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Cite as: [2009] IEHC 315
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Judgment Title: Rotunda Hospital -v- Information Commissioner Composition of Court: Judgment by: McCarthy J. Status of Judgment: Approved |
Neutral Citation Number: [2009] IEHC 315 THE HIGH COURT 2008 16 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997 (AS AMENDED) AND IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42(1) OF THE FREEDOM OF INFORMATION ACT 1997 AND BETWEEN/ THE GOVERNORS AND THE GUARDIANS OF THE HOSPITAL FOR THE RELIEF OF POOR LYING-IN WOMEN, DUBLIN APPELLANT AND
THE INFORMATION COMMISSIONER RESPONDENT
1. This is an appeal pursuant to s. 42 of the Freedom of Information Act 1997, (“the Act”) against a decision of the Information Commissioner (“the Commissioner”) of 14th December, 2007, being decision No. 050148, and commenced by originating notice of motion of 18th February, 2008. The Act contemplates an appeal from the decision of the Commissioner within eight weeks of notification of that decision to the party aggrieved (such notification being effected on 18th December, 2007) on a point of law only. The applicant (“the Hospital”) merely seeks an order quashing the decision of the Commissioner and a “summary of grounds of appeal” was served on the 14th March, 2008, but there is in existence what is described as an “amended summary of grounds of appeal” which was served on 21st July, 2008. Any reference to the Act can be taken as amended by the Freedom of Information (Amendment) Act 2003, unless the contrary so appears. 2. The appeal is grounded on a number of affidavits sworn on behalf of the applicants and, of course, affidavits in response thereto. The applicant’s principal grounding affidavit is that of Fintan Fagan of 7th February, 2008 and he is secretary and general manager of the appellants. He swore a further affidavit on 4th July, 2008 in response to the replying affidavit of Elizabeth Dolan sworn on 15th May, 2008. She is an investigator with the respondent’s office. The sequence of affidavits thereafter was the affidavit of Fintan Butler (senior investigator with the office of the respondent) of 11th July, 2008, in further reply to Mr. Fagan’s affidavit of 4th July, 2008, that of Lorraine O’Sullivan (information manager of the appellants) of 25th July, 2008, in turn in reply thereto, a second affidavit of Mr. Butler of 1st August, 2008, and, an affidavit of Michael Geary (master of the appellants) of 22nd October, 2008, addressing issues, or deposing to facts generally, which the appellants submit are relevant. An affidavit was sworn by Elizabeth Dolan for the purpose of grounding an objection to the filing of Mr. Geary’s affidavit having regard to the date of its delivery but I considered it right, nonetheless, that it should be filed. 3. As will appear from the decision, the root of this matter is a successful request by D. W. (“Ms. W.”) on behalf of her father T. J. W. (“Mr. W.”) for certain information pertaining to the latter’s mother (and in particular her age) hence, the former’s grandmother, conceived to be in the hands of the appellants. Mr. W. was born on 10th May, 1922, at the appellant’s hospital. This mother’s name is given variously as B. or B. W. or W. (“B. W.”). The records held by the appellants are in documents known as a Labour Ward Book and a Porter’s Lodge Book. There are in existence birth and baptismal certificates in respect of Mr. W. and the former describes Mr. W.’s mother as being “B. W. of C. Road, Galway”, with no entry for his father and the date of registration of his birth is given as 19th May, 1922. The baptism also took place on 19th May, 1922, as appears from the certificate in relation thereto, it, again, having no entry in the name of the child’s father and describing the mother as B. W. (the sponsor being one Winifred Hickey). 4. The Commissioner, in making her decision, has had regard to the following, namely: • the information. contained in the records at issue; • the Hospital's decisions in the matter; • the Hospital's submissions to my Office; your communications with my Office and with the Hospital; • the provisions of the Freedom of Information Acts. I proceed on the basis of her decision, but I consider that the information contained in the records, the hospital’s decisions, the correspondence and submissions, both between the Commissioner and the hospital and either of them and the requester as well as the summary of the grounds of appeal ought to be read in conjunction therewith. 5. In her decision, the Commissioner refers to s. 34(12)(b) of the Act which provides that:- “(b) A decision to refuse to grant a request under s. 7 (the procedural section which one uses to make a request for records under the Act) shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.” She says that the onus is placed accordingly on the hospital to justify non-disclosure. This, of course, has consequences in respect of issues of fact and in circumstances where discretion as to whether or not a disclosure should take place, is exercisable. The law is determined objectively by a court with the assistance of counsel. 6. It was held by the Commissioner that whether or not age fell into the category of personal information as defined in s. 2(1) of the Act, was dependent on a conclusion that what she describes as one of two “overarching prior requirements” were satisfied, even though, as will appear from the extract therefrom below, age is specifically listed as information which falls within that category. However, it appears that she did not thereafter make any finding on this point, but proceeded to determine the issue (at least by implication) of whether or not disclosure of such information should take place on the basis that it was personal and accordingly ordered disclosure on the basis that it was available to the general public as contemplated by s. 28(2) (again, as quoted below) as what she described in her decision as an exception to the general rule in that section prohibiting disclosure of personal information. She considered that it was not necessary to address s. 28(5)(a) of the Act, which pertains to discretionary relief in the public interest, of such personal information. I am satisfied that she thereafter addressed the issue of disclosure under the provisions of s. 28(6)(b) of the Act, being a provision contemplating the same to next of kin of deceased persons. Debate has arisen as to whether or not she held that the record in question in this instance fell to be disclosed under that provision (again, which more below) but in any event, even if she did not so hold, for the reasons referred to below, I propose to permit her to rely thereon on this appeal. Finally, she held that the information in the relevant record was not confidential information as contemplated by s. 26 of the Act and that even if it was, disclosure as a matter of discretion was justified in the public interest, pursuant thereto. 7. The relevant elements of the amended grounds of appeal might be summarised as follows:- (1) That the Commissioner was in error in “treating” the Act as applicable when it had no such application since the records in question came into existence before the Act’s commencement. (2) That the Commissioner was further in error in a failure to hold that age was personal information, inter alia, because of an erroneous view that one or other of certain so called “overarching requirements” (as aforesaid) was or were not fulfilled. (3) That she had erroneously held that the exception to the prohibition on disclosure of the records in question as containing personal information applied (pursuant to s. 28(1) of the Act) on the basis that they were in the public domain. (4) That she had “incorrectly” applied a certain “balancing test” permitting disclosure of the records in question as a matter of discretion. (5) That she erred in making release of the record in question “conditional upon proof of the relationship of the requester to the patient” (by which, I think, having regard to the course of the hearing it was meant that that requirement was an effective admission that the requester had failed to show that he was the son of B. W., whereby any ground of disclosure based upon that fact ought to be rejected). 8. The hospital’s exchanges with the Commissioner containing its submissions commenced, substantively, on the 29th June, 2005, and concluded with a letter to the commissioner dated the 11th December, 2007. Initial correspondence between the parties pertained to the date of birth of B. W., but ultimately as and from the 29th June, 2005, the issue was addressed in terms of age. 9. Obviously Mr. W. and his daughter wish to trace their roots and this appeal against the order of the Commissioner arises because the hospital says policy issues arise for it concerning freedom of information, over and above any issue of principle associated with what the hospital says are ordinary ethical requirements for confidentiality imposed on hospitals and, in particular, the need to ensure that women who come to the hospital have an absolute assurance of confidentiality, inter alia, because their information will in many instances be furnished (or a women ought to be able to furnish it) with the assurance that the information will be treated in confidence the same often being of a particularly sensitive nature. Further, as a general proposition it was submitted that all information furnished to the hospital, personal to a patient, should enjoy absolute confidentiality and that that was so whether it was information required for therapeutic purposes or otherwise. Needless to say particular emphasis was placed upon the necessity for confidentiality (and the assurance to patients of confidentiality) in respect of information required for therapeutic purposes. It was submitted that there was no halfway house, that the need for absolute confidentiality was of special importance in the case of crisis pregnancies, that especially in such cases the hospital had to be in a position to vouchsafe absolute confidentiality and that an example of the type of information which it might be necessary to obtain (and which might not be furnished if there was not such absolute guarantee) would be, say, whether or not a person might have had an abortion or that the pregnancy was as a result of sexual abuse. Needless to say there is not now and was never at any time in our law absolute confidentiality in respect of information passed between, say, a patient and doctor or a patient and the servants or agents of a hospital (which amounts to the same thing) so one should proceed, of course, on the basis that what is advanced here is a claim for a confidentiality in terms of the Acts, without prejudice to any other circumstance where disclosure could be compelled. 10. Mr. Fagan has exhibited certain correspondence between Ms. D. W. and the hospital. The first item is undated but seeks information concerning the mother of her father, T. J. W. and named “J.” or “B.” W. with an address given as C. Road, Galway. The Head Medical Social Worker replied to her on 28th February, 1989 merely referring her to the Registrar General of Births. This was followed by two subsequent undated letters. It is not clear to me to whom in the hospital the next (undated) letter was written but it is relevant to the extent that Ms. W. says that she was given the number C. Road when she “wrote to the hospital” but if her first letter was that aforesaid it appears to be open to doubt that, the number was so given. Alish McDonnell in a letter dated 30th May, 2002, then Head Medical Social Worker: it informed Ms. W. that on checking the Delivery Ward Book for births for 10th May, 1922, one B. W. gave birth to a male infant and was discharged from hospital on 18th May, 1922. B. W.’s address was given there as “C. Road, Galway”; In any event, ultimately on 27th September, 2004, the Information Management Department of the hospital responded to a letter of 21st September, 2004, from Ms. W., treating the latter as a request under the Freedom of Information Act (s) and in particular a request for:- “An admission or discharge address of B. W., B. was admitted to the maternity ward at the Rotunda on 9th or 10th May, 1922. B. was discharged on 18th May, 1922.” A substantive response was given by letter of 21st October, 2004. This refers to the Labour Ward Book and says that this does not record the patient’s home address or date of birth and that the hospital could not provide any further information. A purported appeal against the latter (deemed in law to be a refusal of the request) was taken to the Master (Dr. Greary) by undated subsequent letter and the written refusal of the appeal confirmed the apparent incapacity of the hospital to comply with the request. It further stated (in the context of the request for B. W.’s age) that “When a patient attends the Rotunda Hospital a history is taken of the patient which will include personal details. Each patient provides us with this information on the understanding that same will be held in confidence and will not be released unless the necessary consent is obtained. As you have requested Ms. W.’s age, this forms part of a personal information which he gave to this hospital therefore, same cannot be released to you under s. 28(1) of the Freedom of Information Act…” Dr. Geary pointed out that an appeal might be taken from his decision to the Information Commissioner; as will be seen from Ms. W.’s letter of the 21st September, 2004, no reference was made therein to age: nevertheless but the matter has proceeded on the basis that such request was made. 11. Such an appeal was taken and correspondence thereafter ensued with the Commissioner which continued, to a degree, in parallel with that of Ms. W.. Ultimately, this generated a successful search for, and entry in, a “Porter’s Lodge Book” and this contained an entry in reference to a:- “B. W. residing at C. Road, Galway under the date of delivery in question”. The letter goes on to say that:- “The address of this B. W. matches the address of the B. W. which is recorded on the copy birth certificate provided by your brother relating to his own recent request. Further details recorded in this book also matched details which are recorded in our Labour Ward Book (i.e. date of delivery and discharge, the details of which were already provided by us in our letter to you dated 21st October, 2004). Therefore it appears that different names were given whilst your grandmother attended the Rotunda Hospital. I can further advise that ‘not married’ is also recorded on the said entry”. 12. On some date prior to the 6th July, 2005 a free standing request was made for B. W.’s age at the time of giving birth but the letter of the 6th July, 2005, says nothing about this. In its letter of 29th June, 2005 to the respondent, the hospital proceeded on the basis that the information sought was “the date of birth”. This request was declined because no such record was held and accordingly it appears (or so I infer) that it is contained merely in the Porter’s Lodge Book. 13. In the context of his letter of 22nd July, 2005, to the respondent, refers to “the age” of “Ms. W.’s grandmother”. Further submissions on the same point were made by the hospital by letter of 26th July, 2005. A preliminary view was expressed on behalf of the respondent to the hospital by letter of 19th June, 2006, further correspondence ensuing thereafter by way of submission and reply thereto. 