Case 99175

Case Summary

Issues

Records of assessment of children - pre-commencement records - whether records related to personal information about the requester - section 6(5)(b) - personal information - section 28 - release of personal information about minors - section 28(6) and SI 47 of 1999 - consideration of the public interest - section 28(5)(a) - manner of access to records - section 12(2)(b) - whether record would be exempt on the ground of legal professional privilege - section 22(1)(a) - whether disclosure would constitute contempt of court - section 22(1)(b) - whether access could reasonably be expected to prejudice or impair the fairness of civil proceedings - section 23(1)(a)(iv).

Facts

In 1997/98 the Midland Health Board carried out an assessment of the requester's children arising out of concerns which had been raised about the children. In the course of the assessment Board officials interviewed the requester, his wife and their children. The requester sought access to the records of the assessment. The requester's wife, who had been notified of the FOI request by the Board, objected to the release of the records. The Board decided to release the records. The requester's wife applied to the Commissioner for a review of that decision.

Decision

The records at issue were created prior to the commencement of the FOI Act. The Commissioner found that the records were created directly in connection with personal information about the requester or joint personal information about the requester and his children and that, therefore, they related to personal information about the requester. He found that, subject to the other provisions of the FOI Act, the requester had a right of access to the records pursuant to section 6(5)(b) of the Act.

The Commissioner found that the records disclosed personal information about the various members of the requester's family including his children, all of whom were minors, and section 28 of the Act applied. In considering the application of section 28(6) and SI 47 of 1999 (which relates to records disclosing personal information about minors), the Commissioner noted that the key question to be addressed was whether the granting of access would be in the best interests of the children. He found that in cases of family disputes children may find themselves in vulnerable positions. In the absence of evidence that disclosure would be in the best interests of the children in such cases, the requirement to protect their privacy remains strong. The Commissioner was not satisfied that the requirements of SI 47 of 1999 had been met.

In considering the public interest factors arising under section 28(5), the Commissioner found that the requirements of the factors in favour of release of the records could be met by granting the requester access to the substance or summary of the report of the Child Assessment Team which showed the manner in which the Board had carried out the assessment, the individuals who were interviewed and the conclusions or recommendations of the Team. The Commissioner also found that part of the record, which contained details of an interview with the requester, should be released. He found that the privacy interests of the other individuals to whom the records related would be further protected by granting access by means of inspection rather than by the provision of copies of the records pursuant to section 12(2)(b) of the Act.

The Commissioner considered the application of sections 22(1)(a), 22(1)(b), 23(1)(a)(iv) and 26 to the records in this case and found that none of those exemptions applied to the records.

Date of Decision: 19.12.2001

DECISION UNDER SECTION 34(2) OF THE FREEDOM OF INFORMATION ACT, 1997 IN RELATION TO CASE NUMBER 99175 MS ACM AND THE MIDLAND HEALTH BOARD

Background:

[1.] On 24 February 1999 the Midland Health Board (the Board) received a request under the Freedom of Information Act, 1997 from Mr ACM in which he sought access (by means of copies) to a number of records including "the complete record of the assessment of my children" carried out by the Board. The Child Advisory Team of the Board had carried out an assessment of the ACM children in 1997/1998 arising out of concerns raised about the children. At the time of the assessment, allegations of sexual abuse of other children had been made against Mr ACM. These allegations related to events which occurred many years previously. During the assessment, the Child Advisory Team interviewed Mr ACM, his wife and their children. Pursuant to section 29, and in accordance with section 26 and 28 of the FOI Act, the Board notified the requester's wife, Ms ACM, of the request for access to the record of the assessment. Ms ACM objected to the release of the records.

On 14 April 1999 the Board decided to grant Mr ACM access to many of the records sought by him in his request including the record of the assessment of his children. The Board notified Ms ACM of its decision. On 22 April 1999 she applied to my Office for a review of the Board's decision and I accepted the matter for review. This is a review of a decision on a request to which section 29 applies.

