the Appellant’s request was neither frivolous nor vexatious within the meaning of Section 10(1)(e) of the Act.
FINDINGS OF THE COMMISSIONER IN RELATION TO CATEGORY A ON APPLICATION TO THE BOARD
That the purpose of the express undertaking given by the Appellant as noted in the discovery order goes beyond the usual implied undertaking and its purpose was to protect the interests of the Appellant’s daughter.
Similarly the purpose of the conditions attached by Barr J. to his Order in the case of Eastern Health Board -v- Fitness to Practice Committee of the Medical Council (1998) 3 IR 399 was to protect the interest of the children the subject matters of the complaints made against Dr. W.
That in regard to the documents which were the subject matter of Barr J.’s ruling in the above case, that disclosure by any person of their contents would be a contempt of Court regardless of how a person came to knowledge of contents of these documents including via a request under the Act for same. The Commissioner similarly records that he is advised that the confidentiality undertaking from the order for discovery was to be similarly interpreted and that hence disclosure by the Appellant of the contents of the 119 documents in this category would constitute a contempt of Court.
That disclosure, in the context of Section 22(1)(b) of the Act means publication in the broad sense, namely, whether the record is of a class or its contents of such a nature as to cause a contempt of Court to arise if the record were to be disclosed to anyone outside the circle of persons to whom it ought properly to be restricted.
Where a head is actually aware that the disclosure of a certain record by the public body would cause it to be in contempt or that any disclosure by the requester would cause the requester to be in contempt, the head must refuse to grant the request.
That the above interpretation seems to accord with the decision of the Australian Administrative Appeals Tribunal (AAT) in the case of Margery Cecil Altman -v- The Family Court of Australia (1992) 15 AAR 236, which decision the Commissioner interpreted as being to the effect that the fact that a document may subsequently be used in a way which is in contempt of Court other than by reason of public disclosure is irrelevant. The question to be posed by the public body is whether any public disclosure is a contempt and a public body can ignore the fact that disclosure to the Applicant would not constitute a contempt, if wider disclosure would.
The distinction between the Australian and the Irish provisions is acknowledged; however this divergence between “public disclosure” (Australia) and “disclosure” (simpliciter) was not held to be significant, the Commissioner finding that publication to third parties as well as to the requester is the meaning intended in Section 22(1)(b) of the Act.
The Commissioner did not adopt a view as to whether the release of records held by the Board, to the Appellant would cause the Board to be in contempt as the Section does not refer to disclosure by a public body and in the view of the Commissioner its operation is not confined to situations in which the very activity of release by the public body would give rise to a contempt of Court. Had such a meaning been intended different language would have been used by the Oireachtas.
The purpose of Section 22(1)(b) is to prevent to the greatest practicable extent any interference by public bodies in the administration of justice which might result from the granting of access to records under the 1997 Act.
Whether or not the Board had fully complied with the discovery order is not a relevant consideration.
The proper application of Section 22(1)(b) does not require the head of public body or the Commissioner to have regard to whatever use the Appellant might wish to make of the documents sought.
Having regard to the specific terms of the Act, that the provisions of Section 22(1)(b) required the Board to refuse the Appellant’s request under the Act as it applies to the records in Category A.
That Section 23(1)(a)(iv) was not applicable to this case as the concerns of the Board about the publication of records contrary to a High Court Order were dealt under the provisions of Section 22(1)(b) of the Act.
That no evidence was put before the Commissioner which would justify him holding that the consents of the relevant parties in this case were other than fully informed and freely given.
The Commissioner made the following two comments for the guidance of public bodies:-
A. This relates to the interpretation of Section 8(4) of the Act which provides that in deciding whether to grant or refuse to grant a request under Section 7 a head shall disregard reasons for the request and any belief or opinion of the head as to what these reasons are. Unless it be thought that this provision is in conflict with the Respondents interpretation of Section 22(1)(b) he explains that in his view Section 8(4) does not permit the head to avoid the question “would disclosure of this particular record constitute contempt of Court.” Section 22(1)(b) requires the head to consider the record and to ask whether if it was ever disclosed would such disclosure amount to contempt of Court. If, therefore a record indicates on its face that its disclosure would lead to a contempt of Court or if the head is aware that disclosure by the public body concerned would lead to the same or if a head is on notice that the disclosure by the requester would be a contempt he must refuse to grant the access. In the present case the Board is actually aware that disclosure of the contents of the records concerned would amount to contempt of Court as the High Court has on two occasions let it be known that these documents are to be kept confidential.
