Case 99011. Note : This decision was appealed to the High Court on a point of law. On 4 April 2001, the High Court upheld the Commissioner's decision with regard to records refused under section 22(1)(b) of the Act. The Court made no ruling in relation to the refusal of records under section 6(4) and 6(5) of the Act, pending inspection of these records by the Court. The full text of the judgement of 4 April 2001 can be viewed by following this linkOn 21 December 2001, the High Court gave its judgement in respect of the remaining records, the full text of which can be viewed on this website.

Case Summary

Issues

Request for social work records - whether request frivolous and vexatious - section 10(1)(e) - whether disclosure would constitute contempt of court - section 22(1)(b) - whether records would qualify for legal professional privilege - section 22(1)(a) - whether disclosure could reasonably be expected to prejudice fairness of civil proceedings in a court - section 23(1)(a)(iv) - access to pre-commencement records - section 6(5).

Facts

The requester sought access to records relating to himself, his former partner and his daughter. The Eastern Health Board (EHB) refused the request on the basis that all relevant information had already been made available to the requester by means of discovery in earlier court proceedings and that therefore the request was frivolous and vexatious within the meaning of section 10(1)(e).

Some of the records had been made available to the requester subject to specific conditions imposed by the High Court that he preserve their total confidentiality. The EHB argued that disclosure of any of these records would constitute contempt of court. It also argued that disclosure could reasonably be expected to prejudice the fairness of future proceedings.

Decision

The Commissioner found that the request could not be considered to be frivolous. He considered that in some circumstances a request for access to records which a requester already has could be described as frivolous. However, he found that Mr ABK held some of the disputed records subject to conditions which operated to his disadvantage and that all he was seeking to do was to place himself on the same footing as any other requester. The Commissioner considered that the EHB's view that the request was vexatious was based on its experiences with the requester over the years. However, he accepted that Mr ABK's purpose in making the request was to advance his case and, therefore, the request could not be said to be vexatious.

The Commissioner decided that the operation of section 22(1)(b) was not confined to situations in which disclosure by the public body would be in contempt of court. He found that the section applied to the records which had been made available to Mr ABK on discovery, because any disclosure of these records would be in contempt of court. The Commissioner found that section 23(1)(a)(iv) did not apply in this case. He found that those records for which privilege was sought in the High Court proceedings satisfied the legal professional privilege requirement of section 22(1)(a).

The Commissioner found that the remainder of the records were created pre-commencement. Some of these contained personal information about the requester but the records were exempt by virtue of section 22(1)(b). A number did not contain personal information about the requester and access to them was not necessary or expedient in order to understand a record created after commencement. The Commissioner found that a number of records contained personal information about the requester and found that the requester had a right of access to them.

Date of Decision: 28.09.1999

Background:

Mr ABK applied to the Eastern Health Board (EHB) on 12 November 1998 under the Freedom of Information (FOI) Act, 1997 for all records held by the EHB relating to himself, his former partner and his daughter. The EHB refused his request on the basis that all relevant information had already been made available to him by means of discovery. Mr ABK sought an internal review of this decision on 11 December 1998. The initial decision was upheld on internal review on the basis that the reviewer was satisfied that all the relevant documentation had been furnished to the requester and that in the circumstances there was no obligation to produce documentation which had been furnished to the requester's legal representatives and was already in his possession.

Mr ABK requested a review by me of the decision of the EHB on 7 January 1999 and I accepted the case for review.

The background to this request is that Mr ABK was the subject of allegations of sexually abusing his daughter, a charge which he vehemently denies. As a result of this Mr ABK initiated legal proceedings to which the EHB was a party. In the course of these proceedings an order of discovery was made against the EHB.

For ease of reference I will categorise the records held by the EHB as follows:-

• Category A- There are 119 records numbered and described in the first part of the First Schedule to the Affidavit of Discovery by the EHB in the High Court proceedings between Mr ABK and Ireland, the Attorney General, the Minister for Health and the EHB. These records were made available to Mr ABK on foot of the High Court Order.
• Category B - There are 17 records listed in the second part of the First Schedule to the Affidavit of Discovery by the EHB. These records were not made available to Mr ABK on discovery as privilege was claimed by the EHB.
• Category C - There are 28 records in this category consisting of copies of summonses, motions, High Court Orders and affidavits in connection with the above mentioned legal proceedings and also certain judicial review proceedings involving the EHB as applicant and the Fitness to Practise Committee of the Medical Council as respondent. There was a number of notice parties to these proceedings, one of whom was Mr ABK. In discussions with officials of my Office, Mr ABK indicated that he required me to rule on two of these records only, an affidavit of Dr Moira Woods (another notice party to the judicial review proceedings) and an affidavit of Mr Henry P. Colley, who acted as solicitor to the EHB in relation to these proceedings.
• Category D - There are 43 records in this category which consist in the main of correspondence between Mr ABK or public representatives acting on his behalf, internal memoranda between EHB officials and/or their legal advisors and correspondence from the Department of Health and replies to same. There is also a small number of records which are copies of those listed in category A. In discussion with officials of my Office, Mr ABK indicated that he sought a ruling from me on 19 of these records. I have detailed these in Schedule 1 attached.

