High Court of Ireland Decisions

[2005] IEHC 177

THE HIGH COURT

DUBLIN

RECORD NO. 2002/99 MCA.

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997

THE SOUTH WESTERN AREA HEALTH BOARD

APPLICANT

V

THE INFORMATION COMMISSIONER

RESPONDENT

APPROVED JUDGMENT DELIVERED BY

MR. JUSTICE T.C. SMYTH

ON TUESDAY, 31ST MAY 2005

MR. JUSTICE T.C. SMYTH DELIVERED JUDGEMENT AS FOLLOWS:

This is an appeal on a point of law pursuant to Section 42(1) of the Freedom of Information Act, 1997 (the Act of 1997) against a decision of the Information Commissioner (the Commissioner) made under Section 34(2) of the Act of 1997 on 24th October 2002 for:-

1. An order reversing the decision of the Commissioner for the release in whole or part of the records numbered 2, 19, 20 and 21 of the Social Welfare File maintained by Appellant pertaining to the adoption of the requester.

2. An order reversing the decision of the Commissioner for the release of the whole of record

no. 28 of the Adoption File maintained by the Appellant (the Health Board) pertaining to the adoption of the requester.

The history behind the litigation can be briefly stated. About 40 years ago the birth mother of the requester gave birth out of wedlock to the requester.

The requester became an adopted child, both mother and child have made new and more structured lives for each other since. The requester has spent much time and effort in seeking to establish who her birth mother is, the latter who is long since married with a family of her own has a husband and family and does not wish the structured trust and security built up over the years to be shattered by a disclosure that might be brought about by the requester contacting the birth mother.

The Health Board, years ago had given the birth mother an assurance of confidentiality and feels itself honour bound to keep faith with the birth mother, to adhere to the basis of the Board's contract with the mother. The grounds of appeal are stated in paragraph 4 of the contract with the mother. The terms of the decision of the Commissioner are set out in a letter of 24th October 2002 addressed to the requester and other than identifying the name of the same the letter is set out as an appendix to this judgment.

The grounds of appeal are stated in paragraph 4 of the principal affidavit of Lorraine McGrattan sworn on 22nd November 2002 and filed on behalf of the board and they are as follows:-

"(a) The Commissioner misdirected himself and erred in law in finding that all records created before the commencement of the Act contained in the said files relate to personal information about the requester.

(b) The Commissioner misdirected himself and erred in law in finding that the requester had a potential right under Section 6(5)(b) of the Act to access to all such records, subject to any exemptions which might apply.

c) The Commissioner misdirected himself and erred in law in holding that non identifying information about the birth mother of the requester contained in the record created before the commencement of the Act may be released under the provisions of the Act.

(d) The Commissioner misdirected himself and erred in law in holding that records created before the commencement of the Act containing medical information about the health of the requester's birth mother should be released to the requester under the provisions of the Act.

(e) The Commissioner misdirected himself and erred in law in holding that the foregoing enumerated records are records to which the provisions of Section 28 of the Act apply.

(f) In the alternative, if the provisions of the said Section 28 apply to the above enumerated records, the Commissioner misdirected himself and erred in law in holding that the exemption thereto contained in Section 28(5) of the Act that the said records be released outweighs the public interest to the right of privacy of the requester's birth mother should be upheld.

(g) In the further alternative, if the said provisions of Section 28 of the Act apply to the above enumerated records and the exemption contained in Section 28(5) of the Act falls to be considered in relation thereto, the Commissioner misdirected himself and erred in law in failing to invoke and apply the mandatory provisions of Section 29 of the Act.

(h) The Commissioner misdirected himself and erred in law in failing to hold that the disclosure of the information contained in the above enumerated records should constitute a breach of duty of confidence owed by the Appellant to the requester's birth mother and is therefore prohibited from release by the provisions of Section 26(1)(b) of the Act.

(i) The Commissioner misdirected himself and erred in law in holding that the information contained in the above enumerated records is "non identifying" information.

(j) The Commissioner misdirected himself and erred in law in holding that the release by the Appellant to the requester of certain information in relation to her birth mother meant or indicated that the remaining information, identifying or non identifying, had lost the quality of confidence about it which would be necessary to sustain a claim that Section 26(1)(a) or section 26(1)(b) applies thereto.

(k) The Commissioner misdirected himself and erred in law by taking matters into consideration in his interpretation and construction of the provision of the Act which are irrelevant thereto, in particular proposals by the Department and Health and Children to give adopted persons statutory rights to information about their adoption as well as to provide for the setting up of a voluntary connect register for persons seeking contact with their birth parents.

(l) The Commissioner misdirected himself and erred in law in holding that the absence of an indication by the requester's birth mother of an objection to the release of non identifying, background information was a consideration to be taken into account when weighting the public interest in the release of the information against the right to privacy of the requester's birth mother".

The plea of the Board is for a variation of the order of the Commissioner so as to provide for the release of those parts of the enumerated records as do not contain personal information or medical or health history of the requester's birth mother or record that encompass confidential exchanges between the parties.