B. The Commissioners comment here relates to the applicability of Section 22(1) (b) to situations in which a public body makes discovery of documents to another party but without any special undertaking of confidentiality being given by that party over and above the normal implied undertaking. The Commissioner says that although he does not wish at this stage to express a definitive view as to the position which would obtain where the usual implied undertaking is given by any person obtaining discovery. He goes on to say that it seems to him that the disclosure by a public body under the Act of records which have previously been discovered by it in legal proceedings and which have been the subject only of the usual undertaking by the other party to those proceedings is not a contempt of Court as the Court has not expressed a desire to preserve the confidentiality of the records generally.
FINDINGS OF THE RESPONDENT ON CATEGORY B
Having regard to Section 22(1)(a) all the documents in this category can be withheld on the grounds of legal professional privilege in the Court proceedings. The Commissioners ruling in this regard is not appealed.
FINDINGS OF THE COMMISSIONER ON DOCUMENTS IN CATEGORY C
These records being Affidavits of Dr. W. and Mr. C. were created before the date of commencement of the Act. Under Section 6(4) of the Act a right of access only exists to records created after the commencement of the Act. Under Section 6(5) of the Act the right of access also arises where records were created before the commencement of the Act and it is necessary or expedient in order to understand records created after such commencement or where the records created before such commencement relates to personal information about the person seeking access to them.
These records were not necessary or expedient in order to understand records created after the commencement of the Act.
The Affidavit of Dr. W. do not contain any personal references to the Appellant.
The Affidavit of Mr. C. did contain references to the Appellant but as these were in the form of synopses of material derived from the documents which were made available to the Applicant on discovery having regard to the terms of the undertaking requiring the Applicant to preserve total confidentiality of all the documents, access to this Affidavit was exempt from disclosure by virtue of Section 22(1)(b).
FINDINGS ON DOCUMENTS IN CATEGORY D
The first group in this category can be classified as the Board’s response to legal action which was threatened at the time of their creation. The Board was entitled to refuse access to these documents under the provisions of Section 22(1)(a) on the grounds of legal professional privilege. The documents in this group were documents numbers 1, 2, 9, 14 and 15.
Access to documents numbers 3, 8, 12, 13, 16, 17 and 18 was denied on the grounds that these did not relate to personal information about the Appellant and access to these was not necessary or expedient in order to understand a record created after the commencement of the Act and hence access was denied under the provisions of Sections 6(4) and (5) of the Act.
Documents numbered 4, 5 and 6 relate to personal information about the Appellant and the Commissioner concluded that disclosure of these would not be in breach of the terms of the Order of Discovery or the Judgment of Barr J.
Document number 7 related to personal information about the Appellant and also some personal information about other parties. The Commissioner was satisfied that granting the Appellant access to this document would not involve disclosure of personal information about these other parties and the Commissioner was satisfied that disclosure of this record by itself would not be in contempt of Court and that Section 22(1)(b) did not apply to it. The Commissioner found that documents numbers 10 and 11 were essentially the same; that number 11 already had been discovered to the Appellant by the Minister and was subject to the undertaking of confidentiality and that therefore it was exempt by virtue of Section 22(1)(b) from disclosure and because document number 10 though not made available on discovery was the same as record number 11, he found that Section 22(1)(b) also applied to it.
FINDINGS OF THE COMMISSIONER ON APPLICATION TO THE MINISTER (CASE NO 99156)
For the purpose of his finding the Respondent divided the documents sought in this case into two categories as follows
These were 695 documents described in the Affidavit of Discovery sworn by E. C. on behalf of the Minister in the aforementioned proceedings between the Appellant and Ireland the Attorney General and the Minister for Health.
Documents in category B are held in two files namely C10.03.07 and C20.02.06. They are described in the Affidavit of E. C. as containing confidential reports of Dr. W. in relation to the alleged sexual abuse of children who were not connected with the proceedings giving rise to the Affidavit and some other documentation arising out of a Garda investigation and habeas corpusproceedings respective by. These records were not furnished to the Appellant on discovery as the Minister claimed privilege.
FINDINGS OF THE COMMISSIONERS IN RESPECT OF DOCUMENTS IN CATEGORY A
That the existence of the express undertaking prohibits any disclosure of these discovered documents.