14. The position appears to be, accordingly, that in response to a request for information as to the address of the B. W. and by letter of 21st October, 2004 the hospital inter alia afforded information to the effect that the Labour Ward Books did not record a patient’s home address (which was the explicit request) nor date of birth or age. There was a refusal of the Freedom of Information Act request, accordingly, on the grounds that the record sought did not exist. Notwithstanding this fact, however, by the same letter the hospital purported to refuse to furnish the address on the grounds of the application of a public interest test but also, apparently, because it was conceived that the record concerned would involve the disclosure of personal information, contrary to s. 28 (1) of the 1997 Act. We know that subsequently the Porter’s Lodge Book was unearthed and it appears that that book contains the age. It appears from the hospital’s letter of 26th July, 2005, to the Commissioner, that the Porter’s Lodge Book also contains a reference to the fact that the “intended name” of B. W.’s son was T. J.. 15. In any event the position is now clear because Mr. Fagan’s affidavit is to the effect that both Labour Ward Book and Porter’s Lodge Book contain reference to the age and it is with this we are concerned. 16. At this point I will refer to the issue of the identification of B. W. as the mother of the requester. The information available in this respect is as follows:- “(a) The birth certificate of T. J. W., naming B. W. of C. Road, Galway as his mother and the date of birth as the 10th May, 1922 and, further stating that the birth occurred at the Rotunda Hospital. (b) A baptismal certificate of T. J. W. naming B. W. as his mother giving the 10th May, 1922 as the date of birth and the 19th May, 1922 as the date of baptism (at the Pro-cathedral i.e. a church in the vicinity of the Rotunda) and giving her address as “C. Rd.” Galway. (c) Neither of the documents in question name Mr. W.’s father and he states (that he “was boarded out” or “placed at nurse”) at various addresses in the Dublin area from 1922, having the same surname as his mother. (d) The hospital records contain the name “B. W.” and so far as she is concerned an address at C. Road, Galway being the same as that in those at (b) (e) The records indicate that a person known as “B. W.” was a patient in the Rotunda and delivered of a male child on the day in question. (f) The hospital records also stated that the marital status of the said B. W. was recorded as “not married”. (g) The said records state that the “intended name of child as stated by mother” was T. J. W., (h) the fact of the birth was notified to the appropriate registrar of Births and Deaths by one C.H. D., described as having been present at the birth at the Rotunda. 17. I am satisfied that this foregoing circumstantial evidence is of such strength that, as a fact, and beyond a reasonable doubt, T. J. W. is the son of the B. or B. W. or W., and D. W. is of course her granddaughter. What more could any institution require? I suppose that one could say that the evidence would be stronger if the identity of the father was specified in all relevant documents or, for example, that Mr. W. could show that he lived at an identifiable address, all of his life, being the address of one or other or both of his parents. I further suppose that one might say in the case where a relative (say an aunt) was alive that she knew him from babyhood as the son of a given person. Even if I am wrong in my conclusion that the hospital could not entertain a reasonable doubt as to identity, certainly as an irreducible minimum the identity has been proved on the balance of probabilities. The fact that one might supplement evidence or obtain additional evidence to support a proposition does not deprive available evidence of the capacity to give rise to proof to the relevant standard. It seems to me that in a matter of this nature, the standard of proof required in respect of identity could not be higher than proof on the balance of probabilities. I do not believe, that, on the authorities, motivation is relevant though the use to which information might be put, or the consequence of disclosing, it might be relevant, say, to the exercise of a discretion (where it existed), in a given case. 18. Before leaving this topic I should say that the hospital has explicitly conceded, in correspondence, that a “ definite link” was made between Mr. W. and B. or B. W. (and rightly). The tenor of its approach subsequently changed and it has submitted now that there is insufficient information to identify the lady in question as Mr. W.’s mother. This is in part said on the basis that in the operative part of her decision, the Commissioner ordered disclosure “subject to the hospital’s verification in the normal way (if it has not already done so) of (her) in reference to Ms. W., identity as the daughter of T. J. W. and the granddaughter of B. W. . . .” It is quite clear that once the evidence, which I have summarised above, is either produced (insofar as it is in the hands of Mr. or Ms. W.) or supplemented by material not in her or their hands but admittedly in that of hospital e.g. the record pertaining, say, to the intended name of B. W.’s child, the relevant standard of proof has been met. The decision plainly proceeds on the supposition that the relationship has been established; to suggest otherwise is insupportable. In any event, what is in issue here, as we all know, is disclosure of the age of Mr. W.’s mother, which there being no reality to the idea that she is not a mother or grandmother, as the case may be, D. W. or her father. 19. By its amended summary of its grounds of appeal, the hospital raised for the first time the issue of whether or not the Act applied to the records in question since their creation pre-dated the commencement of that Act. An issue arose as to whether or not the hospital could raise this issue now, since it was never advanced before the Commissioner and obviously is a point of fundamental significance. I will first, accordingly, deal with the procedure relevant to appeals of this kind. This new issue has been described as the “temporal issue”. 20. As to the method generally of approaching the interpretation or construction of the Act, Kearns J. put the matter as follows in his judgment in Sheedy v. Information Commissioner, [2005] 2 IR 272. “Before addressing the three issues that arise for determination on this appeal, it is perhaps appropriate to consider the legal principles applicable where an appeal from a review of (the Commissioner) is made to the court. As was emphasised by O’Donovan J. in Minister for Agriculture and Food v. Information Commissioner, [2000] 1 I.R. 309 at p. 319:
“3. The passing of the Freedom of Information Act 1997 constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen. It lets light in to the offices and filing cabinets of our rulers. The principle of free access to publicly held information is part of a world-wide trend. The general assumption is that it originates in the Scandinavian countries. The Treaty of Amsterdam adopted a new Article 255 of the EC Treaty providing that every citizen of the European Union should have access to the documents of the European Parliament, Council and Commission. 4. The long title to the Act of 1997 did something which has regrettably become uncommon. It proclaimed its purposes in a long title. This is deserving of full citation. The Act of 1997 is stated to be:
22. Furthermore, McMahon J., in Health Service Executive v. Information Commissioner and Another, (Unreported, High Court 1st October, 2008) stated that:- “… given the policy and object of the Act to give wide and generous access to the documents held by public bodies, any exemptions or restrictions, such as those contained in Part III of the Act (ss. 19 to 32) ought to be given a narrow restrictive interpretation so as to derogate as little as possible from the main purpose of the Act”. 23. As to the procedure involved on appeal to this Court, in Deely v. Information Commissioner, [2001] 3 IR 439, McKechnie J. (at 452) addressed the matter as follows:- “There is no doubt but that when a court is considering only a point of law, whether by way of restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit in the manner following:-
(b) It ought not to set-aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw. (c) It can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally; (d) If the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision: see for example Mara v. Hummin-Bird Limited, [1982] 2 I.L.R.M. 421… However, an Income Tax Appeals Commissioner is quite a different statutory creature (… to… the Information) Commissioner under the Act of 1997… So also is the Chief Appeals Officer in the Social Welfare case, as, of course, is the Valuation Tribunal. These are but examples of bodies, tribunals and statutory personae from which the Superior Courts have addressed references purely on points of law. There are of course many others. In this case however, it is unnecessary to express any view as to whether or not a court under s. 42 is so circumscribed. This is because there is no challenge and never has been to any of the material facts as alleged by the notice party, or obviously of more immediate importance to the findings made by and upon which the Appeal Commissioner arrived at his decision. Therefore I would prefer to express no concluded view on this”. 24. In Sheedy, Fennelly J. approved the principles elaborated, as aforesaid, by McKechnie J., In addition, Kearns J., pointed out that:- “This (i.e. the principles set out in McKechnie’s J.’s judgment) is a helpful resume with which one would not disagree, but it would be obviously incorrect to apply exclusively judicial review principles to matters of statutory interpretation in the way that might be appropriate to issues of fact. A legal interpretation of a statute is either correct or incorrect and the essence of this case is to determine whether the interpretation given first by the respondent and later by the High Court… was correct or otherwise”. Indeed, it has been submitted on behalf of the Commissioner that the conclusion of Kearns J. is “no more than a restatement of the… established principle set out by McKechnie J. in Deely”: “… if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground of setting aside the resulting decision”. 25. In South Western Area Health Board v. Information Commissioner, [2005] 2 IR 547 the facts were that a child born out of wedlock sought records pertaining to her mother who, on enquiry by the Health Board, did not wish disclosure to take place. It was apparently the case that (to quote Smyth J. p. 552):- “… 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, counsel for the Commission was well able to meet the challenge. In fact it was more a case of change of emphasis in the arguments pursued, then in the introduction of a new matter…” 26. Smyth J. went on to say (in addressing a submission on the merits made on behalf of the appellant Health Board which had not made to the Commissioner) that:- “… it would be wholly unsatisfactory that a decision on appeal should be made without the matter having been first been raised before the Commissioner”. and “In my judgment the Commissioner was correct in his submission that it was undesirable as a matter of policy that a party in the position of the appellant would not advance all relevant arguments to him in the first instance”. However, in the event, he dealt with what I might describe as the new submissions. “in the light of the sensitivity of subject matter of the appeal”. It seems to me that having regard to the nature of the case analogous sensitivities arise here. 27. It has been submitted, on behalf of the Commissioner that the only reason Smyth J. did not refuse to entertain an argument which had not been advanced before the Commissioner was because she had dealt with them “Comprehensively in her written and oral submissions to the court but this is not so”: I have set out verbatim the stated reasons for the approach taken by Smyth J. (i.e. in the light of the sensitivity of the subject matter) and I am not sure that this submission is correct. No doubt Smyth J. would not have done so, as a matter of constitutional justice, if the Commissioner could not have addressed the matter or, presumably, might have afforded an adjournment to allow an opportunity to her to do so. That is a different thing, of course. 28. In Murray v. The Trustees and Administrators of the Irish Airlines (General Employees), Superannuation Scheme and the Pensions Ombudsman Notice Party), [2007] 2 ILRM 196, a number of procedural issues arose, including an issue as to whether or not further evidence might be admitted on appeal. Kelly J. inter alia said that:- “I am of opinion that, as a general rule, this court, on hearing an appeal under s. 140 of the (Pensions) Act 1990, as inserted by s. 5 of the Pensions (Amendment) Act (i.e. the relevant section pertaining to appeals (as in that case) from the Pensions Ombudsman) is confined to the material which was before the Ombudsman. If that were not so, then parties would be at large as to what material they could put before the court by way of affidavit and the hearing in this court would be an appeal in name only” but he went to say that:- “The general rule which I have enunciated is of course open to exception. In my view, in exceptional cases, there would be an entitlement to adduce evidence which was not before the Ombudsmen when making his determination. Such circumstances are in my view those which are identified by the Supreme Court in Murphy v. The Minister for Defence, [1991] 2 I.R. 161 subject to the modification identified by Finnegan P. in [Ulster Bank (Investment Funds Limited) v. Ulster Bank, [2006] IEHC 323]: Kelly J. pointed out that the Supreme Court elaborated in Murphy the general principles which fell to be considered on an application for leave to adduce additional evidence but it was apparently submitted on behalf of the plaintiff that a somewhat broader power existed by virtue of Ulster Bank Investments Funds Ltd., where Finnegan P. said:- “However, in the interests of justice regard should be had to the nature of the deciding body whose decision is being appealed; the proceedings before that body may well lack much of the formality which will attend a hearing before the High Court with which the Supreme Court will principally be concerned. An issue may arise on appeal which could not arise at a hearing, for example, an issue as to the extent of expertise of the deciding body. Thus a more flexible approach then that adopted by the Supreme Court on the admission of further evidence will be required”. The former case was an appeal to the Pension’s Ombudsman and the latter an appeal against a decision of the Financial Ombudsman. On perusal of the relevant provisions of the Central Bank Act 1942, (s. 170), as inserted by the provisions of the Central Bank and Financial Authority of Ireland Act 2004 pertaining to appeals to the Financial Ombudsman, there is no provision as to whether an appeal is on a point of law or both facts and law, or by way of complete re-hearing. The appeal provisions relevant in Murray are similar to those in question in Ulster Bank Investment Funds Limited and thus, both decisions are of limited assistance. 