The information in some of the records relates to the requester's daughter and former partner as well as to himself. Some of the records detail the assessment and treatment of his daughter as a result of enquiries that the EHB carried out. These records include medical reports, social workers' reports, and notes from interviews with the family and with other people involved in the case. There are also letters from the requester on the file. There are also records relating to the preparation by the EHB for legal proceedings.

I invited the EHB and Mr ABK to make submissions to me in relation to this case. As the EHB had not indicated in its decisions the basis under the FOI Act for refusing Mr ABK's request, I asked that this matter be addressed specifically in its submission to me. I also contacted Mr ABK's daughter, and former partner as relevant parties to the review and invited them to make submissions to me if they wished.

Mr ABK's former partner contacted my Office and spoke to the Investigator dealing with the case. She indicated that she consented to Mr ABK's request for these records. Following some discussion, she undertook to speak to her daughter also regarding consent. The main points of the discussion in relation to consent were outlined to Mr ABK's former partner in a letter dated 28 May 1999. It was pointed out that there is no provision under the FOI for a public body or the Office of the Information Commissioner to attach conditions as to the future use by the requester of information. It was made clear that the Office of the Information Commissioner has no responsibility for enforcing any agreement as to the possible future use of information which is released with consent. She was also advised that, in the event of disclosure of information to a requester on the basis of consent, it will not be assumed that the person giving consent is agreeing to its release to any other person.

My Office received a signed consent from both Mr ABK's former partner and daughter on 31 May 1999.

Both Mr ABK and the EHB made submissions to me in response to my invitation. However, my Office sought further clarification of the EHB's position and also put further points to Mr ABK for his comment. Officials from my Office also met the EHB on 6 July 1999 to clarify the arguments put forward in the submissions.

Submissions

A number of submissions were made by both parties, both orally and in writing. I summarise the main arguments made by each of the relevant parties below.

EHB

In its submission dated 15 February 1999, the EHB clarified that its decision to refuse access to these records was made on the basis that the documentation which was the subject of the request had previously been furnished to the requester in the course of a number of legal proceedings and that, therefore, for a number of reasons detailed below, the request was frivolous or vexatious within the meaning of section 10(1)(e) of the FOI Act. The EHB argued that, as all documentation in relation to the High Court proceedings entitled Mr ABK and Ireland, the Attorney General, the Minister for Health and the EHB, had been the subject of an order of discovery and as the relevant documentation had been delivered to the solicitors of record for Mr ABK in 1998, the further request for this information was frivolous.

In support of its arguments that this request was vexatious, the EHB stated that it understood that Mr ABK had, in breach of the confidentiality conditions within the order of discovery, transmitted copies of the documents discovered to him to certain persons in the media, to members of the Oireachtas and disclosed others in the course of other litigation. In the course of that other litigation, the EHB stated that Mr ABK had made applications to join the EHB and named officials as notice parties to the proceedings and also sought a further discovery. In the EHB's view, these actions were undertaken for vexatious purposes only.

The EHB argued that in determining whether a request is frivolous or vexatious it is necessary to take account of all the relevant matters, particularly the circumstances in which documents of the type requested by Mr ABK had been supplied to him, the fact that Mr ABK, in a number of different forms, had commenced legal proceedings against the EHB and Mr ABK's alleged disregard of orders of confidentiality in relation to these records.

My Office raised a number of issues with the EHB arising out of the submission in relation to the applicability of section 10(1)(e) to this request and the possibility that in reaching the decision the decision maker may have taken account of Mr ABK's motivation in making the request contrary to section 8(4). A further submission from the EHB was made dated 23 March 1999.

In this submission, the EHB detailed the records relevant to the case and addressed the points raised by my Office. The EHB stated that the refusal of access was not based on a consideration of Mr ABK's motivation in this matter. The EHB stated that the detail provided in its earlier submission was in support of the argument that the request was frivolous or vexatious. The EHB addressed the point made by my Office that it was unlikely that I, as Commissioner, would accept the argument that a request is frivolous or vexatious on the first occasion on which a requester exercises his rights under the FOI Act. The EHB expressed the view that this is too narrow an interpretation of the grounds upon which a request can be frivolous or vexatious. It stated that the requester had access to the requested documentation before his application under the FOI Act and no new documentation of any relevance to the specific issues raised in the request is held by the EHB.