That for the reasons set out in decision number 99011 referred to above Section 22(1)(b) of the Act applied to these documents.
Some of these documents were created prior to the commencement of the Act, do not relate to personal information about the Appellant and are not necessary or expedient in order to understand documents created after the commencement as the Appellant was already aware of the contents from the discovery procedure.
The Commissioner saw no purpose in making specific findings on this point in relation to all the records and all parts of the records in category A because of his finding that the exemption in Section 22(1)(b) applied.
The Commissioner found that all these records were created before the relevant commencement date and did not contain personal information about the Appellant nor were they necessary or expedient in order to understand records created after the commencement of the Act and thus access was refused.
Before going on to consider the submissions made by the parties it is appropriate to set out the provisions of the Act relevant to these appeals. They are as follows:-
“Section 6(1) subject to the provision of this Act every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access.”
“Section 6(4)(a) - the records referred to in subsection (1) are records created after the commencement of this Act.”
“Section 6(5) - notwithstanding subsections (1) and (4) but subject to subsection (6) where -
(a)Access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or
(b)Records created before such commencement relate to personal information about the person seeking access to them,
Subsection (1) shall be construed as conferring the right of access in respect of these records.”
“Section 8(4) - In deciding whether to grant or refuse to grant a request under Section 7-
(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.”
“Section 22(1) - A head shall refuse to grant a request under Section 7 if the record concerned -
(a) would be exempt from production in proceedings in a Court on the ground of legal professional privilege,
(b) is such that its disclosure would constitute a contempt of Court, or...”
“Section 34(2) subject to the provisions of this Act, the Commissioner may, on application to him or her in that behalf ,in writing or in such other form as may be determined, by a relevant person -
(a) review a decision to which this Section applies, and
(b) following this review, may, as he or she considers appropriate -
(i) affirm or vary the decision, or
(ii) annul the decision and, if appropriate make such decision in relation to the matter concerned as he or she considers proper, in accordance with this Act.”
“Section 42(1) a party to a review under Section 34 or any other person affected by the decision of the Commissioner following such review may appeal to the High Court on a point of law from the decision.”
SUBMISSIONS OF THE APPELLANT
Mr. Hogan SC for the Appellant made the following submissions in both cases.
The Appellant wished to have unrestricted access to the documents in issue so that he could demonstrate his innocence of the offences with which he had been charged and so as to enable him to pursue his case before the Fitness to Practice Inquiry. He submitted however that his reasons for seeking the information are irrelevant pursuant to Section 8(4) of the Act.
Accepting that a person obtains documents in the course of litigation is subject to an implied undertaking that he will not use such documentation for any other purpose, he submitted that the fact that express undertakings were given in the negligence proceedings was irrelevant, that the Master could not (and did not purport to) change the law by requiring express undertakings and he further submitted that the fact that he did require an express undertaking does not change the position. Insofar as the Commissioner relied on the fact that express (as distinct from implied) undertakings were given he misdirected himself in law.
In reaching a conclusion that the disclosure of any of the documents which were the subject of the ruling of Barr J. in the case of Eastern Health Board -v- Fitness to Practice Committee of the Medical Council (1998) 3 IR 399, whether or not the Requester learned of the contents of the documents in question “in any other way” would constitute contempt of Court, the Commissioner misunderstood the effect of the Judgment of Barr J., in that it was submitted that Barr J. was directing his attention to persons who made use of information obtained on Discovery without appropriate authority, since he observed “it is a contempt of Court for any person to disseminate information derived from proceedings held in camera without prior judicial authority”.
Mr. Hogan submitted that this Judgment must be understood as referring to
(a) documents (such as e.g. transcripts or written submissions deriving from or emanating from the in camera proceedings:
(b) documents which have been obtained solely by virtue of the discovery proceeding
And he further submits that almost none of the documentation at issue in these proceedings contains material in category A above.
In relation to material in the second category i.e. documents which have been
obtained solely by virtue of Discovery he submitted that if the view taken by the Commissioner is correct it would mean that documentation which was released on discovery in any proceedings whatsoever could never be released under the terms of the 1997 Act, since it would be a contempt of Court for a person who obtained those documents solely in the course of litigation to disseminate those documents without judicial authorisation. Thus, if the Board for example, discovery documents such as standard documents of the like of birth certificates, it would follow on this view that the Commissioner would not be entitled to release such a document. Mr. Hogan submitted that Discovery of documents could not be some sort of forensic formula which would have the effect of excluding documents which a person was otherwise entitled to as of right under the Act, from disclosure.