To enable the court to have an appreciation of the full factual background, documents other than those exhibited were made available to the court under the headings -

(a) Social work file (in full).

(b) Adoption society file (in full).

(c) Disputed documents.

1. Document A - unredacted.

2. Document B - unredacted.

3. Document A - redacted.

4. Document B - redacted.

There was also before the court a "booklet of records" which consisted of:-

"(A) Records subject to appeal

"Draft letter from GG to the requester dated 23rd December 1995, together with handwritten note dated 18th October 1996 (records 19 - 21). [I note that the Commissioner did not direct the release of all of record 20].

Certificate of fitness for adoption(record 28).

(B) Records given to requester by Health Board outside of the Act of 1997.

(3) Letter from team leader of adoption society to requester, dated 23rd October 1996 (records 23 -24).

(4) Letter from birth mother to requester dated 9th February 1997 (record 30).

It appears from undisputed documentation that when the requester initiated her inquiries by letter of 26th January 1995 she specifically informed the Health Board that she did not wish her parents (i.e. her adopters) to know of her inquiry. In late May 1995 the requester wrote to the Health Board seeking:

"Information, such as place of birth, weight, mother's Christian name etc., then the process of tracing would being."

When the Health Board attempted to contact the birth mother they gave her an assurance on each attempted contact that all correspondence would be treated in the strictest confidence. Notwithstanding the considerable amount of information of a personal nature given to the requester in the letter of 23rd October 1996 the requester insists on having further information as is clear from the decision of the Commissioner.

The contact sheet p38 of the Social Welfare file indicates that in very early 1997 the requester informed the Health Board official, as recorded thus:-

"She (the requester) had been talking to a private detective who told her (the requester) he/she could trace for her and that she (the requester) would do so if her b/m (birth mother) did not agree to some contact."

A letter from the birth mother to the requester dated 9th February 1997 received by the Health Board was given to the requester by the Health Board outside the Act of 1997. Without disclosure of name or address it very plaintively explains that the birth mother had no choice when she was made pregnant and adoption was the only choice (she came of a poor but good family). The birth mother states why she is unable to make contact with the requester and in wishing the requester well, pleads that each be permitted to get on with their own individual lives.

Notwithstanding the foregoing the requester applied in November 1998 under the Act of 1997 for access to certain material. The Health Board's decision was to refuse access to all of the records covered by the request. This position was subsequently maintained by the Health Board in it decision following the requester's application for internal review.

Eventually the decision of the Commissioner was made as set out in the appendix to this judgment.

The submissions of the Commissioner were informed by the approach taken by the courts in Deely v Information Commissioner [2001] 3 IR 439 and the Minister for Agriculture v Information Commissioner [2000] 1 IR 309. The argument advanced on the basis of those authorities was that the exemptions invoked by the Appellant ought not to be construed and applied restrictively so as to defeat the general principles enshrined in the preamble to the Act and its general intendment as interpreted by the courts.

It is clear that the argument or basis of the appeal set out in the documentation before the court was not exactly that put before the Commissioner, yet I am satisfied that however unsatisfactory such a state of things may be, Mr. Murray SC for the Commissioner was well able to meet the challenge. In fact it was more a case of a change of emphasis in the arguments pursued, than in the introduction of new matter. I am satisfied and find as a fact that the information being sought through these proceedings is all information that was in existence prior to the passing and coming into effect of the Act of 1997.

On that basis the Appellant submitted that access ought not to have been granted having regard to the principle of non-retrospectivity and that on the basis that same comprises personal information of the requester's birth mother and are exempt from disclosure pursuant to section 28 of the Act of 1997.

The Appellant also submitted that the granting of access to certain records would make traceable the connection between the entry in the Adopted Persons Register and the Register of Births. While objection is taken to this in the affidavit of 21st July 2003 filed on behalf of the Commissioner - the issue was taken into account in Mr. Murray's very extensive submissions. In the light of the sensitivities of the subject matter of the appeal I consider that it was appropriate that the matter be canvassed on the appeal notwithstanding the frailties by omission before the Commissioner. I express no view on this issue, because Section 42 is an appeal on a point of law and it would be wholly unsatisfactory that a decision on appeal should be made without the matter having first been raised before the Commissioner.

In my judgment the Commissioner was correct in his submission that it was undesirable that as a matter of policy that a party in the position of the Appellant would not advance all relevant arguments to the Commissioner in the first instance.

The motivation of the requester of information is irrelevant under the Act. Equally irrelevant in the instant case is the very small number of documents involved. It is common case that all the records in issue in this case were created before the commencement of the 1997 Act for Health Boards on 21st October 1998. It is accepted that in the normal course such "pre-commencement" records are not accessible under the Act. However, the Commissioner relied on S6(5) of the Act of 1997 which provides:

"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".