At a meeting with my officials on 6 July 1999, the EHB queried the validity of the consents which had been given in this case. It agreed to consider again the argument that the request in this case was frivolous or vexatious. It was agreed that it was still open to the EHB to rely on other exemptions and the EHB undertook to revert to my Office on this matter.

The EHB wrote to my Office on 28 July 1999 about the issues discussed at the meeting on 6 July 1999. I summarise the arguments which have been put to me by the EHB below.

• The EHB continued to maintain that the request was frivolous and vexatious in accordance with the provisions of section 10(1)(e) of the FOI Act. The EHB argued that the request should be considered in its totality and this consideration must take into account the requester's rights under the FOI Act, the restrictions imposed by High Court orders and the fact that the requester is already in possession of copies of all the documentation to which he is entitled on foot of discovery orders.
• The EHB argued that it is bound by the High Court order for discovery (made in the course of proceedings commenced by the requester against Ireland and the Attorney General, the Minister for Health and the EHB) to preserve the total confidentiality of all documents discovered and to obtain an undertaking from each and every person to whom the documents or any of them are submitted in the course of and preparation for the hearing of the proceedings. It also argued that the requester and every other party to the proceedings is also bound by the terms of that order.
• The EHB also referred to a High Court judgement delivered by Mr Justice Barr in April 1998, in proceedings related to a proposed hearing before the Fitness to Practise Committee of the Medical Council. It argued that the orders made by the Court in that instance continue the obligation of confidentiality to the extent that, while Mr ABK is a party to the proceedings before the committee, he is not being given copies of the records discovered by the EHB to the Committee but is being shown documents relevant to his complaint.
• The EHB claimed that the order of discovery in the proceedings taken by Mr ABK and the judgement of Mr Justice Barr, taken together, cover all the documentation in relation to Mr ABK's case with the exception of the ordinary Summons issued in the District Court against officers of the EHB, copies of other proceedings commenced by the requester and documents for which legal professional privilege is claimed.
• In addition, the EHB argued that section 22(1)(b) of the FOI Act applies to these records because, it said, disclosure to the requester under the FOI Act would constitute contempt of court. It also sought to rely on section 23(1)(a)(iv) of the Act which provides for refusal if disclosure could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or civil proceedings in a court or other tribunal.
• The EHB also raised the matter of the consents received from the third parties to this review. It has pointed out that there are circumstances in which a consent ostensibly completed by a named third party who would be affected by disclosures, following a request under the Freedom of Information Act, needs to be examined in its totality to ensure that an appropriate and lawful consent has been obtained. The EHB did not argue specifically that the consents in this case are invalid.

In a final submission dated 12 August 1999, the EHB stated in support of its reliance on the terms of section 23(1)(a)(iv) that the prior publication or other usage of this documentation, contrary to the High Court order, could clearly prejudice the conduct of the civil proceedings in the High Court and by the Medical Council. It also confirmed that it did not contend that the consents in this case are invalid or given under duress but that it is its professional view that a "blanket" acceptance of every written consent would not be wholly safe and steps should be taken to satisfy oneself of the status of the consents.

The Requester

Mr ABK made a submission to me on 20 January 1999. In this submission Mr ABK detailed the origins of his difficulties with the EHB, the basis of which was an accusation which was made against him and never proven. As a result of this, Mr ABK has been attempting over the years to clear his name and he detailed the history of his efforts to achieve this in his submission. As part of this process, Mr ABK has tried to get access to the documentation relating to his case from the EHB, the Department of Health and other parties. He argued that he has two legitimate reasons for seeking records in relation to himself, his former partner and his daughter. The first reason is to enable him to prove his innocence of the offences of which he has been accused. The second reason is in order to submit evidence to an enquiry by the Fitness to Practise Committee of the Medical Council on foot of a complaint made by him. He argues that he is entitled to this information under the FOI Act, 1997.

Following the hearing of an appeal in the High Court in relation to a decision of the Office of the Ombudsman under the FOI Act, 1997, Mr ABK made a further submission dated 27 January 1999. He argued that the judge in that hearing was of the view that he was entitled to these records. On 26 May 1999 Mr ABK provided me with an academic paper by Gerard Durcan, S.C. which he claimed supports his arguments that he has a constitutional right to this information.

Mr ABK made a further submission to me on 14 July 1999, having been advised that a meeting had taken place between my Office and officials of the EHB. Mr ABK supplied me with additional documentation in relation to the issue of the discovery. He stated that, because of the conditions laid down by the High Court, he was not in a position to submit to the Fitness to Practise Committee any documents which he received on discovery from the EHB and confirmed that this was why he sought the information under FOI.