In relation to those documents to which access was refused by virtue of Section 6(4) and (5) on the basis that these documents were created prior to the commencement of the Act and were found by the Respondent not to contain information relating to the Respondent or were found not to be necessary or expedient in order to understand documents created after the commencement of the Act, that the Appellant not seeing these documents could not effectively challenge these rulings. That notwithstanding, however, Mr. Hogan submitted that the absence of evidence to support the view taken by the Commissioner in relation to these documents, would render the Respondents decision in regard to them an error of law and thus amenable to appeal under Section 42(1) of the Act or alternatively the appropriate test to be applied to the view taken by the Commissioner in regard to them, is that which is set out in the case of The State (Keegan) -v- The Stardust Tribunal (1986) I.R. 642, namely whether the decision taken in regard to these documents flew in the face of reason and common sense. He further submitted that this Court should examine the documents in question to determine whether or not an error of law of the kind he described had occurred.
Mr. Hogan submitted that there was a fundamental difference between the process whereby documents are obtained on discovery in Court proceedings and the process whereby information is obtained under the Freedom of Information Act and different philosophies applied to both. Insofar as discovery is concerned, this is an intrusion into the privacy of the party making discovery hence the restrictive control by the Courts and the implied undertaking restraining use of the documents save for the purposes of the proceedings in which they are discovered. On the other hand under the Act there is a right to information and the State cannot plead confidentiality in order to limit the exercise of that right.
He submitted that the “in camera” rule extended only to those documents emanating or generated in the proceeding. Documents which existed independently of the proceedings and enjoyed circulation through the normal avenues of communication, do not become undisclosable simply because they are referred to in the course of “in camera” proceedings.
SUBMISSIONS OF THE COMMISSIONER
For the Commissioner Mr. O’Donnell submitted as follows
The manner in which the Appellant could deal with or utilise the 119 records described in the first part of the first schedule to the Affidavit of Discovery of Paul Harrison was expressly restricted by the undertaking given on his behalf to the High Court on the 14th of May, 1996 and is also further circumscribed by the judgment order of Mr. Justice Barr in the above mentioned proceeding.
The nature of the undertakings given by the Appellant and the order of Barr J. go well beyond the usual “implied undertaking” imposed on a person obtaining discovery. The nature of this undertaking is set out in the cases of Ambirox -v- The Minister for the Environment (No 1) (1992) 1 IR 227 and also in Greencore Group plc -v- Murphy (1993) 3 IR 520. He further submitted that a Court would not normally release a party from even the implied undertaking except in special circumstances and where no injustice would result to the party who made the discovery and in any event such decision would depend on the facts of each individual case and in this regard he referred to the case of Hoechst Marion Roussel -v- Farchepro Ltd(2000) 1 ILRM 320.
In this case the undertaking is in express terms and far wider than the terms of the usual implied undertaking and is made expressly for the purpose of protecting third parties. In this respect the undertaking differs in that the usual implied undertaking is for the purpose of protecting the parties to the litigation from having documents exchanged between them being used for ulterior purposes against their interests.
The Appellant was seeking documents under the Act which he already had but which he could not use outside the proceedings or disclose to any other person because of the existence of the undertakings and the orders made. He could have applied to the Courts in question to have these undertakings or orders varied or vacated but he did not do so.
That having regard to the existence of the undertakings and orders in question the Respondent was obliged to have regard to the provisions of Section 22(1)(b) of the Act.
That the Commissioner could not impose conditions or restrictions on the way in which the documentation he allows access to subsequently used nor could he seek the consent of any parties who might be affected by the disclosure. Thus it follows that once disclosure of documentation is allowed under the Act this must be regarded as constituting disclosure to the whole world.
In the light of all this a relevant head or the Commissioner must therefore consider whether any disclosure of a record would constitute a contempt of Court. Mr. O’Donnell submits that it is clear that if access to the records in question were given to the Appellant those records could be disclosed to anyone. Thus he submits it is clear that disclosure of the records the subject matter of this appeal would be a clear and flagrant breach of the undertakings and order referred to and would amount to a contempt of Court within the meaning of Section 22(1)(b).
It being clear that the disclosure would constitute a contempt of Court, a head of the public body or the Commissioner on review must refuse to grant access as the Section uses the word “shall” rather than “may”.