29. The limitations on receipt of additional evidence in the Supreme Court are to the effect that the additional or new evidence must have been in existence at the time of trial but had been such that it could not have been obtained with reasonable diligence for it, that it would probably have an important influence on the result of the case, though it not be decisive, and that the evidence must be such as is presumably to be believed or, in other words, is apparently credible, though it need not be incontrovertible. The analogy with the grounds upon which new evidence may be received by the Supreme Court is also of limited assistance since appeals to that court may be on both law and fact. 30. In the Minister for Finance v. McArdle (Unreported, High Court, Laffoy J. 22nd March, 2007) an appeal in point of law was taken from a decision of the Labour Court (a decision of that court, being in turn, an appeal from the decision of the rights Commissioner), in virtue of analogous provisions to those here (i.e. on a point of law only). It was sought on behalf of the plaintiff (the appellant having proceeded by special summons) to present arguments as to the legal positions which were not addressed in the Labour Court and which were described as going to jurisdiction. Laffoy J. decided that:- “. . . that submission must be correct in point of principle, at any rate where the legal issue is whether the first instance decision maker (in this case the Rights Commissioner) or the appellate decision maker (in this case the Labour Court) had jurisdiction to make the relevant decision. . . .” The plaintiff had relied upon McKechnie J.’s decision in Deely and that of Smyth J. in the South Western Area Health Board. It appears that Sheedy was not cited to Laffoy J. 31. The parties here have submitted to me that the “temporal issue” goes to jurisdiction. This, or so it seems to me, is only in part correct. By definition, in any case the Commissioner would have jurisdiction to decide whether or not the Act was applicable and in that regard to interpret or construe s. 6 thereof. The proposition must, accordingly be that if there is an erroneous finding that the Act is applicable and the Commissioner proceeds further adjudicating the merits she is doing so without jurisdiction. The latter proposition must, I think, in principle be right, without detracting from the fact that an inferior Tribunal retains the jurisdiction to make erroneous decisions and does not, automatically, lose jurisdiction when a legal error arises. With respect to Laffoy J. I have to say that I do not agree with the proposition that, as a minimum (“at any rate...”) a new legal issue going to jurisdiction cannot be raised. I take the view that the opposite is the case: one cannot invest a court or tribunal with jurisdiction by consent and indeed in the criminal context jurisdiction can be impugned as late as the hearing of an appeal. If this Court was to refuse to entertain an appeal on such a point, it would follow, it there was no jurisdiction, rights might be adversely affected or obligations imposed without legal basis. I do not believe that this could be permitted by this Court. 32. The Minister for Education and Science v. The Information Commissioner, (Unreported, McGovern J. 31st July, 2008) has also been opened to me and the relevant passage, as set out the in Commissioner’s written submissions is:- "[the court should be slow to admit a new argument not advanced before the Commissioner. In the area of criminal law, the Court of Criminal Appeal has repeatedly stated that it will be reluctant to entertain arguments on appeal which were not made at the original trial. In William James Murray v the Trustees and the Administrators of the Irish Airlines (General Employees) Superannuation Scheme [2007] 2 ILRM 196, Kelly J refused to allow additional evidence where the parties seeking to adduce the evidence made submissions to the Pensions Ombudsman on two occasions and never sought to introduce that evidence which was available. Although the case concerns evidence and not legal argument or submissions, it is of some general relevance to the Commissioner's argument. In South Western Area Health Board v The Information Commissioner [2005] 2 IR 527, the issue of whether or not the High Court could entertain a point on appeal that was not raised before the Commissioner during the course of review was the subject of comment.
“difficult to see why the Minister should be permitted to make such an argument on this appeal…”, which is a different thing to holding that it was impermissible in point of law. In any event, McGovern J. took the view that where there was some public policy or constitutional issue to be protected, one might advance a new argument. It seems to me that as a matter of public policy it is right that since a number of other cases are pending in respect of substantially the same issue or issues as fall to be determined in this case, it is appropriate to permit the new argument to be advanced. Further, it seems to me desirable as a matter of public policy that an issue as fundamental as the ambit of the Act should be considered; one might further add that on the facts whether or not a given record was a record for the purpose of the Act is a more significant question than whether or not a record admittedly caught by the Act is exempt, as in the case dealt with by McGovern J. 34. Even if I am wrong in these propositions I take the view, in any event, that a court could not refuse to allow an appeal ( on a point of law) on good grounds merely because they had not been raised before; I do not think that McGovern J. can be taken to have excluded this because he refers to the fact that in the criminal context the Court of Criminal Appeal has deprecated the practice of raising on appeal matters not raised at the trial – this, however, is merely the general rule; the leading recent decision on the point, namely D.P.P. v. Cronin, [2006] 4 IR 329 contemplates exceptions (to put it shortly) where justice so requires 35. In any event it appears that neither Deely nor Sheedy were opened to my colleague McGovern J. 36. Thus the position appears to be that there are only three decisions directly pertaining to the issue of whether or not it is lawful to raise a new issue on appeal, being Sheedy, South Western Health Board, and The Minister for Information. McArdle is of substantial relevance because of the similarity of the appeal provisions in question there. The decision of the Supreme Court is silent as to whether or not questions of fact can be raised but as I have said I think that it permits new issues of law to be addressed. South Western Area Health Board is the only case where new facts were considered and, must in my view be a decision on its own facts and I trust that I have addressed the Minister for Education and Science sufficiently. Further, with respect to McArdle, apart from the fact that it is not in strictness binding because it does not deal with appeals from the Information Commissioner again, and with the utmost respect to Laffoy J. I do not agree with it so far as the principles therein elaborated are concerned for the reasons set out above. 37. Miss Butler has submitted that the rights of third parties might be compromised if a new issue could be raised on appeal. There does not appear to be any duty under the statute on a party appealing or, say, or the Information Commissioner to notify potentially affected parties (and in particular, say, those who had participated in earlier stages of the process, whether at first instance or on the occasion of any review by the Commissioner) of the fact of an appeal. If notification occurred it would be a matter for the relevant party to decide himself or herself whether to seek to be heard and if a new issue were raised and determined, he or she could not complain, accordingly if he did not appear after notice. Further, after the conduct of a review its outcome notice must, pursuant to s. 34 (10) be given, inter alia, as provided for at para. (b) to “the relevant person concerned” and, by virtue of subpara. (c) “any other person to whom, in the opinion of the Commissioner, such notice should be given”. 38. Thus, any affected person (so far as it is practicable) will, even at that stage, know of the fact of the outcome, whether it involves a decision to afford access or a refusal in that regard. No doubt, in any event, if the party affected by the disclosure was not the appellant – and s. 42(1) permits “(a) party to review... or any other person affected by the decision of the Commissioner…”, a right of appeal – a court would insist, even if there was no application in that behalf by the Commissioner, that the rules of constitutional justice were applied in vindication of third party rights. It seems to me that in a case where there is no practicability to notification potential prejudice, in a given case, to a person affected other than the institution holding the information, cannot perhaps be avoided, but if unavoidable cannot inhibit other parties rights to or on appeals. This is so here and hence I will permit the new issue of law in question to be raised it is to this I now turn. I consider however that I cannot receive fresh material into evidence. 39. Whether or not the records in question here are captured is dependent on the provisions of s. 6(1) to (5) inclusive of the Act. Insofar as that section is material, it is as follows:- “6(1) Subject to the provisions 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. (2) It shall be the duty of a public body to give reasonable assistance to a person who is seeking a record under this Act
(b) if the person has a disability, so as to facilitate the exercise by the person of hip or her rights under this Act. (4) The records referred to in subsection (1) are records created after the commencement of this Act and
(b) records created before such commencement and relating to such particular matters (if any), and (c) records created during such period (if any) and relating to such particular matters (if any), (5) Notwithstanding subsections (1) and (4) but subject to subsection (6), where
(b) records created before such commencement relate to (personal information about the person seeking access to them. Thus s. 6(1) is to be construed as conferring the general right of access postulated by the section where such access is necessary or expedient in order to understand records created after such commencement or records created before such commencement which relate to personal information about the person seeking access to them, notwithstanding the fact that s.s. (4) defines “records” for the purpose of the Act only if and insofar as they have come into being since its commencement. 40. It seems clear that access to the records in question in this case is not necessary or expedient to understand records created after commencement but the question is whether or not such records relate to: “Personal information about the person seeking access to them”. For the avoidance of doubt I do not regard the definition of records set out in s.s (4) as constituting an exclusion from the Act (to be accordingly construed strictly): it seems to me that the principle stated in the context of exclusion by McMahon J. in Health Service Executive can only apply to records captured by it but I accept that the general principles elaborated by Fennelly, Kearns and O’Donovan JJ. as aforesaid apply in all contexts where one seeks to interpret or construe a provision. There is no definition of “personal records” in the Act but there is a definition of “personal information” and accordingly what is obviously intended is that records containing personal information are excluded from the definition of records in s. 6 The relevant definition from s. (2)(1) of “personal information” is as follows:- (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, (iv) information relating to the individual in a record falling within section 6 (6) (a), (v) information relating to the criminal history of the individual, (vi) information relating to the religion, age, sexual orientation or material status of the individual, (vii) a number, letter, symbol, word, mark or other thing assigned to the individual by a public body for the purpose of identification or any mark or other thing used for that purpose, (viii) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary (within the meaning of the Social Welfare (Consolidation) Act, .1973) or required for the. purpose of establishing whether the individual, being a claimant (within the meaning aforesaid), is such a beneficiary, (ix) information required for the purpose of assessing the liability of the individual in respect of a tax or duty or other payment owed or payable to the State or to a local authority, a health board or other public body or for the purpose of collecting an amount due from the individual in respect of such a tax or duty or other payment, (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, (xi) information relating to property of the individual (including the nature of the individual's title to any property), and (xii) the views or opinions of another person about the individual, but does not include – in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office of position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the function: aforesaid – in a case where the individual is or was providing a service for a public body under a contract for services with the body, the name of the individual or information relating to the service or the terms of the (contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, – or the views or opinions of the individual in relation to a public body, the staff of a public body or the business or the performance of the functions of a public body.” 41. It is quite plain that the Porter’s Lodge Book and the Labour Ward Book, containing, as ultimately established, reference to the age of B. W. contain personal information about her both because “in the ordinary course of events” the age of an individual would be known only to such individual or members of her family or friends (one emphasises the phrase in the “ordinary course of events” – one might or might not be able to obtain information pertaining to a person’s age by enquiries or searches, as in the present case). In any event having regard to subpara. (vi) there can be no doubt about the position. It does not matter (since we are not into the business of admissions) that it appears that at one stage the hospital used the concepts of age and date of birth interchangeably but it seems to me that it would be hard to argue that age was personal information but the date of birth was not! If I were wrong it would mean that information from which age was obvious would not be excluded but the latter would. This would set the limitation at nought and this cannot be intended. I deal with them as one, accordingly, for the purpose of the appeal. 