In a letter dated 5 August 1999, my Office outlined the position of the EHB as put forward in the letter of 28 July 1999 and invited Mr ABK's views. Mr ABK made the following points in reply:-

• He argued that the subject of his request and the outcome of the allegations are not frivolous or vexatious and therefore his request under the FOI Act is not frivolous or vexatious.
• Mr ABK stated that the EHB did not comply strictly with the terms of the discovery orders and is of the view that this places the material which was made available to him in the public domain.
• Mr ABK claimed that the EHB did not comply fully with the terms of the High Court Order but that he has observed the confidentiality of the documents.
• Mr ABK claimed that the EHB did not make full discovery to the Medical Council as required by the judgement of Mr Justice Barr. He pointed out that any information which he receives under FOI will be used for the purpose of the hearing of the Fitness to Practise Committee of the Medical Council and accordingly confidentiality will be preserved.
• Mr ABK claimed that if he is denied access to these record he will be denied his constitutional right to his good name and natural justice.
• Mr ABK claimed that the consents he secured from his daughter and his former partner were freely given in both cases.

Following receipt of this submission, my Office asked Mr ABK to explain the basis for his allegation that the EHB did not comply fully with the terms of the discovery orders and asked him to point to any evidence of this charge.

Mr ABK made a further submission dated 17 August 1999 in which he pointed to evidence which indicated that the EHB did not disclose on discovery all the documentation it held relating to the proceedings. However, Mr ABK agreed that any discrepancies could be pursued by my Office separately with the EHB and that he was happy to accept that the review should concentrate on those records currently before me.

Findings

Section 10(1)(e)

Before dealing with the four categories of record identified above, in respect of which particular arguments apply, I wish to deal with the argument that the request in this case is frivolous or vexatious.

The EHB contends that the request is frivolous because Mr ABK has already been given access to some of the requested documents through the discovery process. This ignores the fact that he has not been given access to certain other records which are held by the EHB. Even in relation to the documents which he has obtained through discovery, I would be reluctant to accept that his request is frivolous. Mr ABK appears to believe that, if he obtains access to documents as a result of his FOI request, this will release him from the undertakings which he gave to the High Court in relation to the confidentiality of the documents already discovered to him. As I will explain in my findings relating to category A records below, this view seems to me to be misconceived but it does not follow that Mr ABK's request is frivolous.

In some circumstances, a request for access to records which a requester already has could be described as frivolous. One of the purposes of the FOI to provide requesters with access to records held by public bodies. If a requester already has copies of the records sought then one might well enquire as to why a request under the FOI Act is necessary or what such a request, if successful, would achieve.

However, Mr ABK holds the records in category A subject to conditions which he finds operate to his disadvantage. This contrasts with the position of persons who obtain records held by a public body as a result of requests under the FOI Act. Such persons are free to make whatever use they wish of the records, within the law. Essentially, Mr ABK seeks simply to put himself on the same footing as any other requester. Given that his request is made on this basis, I find that it is not frivolous within the meaning of section 10(1)(e) of the FOI Act.

The EHB's view that the request is vexatious seems to be based on its experience of dealing with Mr ABK over the years, and the tactics adopted by him in a variety of litigations involving the EHB and others. All I can say on this point is that Mr ABK has given a full explanation as to why he has made the request. I accept that his purpose is not to harass or annoy the EHB but to advance his case. The EHB may not particularly like this but it seems to me that there is no misuse of the FOI Act of the kind which the word 'vexatious' might suggest. I find that the request is not vexatious within the meaning of section 10(1)(e) of the Act.

I will deal now with the different categories of record as described earlier.

Category A

Section 22(1)(b)

The EHB argues that the records already discovered to Mr ABK are exempt by virtue of section 22(1)(b).

This section provides that

(1) "A head shall refuse to grant a request under section 7 if the record concerned- (b) is such that its disclosure would constitute contempt of court, ......".

By way of background I should record that, when discovery was ordered to be made to Mr ABK, the High Court obtained an undertaking from his solicitor "to preserve the total confidentiality of all documents hereinafter discovered" and "a similar undertaking from each and every person to whom the documents or any of them are submitted in the course and preparation for this hearing". I am advised that this undertaking goes beyond the normal undertaking which is given to the Court either implicitly or explicitly in relation to documents which are furnished to a party on foot of a discovery order, namely, that no use of such documents may be made otherwise than in connection with the relevant proceedings. Although the order is not explicit on the point, it seems clear that the purpose of imposing this confidentiality undertaking was to protect the interests of Mr ABK's daughter. This point is made explicitly in the subsequent judgement of Mr Justice Barr. He referred to the obligation of the court to protect the children who were the subject-matter of certain "in-camera" proceedings as far as practicable from any harm to them which might result from the production and use of the documents which were at issue before him. He ordered certain documents to be discovered but imposed the condition that " all persons who learn of the contents of the documents in question (or any of them) in the course of the Inquiry into the complaints made against Dr Woods or in any subsequent proceedings or in any other way are bound by the 'in-camera' rule as to confidentiality which is waived by the court only to the limited extent specified herein and subject to the foregoing conditions."