The head of a public body or on review the Commissioner must ask itself the question would any disclosure of the document in question be a contempt of a Court.
Mr. O’Donnnell referred to the Australian case of Altman -v- The Family Court of Australia(16th of April, 1992) and submitted that the approach taken by the Australian Tribunal in construing a similar provision to Section 22(1)(b) in the Australian Act was to the effect that if any disclosure of a document would constitute a contempt of Court then the fact that the disclosure to one party might not itself constitute a contempt was irrelevant.
That the clear purpose behind Section 22(1)(b) is to prevent to the greatest practicable extent any interference by public bodies in the administration of justice which might result from the granting of access to records under the Act. He submitted that Court Orders once made must be observed and should not be circumvented or rendered meaningless and if the legislature had contemplated that parties should be able to circumvent Court Orders by obtaining documentation under the Act it would not have been put Section 22(1)(b) into the legislation.
In relation to documents in category C, Mr. O’Donnell submits that insofar as the Commissioner made a finding that the two Affidavits sought namely that of Dr. W. and Mr. C. were created before the commencement of the Act and did not refer to the Appellant nor were they necessary to understand record created after the Act; that the Appellant did not make the case that it was necessary or expedient in order to understand records created after the commencement of the Acts that he should have access to these two documents; that the conclusions of the Respondents in regard to these documents are conclusions of fact exclusively within the jurisdiction of the Commissioner to determine and cannot involve a point of law and hence cannot be the subject of an appeal to this Court. One of these documents contained a reference to the Appellant. This was a synopsis of a discovered document and hence had to excluded on the ground of Section 22(1)(b).
In regard to the documents in category D, dealt with in case number 96 MCA/1999 i.e. the 19 documents sought; that the Commissioner correctly refused access to 15 of these documents, some on the basis of legal professional privilege under the provision of Section 22(1)(a), a finding against which the Appellant does not appeal, secondly on the grounds that some of the documents were created before the commencement of the Act and that the Commissioner determined as a fact that access to these documents was not necessary or expedient in order to understand a record created after the commencement of the Act and finally the remaining documents in this category were disclosed to the Appellant under Discovery subject to the express undertakings given and for the reasons already submitted were properly excluded by the Commissioner as being a contempt of Court contrary to Section 22(1)(b). In regard to the documents sought from the Minister which were divided into two categories A and B Mr. O’Donnell submitted that in relation to the documents contained in category A that for the reasons already submitted in relation to category A of the documents sought from the Board that the Respondent correctly took the view that Section 22(1)(b) of the Act applied in respect of those documents.
In regard to the documents in category B that the Commissioner was entitled and indeed obliged to uphold the refusal of access to these documents having regard to the provisions of Section 6(4) and Section 6(5) of the Act.
That the Respondent is the sole arbitrator of fact and has the expertise to deal with these matters.
A Court must retain dominion of orders it has made and the Respondent must respect that dominion and the Act cannot be used as a vehicle to circumvent a Court Order or undertaking and Mr. O’Donnell submits that what the Appellant is attempting to do in this appeal is to circumvent his undertaking and the order of Barr J.
Insofar as the Appellant challenges the findings of the Commissioner based on Sections 6(4) and 6(5) of the Act the Appellant must adduce evidence to show that the Respondent could not have made the decision he made, rationally. He further submitted that the Court cannot be asked to trawl through documents. Mr. O’Donnell further submits that in this regard the Appellant could have challenged the decisions of the Commissioner in this regard by way of Judicial Review proceedings on the irrationality ground, but he has not done so.
SUBMISSIONS OF THE MINISTER
For the Minister Ms. Power submitted the following, and adopted the submissions of the commissioner.
That the right to information under the Act was not an unqualified right.
That the effect of Section 22(1)(b) of the Act was to subordinate the right to certain interests, in this instance namely the interests of the administration of justice; that if the Act could have the effect of discharging or circumventing undertakings given to the Court that this would create an appalling and unintended interference by public bodies in the administration of justice, and Section 22(1)(b) was there to ensure that public bodies and the Commissioner in the discharge of their functions under the Act did not trespass into that constitutionally protected realm of the Courts.
That Section 22(1)(b) was a mandatory provision and a head of a public body or the Commissioner had no discretion once satisfied that disclosure of information could be a contempt of Court.
That the application for Discovery, as was appropriate in a child sex abuse case was treated with great care by the Master and that the express undertakings were clearly sought to protect the interests of the children involved.
