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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K -v- Information Commissioner [2013] IEHC 373 (24 July 2013)
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Cite as: [2013] IEHC 373
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Judgment Title: K -v- Information Commissioner Neutral Citation: [2013] IEHC 373 High Court Record Number: 2012 415 MCA Date of Delivery: 24/07/2013 Court: High Court Composition of Court: Judgment by: O'Malley J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 373 THE HIGH COURT Record No. 2012/415 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS, 1997 AND 2003 Between/ L. K. Appellant -and-
THE INFORMATION COMMISSIONER Respondent -and-
THE HEALTH SERVICE EXECUTIVE Notice Party Judgment of Ms. Justice Iseult O'Malley delivered the 24th July. 2013 Introduction 2. The Appellant seeks the following orders:
ii. An order to hand over a hard copy of the Section 20 report under the Childcare Act, 1991. 3. In early 2009, an application was made to the District Court on behalf of the notice party for a Supervision Order, pursuant to the provisions of the Child Care Act, 1991 in respect of the appellant's child. 4. For the purposes of the proceedings a social worker prepared a report for the District Court setting out, inter alia, the concerns and recommendations of the notice party in respect of the child. 5. A copy of the report was furnished to the appellant on 27th May, 2009. However, on the 26th August, 2009, the learned District Judge directed a member of An Garda Síochána present in the court to remove the report from the appellant's possession. This was done, in court, after a search of the appellant's belongings. It appears that this order was made because of assertions by the solicitor for the notice party that the appellant had confronted her child in respect of the contents of the report and that this had caused the child some distress. 6. The appellant's child is now in care. Understandably, the appellant is very upset by her situation, for which she believes there is no justification. She did not pursue an appeal to the Circuit Court but she has taken unsuccessful judicial review proceedings in respect of the care and custody orders. 7. During the hearing of this appeal, at the suggestion of Senior Counsel for the notice party, I adjourned the case to permit the appellant and the notice party to return to the District Judge and apply for a copy of the report. The court was told that the notice party would, at this stage, support such application. 8. The learned District Judge facilitated the process and heard the application, but acceded to it only to the extent of permitting the appellant to read the report but not to have a copy. She did not consider this to be sufficient for her purposes and the case therefore resumed before this court. The Freedom of Information Request 10. By letter dated 7th September, 2011 her request was refused in the following terms:
"the Health Service Executive Social Worker- [M.M.], illegally written and containing false statements to the[...] District Court, Section 20 Report under childcare Act 1991..." As nominated decision maker, I wish to advise that, following consideration of the provisions of the Act, I must refuse access to the records, (Section 8 (1)(d)) Exemption Used: Section 22 (1)(b) provides access to a record shall be refused if its disclosure would constitute contempt of court. The Social Work Report prepared for the court, arising out of the HSE's investigation under Section 20 of the Child Care Act, 1991 falls under the exemption. Court proceedings under the Guardianship of Infants Act and Child Care Act are held in camera and thus, the in camera rule applies. It is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. No such judicial authorization has been brought to my attention. I therefore find the records requested are exempt from release." 12. The appellant appealed that decision to the respondent by way of letter dated 2nd January, 2012. 13. By letter dated the 5th July, 2012, the appellant was notified by the respondent's office that the initial view had been formed that the report had been correctly withheld from her. She did not accept this and exercised her right to a formal review by the respondent. This review was undertaken by Mr. Stephen Rafferty, senior investigator in the office. By letter dated the 25th September, 2012, Mr Rafferty communicated to the appellant that
15. He sets out his "analysis and findings" as follows:
Section 22(1)(b) of the FOI Act provides that:- A head shall refuse to grant a request under section 7 if the record concerned- ...(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court... The HSE explained in its original decision that "The Social Work Report prepared for the court.......[arose] out of the HSE's investigation under Section 20 of the Child Care Act..." and that "Court proceedings under the Guardianship of Infants Act and Child Care Act are held in camera and thus, the in camera rule applies". The In Camera Rule The in camera rule (i.e. that proceedings be held otherwise than in public) applied to Court proceedings under the Child Care Act 1991. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. In this case, the report at issue was prepared for child care proceedings under the Child Care Act 1991. For this reason, I accept that the record at issue is covered by the in camera rule. Accordingly, as I am not aware of the existence of any prior judicial authority for the release of the record, I am satisfied that its release to the applicant on foot of her FOI request would constitute contempt of Court and I find therefore, that section 22(1)(b) applies. Decision Having carried out a review under section 34(2) of the FOI Act, I find that the HSE's decision to refuse to grant the applicant's request was justified under section 22(1)(b) of the FOI Act." 16. Section 20 of the Child Care Act, 1991 provides as follows:-
18. Section 27 deals with the procurement of reports by the court and provides that copies are to be provided to the parties in the case. Relevant provisions of the Freedom of Information Act 1997 (as amended)
(7) Nothing in this section shall be construed as applying the right of access to an exempt record. 21. Section 22 deals with records that are exempt under the Act and provides that a head of a public body shall refuse disclosure where, inter alia, the record
22. The appellant submits that as a litigant involved in the child care proceedings, she should be furnished with a copy of the report. She relies on s.27 of the Child Care Act in this regard and says that it is superior to the restrictions in the Freedom of Information Act. 23. She also says that she is entitled to a copy of the report under the Freedom of Information Act, as it contains personal information about herself and her child. This, she says, differentiates her position from that of the persons in the cases relied upon by the respondent, which deal with applicants who were third parties. 24. She asserts that the report is a crucial piece of evidence in order for her to further her appeal of the substantive proceedings to the European Court of Human Rights. 25. She argues that the District Judge had no lawful authority to take her copy from her and that the order made by him was not made in writing. It is submitted that the respondent is empowered to disregard a court order if it is lacking in legality and causes injustice. Submissions on behalf of the Respondent 27. He refers to the provisions of s. 29(1) of the Child Care Act, quoted above, and the principle that
28. The applicant in E.H. had previously instituted negligence proceedings against the Minister for Health and the Eastern Health Board. In those proceedings he had sought and obtained discovery of certain documents, subject to an undertaking to the court to preserve the "total confidentiality" of the documents. Later, the applicant was a notice party in EHB v. Fitness to Practice Committee (cited above), and again obtained documentation on discovery subject to strict conditions as to confidentiality. 29. In the proceedings before O'Neill J., the applicant had sought from the Information Commissioner disclosure of documents, including some that he had previously obtained in discovery in the two actions mentioned. Disclosure was refused on the basis that it would constitute contempt of court under s. 22(1) (b). 30. Upholding the Commissioner on the issues that are of relevance to this case, O'Neill J. held that
In my views. 22(1)(b) is there to ensure that this does not happen, and it must operate accordingly." 32. This being an appeal on a point of law under s.42, the court is concerned solely with the question whether the respondent correctly interpreted the provisions of the Freedom of Information Act. It is not about the rights and wrongs of the child care proceedings, or about the propriety of the taking of the copy report, as perceived by the appellant. There is, as a matter of law, authority for the course of action taken by the District Judge but that is not the issue here. Any legitimate grievances about the operation of the court system can only be litigated within the court system, through the normal channels of appeal or judicial review. The Freedom of Information Act is not, as O'Neill J. makes clear, intended to be used in a manner that bypasses the Constitutionally established structures for the administration of justice. 33. In this case, it is clear that the respondent was bound by s. 22(1)(b) to refuse disclosure if he considered that it would constitute contempt of court. The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of the child care proceedings or the court order made in the case. It is no part of his powers to decide that the order was wrong, or that the appellant's right to a copy of the report under s.27 of the Child Care Act should prevail over such an order. Neither the status of the appellant as a party to the District Court proceedings nor the purpose for which she wishes to use the report are relevant to his powers in this respect. 34. Having regard to the in camera nature of the District Court proceedings and to the express order of the District Judge in relation to the report, I consider that the respondent was correct in his view and had no option but to refuse disclosure.
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