In relation to the documents which were the subject of Mr Justice Barr's ruling, I am advised that disclosure by any person of their contents would be contempt of court. I am also advised that the fact that a person learns the contents of the documents in another way, for example, as a result of a request under the FOI Act does not change matters. This is stated explicitly by Mr Justice Barr when he refers to a person learning of the contents of the documents in question (or any of them) "in any other way". I am advised that the confidentiality undertaking in the order of discovery should be similarly interpreted and, therefore, that any disclosure by Mr ABK of the contents of the 119 documents in this category would constitute contempt of court.

Turning now to the wording of section 22(1)(b), it will be noted that a record is exempt if its disclosure would constitute contempt of court. It will be noted also that the section does not refer to disclosure by the public body. In my view, "disclosure" here means publication in the broad sense. The head must consider whether the record is of a class, or its contents of such a nature, as to cause a contempt of court to arise if the record were to be disclosed to anyone outside the circle of persons to whom it ought properly to be restricted. Clearly, this does not require a head to refuse to grant a request where he is not possessed of information which would give him to understand that a contempt of court might arise. It may be that there will be occasions on which heads are unaware that disclosure of records held by them will lead to a contempt of court, but these should be comparatively rare. Where, however, a head is actually aware that disclosure of a certain record by the public body would cause it to be in contempt or that any disclosure by the requester would cause the requester to be in contempt, it seems to me that the head must refuse to grant the request.

This interpretation seems to accord with the decision of the Australian Administrative Appeals Tribunal (AAT) in Marjorie Cecil Altman v. Family Court of Australia (1992) 15 AAR 236, where the Tribunal had to consider the similarly worded section 46 of the Australian Freedom of Information Act, 1982.

That provision reads as follows:

"A document is an exempt document if public disclosure of the document would, apart from this Act � be in contempt of court�"

Judge O�Connor of the AAT said (at paragraph 38),

�Section 46 will only make a document an exempt document where public disclosure will be a contempt of court; the fact that the document may subsequently be used in a way which is in contempt of court is not relevant. It may be noted that it is public disclosure that would constitute a contempt of court; where disclosure to the applicant would not constitute contempt of court (for instance where there is a confidentiality order to which an applicant is not subject) but wider disclosure would, the document is an exempt document under the section.�

What the AAT appears to be saying here is that the fact that a document may subsequently be used in a way which is in contempt of court other than by reason of public disclosure thereof, is irrelevant. The enquiry to be engaged in by the public body is whether any public disclosure of the document would be a contempt. In asking itself this question it can ignore the fact that disclosure to the applicant would not constitute contempt, if wider disclosure would.

There is, of course, a distinction between the Australian and Irish provisions in that the former uses the words �public disclosure� rather than �disclosure� simpliciter. However, on balance I take the view that the distinction is not significant. The word �disclosure� is capable of meaning publication to third parties as well as granting access to the requester and, it seems to me, it is the former interpretation which is intended in section 22(1)(b).

The arguments of the EHB seem to suggest that release of the records to Mr ABK under the FOI Act would cause the EHB to be in contempt of court. It is not clear to me that this would be the case but it is not necessary for me to take a view on this because, as I have said, the section does not refer to disclosure by a public body and, in my view, its operation is not confined to situations in which the very act of release by the public body would give rise to contempt of court.

If the Oireachtas had intended to confine this mandatory exemption to contempt of court arising from the very act of release by the public body of particular records, it could quite easily have used different language. In this connection, it is to be noted that other exemptions are couched in the type of language that might have been used here. For example, the section immediately preceding section 22 provides that �[a] head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to��. Section 22(1)(b) could have been similarly worded to say, for example, �A head shall refuse to grant a request under section 7 if the granting of access to the record concerned would constitute contempt of court�. Indeed, similar such wording was used in the New Zealand Official Information Act, 1982, section 18 of which provides as follows:

�A request made in accordance with section 12 of this Act may be refused only for one or more of the following reasons, namely:

(c) That the making available of the information requested would -�(ii) Constitute contempt of Court.�

It would not be unreasonable to suggest that the purpose of section 22(1)(b) is to prevent, to the greatest practicable extent, any interference by public bodies in the administration of justice which might result from the granting of access to records under the 1997 Act. As McDonagh notes in her book, Freedom of Information Law in Ireland, �[t]he rationale behind the inclusion of [a contempt of court] exemption in the original Australian Freedom of Information Bill was explained by the Senate Standing Committee on Constitutional and Legal Affairs in the following terms:

'Parliament and the courts have unique functions, and have traditionally had powers to regulate their own proceedings that have been regarded as a necessary incident to their functions. The Bill, which is designed to open up to public scrutiny the operations of the Executive, should not unnecessarily interfere with the other organs of the State with consequences that cannot at the outset be entirely foreseen' �.