Personal information is defined in S2 of the Act. In the instant case the Commissioner concluded that the disputed documents related to personal information about the requester and that, subject to any exemptions that apply, the requester had a potential right of access to them under S6(5)(b) of the Act of 1997. I am satisfied that the documents fell within the test laid down in EH v Information Commissioner [2002] 3 IR 600 in that the records either refer expressly to the requester or

"relate (d) to something in which the requester has a substantial personal interest as distinct from something in which he has an interest as a member of the general community or large-scale class of same".

In determining that the requester had a substantial personal interest in the records the Commissioner went on to note that having as much access as possible to her background appeared to be of great importance o the requester. The Appellant submitted that this was a flawed approach to adjudication because it in fact considers that which is irrelevant - the motivation of the requester. In this regard I accept the Appellant's submission. In doing so I can well understand and appreciate the importance for most people of the fullest comprehension of their identity, the sense of roots and the security of the knowledge from whence they come is: nonetheless, motivation of the requester in the adjudication process is an irrelevant consideration.

Furthermore, I am not at all satisfied in the instant case that in order to understand records created after the commencement of the Act it is necessary or expedient to have access to records created before the commencement of the Act.

The case put by the Commissioner was that a draft letter prepared by a social worker was intended to communicate information given to him by the requester's birth mother. In fact the draft letter was never sent and from this I deduce that it was not intended to send to the requester the information as expressed in the draft. The fact that it was substantially rewritten at a later date and that almost all information was released to the requester in the form of two letters to the requester (one being from the birth mother and the other from a social worker, other than he who had drafted a letter which was not issued). It was submitted that such unissued draft letter was a record about the requester within the meaning of the decision in EH v Information Commissioner.

Insofaras the document, created by the religious order which had the responsibility for running the institution in which the requester was born and in which she remained with her birth mother for some time up to the time of her adoption, it contains joint personal information. It was contended by the Commissioner that S6(5)(b) does not require that the pre-commencement record comprise personal information about the requester but rather that the record concerned relates to personal information about the requester.

In my judgment the Commissioner was correct in these submissions and understanding of the law. However, in this regard I refer to paragraph (29) of the affidavit of Elizabeth Dolan sworn on 31st March 2003 and filed on behalf of the Commissioner in which it is averred:-

"I say and believe and I am legally advised that it is appropriate to direct the attention of the court to S34(6) of the 1997 Act and to explain the manner in which the Respondent applied that section to the present request for access to records. I say and believe that S34(6) of the 1997 Act empowers the Respondent before commencing their review to notify any "other person" who in the opinion of the Respondent should be notified of a request for access. In the present case I say and believe that the Respondent formed the opinion that it would not be appropriate to notify or consult with the requester's birth mother.

The Appellant had not notified the requester's birth mother under S29 of the 1997 Act since it did not form the view that the records in question should be released in the public interest. In forming the opinion that it would not be appropriate to notify or consult with the requester's birth mother the Respondent considered that the nature of the information forming the subject matter of the request was of key importance. So far as concerned the records number 19 to 21 the Respondent was influenced by the fact that it appeared likely that the requester was already aware of the matters described in both records for the reasons set out in paragraph (24) above".

The reason given in paragraph (24) are stated as follows:-

"... in the light of the fact that the requester has already been furnished with the records numbered 23 and 24 and the record numbered 30 the Respondent took the view that much of the information contained in the draft letter at the records numbered 19 to 21 had already been furnished by the Appellant to the requester. Therefore, the Respondent formed the view that the disclosure of the information in the records numbered 19 to 21 would not be likely to interfere with the Appellant's current role in the adoption process or related work.

Furthermore, the Respondent formed the view that for the same reason the degree of invasion of the birth mother's privacy occasioned by the release of the records was minimal and justified in the public interest".

The Provisions of S34(6) of the Act of 1997 state that:-

"As soon as may be after the receipt by the Commissioner of an application under subsection (2), the Commissioner shall cause a copy of the application to be given to the head concerned, and, as may be appropriate, to the relevant person concerned and, if the Commissioner proposes to review the decision concerned, he or she shall cause the head and the relevant person and any other person who, in the opinion of the Commissioner, should be notified of the proposal to be so notified and thereupon the head shall give to the Commissioner particulars in writing or in such other form as may be determined of any persons who he or she has, or, in the case of a refusal to grant a request to which S29 applies, would if he or she had intended to grant the request under S7 concerned, have notified of the request".

It is clear that the section contains both mandatory and discretionary provisions. If in the instant case the relevant person is the requester then the birth mother is "any other person who, in the opinion of the Commissioner should be notified" (of the proposal to review). It is common case that the birth mother was not notified for the reasons set out in the affidavit. However, it is clear from the papers that this was not a simple case of putting in the balance the right to know of the requester and the right of privacy of the birth mother.

What the papers clearly reveal is that the persistence of the inquiries had angered the birth mother's husband and caused her to seek medical advice and treatment. The concerns of the birth mother were not only for her good name and reputation, but principally for the harmony of her

marriage and stability, cohesion and protection of her family.