42. I think that I might safely, and briefly, at this stage dispose of the proposition that if given information was to fall within the category of “personal information”, it would be necessary not merely that it should be one of the listed classes in the definition (at (i) to (x)) but also that it would “satisfy” what the Commissioner has described as “the overarching prior requirements”, namely, those at subparas. (a) and (b) above. It seems to me that this is a fundamental misconception in terms of an interpretation of the Act. This is because what is described as the list is “without prejudice to the generality of the foregoing”; the point is, accordingly, that personal information may well extend beyond the listed items but that, whatever else, such listed items are personal information. This type of provision is a commonplace in legal usage, if not on a more widespread basis. 43. The starting point in consideration of the issue of whether or not the record here “relates” to Mr. W.’s personal information is E.H. v. Information Commisioner, [2002] 3 I.R. 600. The relevant passages of that decision are aptly quoted in the appellant’s submissions as follows:- “In my view the test to be applied to determine whether or not a record “relates to” is that which is postulated by counsel for the respondent at para. (a) above namely ‘whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act of 1997) and the record in question’. I do not think one should go further than this in formulating a test in this regard. Specifically, I would deprecate as determinative factors in themselves, the matters set out at paras. (b), (c) and (d) above namely, ‘the circumstances in which the record was created, the purposes behind the creation of the record and in particular whether it was created with the affairs of the particular individual in question in mind, notwithstanding the fact that the record may not specifically mention or refer to that individual and what was in the mind of the author at the time of creation of the record and in particular whether or not the requester was in the mind of the author’. - A requester has a right of access to ‘records’. The record will generally speak for itself. Where a doubt or ambiguity exists, as to the connection of the record to the requester, a consideration of factors such as the circumstances in which the record was created, the purpose for which the record was created and whether it was created with the affairs of a particular individual in mind, may inter alia , assist in determining ‘whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act of 1997) and the record in question.’” O’Neill J. concluded:- “Where the record does not name or has no express reference to the requester, a substantial link will be established, if the record relates 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 of large scale class of the same.” O’Neill J. also said, however, that: “As a starting point it seems to me to be absolutely clear from the use of the phrase ‘relates to’ that a document need not itself contain ‘personal information’ about the requestor. When one is talking about ‘personal information’ in this context it is of course ‘personal information’ as defined in s. 2 of the Act of 1997.” 44. Furthermore, O’Neill J. quoted, inter alia, the submissions of counsel for the Commissioner as to whether or not given situations fell inside or outside the scope of the Act (presumably in the context of the section and subsection with which we are dealing). In particular, O’Neill J. said in conclusion that:- “… [T]he respondent should not adhere to any kind of rigid formula but rather his approach should be that all cases must be viewed in the light of the particular facts and circumstances obtaining and he submitted that the respondent should have regard to the following factors which he submitted would not be an exhaustive list:
(b) The circumstances in which the record was created. (c) The purposes behind the creation of the record and in particular whether it was created with the affairs of a particular individual in question in mind notwithstanding the fact that the record may not specifically mention or refer to that individual. (d) What was in the mind of the author at the time of creation of the record and in particular whether or not the requestor was in the mind of the author.?” 46. The Commissioner states in her decision, inter alia, that: “The hospital refers to the obligations ‘health providers’ derived from the Hippocratic Oath and to ‘medical information’ held in confidence. The hospital contends that, in the context of maternity care, age is a clinical factor which determines outcomes for mother and baby. While I note that the entry recording the age of the mother discloses nothing about her treatment, I accept that information arising in a professional relationship between a health professional and a patient would normally fall within the category of confidential relationships traditionally recognised by law …” Whilst I do not propose to admit new evidence I think that it is correct to say that there is a helpful summary of the hospital’s position in that regard in Paragraph 16 of Mr. Fagan’s principal affidavit of the 7th February, 2008 where he says that age is sought for a very specific reason and, in particular: “This is because the risk factors that any expectant mother has will depend upon her age. Information as to the age of each patient is an essential factor in her treatment. The age of the patient is recorded on her chart along with a note as to the relevant risk factors that are associated with that age. Because age is a clinical factor in the maternity setting which is predictive of outcome for both mother and baby, it is the age rather than the date of birth of the mother that is used to provide advice to patients…” 47. If we look at the submissions made in correspondence to the Commissioner dated the 11th September, 2007, the hospital says that: “In relation to your suggestion (i.e. suggestion by the Commissioner to the hospital) that age is not within the medical context let me once again reiterate that within the maternity setting age is a clinical factor which determines outcome patterns for both mother and baby and therefore the age rather than date of birth is used within the clinical setting of a maternity hospital to provide appropriate advice to patients.” 48. In the first instance it is perfectly plaint that both the Porter’s Lodge Book and Labour Ward Book contain extensive references which relate to the requestor. Firstly, most obviously, since the request is the son of B. W., all references to the child born to her in the hospital are references to him, whether by name or not and, indeed, as to the latter, his proposed name (T. J.) is referred to in the Porter’s Lodge Book. One need hardly state the obvious fact that the age of the requester is capable of being inferred from the fact of the record of his birth date. Furthermore, taking the matter in its most limited way, it is has been explicitly submitted by the hospital, as set out above, that the age of the mother is “a clinical factor which determines outcomes for mother and baby” and, as the hospital’s position is summarised by Mr. Fagan, “the age of the patient is recorded on her chart, along with a note as to the relevant risk factors that are associated with that age. Because age is a clinical factor in the maternity setting which is predictive of outcome of both mother and baby, it is the age, rather than the date of birth…” and that “within the maternity setting age is clinical factor which determines outcome patterns for both mother and baby…” I do not see how it could be said that in those circumstances a mother’s age did not relate to the requester. 49. All of the information in the records, of course, relates to B. W. too. That circumstance is dealt with in s. 28(5B) of the Act as inserted by s. 23 of the amending Act of 2003; as we know s. 28(2)(a) removes the ban on access to a record where it would involve disclosure of personal information (including personal information relating to a deceased individual) where the information concerned related to the requester. Subsection (5B) notwithstanding, provides for a refusal where the disclosure to the requester would “involve the disclosure of personal information relating to an individual or individuals” other than him. Thus, one may not obtain, as of right, personal information pertaining to oneself if it also relates to another person. Hence, it is only if the information is, to put the matter shortly, in the public domain or the subject of regulation made by the Minister under s. 28(6) that disclosure arises as of right even where one’s own personal information is concerned. I am accordingly satisfied that the information pertaining to the age of his mother is personal information relating to the requester and, hence, the Act applies 50. I have been referred to Hamilton v. Hamilton [1982] I.R. 466, Re Heffernon Kearns Limited, (No. 1) [1993] 3 I.R. 177, Chestvale v. Glackin, [1993] 3 I.R. 177 and a passage from Bennion on Statutory Interpretation (5th Ed 2008) concerning the presumption against retrospective operation of statutes. No one doubts that this applies absent a contrary intention and such is explicitly shown here in respect of records inter alia which relate to a requester in given circumstances. 51. In as much as the Act is applicable, one must then address the issue of whether or not the information was confidential for the purposes of s. 26 of the Act, and, further, whether or not, being the personal information of B. W., there was a prohibition on disclosure under s. 28. In the present case, these issues are closely related. This was and is the case because the Commissioner rejected the proposition that the information contained in the record was confidential for the purposes of s. 26 of the Act, because of her view that notwithstanding the fact that it was personal information it was in the public domain, so that it did not have the necessary quality of confidentiality, and whereby it fell to be released under s. 28. Thus, since the conclusion under s. 26 sprang from that under s. 28, I deal with the latter first. 52. As to the personal information the relevant provisions of s. 28 of the Act is as follows:- “Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to the deceased individual). (2) Subsection (1) does not apply if
(b) any individual to whom the information relates consents in writing or such other form as may be determined, to its disclosure to the requester, (c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. (d) the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or (e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.” “See how information that is available to the public through the GRO (General Registration Office)…can be concerned with private or secret matters…” 54. I exclude from consideration the evidence on affidavit as to the practical difficulties which might be encountered in ascertaining the age of an individual from the General Registration Office (hereinafter “G.R.O.”): to do otherwise would be to proceed on the basis of additional or fresh evidence. That said, it seems to me that the position of the hospital is not thereby prejudiced because it is perfectly plain that the Commissioner had before her evidence (to which she referred in the body of her decision) to the effect that individuals who have names and other details (in so called “tracing” cases) do not have enough information to identify the “correct information” from the GRO; she was plainly cognisant of the submissions made by the hospital. 55. The Commissioner first raised the issue of the relevance of s. 28(2)(c) in her letter of the 3rd December, 2007 to the hospital, with reference, also, to what she regarded as a consequence in terms of the confidential nature of the information, viz – that it was publicly available. 56. She concluded that the record was not protected from disclosure as personal information; pursuant to s. 28(1) such exemption did not apply because of the availability of the information contained therein to the general public. In that regard, I think it appropriate to quote a portion of her decision as follows:- “The General Registration Office (GRO) operates the regime of registration of deaths, births and marriages in this country. From inquiries made by my staff with the GRO, it is clear that information on the age of any individual is available through that individual’s birth certificate and, if that individual is married, also through the marriage certificate; and if the individual has died, through the death certificate. It is clear that the information contained in the GRO’s certificates is part of a public record which is accessible to all. The level of effort required to trace any individual’s birth details, including the date of birth, will vary depending on the level of information already held by the searcher; but where the searcher has a name, in principle it will be possible to trace the individual’s date of birth through one or other of the GRO’s registration certificates. Clearly where the searcher has information in addition to the name, such as county or region of birth or the probable age range of the individual, the search process will be easier.” and she went on to say that:- “When my office put this point to the hospital, it commented in response that in many of the ‘tracing’ cases, (of which this appears to be one having regard to the motivation Mr. and Ms. W.), individuals who have names and other details do not have enough information to identify the ‘correct information’ from the General Register Office. I accept that this may well be the case. However, any difficulty is in accessing the information does not take away from the fact that the ages of individuals whose births, marriages or death were registered, is available to the general public as outlined above. It seems to me that such availability satisfies the requirement of s. 28(2)(c). The hospital suggests that individuals might be advised to use the GRO service as an alternative to seeking the ‘confidential records of a hospital’ under the FOI. Given your entitlement under the FOI Act to seek access to records held by the hospital and given that following your application to me, I am required under the FOI Act to review the hospital’s decision and affirm, vary or annul it, the option of finalising the review by referring you to the GRO or other sources is not available to me.” and she finished on this aspect by saying:- “In the light of the above, I find that s. 28(2)(c) applies in relation to the age of B. W.. This has the effect of undoing the exemption at s. 28(1) and it is not, therefore, necessary for me to make findings on the other exceptions to s. 28(1) contained within that section.” The latter would appear to me to be a valid point in as much as if the prohibition on s. 28(1) is inapplicable by virtue of s. 28(2)(c), it is not necessary to consider any further issue arising under that section. She further correctly stated that the relevance of s. 28(5)(a) is that:- “It provides the potential to release, in the public interest, a record disclosing personal information which is otherwise exempt by virtue of s. 28(1).” and in as much as it has not been the subject of controversy on the appeal, I do not address it. Thus the record in question fell to be disclosed and I consider the Commissioner’s findings of fact rational and her conclusions of law correct. 