In my view, therefore, the provisions of section 22(1)(b) require the EHB to refuse Mr ABK's request for access under the FOI Act to the records in category A.

Before dealing with the other arguments which the parties made in relation to the records in category A, I wish to make two further brief comments, for the guidance of public bodies.

The first comment relates to the interpretation of section 8(4) of the Act. This provides that, in deciding whether to grant or refuse to grant a request under section 7, a head shall disregard any reason the requester gives for the request and any belief or opinion of the head as to what these reasons are. Lest it be thought that this provision is in conflict with the interpretation of section 22(1)(b) which I have just given, I should explain that, in my view, section 8(4) does not permit the head to avoid the question: �would disclosure of this particular record constitute contempt of court?� Section 22(1)(b) requires the head to consider the record and to ask whether, if it was ever disclosed, would such disclosure amount to contempt of court. If, therefore, a record indicates, on its face, that its disclosure would lead to a contempt of court or if a head is aware that disclosure by the public body concerned would lead to the same or if a head is aware or on notice that disclosure by the requester would be in contempt, he must refuse to grant access. In the present case, the EHB is actually aware that disclosure of the contents of the records concerned would amount to contempt of court as the High Court has, on two occasions, let it be known that these documents are to be kept confidential.

My second comment relates to the applicability of section 22(1)(b) to situations in which a public body makes discovery of documents to another party but without any special undertakings of confidentiality being given by that party over and above the normal undertaking mentioned earlier, and these documents are the subject of a subsequent FOI request. Clearly, the normal discovery rules are designed to protect the interests of the party making the discovery, i.e. the interests of the public body. In my view, this situation must be distinguished from that in the present case where the High Court has indicated a clear intention to protect the position of third parties. I do not wish at this stage to express a definitive view as to the position which would obtain where the usual implied undertaking is given by the person obtaining discovery. However, it seems to me that the disclosure by a public body, under the FOI Act, of records which have previously been discovered by it in legal proceedings and which have been the subject only of the usual undertaking by the other party to those proceedings, is not a contempt of court. This is because the court has not expressed a desire to preserve the confidentiality of the records generally, but has merely obtained an undertaking which was for the benefit of the public body. It follows that a public body will by no means automatically be entitled to refuse access by virtue of section 22(1)(b), by reason of the fact that the records have already been made available to the requester or to someone else through the discovery process.

Other arguments

In the course of his arguments, Mr ABK suggested that the EHB had not complied fully with the terms of the High Court order of discovery. I am advised that even if this is the case it is not a relevant consideration in determining whether the provisions of section 22(1)(b) apply.

Mr ABK also argued that he wanted access to these records only for the purpose of submission to the inquiry being conducted by the Fitness to Practise Committee of the Medical Council. Since that inquiry is being conducted in private, Mr ABK claims that such use of the records would, in fact, preserve their confidentiality. It may very well be that Mr ABK is correct in what he says. However, it should be apparent from what I have already said that the proper application of section 22(1)(b) does not require me to have regard to whatever use Mr ABK might make of the records. It is sufficient for the section to apply that disclosure of these records would cause a contempt of court.

Mr ABK also argued that he had a constitutional right to the records which he seeks. His claim is based on the citizen's right to basic fairness of procedures. This requires that in proceedings before any tribunal where a party is at risk of having his good name jeopardised, he should be furnished with a copy of the evidence which reflected on his good name. As a general point this may be correct. Mr Justice Barr in his judgement acknowledged that the full investigation by the Fitness to Practise Committee of the complaints before it "necessarily entails discovery for use at the Inquiry of all records in the possession of the EHB relating to the children who are the subject matter of the complaints". He went on to say that the documentation obtained by the Committee from the EHB shall not be divulged to anyone other than the parties to the Inquiry, those associated with it and the Medical Council.

It may very well be that proper compliance with Mr Justice Barr's order, as well as the need to observe Mr ABK's constitutional rights, requires that the documents which Mr ABK now seeks from the EHB should be made available both to the Fitness to Practise Committee and to Mr ABK. However, this is a matter in the first place for the Committee to determine. For my own part, I can only have regard to the specific terms of the FOI Act. Having done so, I am satisfied that the provisions of section 22(1)(b) require the EHB to refuse Mr ABK's request under the FOI Act as it applies to the records in category A.