To have formed a view or opinion that "the degree of invasion of the birth mother's privacy occasioned by the release of the records was minimal and justified in the public interest" is to fail to consider relevant issues and rights such as the constitutional rights of the birth mother's family and the protection of her marriage and to make a value judgment as to the extent or degree of invasion of rights without according the birth mother directly, or indirectly through her legal advisors, to make representations in support of the rights she sought to protect.

In my judgment natural and constitutional justice and fair procedures required that the birth mother be given an opportunity to make representations prior to the decision being taken by the Commissioner. His failure to do so is procedurally unfair and the decision made as a result cannot stand.

I accept the Commissioner's submission that the public interest with which the Act of 1997 is concerned is of prime importance, but when put into the balance with the various other constitutional rights to which I have referred the principle of proportionality must be applied. However, as the rights expressly referred to in this judgment do not appear to have been considered and informed the decision of the Commissioner, the purported proportionality test applied between the public interest and the right to privacy is less than adequate to sustain the decision.

In the course of his letter of 24th October 2002 the Commissioner at pp1/2 under the heading "Background" enumerates the matters to which he had regard in carrying out his review which (inter alia) states:-

"In addition, I have considered proposals by the Department of Health and Children to give adopted parents statutory rights to information about their adoption as well as to provide for the setting up of a voluntary contact register for persons seeking contact with their birth parents".

The Appellant submitted that "this initial mistake" on the part of the Commissioner as to the appropriate matters to be taken into account in part contributed to the incorrect manner in which he interpreted his obligations and duties under the Act. If, it was argued, at some future stage there may be a change in the law to provide rights or entitlements over and above those in the Adoption Acts and Regulations made thereunder such cannot inform the proper interpretation of the Act of 1997 to which the Commissioner must have regard.

A submission was made in the alternative, i.e. that the adopted persons did not have express statutory rights to information about their adoption and that the Commissioner sought through a strained interpretation of the Act of 1997 to anticipate what a contemplated legislative framework might contain.

Mr. Allen for the Appellant expressed this quite bluntly by saying - the Commissioner jumped the gun. In my judgment, notwithstanding the painstaking manner in which the Commissioner expressed himself in the letter of 24th October 2002, I found Mr. Allen's submissions persuasive. That is not to say that the Commissioner ought not to keep himself fully informed, but decisions must be based on the law as it stood at the date of the decision.

While the Act of 1997 was undoubtedly a legislative development of far reaching importance and intended effect, designed to reverse a traditional refusal or reluctance in government and public administration to permit public scrutiny of its workings, it fell to be operated in a manner not only as provided in the Act but also in a manner consistent with the Constitution. In this case the birth mother was given an assurance at her time of greatest vulnerability (in age and emotional involvement) that whatever she confided and disclosed to 'the health authority' would be treated in confidence. If the constitutional aspiration that the State (in it several emendations) guarantees to cherish all the children of the State equally - it is imperative that this has its maximum meaning for the most vulnerable. If the innocent, frank and frightened trust is to be sacrificed on the altar of transparency and a contemporary passion for accountability, the tragic circumstances of young girls who through ignorance, a sense of shame, fear, absence of family support and/or bewilderment giving birth like beasts in a field or abandoning their newborn babies in church porches, car parks or garbage bins may continue into the future because there is no one who they can completely trust or confide in.

The records created by the health authority who promised that the frantic concealment of a distraught young mother - very often little more than a child herself - would not be disclosed should be honoured in the public interest.

The Commissioner urged the court to accept the decision in Sheedy v Information Commissioner [2004] 2 I.R. 533 which (inter alia) considered the provisions of S26(1) of the Act of 1997, which provides that access to records may be refused where the information is given in confidence. While respecting the careful consideration given to the facts and the law in that case, in my judgment it is clearly distinguishable from the instant case save on the information given on a confidential basis and that is of a completely different order.

In my judgment the disclosures made to the Appellant - if to be transmitted even in the redacted form the subject of the Commissioner's decision, would as a matter of probability prejudice the giving to the Appellant or any other health authority of further similar information. I accept the evidence and the submissions to the court that it is of importance to the Appellant that future similar information should be given to it and other health authorities. It is, in my judgment, not in the public interest that persons such as the birth mother in the instant case should have their distress compounded and maybe put at risk the life of a baby because there is in fact no health authority that they can completely trust.

In my judgment the information given to the Appellant by the birth mother did possess the necessary quality of confidence to comply with the formulation set out in House of Spring Garden v Point Blank [1984] IR 6ll.

Notwithstanding many other issues raised at the hearing upon which it is unnecessary in my opinion to decide, I am satisfied to determine the real issues arising between the parties in favour of the Appellant for the reasons given.

END OF JUDGMENT

Approved: Smyth J.

APPENDIX

I refer to your application under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the South Western Area Health Board ("the Board"), formerly the Eastern Health Board, to refuse to grant you access to records held about your adoption. Please accept my apologies for the long delay in dealing with this case. unfortunately, due to staff shortages, the volume of reiews before me and the complexity of the issues involved, it has not proved possible to complete this review before now.