57. It has been submitted on behalf of the hospital that Mr. W. (or if his daughter is to be regarded as such, she) does not “presently appear to have sufficient information to trace her next of kin without, at the very least, the information contained in the hospital records (para. 40 appellants submissions) and it is submitted that if the test applied by the respondent as to whether or not information is publicly available is incorrect, and in particular, if it is based on the level of information that the requester personally has, this is not something the hospital will ever know. It is further submitted on behalf of the hospital that it does not know anything about B. W. or what her wishes may have been with regard to the disclosure of the information (correct), and does not know if she married, had another family or had closer next of kin to the requestor, such as, for example, brothers or sisters etcetera (also correct). The latter point, of course, does not apply if the requester is her son. It is further submitted, in effect, that an indication of B. W.’s wish was the experience of the requester whereby he was turned away from a house in Galway, apparently during the 1930s. It seems to me that the information which the hospital might have (or the wishes of the person to whom the information relates) are not relevant to the issue of principle as to whether or not given records fall within para. (c) aforesaid. It must be an objective issue as to whether or not a given record is publicly available: whether or not a given holder of a record or information has any material which might indicate the wishes, say, of the person to whom the information relates or the motive for seeking it must be irrelevant. A record holder need not know the purpose for which a record might be sought or the extent to which information might be held by a given person to assist it, in deciding whether or not a record containing given information falls into this category. The information can be both personal and the subject of a public record: an example unrelated to the present case is marital status: this is personal information by virtue of s. 2(1)(b)(vi); another is information pertaining, say, to an individual’s title to property: obviously in many instances such information may be derived, say, from the Register of Freeholders of a given county. The Commissioner took the view that the ages of persons are available where births, marriages or deaths are registered, that the effort required to trace birth details will depend on the level of information already held, that where the searcher has a name (as here) it will “in principle…be possible to trace the individual’s date of birth through one or other of the G.R.O.s Registration Certificates”, and pointed out that even though the hospital had argued that many persons do not have sufficient information to obtain relevant details from the GRO, this did not detract from its availability to the general public. 58. Firstly in this connection the hospital takes issue with the conclusion reached by the Commissioner as to availability in principle: it was submitted that it was erroneous to conclude that “mere possession” of a name would be sufficient to identify the correct certificate at the G.R.O. Equally, this does not detract from the fact that the named or identified person’s date of birth is available, at least in principle. One might or might not be able in a given case to conduct a search as a matter of practicability. The argument in this respect amounts to the proposition that if there is such a paucity of information in the hands of the requester as to render it difficult or impossible, as a practicality, for him to obtain given information from the GRO it is not available to the general public, and thus that availability is to be subjectively judged. It seems to me that there is a difference between public availability and the capacity of a given person to find the information. It might be that one individual might have insufficient information for the purpose and another all relevant information. I do not think that it could be said that public availability could be subjective in this sense. To put the matter in another way, the logic of the hospital’s position is that a requester is not entitled to information which would assist him in obtaining publicly available information, and that, accordingly, because of the refusal of the hospital to give the information the same is not publicly available: it cannot cease to be available merely because a given individual has insufficient material to himself access it. If the hospital is right, in every case, public availability would depend on the state of knowledge of a party seeking to obtain the material from the public record or, in a case where this provision of the Freedom of Information Act is relevant, the party utilising the Act. 59. Counsel for the hospital has brought to my attention the decision of the Federal Court of Canada (Information Commissioner v. Canada (Minister of Public Works and Government Services) [1996] 70 C.P.R. (3rd) 37.; in that case what was in question was s. 19 of the Access to Information Act which, inter alia, provided an exemption to non-disclosure of personal information if “the information is publicly available”. The information in question was the names of former MP’s in receipt of pension benefits and the “refusing Minister” was the Minister of Public Works and Government Services. It was possible to obtain the information by a visit to the Library of Parliament and the same might also, apparently, have been gleaned from other sources such as a Who’s Who of Canada, old copies of newspapers or Elections Canada which was required by law to keep the results of all federal elections. I accept that in the instant case the information sought might have been obtained with great ease, as pointed out by Richard J. The fact of availability in the present case of age or date of birth is provided for by law. There may be cases where given information is available, say, by reference to news papers or broadcast, or say, stated in open court or the Oireachtas: this too in many cases will mean the relevant level of public availability for disclosure exists. 60. Turning now to the issue of confidentiality the relevant provisions are those at s. 26 of the Act which is as follows:- “(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if -
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law. (3) Subject to section 29, subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.” 61. Some debate was engendered by me as to whether or to what extent the hospital might have a responsibility in respect of the registration of the birth of children there under the Civil Registration Act 2004, but it seems that under ss. 19 and 30 thereof a hospital (defined elsewhere in the Act as a “qualified informant”) has a responsibility to register a child’s birth. This, so far as any birth subsequent to the entry into force of the 2004 Act is concerned, means that the hospital have a duty in given circumstances to disclose inter alia, the fact of the birth and associated information (again to put the matter shortly), which impinges, of course, on any assertion that might be made as to confidential imparting of information by a mother. I.O’T. v. B. and Others [1998] 2 I.R. 321, refers to the position relating to registration of births which pertained at the time when Mr. W. was born - this in the course of minority judgement of Keane J. as he then was. He said that:- “The relevant legislation (concerning registration) can be briefly summarised. Under s. 1 of the Births and Deaths Registration (Ireland) Act 1880, it is the duty of the parents of the child, and on their default, the occupier of the house in which to its knowledge is born and of every person present at the birth and of the person having charge of the child, to give the Registrar within 42 days after such birth information of the particulars required to be registered concerning such birth. In the case of an illegitimate child, under s. 7 of the Act no person being the father of such child is required to provide the information. The particulars required to be registered are set out in Schedule A of the Registration of Births and Deaths (Ireland) Act, 1863, and include the name and surname of the mother of the child. Section 25 of the Act of 1880 provides for the right of any person at all reasonable times to search the indexes of Births and Deaths and have certified copies of entries made. . . .” 62. The birth mother under the law in 1922 had a duty of a registration and the hospital had at least a contingent one. In fact it actually did so in this case. If only because of the former, no question of confidentiality could have arisen in respect of material (in a 1922 record) which fell to be disclosed as a matter of law. The duties under ss. 19 and 30 of the Civil Registration Act 2004, surely also destroy any confidentiality in respect of any particulars required by law to be notified to the appropriate authority. These observations and those oblogations are subject to the provisions of the Adoption Acts. 63. Thus, there was, in 1922, an analogous residual imposition in respect of registration on the hospital and of course a very significant body of information pertaining to a birth which a mother might wish to keep secret might be the subject of a hospital’s legal duty of registration (thus creating a public record). 64. The issue of what does or does not constitute confidential information has been addressed in a number of authorities both here and elsewhere and the acknowledged starting point in respect of the modern law of confidentiality is Coco v. A.N. Clarke (Engineers) Limited [1968] F.S.R. 415, where Megarry J. (as he then was), held that three elements were essential to make out a cause of action for breach of confidence, namely:- (a) that the information was of a confidential nature, (b) that it was communicated in circumstances importing an obligation of confidence and (c) that there was an unauthorised use of the information (with detriment). 65. In the instant case the plaintiff sought an interlocutory injunction to restrain the defendants from misusing information communicated to them in confidence for the purposes of a joint venture (or, it seems, on reading the report, possibly a putative joint venture) in particular, in relation to the design of an engine for a moped. Even though commercial matters were in question I think that in the present context it is of particular relevance that Megarry J. quoted Lord Greene M.R. in Saltman Engineering Co. Ltd v. Campbell Engineering Company Ltd [1948] 65 R.P.C. 203, to the effect that:- “something which is public property and public knowledge” could not:- “per se provide any foundation for proceedings for breach of confidence”. Megarry J. went on to say that:-
“But whether it is described as originality or novelty or ingenuity or otherwise, I think there must be some product of the human brain which suffices to confer a confidential nature upon the information . . .” He went on to say that it seemed to him that:- “[If] the circumstances (were) such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.” 67. The first Irish decision in point of time quoted to me in that context is House of Spring Gardens Limited and Others v. Point Blank Ltd and Others [1984] I.R. 611, a case concerning the design and manufacture of bullet proof vests. At least six of the seven defendants, being two companies and four natural persons were associated in a somewhat complex way but I think it suffices to say for the purpose of the present case that they were the recipients of information pertaining to the plaintiffs invention for the purpose of manufacturing and selling it. The Bank of Ireland was a seventh defendant but its engagement was of no relevance to the matter in hand. Costello J., in the High Court, conducted an extensive review of the case law pertaining to the issue, commencing with a case also referred to by Megarry J. as the foundation of the modern law, namely, Prince Albert v. Strange (1849) 1 HVT. On appeal to the Supreme Court O’Higgins C.J. approved as a correct statement of our law a passage from Costello J.’s judgment and the following is the quotation:- “I find these decisions of considerable assistance and with their aid I can formulate the following principles which I think should be applied in a case like the present one in which the court’s equitable jurisdiction is invoked in relation to the law of confidence. The court, it should be borne in mind, is being asked to enforce what is essentially a moral obligation. It must firstly decide whether there exists from the relationship between the parties obligation of confidence regarding the information which has been imparted and it must then decide whether the information which was communicated can properly be regarded as confidential information. In considering both (i) a relationship and (ii) the nature of the information, it is relevant to take into account the degree of skill, time and labour involved in compiling the information. As to (i) if the informant himself has expended skill, time and labour on compiling the information, then he can reasonably regard it as of value and he can reasonably consider that he is conferring on its recipient a benefit. If this benefit is conferred for a specific purpose then an obligation may be imposed to use it for that purpose and for no other purpose. As to the (ii) if the information has been compiled by the expenditure of skill, time and labour by the informant then, although he has obtained it from sources which are public, (in the sense that any member of the public with the same skills could obtain it had he acted like the compiler of the information) the information may still, because of its value, be regarded as ‘confidential’ information and subject to an obligation of confidence. Furthermore, the court will readily decide that the informant correctly regarded the information he was imparting as confidential information if, although, based on material which is accessible to the public, it is of a unique nature which has resulted from the skill and labour of the informant. Once it is established that an obligation in confidence exists and that the information is confidential, then the person to whom it is given has a duty to act in good faith, and this means he must use the information for the purpose for which it has been imparted, and he cannot use it to the detriment of the informant.” 68. Even though O’Higgins C.J. did not refer to it Costello J. based his decision inter alia on the judgment of Megarry J. aforesaid. Both of these cases arose in the commercial context: obviously in the present case no benefit was conferred on the hospital by the fact that B. W. imparted information pertaining inter alia to her age to it and, similarly, information was not compiled by the expenditure of skill, time and labour by B. W. as informant. The relevant conclusions which one reaches on the basis of these authorities, accordingly, is firstly the fact that the three elements to which reference was made by Megarry J. are necessary to make out a cause of action and, secondly that “something which is public property and public knowledge” does not have the necessary quality of confidence unless it is of a unique nature which has resulted from the skill and labour of the informant. The necessity to expend some labour in ascertaining B. W.’s age from the G.R.O., to a greater or lesser degree, does not cause the information contained in the record to fall into the category of information ultimately generated from matters in the public domain in that sense – plainly what is in contemplation here are the type of plans or specifications at issue in these two cases. 