The EHB argued that section 23(1)(a)(iv) applies in this case. In the ordinary course of events, it is not clear to me how granting a requester access under the FOI Act to records which he already has would prejudice the fairness of future civil proceedings. However, it seems to me that the concern which the EHB expresses about the prior publication of records contrary to a High Court order (and which caused it to rely on section 23(1)(a)(iv)) is dealt with by the provisions of section 22(1)(b) of the Act. Therefore, I find that section 23(1)(a)(iv) does not apply in this case.

The EHB also queried the validity of the consents given by the relevant parties in this case. The actions taken by my Office to ensure that the consents in this case were fully informed are described above. In the event, it was unnecessary for me to rely on the consents given in this case. However, I should record that no evidence was put before me which would justify my holding that the consents in this case were other than fully informed and freely given.

Category B

The records in this category are, without exception, copies of correspondence between the EHB and its legal advisers or documents prepared in contemplation of litigation apprehended or threatened and where the dominant purpose of the communication was use for the purpose of litigation.

As I have stated in previous decisions, the question of whether section 22(1)(a) applies comes down simply to whether or not the EHB would succeed in withholding the documents on the ground of legal professional privilege in court proceedings. Having regard to the nature of the records as described above, I am satisfied that it would succeed.

There are some situations in which legal professional privilege may not attach to communications between lawyer and client such as non-confidential communications or legal assistance other than the giving of advice or communications in furtherance of a criminal offence. I am satisfied that these exceptions do not apply here. Accordingly, I must hold that the EHB is entitled to claim exemption in respect of these records. Indeed, this conclusion would appear to be supported by the earlier decision of the High Court that the documents in question were privileged.

Category C

The two documents in this category are affidavits sworn for the purposes of judicial review proceedings in which the EHB sought relief from orders made by the Fitness to Practise Committee of the Medical Council which directed the EHB to produce certain documents. I note that Mr ABK was a notice party to these proceedings, but he says that he was not furnished with copies of these affidavits. Mr ABK says that the fact that he may be entitled to copies of these records on application to the Central Office of the High Court is irrelevant. He insists that I determine the question of his right of access under the FOI Act to the copies held by the EHB.

The affidavits were sworn by Dr Woods, who was a notice party to the judicial proceedings, and by Mr Colley, as solicitor to the EHB.

It is clear that both documents were created prior to 21 October 1998 (the date of commencement of the Act for health boards) and, indeed, prior to 21 April 1998. Under section 6(4) of the FOI Act a right of access only exists to records created after the commencement of the Act and under section 6(5) of the Act the right of access also arises where:

"(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or (b) records created before such commencement relate to personal information about the person seeking access to them."

Mr ABK has not made any case that access in this case to these two records is necessary or expedient in order to understand records created after the commencement of the Act. Indeed, having examined the records and having regard to the material available to Mr ABK on foot of various discovery orders, I cannot see how access to these two records could be either necessary or expedient in order to understand records created after the commencement of the Act.

It also seems to me that the affidavit of Dr Woods does not contain personal information about Mr ABK. It simply contains arguments as to why the inquiry to be conducted by the Fitness to Practise Committee should be held in private. I have no hesitation in disclosing this fact because Mr Justice Barr said as much in his judgement to which I have referred earlier in this decision.

Mr Colley's affidavit does contain some references to Mr ABK. Again, I have no hesitation in describing the contents of this affidavit as it relates to Mr ABK in general terms, given that he was a notice party to the proceedings to which the affidavit relates. The references are a brief description of proceedings issued by Mr ABK and the outcome of these proceedings. It seems to me these references are personal information about Mr ABK. They are also personal information about the other parties to the proceedings but it seems to me that this, of itself, would not prevent release to Mr ABK since granting access would not, in fact, involve disclosure of personal information about these parties. This is because the information is clearly already known to Mr ABK.

However, the fact that the record contains personal information about Mr ABK is not sufficient of itself to entitle him to access. I also have to have regard to the other provisions of the Act. In this case I have concluded that the personal information about Mr ABK contained in this document is a synopsis of matters which are set out in the documents which have been made available to Mr ABK on discovery. I note that the terms of the order made by the High Court was extremely strict, requiring Mr ABK to preserve the total confidentiality of all the documents made available to him on discovery. In the circumstances, I find that the part of the document containing personal information about Mr ABK is exempt by virtue of section 22(1)(b). I find that Mr ABK is not entitled to access to the remainder of the record because the record was created prior to the commencement of the Act , it does not contain personal information about him and access to it is neither necessary nor expedient in order to understand a record created after the commencement of the Act. I find that Mr ABK is not entitled to access to the affidavit of Dr Woods for the same reasons.