Background

Your original request to the Board in November 1998 was for access to the file relating to your adoption in 1965. The Board's decision was to refuse access to all of the records covered by your request. This position was subsequently maintained by the Board in its decision following your application for internal review.

The records at issue in this review consist of those contained in

(a) the Adoption File and

(b) the Social Work File. The Adoption File was initially created by the (- -- ---- ) the records of which are under the control of the Board.

In addition to the Adoption File, the Board has made available to this office a copy of its social work file which was created following your enquiries in 1995 about tracing your birth mother. You have confirmed to my office that your request is intended to cover the Board's "tracing" records as well as the original Adoption File. In dealing with your request, the Board appears to have treated this later file as a subfile of the Adoption File and, since it includes copies of records relating to your adoption, I am treating the records in this file as coming within the scope of your request. I refer to this second file as "the Social Work File" throughout this decision.

In carrying out this review, I have had regard to your submissions both to the Board and to my office, to the Board's decisions on the matter, to its submissions to my office as well as to the provision of the FOI Act and other relevant enactments. In addition, I have considered proposals by the Department of Health and Children to give adopted persons statutory rights to information about their adoption as well as to provide for the setting up of a voluntary contact register for persons seeking contact with their birth parents. I have also examined the records themselves. I note that Elizabeth Dolan of my office wrote to you on 10 May 2002 setting out the scope of the review and giving you her preliminary views on the relevant exemptions and how they might apply to the records which you are seeking. I have taken account of your response to Ms Dolan's letter in your telephone conversation with her on 24 May 2002. In addition, I have taken into account the comments of the Board, received in July 2002, in response to a similar letter.

Scope

In the course of this review, and in response to a communication from Ms Dolan, you clarified that you do not wish to have access to records or parts of records containing personal information relating solely to individuals other than yourself and/or to your birth mother. The effect of this is that in this review I do not consider records or parts of records relating primarily to your adoptive parents, or to other children who were placed for adoption around the same time as you were, except where such records also contain personal information relating to yourself and/or your birth mother. Accordingly, the records at issue in this review are those listed in the schedule attached to Ms Dolan's letter to you of 10 May 2002 except for records numbered 1-9, 14 and parts of 23 and 47 on the Adoption File. I note also that records numbered 45-46 from that file and part of record 43 (last 4 lines) and record 44 on the Social work File, were created after your FOI request was received by the Board and so do not come within the scope of your request or of this review.

The Board initially refused access to all of the records on the basis that they are exempt under section 32 of the FOI Act. However, in the course of this review the Board agreed that a number of the records are not exempt and can be released. While I appreciate this move on the Board's part, I have opted in the interests of clarity to deal in this review decision with all of the records as identified above.

Accordingly, the sole issue to be decided in this review is whether the Board is justified in withholding the records (as identified above) in full or in part.

Findings

As a preliminary observation, and as Ms Dolan has already explained to you, Section 8(4) of the FOI Act provides that decision makers shall disregard any reasons that the requester has, or is believed to have, for making the request. This means that, in considering whether the Act allows you to have access to the records, I cannot take into account your motivation for seeking access to your adoption file.
 


A further preliminary observation is that all of the records at issue were created before the commencement of the FOI Act for health boards (21 October 1998). In the normal course, such "pre-commencement" records are not accessible under the FOI Act. However, as all of the records relate to personal information about you there is, subject to any exemptions which might apply, a potential right of access to them under section 6(5)(b) of the FOI Act.

Section 32

The Board claims that the records in question are exempt under section 32 of the FOI Act. I note from the submissions of the Board that it was advised by the Adoption Board that it (Adoption Board) considered that the Adoption File in its entirety could not be disclosed under the FOI Act by virtue of section 32. The relevant portion of section 32 provides as follows: 32.(1) A head shall refuse to grant a request under section 7 if the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that schedule), or (b) the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

The effect of section 32 is that, where records are subject to a statutory secrecy provision, that secrecy provision overrides any right of access under FOI unless that particular secrecy provision is specified in the Third Schedule to the FOI Act.

The Board has identified two statutory provisions which it regards as prohibiting disclosure of the records. The first is that at section 22(5) of the Adoption Act, 1952 which provides that:

"An tArd-Chláraitheoir shall keep an index to make traceable the connection between each entry and the corresponding entry in the register of births. That index shall not be open to public inspection; and no information from it shall be given to any person except by order of a Court or of the Board."

The second provision it has identified is that at section 8 of the Adoption Act, 1976 which provides that:

"A court shall not make an order under section 22 (5) of the Principal Act [viz. The Adoption Act, 1952] or an order for the discovery, inspection, production or copying of any book, document or record of the Board (or of any extracts therefrom), or otherwise in relation to the giving or obtaining of information therefrom, unless it is satisfied that it is in the best interests o f any child concerned to do so."