That if the submissions of the Appellant were correct a party to proceedings could not enforce a Discovery Order or an undertaking of the kind given in this case; the undertaking and the order would be rendered meaningless and of no effect
The Act cannot be intrepetated so as to have a retrospective effect so that it would apply to undertakings given before the commencement of the Act.
SUBMISSIONS OF THE BOARD
For the Board Mr. Griffin submitted as follows and adopted the submissions of the Commissioner
That only the Court could determine what documents should be released from the undertaking given.
That in relation to documents in category C, that the Appellant is aware of these documents yet makes no case against the finding of the Respondent.
SUBMISSIONS FOR THE APPELLANT’S DAUGHTER AND FORMER PARTNER
Mr. Murphy submitted as follows
Mr. Murphy supported and adopted the submissions of Mr. Hogan.
That the purpose of an undertaking such as given in this case by the Appellant for obtaining an Order for Discovery is to prevent the abuse of the process of Discovery.
That Section 22(1)(b) of the Act places on the Commissioner the obligation to decide whether a contempt of Court will arise from disclosure and similarly whether as in this case a document disclosed is caught by the “in camera rule.”
That the only documents caught under the in camera rule per the Judgment of Barr J. In the Eastern Health Board -v- Fitness to Practice Committee are those which are either “eminating from” or “derived from” the in camera proceedings.
That this limitation excludes from the in camera rule documents or materials already in the public domain or documents which were created antecedent to the Court proceedings for other purposes and were merely brought into the in camera proceedings and referred to therein.
Mr. Murphy’s clients are the parties for whose protection the undertakings were sought in the discovery proceeding and they support the Appellant’s appeal, hence it does not lie with the Commissioner or the Board or the Minister to rely upon the ground that the restriction on disclosure is in the interests of these third parties.
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In the proceedings some attention was given to the reasons of the Appellant for seeking disclosure under the Act. In my view his reasons, be they to pursue his case in the Fitness to Practice Committee Inquiry, to generally vindicate his good name; or if it was merely idle curiosity are entirely immaterial and must be disregarded by the head of body, the Commissioner and by me on this appeal. Section 8(4) makes that absolutely clear.
The first issue of substantial contest in the case has to do with the meaning and effect of Section 22(1)(b). The first thing to be observed about this Section is that it is mandatory in its effect. It allows for no discretion once either the head or the Commissioner is satisfied that the disclosure of a record would constitute a contempt of Court. The second thing to be observed is that the concept of disclosure is there in the widest sense and I would interpret that as meaning “any disclosure” be it disclosure by the public body itself or disclosure by the person seeking the record or either of them.
I accept that neither a head of public body or the Commissioner has any jurisdiction under the Act to impose any conditions on the type or extent of disclosure or the use of the documents after disclosure and hence in permitting disclosure a head of public body and the Commissioner must assume that the disclosure of a record will be to the world at large. Indeed this is at the heart of the scheme of the Act, which as was submitted by Mr. Hogan creates in the circumstances in which the Act operates, an untrammelled right to information, based on a philosophy of disclosure wholly different to that which is at the root of the discovery process in Court proceedings.
Thus, it is against this background that a head of public body or the Commissioner must form a view as to whether or not the disclosure of a particular record or records would constitute contempt of Court.
It is common case that the documents in category A in both cases i.e. the Board and the Ministers were discovered to the Appellant in Court proceedings in which he sued the Board and the Minister for negligence and that for the purposes of obtaining such discovery the Appellant gave to the Court an express undertaking “to preserve the total confidentiality of all documents hereinafter discovered and to obtain a similar undertaking from each and every person to whom the documents or any of them are submitted in the course and preparation for the hearing of this action.”
Apart from this undertaking another potential restriction on the use of documents emanating from the Board arises from the Judgment and order of Barr J. in the case of the Eastern Health Board -v- The Fitness to Practice Committee of the MedicalCouncil (1990) 3 IR 339.
In that case Barr J. ordered the Board to make available to the Fitness to Practices Committee medical records in the Board’s possession or power relating to the children in question but imposed several conditions in relation to same including the following
“all persons who learn of the contents of the documents in question (or any of them) in the course of inquiry into the complaints made against (Dr. W.) or in any subsequent proceedings or in any other way are bound by the in camera rule as to confidentiality which is waived by the Court only to the limited extent specified herein and subject to the foregoing conditions.”