Category D

For the purposes of this decision I can subdivide the 19 records into two further categories. The first, consisting of records numbered 1, 2, 9, 14 and 15, is concerned with the EHB's response to legal action which was, at the time of the creation of the records, apprehended or threatened. In the light of my interpretation of section 22(1)(a), as outlined earlier, I have decided that the EHB is entitled to refuse access to these documents.

The remainder of the documents arose out of representations which Mr ABK made to the board members of the EHB and to the Minister for Health, protesting his innocence. No case has been made to me by the EHB in relation to these records, other than the general arguments made earlier. However, I note that all of these documents were created before the commencement of the Act. It follows that Mr ABK is entitled to access to them only if they relate to personal information about him or if access is necessary or expedient in order to understand a record created after the commencement of the Act.

Records numbered 3 and 8 are handwritten notes which are very disjointed. They appear to relate to Mr ABK's complaints to the Department of Health. However, it does not seem to me that they can be said to relate to personal information about Mr ABK. Records numbered 12,13,16,17,18 and 19 are simply reminder letters. Again, they do not relate to personal information about Mr ABK. In my view, access to records numbered 3,8,12,13,16,17,18 and 19 is not necessary or expedient in order to understand a record created after the commencement of the Act. I find, therefore, that Mr ABK is not entitled to access to them.

Record number 4 contains details of Mr ABK's complaints to the Minister for Health. It clearly relates to personal information about him. It does not seem to me that the disclosure of a synopsis of Mr ABK's own complaints is forbidden by the terms of the order of discovery or the judgement of Mr Justice Barr to which I referred earlier. I find that Mr ABK is entitled to access to this record.

Records numbered 5 and 6 also contain personal information about Mr ABK. It is clear from their contents that disclosure would not be in breach of the terms of the order of discovery or the judgement of Mr Justice Barr. I find that Mr ABK is entitled to access to them.

Record number 7 is an undated, handwritten note which appears to have been created in the course of dealing with the representations made on Mr ABK's behalf to which I referred previously. The note appears to refer, at least in part, to the matters contained in the documents which were the subject of the order of discovery. It is clear that the note relates to personal information about Mr ABK. It could also be said to relate to personal information about other parties. However, I am satisfied that Mr ABK already knows this information and that granting him access would not, in fact, involve disclosure of personal information about these other parties. The note is brief, disjointed and contains many abbreviations. It is clear that it is incapable of being understood without access to the documents which were obtained by Mr ABK on discovery. I am not satisfied that disclosure of this record by itself would be in contempt of court. In my view, section 22(1)(b) does not apply to it. I find that Mr ABK is entitled to be given access to this record under the FOI Act.

Record number 10 is an internal memorandum of the EHB, created in the course of dealing with the representations referred to above. Record number 11 is the EHB's reply to the Department of Health's queries raised on foot of these representations. For practical purposes the two records can be considered together, because the latter does little more than repeat verbatim the contents of the former.

I note that record number 11 has already been discovered to Mr ABK by the Department of Health. It is subject to the same undertaking of confidentiality which I described earlier. Therefore, I find that the record is exempt by virtue of section 22 (1)(b). While record number 10 does not seem to have been made available to Mr ABK on discovery its contents are, for practical purposes, the same as those of record number 11. Therefore, I find that section 22(1)(b) also applies to this record.

Decision

I have decided to vary the decision of the EHB in this case in the following manner. Access should be granted in full to records numbered 4,5,6 and 7 in the attached schedule.

I affirm the decision of the EHB to refuse access to the remainder of the records in category D and to the records in categories A, B and C above.

SCHEDULE 1 - DOCUMENTS IN CATEGORY D.

1. Letter from Mr Harry Colley, Roger Greene & Sons to EHB enclosing letter from Mr ABK .
2. Fax. memo. from Mr Harry Colley, Roger Greene & Sons to EHB enclosing a copy of a letter to Mr ABK from Roger Greene & Sons dated 18/4/94 and a copy of a letter from Mr ABK dated 5/4/94.
3. Handwritten note for file.
4. Letter from Department of Health to EHB
5. Internal memorandum of EHB.
6. Copy memorandum detailed at 5. with notations.
7. Handwritten file note, undated.
8. Handwritten file note, undated.
9. Fax. memo. from EHB to Mr H Colley, Roger Greene & Co. enclosing copy letter from Mr ABK to a member of EHB.
10. Internal memorandum of EHB.
11. Letter from EHB to the Department of Health.
12. Letter from Department of Health to EHB.
13. Letter from Department of Health to EHB.
14. Internal EHB correspondence.
15. Handwritten note dated 26/4/90.
16. Internal EHB correspondence.
17. Letter from Department of Health to EHB.
18. Internal EHB correspondence.
19. Letter from Department of Health to EHB.

Information Commissioner

28 September 1999