69. In Sheedy the documents in question were school reports and the parties agreed (a course approbated by the Court) that the law of Ireland was that in House of Spring Gardens, approving Coco, so far as the definition of confidentiality was concerned. In Gannon v. The Information Commissioner (Unreported, High Court Quirke J. 31st January, 2006) the request sought access to records pertaining to an application by a third party for legal aid, and Quirke J. approved the definition of “confidence” adopted by the Commissioner (from, apparently, an essay entitled “Breach of Confidence” by one F. Gurry in “Essays in Equity” published in 1985 in Australia) as follows:- “A confidence is formed whenever one party ““the confider” imparts to another (“the confidant”) private or secret matters on the expressed or implied understanding that the communication is for a restricted purpose.” 70. The Commissioner, erroneously in my view, said that because of the fact that Mr. W. knew the name of his mother and some other details about his birth she could not:- “accept that information about his mother’s age can be treated as having the necessary quality of confidence.” As I have said above, I am of the view that whether or not a party knows enough information, say, to identify the date of birth and hence the age of another, does not detract from the fact that such information is in the public domain, because to adopt this approach would be to apply a subjective test. I do not, however, consider that this error of law undermines the factual conclusion reached that the material was in the public domain. 71. In National Maternity Hospital v. Information Commissioner [2007] 3 IR 643 the course adopted by the Commissioner in relying upon the principles identified by Megarry J. and Costello J. as aforesaid in addressing the issue whether or not given information had the necessary quality of confidence, in the context of the application of s. 26 of the Act was approved. McMahon J., in Health Service Executive v. The Information Commissioner, once more applied Coco and House of Spring Gardens, again, also, approving the definition of “breach of confidence” used by the Commissioner. I have been referred to Sutherland v. Canada [1998] CanLll 3493 (F.C.) where one of the issues pertained to confidentiality as contemplated by the Canadian Access to Information Act but I see no establishment of any new principle therein; the Court was merely satisfied that the onus of proof on the Minister (from whom the relevant information or record had been sought) had not been discharged, on the facts, in the immediate context of the Act. I was also referred to N. McK. v. The Information Commissioner [2006] 1 IR 260 where elements of s. 28 of the Act fell to be considered but the case concerned access by a parent to the medical records of a child and is not of assistance here accordingly. 72. I accordingly consider that the Commissioner was right when she reached the view that, as a matter of law, information in the public domain could not concern “private or secret matters” (being necessary elements of the test of confidentiality): this conclusion is not at variance with the conclusion that the material contains personal information 73. Of course, B. W. so far as she may have adverted to it all, may have imparted the information in question in anticipation of the fact that it would not be disclosed by the hospital, but I do not think it can be said that if a party subjectively believes that confidentiality will be imported where, objectively speaking, material is not, of its nature, confidential access, thereto, all else being equal, can be denied under the Act. Of course, it might well be the case that the hospital, in addition, did not anticipate disclosure of the information and, indeed, it might, in a given case, if not in the present one, be the hospital’s obligation not to disclose to third parties, even if it was in the public domain. Absent the Act, it might or might not be lawful to disclose the information but if the only factor inhibiting disclosure is the prohibition on the grant of a request, under s. 7, by virtue of s. 26(1) the exemption from disclosure thereby created has no application because of the absence of the quality of confidentiality. This is because, no matter what the parties thought, it seems to me that the test must be objective when one is addressing what is or is not confidential. There is, of course, somewhat of a contradiction between the Commissioner’s conclusion as a matter of law that information available to the public through the general registration office could be concerned with private or secret matters and her acceptance that:- “Ms. W.’s imparting of information to the hospital, was, in a very general sense, concerned with ‘private and secret matters.’” but I do not believe that this finding (expressing a generality) inhibits me from ultimately approbating her conclusions. 74. In submissions, reference has been made to the fact that the regulation in question provides for access “subject to the other provisions . . .” of the Act. This of course does not detract from what I have said, in as much as any apparent entitlement to access whether unqualified or not is subject to those provisions. 75. Controversy arose at the hearing as to whether or not the Commissioner had relied upon s. 28(6)(b) of the Act in her decision. Ms. Butler on behalf of the Commissioner argued that it was plain from the tenor of the decision that, on this ground also, the Commissioner had directed disclosure and she said that she was instructed that this was the case. Counsel for the hospital took objection to reliance by the Commissioner on this provision, effectively on the basis that there could be no appeal from something which was not decided, though as we know, on the contrary, it was argued on behalf of the hospital (and I have here held in favour of the hospital) that a new point of law could be raised on appeal, (though no new evidence adduced). I will not quote the relevant passage from the decision, in extenso, but the hospital’s objection to reliance upon that provision and hence adjudication in favour of the Commissioner’s decision on that ground appears to derive from the following passage:- “Given my finding above that s. 28(1) does not apply in this particular case (disapplied by virtue of s. 28(2)(c)), it is unnecessary to address this issue here in any detail. However, I think it is relevant to note that, even if the s. 28(1) exemption were found to apply, it is likely that the records relating to your late grandmother would fall to be released under the FOI Act, to you and your father in accordance with s. 28(6)(b) provisions.” It seems to me, however, that the nature of this appeal is of sufficient flexibility to allow the issue to be addressed (whether or not it might be considered at the core of the decision). None of the authorities deal with new issues raised by the Commissioner contrary to the position which pertains in respect of points of law sought to be raised (and in one case an issue of fact), (as dealt with above), by appellants for the first time on appeal. I consider that the statement of principle of Kearns J., in Sheedy (referred to above at para. 16) permits a court to address it even if it is to be regarded as new and, further, I think that it is fair to draw an analogy between consideration of a new point of law at the behest of an appellant and the far less significant reliance upon a matter fully canvassed below by the Commissioner. The matter was very extensively canvassed in the Commissioner’s preliminary view as set out in her letter of the 19th June, 2006, to the hospital and their reply, consisting of their letters to her of the 13th and the 19th July, following. In any event it is a very nice point indeed as to whether or not the provision was not so relied upon on the decision. 76. The provisions of the Regulations contemplated by s. 28(6), being Regulations made by Statutory Instrument No. 47/1999 and entitled “Freedom of Information Act 1997 (s. 28(6)) Regulations, 1999 are to the effect that notwithstanding s. 28(1) disclosure requests must be granted where made, inter alia, by:- “the spouse or a next of kin of the individual or such other person or persons as the Head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister”. (Regulation 3(1)(b)(iii). But the hospital says that in the context of disclosure decision under this head, the hospital is:- “placed in the almost impossible position of having to judge whether the patient in question should be assumed to be alive or dead.” I do not agree. To take an obvious case, a judgment would have to be made by the hospital on the basis of, say, production of a death certificate. It might be thought at first glance that this is a trite example but nonetheless, however easy, indeed inevitable, the judgment might be, judgment must be exercised. The position of the hospital in this regard seems to amount to the proposition that because judgments are difficult it would be put in an “impossible position”. Judgments have to be made every day on matters great or small, and, when a public body subject to the Freedom of Information Acts is called upon to disclose a given record, calling for judgments of greater or lesser seriousness, ease or difficulty (depending on the issues of fact or law which may arise) the position is no different. The proposition might further be regarded as one which excludes, in the case of a debate as to whether or not someone is deceased, a duty to decide because it would be impossible to do so or an obligation to decide only where one answer is almost automatic. The record accordingly falls to be disclosed under s. 28(6)(b). 77. With respect to the definition of “next of kin” it is submitted that the phrase “next of kin” is “uncertain in scope” and that the (Minister’s) Guidance Notes include children of the deceased (but say nothing about grandchildren). According to Collins Concise Dictionary (1999 Ed.), next of kin means:- “A person’s closest relative.” and according to Murdoch’s Dictionary of Irish Law it means:- “Those who stand nearest in blood relation to an intestate” and in Stroud, inter alia, as:- “Nearest in blood” and “The primary and proper meaning of “next of kin” is the nearest in proximity of blood (whether of the whole or half blood) and is distinguished from those entitled under the Statute(s) of Distribution.” 78. The Statute(s) of Distribution dealt with devolution of personality in a death intestate. With respect to the Succession Act as to “ascertainment of next of kin” s. 71(1) is to the effect that:- “Subject to the rights of representation mentioned in . . . the person or persons who, at the date of death of the intestate, stand nearest in blood relationship to him shall be taken to be his next of kin.” 79. Section 70 provides for shares in the estate of a deceased intestate in certain circumstances and in particular provides that where:- “An intestate dies leaving neither spouse nor issue nor parent nor brother nor sister nor children of any deceased brother or sister, his estate shall, subject to the succeeding provisions of this Part, be distributed in equal shares amongst his next of kin.” 80. The hospital submits that the term “next of kin” is unclear. Section 70 is directed to succession in a case where a spouse (who is not of course a next of kin) and persons who undoubtedly fall into that category, are deceased. One might, of course, say that it is unnecessary to make reference to parents, siblings and their children: frankly, I cannot believe that such an unnecessary reference (and it is at most that) was intended to depart from the meaning of the term “next of kin” as known for centuries and while s. 71(1), is not expressly called a definition provision, is in substance such a thing. I am of the view that no confusion or doubt is imported into the meaning of the term as submitted and, further, it is plain that the ordinary and natural meaning of the phrase is the same when one uses or regards it as a term of art or not. Ms. McDonagh in Freedom of Information Law (2nd edition) quotes the Guidance Notes for the purpose of the Regulations as being to the effect that:- “Next of kin are described (in accordance with the Succession Act 1965) as follows:-
- child or children of the person to whom the record relates, then - parents or surviving parent of the person to whom the record relates, then - brothers and sisters of the person to whom the record relates, then - nephews and nieces of the person to whom the record relates, then - the person or person who, at the date of death, stand nearest in blood relationship to the person whom the record relates, then’” 82. The Guidelines, in fact, do not extend the class or classes of persons to whom access might be afforded and this undoubtedly poses a difficulty for any head in the exercise of his discretion, because if the Guidelines go no further than making provision for spouses and next of kin and he must have regard to both those Guidelines and all of the circumstances he could not, presumably, give access wholly disregarding the former, although obviously I express no concluded view on this point, since it does not arise in this case. On the view I have taken it may or may not be the case that there is a misconception on the part of the Minister as to whether or not, say, in the case of next of kin, guidelines are necessary at all. Or, to put the matter another way, it is perhaps possible that the Minister wrongly conceived the word “or” should be ignored and that discretion was vested in respect of all. 83. In the ordinary and natural meaning of the words there is no discretion but to grant access to the information in question in the case of a deceased person. Two objections are taken to reliance upon s. 28(6)(b) by the Commissioner, firstly, that pertaining to identity (which I have dealt with above) and, secondly, that the requestor has been unable to establish that B. W. is dead. I pass over, for the moment, the issue of whether or not, where a request is made pursuant to s. 7 of the Act, it is up to the party holding the record (where the Acts are applicable) (“the Head”) to justify to the Commissioner a refusal to disclose and in particular, presumably, to prove facts so justifying it. The responsibility lies upon the established next of kin to show death, and I consider that the appropriate standard of proof (as referred to above in the context of identity) is proof on the balance of probabilities. No authority has been opened to me on as to how one might prove the death of, say, one’s mother or grandmother where one had had no contact with her since birth. In the absence of any direct evidence from which the inferences could be drawn, rendering it improbable that she was still alive, one is thrown back upon consideration of the age the identified person might now be. Assuming that the minimum age at which birth might have been given was 14 in 1922, one is now dealing with a person of 101 years of age. The age is known to the hospital, which is fundamental to whether or not, as a probability she is alive, and the capacity to rely upon the Regulations is diminished because of the non-disclosure of a fact relevant to deciding whether or not, as a probability, B. W. is dead. It seems to me, in any event, that any view as to death formed by the Commissioner was not irrational and hence is not capable of being impugned. 