The issue which arises on this appeal in relation to the undertaking given by the Appellant to obtain discovery is whether or not the Commissioner was right in concluding as a matter of law that the disclosure of the documents sought would be a breach of the undertaking given and hence a contempt of Court.
Similarly an issue arises as to whether or not the disclosure of the information sought by the Appellant under the Act would be a breach of the order of Barr J. and thus also a contempt of Court.
As is clear from the decision of the Commissioner, he based his decision in regard to the undertaking on the basis that it was an express undertaking given to the Court for the purposes of protecting the third parties. He formed the view that the disclosure of the documents would breach that express undertaking and because of that he arrived at the conclusion that a contempt of Court would arise. For the guidance of public bodies he additionally expressed the view, that on the basis that the usual implied undertaking given in relation to discovered documents was for the benefit only of the party giving the discovery, that in his view a contempt of Court in this situation would not arise.
In my view the purpose of Section 22(1)(b) is to prevent the Act operating in such a way as to permit interference in the administration of justice a function which is reserved by the constitution solely to the Courts established by or under the constitution. If it were the case that one could under the provisions of the Act obtain documents disclosure of which was prohibited by the ruling of a Court or by a undertaking given to a Court, I have no doubt that this would amount to a gross and constitutionally impermissible interference in the administration of justice. Although it was not opened in the course of the proceedings in this regard, it is worth looking at Article 34(1) of the constitution which reads as follows
“Justice shall be administered in Courts established by law by Judges appointed in the manner provided by this constitution and save and such special and limited case as may be prescribed by law shall be administered in the public.”
I have come to the conclusion that notwithstanding the entirely laudable and separate philosophy of disclosure which underpins the Act, that the Act construed in a manner consistent with the constitution could not be used, so that access to documents under the Act would have the result of robbing an order of a Court or an undertaking given to a Court of the force and effect which the Court in question intended these to have.
In my view Section 22(1)(b) is there to ensure that this does not happen, and it must operate accordingly.
Mr. Hogan has submitted that the express undertaking given is no more extensive than the usual implied undertaking. No doubt he makes this submission in the light of the distinction drawn by the Commissioner between an express undertaking and the usual implied undertaking and the view expressed by the Commissioner in relation to the effect of an implied undertaking in the context of Section 22(1)(b).
In my opinion in the context of this case the distinction is not a material one for this reason. The Commissioner was, in my view wrong, in his conclusion that the usual undertaking given in relation to discovery would not give rise to a contempt of Court. Breach of the implied undertaking given in respect of discovered documents is a contempt of Court. Notwithstanding that the undertaking benefits solely the party making discovery, the undertaking is given to the Court and like all undertakings given to a Court, breach of it is a contempt of the Court. Indeed this is abundantly clear from the case of Home Office -v-Harmon (H.L) E (1983) AC 280, a case which was cited to the Court by Mr. Hogan and relied upon by Mr. Murphy.
True, in the case of the usual implied undertaking the party for whose benefit it is given i.e. the party making disclosure can waive the undertaking but in the absence of such waiver as in the present case the undertaking continues as an undertaking to the Court with all of the attending consequences of a breach of an undertaking to the Court.
In the light of this conclusion it is unnecessary for me to decide whether or not the undertaking given in this case expressly, was either co-extensive with the usual implied undertaking or more extensive than it.
I have come to the conclusion that where a head of a public body or the Commissioner is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b).
Undertakings given to a Court can only be discharged either in the case of the usual undertaking in relation to discovery by waiver of the party making discovery or otherwise by the express permission of the Court itself. Having regard to the very important public policy served by these undertakings the Courts are slow to vary or discharge these undertakings. Disclosure under the Act cannot be used as a method of circumventing or robbing these undertakings to a Court of force and effect.
Mr. Hogan in his submissions pointed to what he perceived as impracticalities or disadvantages arising from the conclusion I have just reached. He expressed the view, that by the mere fact that documents were listed in an Affidavit of Discovery; as if by some forensic magic they would be excluded from disclosure under the Act. I do not share his apprehension in this regard. I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery. Thus it is to be anticipated that a difference of practice may emerge where a Defendant or Plaintiff is a public body. That is not of course to say the existing policy of requiring an implied undertaking in relation to discovered documents should change. The vast majority of Defendants or indeed Plaintiffs will not be public bodies and will be entitled to privacy in respect of their confidential documents save to the extent that they are required to be discovered under order of the Court. Therefore it is easy to foresee that there will be a rational and harmonious co-existence between the two regimes of disclosure.