As Ms Dolan has pointed out, the "Board" referred to in the Adoption Acts is the Adoption Board and the "Ard-Chláraitheoir" is the head of the General Register Office which has responsibility for the registration of births, marriages and deaths and other matters including the maintenance of an Adopted Children Register.

Neither of the two provisions of the Adoption Acts is specified in the Third schedule to the FOI Act which lists statutes and statutory instruments which are excluded from the application of section 32. There are exceptions to this "non-disclosure" rule within the provisions of the Adoption Acts. However, these exceptions may only be invoked where the person concerned can satisfy the court or the Adoption Board that the best interests of the child favour the lifting of the prohibition. I consider that these provisions do constitute the type of prohibition on disclosure envisaged by section 32(1)(a) of the FOI Act.

The question arising here is whether section 32(1)(a) of FOI Act applies to records containing information of the type specified in the two provisions of the Adoption Acts (outlined above) but where the records are actually held by a health board (as opposed to the Adoption Board or the General Register Office). In other words, for section 32(1)(a) to apply must the statutory prohibition on disclosure explicitly provide that the prohibition applies to the particular body to which the FOI request is made?

I have considered this issue very carefully and, indeed, taken account of advice provided by my office's legal adviser. There is nothing in the wording of section 32(1) to suggest that the body (or bodies) identified in the original enactment. Rather, the wording is such as to convey the clear intention of the Oireachtas that the existing "non-disclosure" rule is to be extended for FOI purposes to any public body which holds information of the same type. It seems to me that the objective of the section 32(1) provision - subject to the exceptions specified in the Third schedule - is to protect the actual information whether it is held by the body specified in the original enactment or by some other public body.

Applying this conclusion to your case it seems to me that, where the Board holds information of a type which equates with information whose release is prohibited by the two Adoption Acts provisions (cited above), the exemption at section 32(1) of the FOI Act will apply to such information.

As you know, the records on the Adoption File include copies of records which were created by, or sent to, the Adoption Board in or around the time of your adoption. There are also records in the Adoption File and in the social work File which contain information which was obtained or which derives from the records of the Adoption Board. while I accept in principle that section 32(1) does apply to some of the records at issue, I do not accept that a "blanket" or "class" exemption may be applied either to the Boards Adoption File or to its social work File. Accordingly, I have examined each of the records on the Adoption File and on the social work File individually for the purposes of this review. (In a number of instances the same record appears on both files but I have decided in the interests of clarity to treat each record, in each file, individually.)

Group 1 Records I find that the following records and parts of records (referred to as Group 1) held on the Adoption File or on the social work File contain information of the type which is covered by the "secrecy provision" and prohibited from disclosure under the Adoption Acts except by order of a court or of the Adoption Board:

Adoption File: surname in line 1 of record 11; record 12; register entry number in record 13; records 15 – 17, 18 -23; register entry number in record 25; records 26, 27; date of birth, names and addresses in lines 1-2, 4-5, 7-8 of record 29; register entry number in record 44; surname in line 1 at entry of 16/5/65 and register entry number in record 47. (Personal information relating to third parties, as described in the "Scope" section above, is also to be excluded.)

Social Work File: lines 1-2, 4-5, 7-8 of record 2 (which is a copy of record 29 from Adoption Fi7e); record 16; surname in line 10 of record 18; register entry number in record 26; names and address in lines 2-5 in record 27; record 29; name and hand-written entry for 7/2/97 after "...my letter-" in record 42; register entry number and name in hand-written entry for 4/3/97 in record 43. The key information in this "secrecy" category is the name and address of your birth mother.

I take the view that this information would "make traceable the connection" between an entry "in the Adopted children Register and the corresponding entry in the Register of Births". This is the information which the Adoption Acts seek to protect from disclosure to the extent that the information can only be released by the Adoption Board or by order of the court where the court is satisfied that the obtaining of the information is in the best interests of the child.

Section 8 of the Adoption Act, 1976 amends the Adoption Act 1952 in order to prescribe that a court, when considering the making of an order under section 22(5) of the 1952 Act, or an application for discovery or related application in relation to records of the Adoption Board, shall consider the best interests of the child. In my opinion, the type of information which it is intended to protect is that which reveals the linkage between the adopted child and its natural parent (as opposed to other, less sensitive, records of the Adoption Board). In this context, I note that section 22 of the 1952 Act requires, amongst other things, that An tArd-chlaraitheoir shall maintain an Adopted children Register and an index to it and that members of the public shall be entitled to search the index and to obtain certified copies of entries. The second schedule to the 1952 Act prescribes the form of such entries in the Adopted Children Register and includes such information as date and country of birth, Christian name or first name, sex, particulars of the adopter(s) and date of adoption order.

My conclusion is that the release of information identifying your birth mother, as described above, would disclose information covered by the secrecy provisions in the Adoption Acts. As a consequence, it is my finding that I cannot, by virtue of section 32(1)(a) of the FOI Act, direct the release of Group 1 records which contain such information.