84. If anything the Guidance Notes are imprecise. In any event what the notes do, is include children in the relevant definitions. Thus the entitlement to disclosure under this head is unambiguously clear. 85. I am of the view, having regard to the documentary material which has been disclosed, i.e., the fact that B. W. gave birth in 1922, she must surely, as a minimum, have been in her teens and that she is not one of the oldest people in the country but is, as a probability, dead. Thus, in point of law the record falls to be disclosed, all else being equal. In this context I note that in their submissions counsel for the hospital say that:- “The respondent’s decision presumes the patient is deceased. It is not clear why someone who gave birth in 1922 should necessarily be presumed to be deceased at the end of 2007, albeit that this may be likely to be the case.” 86. The hospital are right in this respect. The matter could be established beyond a reasonable doubt if one had the age, of course. 87. Even though she had decided that the information was not confidential the Commissioner then went on to consider whether or not disclosure should take place on the basis that the public interest would “on balance” be better served by granting rather than refusing to grant the request. The following factors were considered by the Commissioner, (a) One of the requester’s, (and) in any event, T. J. W. is the son of B. W. (an undoubted fact and, in any event, whatever else a conclusion rationally reached). (b) That the public interest in persons generally having the fullest possible information on their origins is a strong one. 88. This aspect of the matter was canvassed extensively and, as I understand it, it may have wider application. She did not consider all relevant factors and was thereby in error. I hesitate to address this issue since the exercise of discretion does not arise: it would do only if the material is confidential. However a number of general observations may be of assistance to the parties due to the other cases which arise. 89. In I.O’T. v. B. it was held that the right to be told the identity of ones mother is an unremunerated right under Article 40.3 of the Constitution, though not, of course, absolute and, of course, it may be restricted by the State’s duty to respect and vindicate the right of the mother to privacy and confidentiality. It was a case stated from the Circuit Court pursuant to the provisions of s. 16 of the Courts of Justice Act 1947 and the plaintiffs were children born before the enactment of the Adoption Act 1952 (and were “informally adopted” in 1941 and 1951 respectively). It is clear from the report that they were born out of wedlock. By a majority (Keane J. dissenting), and as appears from the judgment of Hamilton C.J., it was held that:- “The right to know the identity of ones natural mother is a basic right flowing from the natural and special relationship which exists between a mother and her child, which relationship is clearly acknowledged in (certain) passages (by him) quoted from the judgments of the Supreme Court in The State (Nicolaou) v. An Bord Uchtála [1966] I.R. 567 and G. v. An Bord Uchtála [1980] I.R. 32) and he further said that: ‘The existence of such right is not dependent on the obligation to protect the child’s right to bodily integrity or such rights as the child might enjoy in relation to the property of his or her natural mother but stems directly from the aforesaid relationship It is not, however, an absolute or qualified right: its exercise may be restricted by the constitutional rights of others, and by the requirement of the common good. Its exercise is restricted in the case of children who have been lawfully adopted in accordance with the provisions of the Adoption Act, 1952 as the effect of an adoption order is that all parental rights and duties of the natural parents are ended, while the child becomes a member of the family of the adoptive parents as if he or she had been their natural child.” 90. As to the rights of the natural mother (giving rise to a restriction on such right of the child) Hamilton C.J. said:- “While they enjoy the constitutional right to know the identity of their respective natural mothers, the exercise of such right may be restricted by the constitutional right to privacy and confidentiality of the natural mothers in respect of their dealings with … (a society which had provided for an “informal” adoption) … whether they are so restricted depends on the circumstances of the case and whether they, or either of them, wish to exercise this right to privacy.” and further, “(Where) there is a conflict of constitutional rights, the obligation on the courts is to attempt to harmonise such rights having regard to the provisions of the Constitution and in the event of a failure to so harmonise, to determine which right is the superior having regard to all the circumstances of the case. So far as the applicant and the plaintiff are concerned, the court must decide whether their constitutional rights outweigh the constitutional and legal status of their natural mothers.” 91. A number of decisions of the European Court of Human Rights appear to me to be relevant having regard to the provisions of s. 2 of the European Convention on Human Rights Act 2003. Section 2 as we know, is to the effect that in interpreting and applying any statutory provision or rule of law the Commissioner or the Court must, so far as possible, and subject to the rules of law relating to interpretation and application do so in a manner compatible with the State’s obligation under the Convention provisions and, hence, I believe that in exercising any administrative discretion whether by the head of a public body, as defined by the Act, or the Commission the provisions of the Convention, as elaborated in the case law, are relevant. 92. I need hardly refer, of course to the axiomatic proposition that all statutory provisions or powers exercisable thereunder must be interpreted, applied and exercised in a manner which indicates the constitutional rights of citizens or corporations. 93. I have already referred to South Western Area Health Board in the context of the appropriate procedure to be adopted but I now turn to its substance in this context; there, the requestor had been adopted under the Adoption Acts and contact had been made by the Health Board with the birth mother who declined contact, stressing the traumatic circumstances of her out-of-wedlock pregnancy that she had faced, facing the anger of her husband due to the inquiries which had caused her to seek medical advice and treatment. Smyth J. stated that: “The concerns of the birth mother were not only for her good name and reputation, but principally for the harming of her marriage and stability, cohesion and protection of her family”. and in forming the view that he did that the Commissioner failed he said:- “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, the opportunity to make representations in support of the rights she sought to protect”. (The Commissioner had ordered disclosure of certain material which might have served to identify the birth mother). 94. Smyth J. went on to say that:- “In this case the birth mother was given an assurance at her time of greatest vulnerability (in age and emotional involvement) that whatever else confided and disclosed to the health authority would be treated in confidence. If the constitutional aspiration that the State (in its several emanations) 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 after of transparency and a contemporary passion for accountability, that tragic circumstance 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 new born babies in church porches, car parks or garbage bins may continue into the future because there is no one in whom they can completely trust or confide”. 95. What was sought to be done by the Commissioner and subsequently by the Court in that case was to balance the public interest in disclosure with the rights of birth mother and her family. IOT did not of course pertain to the Freedom of Information Act, although it did pertain to an attempt to obtain information leading to the identification of a birth mother and, hence where identification is in issue, it is plain that the constitutional rights of the birth mother, requester and hospital would fall to be considered and balanced by the Commissioner. I know of no authority for the proposition that there is a right beyond an entitlement to know the identity of one’s parents, however. 96. We simply cannot speculate as to whether or not there were relatives surviving B. W. and I cannot see how one could suggest that anyone’s constitutional right could be engaged if one did not know whether or not he or she existed. No rights inhere in the late B. W. but there may well be cases which the hospital or the Commissioner might have to confront where it could not conclude that death had occurred, in which event any rights as to privacy of the mother would become engaged. It is the right of the hospital which the Commissioner failed to take into account here. Vindication of constitutional rights is of course itself in the public interest. In addition she failed to have regard to any aspect of public policy beyond that favouring disclosure or the provisions of Article 8 of the Convention as elaborated upon in the case law. 97. The decision of the European Court of Human Rights which is of most assistance to me Odievre v. France [2004] 38 EHRR 43. In that case the natural mother in 1965, effectively, (and I summarise somewhat) surrendered the applicant for adoption and invoked provisions of the French Civil Code giving rise to an entitlement on her part to the maintenance of confidentiality. In 1998 the applicant applied to the appropriate French Court for an order for the:- “Release of information about her birth and permission to obtain copies of any documents, birth, death and marriage certificates, civil status documents and full copies of long form certificates”. It was apparently the case that she had learned that her natural parents had had a son in 1963 and two other sons in 1965 and information had been refused to her by the relevant French administrative authority concerning:- “the civil status of her siblings on the grounds that disclosure would be breach of confidence, …”. A considerable body of information was afforded to her, in fact concerning her natural parents but this did not identify them. The court said:- “In the instant case, the Court notes that the applicant’s purpose is not to call into question her relationship with her adopted parents but to discover the circumstances in which she was born and abandoned (not, in the context of the case, a pejorative term) including the identity of her natural parents and brothers. For that reason, it considers it necessary to examine the case from the perspective of private life… since the applicant claimed to be entitled, in the name of biological truth, to know her person history is based on her inability to gain access to information about her origins and related identifying data. In those circumstances the court said that:- “Article 8 protects a right to identity and personal development and the right to establish and develop relationships with other human beings and the outside world… The preservation of mental stability is in that context indispensable precondition to effective enjoyment of the right to respect for private life. Matters of relevance to personal development include details of that person’s identity as a human being and the vital interest protected by the Convention in obtaining information necessary to discover the truth concerning important aspects of one’s personal identity, such as the identity of one’s parents. Birth, and in particular the circumstances in which a child is born, forms part of a child’s, and subsequently the adults, private life guaranteed by Article of the Convention. That provision is therefore applicable in the instant case.” The court went on to say that the:- “The expression “everyone” in Article 8 of the Convention applies to both the child and the mother. On the one hand, people have the right to know their origins, that right be derived from a wide interpretation of the scope of the notion of private life. The child’s vital interest in its personal development is also widely recognised in the general scheme of the Convention. On the other hand, a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions cannot be denied… The two private interests with which the court is confronted in the present case are not easily reconciled: moreover, they do not concern an adult and child, but two adults, each endowed with her own free will”. Furthermore the court also said that:- “There is also a general interest at stake, as the French legislature has consistently sought to protect the mother and child’s health during pregnancy and birth, and to avoid abortions, in particular illegal abortions, and children being abandoned other than under the proper procedure. The right to respect for life, a higher ranking in value guaranteed by the Convention is thus one of the aims pursued by the French system”. Obviously, of course, a right such as the right to life of the natural parents or siblings of the applicant in the case in question is the greater right. The rights of a child under the Convention are thus substantially the same as those under the Constitution. 98. I also was referred to Campbell v. M.G.N. Limited, [2004] 2 AC 457. That claimant was described as “an internationally famous fashion model who had courted publicity, volunteered information to the media about her private life and averred publicly, but untruthfully, that she did not take drugs” and a newspaper published material to the effect that she had a drug addiction and was receiving therapy, affording information as to the details thereof. She conceded that the newspaper was entitled to publish the fact of her drug addiction and the bare fact that she was receiving treatment but alleged that it had acted in breach of confidence by:- “Obtaining and publishing the additional details of her therapy at the group meetings (such meetings being part of the therapy) and (certain) photographs (relating thereto), which latter had apparently been taken covertly. One of the issues which arose was whether or not there had been a breach of Article 8. It was held by the House of Lords that:-
“Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community”. It seems to me that this encapsulates the case which the hospital advance as a ground for maintaining the confidentiality of the information in question. 99. I have been referred to a number of decisions which need not be dealt with in detail, having regard to those which I have already referred, namely Gaskin v. United Kingdom, [1990] 12 EHRR 36 (access by a person formerly in care to certain confidential records pertaining to him) M.G. v. United Kingdom, [2003] 36 EHRR 3 (access to social service records for the purpose of establishing whether or not the father of the applicant had ever been investigated for or convicted of crimes against children). Jaggi v. Switzerland, [2008] 47 EHRR 30 (right to an effective test for the purpose of establishing the paternity of a putative biological father), Mikulic v. Croatia, (Unreported) (Application No. 53176/99 7th February, 2002/4th September, 2002) (disposition of proceedings within “reasonable time” )and Peck v. United Kingdom, [2003] 36 EH RR 41 (allegation of a breach of a right to privacy because of disclosure of certain CCTV footage of the applicant, in a public place, in the process of attempting to commit suicide). 100. Two further English decisions, namely W. v. Egdell, [1990] 1 All ER 835 and X. v Y. [1988] 2 All E.R. 648 are of somewhat greater assistance. In the first of these a psychiatrist was retained on behalf of the plaintiff who was detained in a “secure hospital” indefinitely as a potential threat to public safety after he had shot and killed five people and wounded two others. He sought a transfer to a “regional secure unit” apparently “with a view to his eventual discharge”, by application to a Mental Health Review Tribunal. His solicitors retained a physiatrist on his behalf for the purpose of the application but the psychiatrist strongly opposed that transfer and recommended inter alia that further tests and treatment of the plaintiff would be advisable. Concerned to learn, thereafter, the psychiatrist informed that the report had not been furnished to the hospital authorities and he was sued inter alia for damages for breach of a duty of confidence. The action failed since it was held that:- “As between the competing public interest in the duty of confidentiality… and the public interest in disclosure of the report, the balance came down decisively in favour of disclosure because the number and nature of the killings… were such that decisions leading directly or indirectly to (the plaintiff’s release from a secure hospital should not be made unless the authorities responsible… were properly able to make an inform judgment that the risk of repetition of the killings was so small as to be acceptable. Accordingly, since (the psychiatrist) had highly relevant information about (the plaintiff’s condition) he had been justified in passing it on to those responsible for making decisions… because the suppression of that information would have deprived the hospital and the Secretary of State of information which was relevant to questions of public safety…” 101. The question arises as to whether or not, if B. W. is dead, she can enjoy any constitutional rights or, to put it another way, that her personal representatives could assert such rights and that they may be vindicated on her behalf by them. She could have no right to life or surely anything of the nature of a right going to the nature of the human personality or freedom of expression or liberty nor a right against self incrimination or to marry (to take a number of constitutional rights at random). I find it hard to accept any such right could ever arise. Privacy is a highly personal right and surely it must be a case that such a right could not arise, accordingly. The only authority which I can find on this point is Murray v. the Commission to Inquire into Child Abuse and Others [2004] 2 I.R. 222, where it was sought by the plaintiffs to restrain the investigation by the Commission of certain allegations of abuse (including allegations pertaining to dead persons). Abbot J. said that:- “The contention that deceased persons enjoy constitutional rights is very difficult to sustain based upon the text of the Constitution insofar as such a right could be construed from Article 40.3.2 which is directed to making provision for the good name of persons as citizens, which dead persons are not.” 102. He referred to McCann v. The United Kingdom [1995] 21 EHRR 97, but that was a case which addressed the issue of whether or not states had an obligation when an individual was killed by one of its agents (I attenuate the matter considerably) to investigate the circumstances of such deaths. He also referred to Hilliard v. Penfield Enterprises Limited [1990] 1 I.R. 138, where there is however, no reference to constitutional rights but which, in any event, hinged upon allegedly false allegations made about a deceased person made by the defendants newspaper Abbot J. said that the case:- “Supports the view that because the deceased are neither alive nor citizens they have no personal rights.” It seems to me that Abbott J., accordingly, did not finally decide the matter but I regard his views as being of considerable assistance in forming mine. I am of the opinion that no right to privacy exists in deceased persons 103. The question also arises, in my view, as to whether or not or to what extent constitutional rights may be enjoyed by the hospital. The existence of constitutional rights in favour of corporations was rejected by Carroll J. in Private Motorists Provident Society v. Attorney General [1983] I.R. 339, Costello J. in Kerry Cooperative Creameries v. An Bórd Bainne [1990] I.L.R.M. 664, and Murphy J. in Chestvale Properties Limited v. Glackin [1992] I.L.R.M. 221. It was held in due course by Keane J. (as he then was) that the constitutional guarantee of private property can inhere in a corporation in Iarnrod Éireann v. Ireland [1996] 3 I.R. 321, where he. said that:- “Undoubtedly, some at least of the rights enumerated in Article 40, s. 3(2) – the rights to life and liberty – are of no relevance to corporate bodies and other artificial legal entities. Property rights are, however, in a different category. Not only are corporate bodies themselves capable in law of owning property, whether movable or immovable, tangible or intangible. The ‘property’ referred to clearly includes shares in companies formed under the relevant companies legislation which was already a settled feature of the legal and commercial life of this country at the enactment of the Constitution. There would accordingly be a spectacular deficiency in the guarantee to every citizen that his or her property rights will be protected against ‘unjust attack’ if such bodies were incapable in law of being regarded as ‘citizens’ at least for the purposes of this Article, and if it was essential for the shareholders to abandon the protection of limited liability to which they are entitled by law in order to protect, not merely their own rights as shareholders, but also the property rights of the corporate entity itself, which are in law distinct from the rights of the members.” 104. In Competition Authority v. Irish Dental Association [2005] 3 I.R. 208, a warrant to search was held bad and an issue arose as to whether or not evidence obtained by reason of the search was admissible. It was submitted on behalf of the defendant that there was a breach of the defendants constitutional rights of association, expression and privacy and that the breaches of those rights were conscious and deliberate such that any evidence obtained thereby should be excluded by virtue of the well known decision of the People (DPP) v. Kenny [1990] 2 I.R. 110. According to the report counsel for the plaintiff agreed that: “The defendant did possess and was entitled to exercise constitutional rights, such as those of association and expression.” 105. It was held that the exclusionary rule in question applied and the fruits of the search were excluded from evidence. As to those rights McKechnie J. said that:- “Applying those principles (i.e. those pertaining to the operation of the exclusionary rule) to this case for a moment, I am satisfied that the defendant has constitutional rights and that such rights of freedom of expression, most certainly, and probably also that of privacy, are not too remote so as to exclude their application to the present circumstances. Those rights to be enjoyed by an association like the defendant can have no greater application than to the business in which it is involved. Consequently in my view, given that the search warrant was illegal and given the existence of those rights, I have come to the conclusion that, subject to the caveat later mentioned (which is irrelevant in the present case), the activities carried out by the plaintiff on the occasion in question, did constitute a breach of the defendants constitutional rights.” 106. Further, in Bupa Ireland Limited and Another v. Health Insurance Authority and Others, [2008] IESC 42 the learned Chief Justice, Murray C.J., in dealing with the interpretation of the Health Insurance Act 1994 said that:- “Again, where the Legislature is enacting provisions, however sound the reasons for them may be, which have potentially serious implications for legal rights, including constitutional rights, of persons or corporations, one must expect that the intended ambit or application of such provisions will be expressed in the legislation with reasonable clarity.” 107 As can be seen from Iarnrod Éireann, the rationale for the acceptance of the existence of such a right was inter alia that the guarantee to citizens of their property rights would not be protected from unjust attack if corporations in which they owned shares were incapable in law of being regarded as “citizens”: otherwise it would be necessary for them to abandon the protection of limited liability to inter alia protect their rights as shareholders. One might add that one might effectively be deprived of one’s property rights, if a corporate entity in which one had shares was subjected to what would otherwise be unjust attack in terms of its property rights. It seems to me that it can properly be said that unless a right to privacy inhered in the hospital, apart from any other factor, the rights of third parties, and not merely the right to privacy but perhaps the right to life itself, might be incapable of vindication or not adequately protected from unjust attack. In any event, it seems to me that, as in the case of the Irish Dental Association, the hospital’s right to privacy can have:- “No greater application than to the business in which it is involved.” 108. The proposition has been advanced that the rights of more remote parties such as prospective or putative siblings or perhaps a widowed spouse of a mother might be infringed, (in particular a right to privacy) by disclosure of information, say, about the fact of motherhood of which such persons knew nothing. I would have to question whether or not the right extends that far. It might extend to some more immediate intrusion or some more egregious impingement but, at bottom, it would be necessary to say that the right to privacy enjoyed by such persons extends to a right not to have made known to another member of one’s family (at least in the case of siblings about them) information about one. Even if the rights of third parties (whether under the heading of rights to privacy or otherwise) extend to limitations on the provision of information which might allow such persons to be identified (the natural mother, say, being dead) it seems hard to see that there would be circumstances in which their rights could not but be outweighed by the constitutional right to know the identity of one’s natural mother. 109. It seems to me that “the business” of the hospital, and (it is in that business that its rights can only arise), may be summarised as one which imports of a medical confidentiality both simplicitor and because crisis pregnancies are dealt with there, (I do not think I need elaborate on the point) for therapeutic purposes the utmost candour must be encouraged on the part of patients (something which must be at risk proportionate to the extent or nature of disclosure) and that as a matter of public policy abandonment of children or abortion should be avoided or discouraged. Furthermore, it seems proper to say that it is the business of the hospital to protect the rights of its patients, including, in the present context, their rights to privacy, apart from any public policy favouring privacy which is fundamental thereto. Whilst I cannot, with respect, agree with Smyth J.’s reference to the sacrifice of the rights of individuals, in what he describes as the “altar of transparency”, and a “contemporary passion for accountability” – in as much as the legislature has decided transparency and accountability are desirable and these are factors which, in themselves, are relevant in any adjudication by the Commissioner, in terms of public policy. One might say however that both as a matter of public policy and the vindication of the hospital’s rights (even where no rights inhere in the mother) require the greatest assurance possible of confidentiality to patients at their time of “greatest vulnerability” (in age and emotional involvement) and that (to quote Smyth J. further):- “whatever she confided and disclosed… would be treated in confidence”. and furthermore:- “[T]he 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 new born babies in church porches, car parks or garbage bins may continue into the future because there is no one in whom they can completely trust or confide must be taken into account.” 110. I think, with respect to Smyth J., that the latter phenomena have declined to vanishing point in our jurisdiction but the point nonetheless remains especially in the context of the use of abortion and the protection of the rights of the unborn. These are matters of public policy, as much as factors to be taken into account when adjudicating on the nature and extent of the rights of the hospital. 111. I summarise the position as follows, accordingly – (a) I am entitled, and do, address a fresh or new issue of law even when not canvassed or dealt with by or before the Commissioner. I am not entitled to receive additional evidence since the appeal is on a point of law only, (b) The new issue raised by the hospital is that of whether or not the record in question, created, as it was, before the commencement of the Act, falls within the Act’s ambit. This is dependent on whether or not the information contained in the record is personal information which relates to Mr. W.. (c) In as much as such information is personal information which relates to him, the Act is applicable. (d) The question arises as to whether or not the record contains information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significance size and is available to the general public: it is. (e) Whether or not it was, in strictness, part of the Commissioner’s decision I consider that Mr. W. as next of kin of the late B. W. has an entitlement to access by virtue of the provisions of s. 28(6)(b); falls within the class of persons entitled to disclosure by virtue of the regulations made by S.I. No. 47/1999: (f) That the record does not enjoy the necessary quality of confidentiality for the purpose of prima facie prohibiting disclosure, under the provisions of s. 26 of the Act. (g) No necessity arises to consider the discretionary disclosure of either personal information or confidential information but in as much as the latter was addressed by the Commissioner and at the hearing, I have sought to address certain principles which must be applied by the Commissioner when exercising the latter discretion. 112. I therefore dismiss this appeal.
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