Thus for these reasons, I would uphold the finding of the Commissioner, that the documents in Category A in both cases should not be disclosed, because of the application of Section 22(1)(b).
The Commissioner partly based his decision in respect of categories A in both cases on the perceived contempt of Court arising from a breach of the order of Barr J. in the Eastern Health Board-v- Fitness to Practice of the Medical Council case. In that case the documents which were in dispute appeared to have been medical records which had been referred to or used in the course of in camera District Court proceedings. Barr J. directed the Board to produce these to the Fitness to Practice Committee but on certain terms and conditions and he held that in camera rule was relaxed but only to the extent of permitting such disclosure. The Appellant is a notice party to those proceedings but apart from that as a party to the inquiry or indeed generally he would have being bound by the condition as to confidentiality contained in the Judgment of Barr J. which is wide ranging and covers all persons who would learn of the contents of the documents in question whether in the course of the inquiry or in any subsequent proceedings or in any other way.
It is not clear to me how many of the documents that are in issue in this case are affected by Barr J.’s Judgment and order. In the Affidavit of Discovery of E. C. on behalf of the Minister some 695 documents are listed. The Minister was not a party to the proceedings in which Barr J. It has not being pointed out to me and I have no way of knowing whether or not any of these documents were caught by the in camera rule in that case. Whilst the Board were parties to the proceedings in which Barr J. gave his Judgment and order, again it is not clear how many of the 119 documents listed in the Affidavit of Discovery of P. H. were referred to in the in camera District Court proceeding and thus caught by the in camera rule.
However in the light of my conclusions on the question of the undertakings given in relation to discovery it would appear to me to be unnecessary for me to make any finding or to reach any conclusion as to whether or not the disclosure of these documents in both categories A’s would be in contempt of Court on the grounds that the disclosure of them would be a breach of the Judgment an order of Barr J. in the above case.
This brings me finally to the documents listed in categories B C and D of the Boards case and in category B of the Minister’s case in respect of which access was refused by the Commissioner on the basis of Section 6(4) and (5) of the Act. These Sections throw up a practical problem in the context of an appeal to this Court under Section 42(1) of the Act. Under this latter Section appeal can only be taken on a point of law. However the grounds upon which a head of public body or the Commissioner can refuse access under these subsections are essentially questions of fact i.e. was the record created before the commencement of the Act, if so does it refer to the requester or is its disclosure necessary or expedient for interpretating a record created after the commencement of the Act. The problem that arises is that if the requester does not know of the content of the documents or indeed may not even know the identity of the particular document where there is a refusal under these subsections how can such a refusal be made amenable to an appeal under Section 42(1). I appreciate that in this case it is contended by the Commissioner that the Appellant may have had sight of some of these documents and perhaps could have obtained certain Affidavits through the central office, but that notwithstanding, the problem in general remains, namely, without knowing the identity of the document or its content, neither the Appellant nor indeed this Court can know whether or not the refusal based on these subsections is an error of law amenable to appeal. In this regard, I am not satisfied on the evidence, that the Appellant, could have obtained these documents as suggested.
I would accept Mr. Hogan’s submission that to constitute an error of law in this regard there would have to be either no evidence at all to support the conclusion of the head of public body or the Commissioner, or alternatively that the decision must be one which on the basis of the facts, flies in the face of reason and common sense, namely the test set out in the case of The State (Keegan) -v- The Stardust Tribunal . If either of those two situations were to exist if would warrant the conclusion that the head of a public body or the Commissioner had misdirected himself into an error of law.
It was submitted by Mr. O’Donnell that if the Appellant apprehended irrationality grounds that he could have instituted Judicial Review proceedings. In my view that would not solve the problem. Had the Appellant instituted Judicial Review proceedings no doubt in the ordinary way he would have sought discovery of documents and at that point an argument would have arisen as to whether or not the proceedings could be used in that way in order to get information which might be prohibited under the Act and it is to be anticipated that it would be contended that the proceedings in that regard were an abuse of process.
In my view the only solution to this problem is for this Court to examine those documents in respect of which there is a refusal on the basis of subsections 4 and 5, in order to be satisfied, that there do not exist grounds of appeal on a point of law. The Court will only examine those documents where there is a refusal exclusively on the grounds of these two subsections and will not examine those documents which are also excluded on the grounds of Section 22(1)(b).