Group 2 Records In addition to the Group 1 records described above, there are records and parts of records at issue in relation to which it is my finding that section 32(1)(a) does not apply. I shall refer to these as the Group 2 records. some records are mentioned in both Group 1 and Group 2 by virtue of the type of information contained in them. Release of the Group 2 records would disclose personal information relating to you, some of which is linked to personal information relating to our birth mother and, in a small number of records, to your adoptive parents. The information about your birth mother in the Group 2 records comprises information the release of which would not make traceable the connection between the entry in the Adopted Persons Register and the Register of Births. This information does not include your birth mother's name, address or other identifying details. In other words it can be said that, for the present at least, and in the absence of the name and address, this amounts to non-identifying information in relation to your birth mother. In almost all instances, as is perhaps inevitable in this situation, the information about your mother is to be found in records which also contain personal information relating to you. The records which the Board has said it is now willing to release are to be found in this group. Because there are some records and parts of records still at issue, I intend to deal with the group as a whole in the context of the exemptions which are relevant under the Act.

Section 28 Section 28(1) of the FOI Act provides that, subject to the other provisions of section 28, access to records shall be refused where the granting of access would involve the disclosure of personal information about another person.

Joint Personal Information My office has already provided you with a copy of The Freedom of Information Act, 1997 [section 29(1) (Amendment) Regulations, 1998 (Si 521 of 1998). These Regulations provide that, subject to the other provisions of section 28, a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve disclosure of personal information relating to another individual. Where the personal information relating to the requester cannot be separated from the personal information relating to the other individual, the information comprises joint personal information. Where the personal information relating to you can be separated from the personal information relating to other individuals, section 28(2)(x) applies and the information is not exempt under that particular section.

Section 28(2)(b) - consent to release One of the situations in which personal information relating to a third party may be released is where the individual, to whom the information relates, consents to its disclosure to the requester. This is provided for at section 28(2)(b) of the FOI Act. I agree with (?)'s view that this is the type of case in which it was reasonable and proper for the Board not to seek such a consent. Given that your birth mother, via the Board, has already made known her views regarding contact with you, I do not think it would be appropriate for my office or the Board to contact her further in this matter. Accordingly, I find that this is not a situation where the prohibition on release of personal information of a third party in section 28(1) may be lifted under the provisions of section 28(2)(b).

Section 28(5) - The Public Interest Section 28(5)(a) of the FOI Act provides that, notwithstanding section 28(1), access may be granted to records which disclose personal information where 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. You will notice, in relation to the records which I have found to be exempt under section 32, that there is no public interest test to be applied to that mandatory exemption under the Act. Therefore, it is not open to me to consider whether there is a public interest in adopted persons being allowed to gain access to identifying details of their birth parents so as to be able to contact them. Accordingly, the public interest test as described above may only be applied in the case of the Group 2 records.

Those public interest factors which favour the release of the Group 2 records in this case include:

the public interest in members of the public knowing how a public body performs its functions; the public interest in members of the public knowing what information is held about them and that such information is accurate; the public interest in supporting the right to maximum information on one's identity and family history, particularly for those reared away from their family of origin; in the case of adopted persons, this includes enabling them to ascertain to the fullest extent possible details of their birth, their placement for adoption and information about their background.

The public interest factors which favour refusal of the request for these records include:

the public interest in protecting the right to privacy of members of the public; the public interest in members of the public being able to communicate in confidence with public bodies, and without fear of disclosure, in relation to personal or sensitive matters; the public interest in safeguarding the flow of information to public bodies; the public interest in public bodies being able to perform their functions effectively particularly in relation to sensitive and confidential issues.

In considering the public interest in public bodies dealing with adoption matters being enabled to perform their functions, I note in particular that mothers who had their children adopted in the past were often given assurances about the confidentiality of the process. However, in this situation where the Group 2 records do not contain the name and address of your birth mother, or can be considered for release subject to the deletion of information which would lead to her identification, and where much of the information has already been given to you by the Board, I am satisfied that disclosure of the information in the records would not be likely to interfere with the Board's current role in the adoption process or related work.

In relation to the records which contain the joint personal information of yourself and your birth mother, I note that contact has already been made with your birth mother through the Board's social workers. she has made clear that she does not wish details of her identity or specific whereabouts to be given to you. There is no indication that she objects to the release of non-identifying, background information; indeed, it is clear she is aware that you are seeking to contact her. In any case, it is evident from the Board's file that you have been given, verbally and in writing, quite an amount of information which is identical to that contained in these records. In the absence of her name and address, it might be argued that the information in these records is not all linked to an identifiable individual i.e. to your birth mother. The Board makes the point that the possibility of our birth mother's identity becoming known to you in the future should not be ruled out. Therefore, for the purposes of my review, I am considering these records as if they do contain joint personal information and the protection in the Act for such personal information on privacy grounds remains strong. In weighing up the relative strengths of the opposing public interests, an attempt must also be made to measure the actual benefit to you which would result from release of the records. In doing so, I have considered the extent to which relevant records have already been released to you and whether release of the records at issue would actually add significantly to your understanding of the Board's role in your adoption and its involvement in tracing your birth mother.

In relation to the non-identifying information about your birth mother, I consider that most of this is joint personal information about the circumstances of your birth and it has already been furnished to you through the Board. I take the view that the degree of invasion of your birth mother's privacy is minimal given that neither her identity nor current whereabouts is revealed in the records. While there is some medical information about your mother's own health in these records, I consider that, for the most part, such information relates to conditions in and around the time of your own birth and this should be released to you. In reaching this conclusion, I have taken account of the fact that the details in the records about your mother and your birth did not emanate directly from her but apparently from the records of mother and Baby Home, where you were born. Although the Board has given you the information itself in summary form, you have told my staff that you wish to have access to the entire file and that you are not satisfied that the social workers' synopsis of the information covered all of what is on your file. From this I take it that you wish to have copies, insofar as is possible, of the original records. I attach significant weight to the fact that having access to as much information about your background as is possible is a matter of great importance to you. I note also that the legislation proposed by the Department of Health and children would give adopted persons rights to their birth certificate and personal information from the adoption file. However, I should point out it is my understanding that, in addition to a planned voluntary contact Register and state-funded assistance in tracing and reunion, it is intended by the Department that a "Contact veto Register" will be put in place so that people who do not wish to be contacted can register that wish.

As well as the public interest in your having information about your background and your adoption, including the limited amount of information in the records about your birth mother's health, I take the view that the public interest also favours your knowing how the Board dealt with your request in 1995 for information about your birth mother. Accordingly, it is my finding that the public interest in your having access to these records overrides the rights to privacy of your birth mother having regard to the fact that you do not have access to her name and address, that you have already been made aware of most of the information in the records through the Board's social workers and that your mother is aware of your efforts to trace her.

Ms Dolan's letter of 10 May 2002 set out in some detail my approach to granting access to parts of records as provided for in section 13 of the FOI Act. I do not find it necessary to repeat that here except to say that this is a case in which I consider that it is possible to delete the identifying details from certain records without rendering the remainder misleading. My conclusion is that a number of records containing joint personal information relating to you and to your birth mother can thus be released, in the public interest, subject to deletion of identifying information about your birth mother. In addition, there are a few items of correspondence (records 19-21, 28, 31) in the Social work File which the Board argues contain personal information about your birth mother, the release of which could constitute a breach of a duty of confidence which, the Board say, it owes to her. The fact that personal details relating to your birth mother (other than her name and address) and to the Board's contacts with her have already been released to you by the Board would indicate that, in general, the remaining "non-identifying" information no longer has the quality of confidence about it which would be necessary to sustain a claim that section 26(1)(a) or section 26(1)(b) of the Act applies. In addition, I note that, insofar as exemption under section 26(1)(a) might be claimed, section 26(3) of the Act provides that the "information obtained in confidence" exemption shall not apply where "the public interest would, on balance, be better served by granting than by refusing to grant the request" for access to records.

I have considered this matter carefully and find that small portions of the records which contain information given to the Board, relating solely to your birth mother and which have not been otherwise released to you, are exempt because they contain personal information relating only to your birth mother (as opposed to the type of joint personal information discussed above); further I find that, on balance, the public interest does not require that such portions be released to you. (Details are set out below of those portions of records which are to be deleted before the records are released to you.)

I also find that you are entitled under the Act to have access to those records which contain, primarily, your own personal information and/or information about the handling of your request to have your birth mother traced by the Board.

Accordingly, I find that the following Group 2 records should be released by virtue of section 28(5)(a) of the Act:

Adoption File: record 10; record 11 except surname in line 1; record 13 except register entry number; record 24; record 25 except register entry number; record 28; record 29 except date of birth, names and addresses in lines 1-2, 4-5, 7-8; records 30-42; record 43, record 44 except register entry number; last 7 lines of record 47 except register entry number.

Social Work File: record 1; record 2 except date of birth, names and addresses in lines 1-2, 4-5,7-8; records 3-5, 5a-15; record 17; record 18 except surname in line 10; record 19; record 20 except second and third sentences in paragraph 1 from "and had... to ...ago"; records 21-25; record 26 except register entry number; record 27 except names and address in lines 2-5; record 28 except second and third sentence; record 30; record 31 except first paragraph (including salutation); records 32, 33-40 (duplicate of 7-14), 41, 41a; record 42 except name and hand-written entry of 7/2/97 after "...my letter-"; record 43 up to and including the entry for 4/3/97 except name in that entry.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Board in relation to the records and parts of records identified above as the Group 1 records. I annul the decision of the Board in relation to the Group 2 records and decide that they should be released with deletion of the information specified above.

A party to a review, or any other person affected by the decision of the Information Commissioner following a review, may appeal to the High court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

_______________________ Kevin Murphy

Information commissioner"