Scope of Review

[2.] The Board decided to grant access to a large number of the records sought in Mr ACM's request, including the record of the assessment. The record of assessment comprises, in fact, two sets of records - the report of the Child Assessment Team (pages 198 to 208 inclusive of the Board's Child Advisory Team file) and the Child Advisory Team Appointment Details (page 209). These two sets of records contain details of the appointment dates made by the Child Advisory Team with various members of the ACM family, the family composition, the background to the referral, what transpired during the appointments and the conclusions and recommendations of the Child Assessment Team regarding the matter.

[3.] Pursuant to section 29 of the FOI Act, Ms ACM was notified as a third party by the Board regarding the proposed release of these two sets of records. She applied to my Office for a review following the Board's decision to grant access to those records. This review is concerned solely with the question of whether the Board's decision to grant access to these two sets of records (pages 198 - 208 and page 209) was justified under the FOI Act in the light of Ms ACM's contention that the decision was not justified.

[4.] During the course of this review I received submissions from the Board and from Ms ACM and her solicitors. My Office wrote to the solicitors for Ms ACM expressing the preliminary view that certain parts of the records should be released to Mr ACM and affording the solicitors the opportunity of commenting on her behalf on that preliminary view. My Office has not received a response to that letter. My Office also notified Mr ACM of this review and expressed the preliminary view that access should be granted by means of inspection to parts of the records sought. Mr ACM made a submission to my Office in which he argued that copies of the records sought should be released to him in full. He also stated that he would accept release of the records to his solicitors who would be subject to strict undertakings regarding limited use for court purposes. I have considered all these submissions.

Submissions

Ms ACM

[5.] Ms ACM and her solicitors have made a number of submissions to me during the course of this review. Ms ACM has argued that the information sought was personal information about her. Her solicitors stated that family law proceedings had been issued by Ms ACM against her husband seeking, among other things, a decision in relation to the custody of, and access to, the children. They argued that the court would be likely to request psychological evaluations of the children and that only the court should make decisions as to which reports should be released to the parties. They stated that the Board's assessment was carried out at the request of Ms ACM and at a time when Mr ACM was denying the charges brought against him of sexual abuse of young children. They stated that Mr ACM had subsequently pleaded guilty to these charges. The solicitors argued that the Board had not adverted to the welfare of the children in deciding to grant access to the records. Ms ACM was of the view that Mr ACM would use the records to the detriment of the children if they were released to him. The solicitors stated that Ms ACM claimed legal privilege in respect of the report and that legal proceedings in relation to custody of, and access to, the children were contemplated at the time the report was prepared. They stated that the assessment had been carried out at Ms ACM's request and argued that a claim by Mr ACM, that the request for the assessment had been made through his solicitor, was incorrect.

The Midland Health Board

[6.] The Board stated that it took account of section 26(1)(a) and section 28(6)(a) in making its decision and decided that the public interest would, on balance, be better served by granting the request than by refusing it. The Board said that Ms ACM had concerns about her children and, on making them known to the Board, she was informed that the normal procedure in such cases is to interview and assess the children, with the consent of the parents, and to reach conclusions which would be made known to both parents. The Board stated that both Mr and Ms ACM consented in writing and in person to the Child Advisory Team assessment; both were fully informed in person of the then concerns and of the procedures to be used in the assessment. The Board has stated that it would have been explained to the parents that, on completion of the assessment, they would be given feedback regarding the findings of the assessment. It also argued that as both Mr ACM and Ms ACM were individually fully informed of the finding and recommendations of the assessment team, the records had already been made available to them in verbal format.

Mr ACM

[7.] Mr ACM said that the reason he was seeking the records was to enable his legal representatives to advise him and to present his case regarding access to his children. He argued that it would be contrary to fair procedures if access was not granted to the records as his legal representatives would be unfairly hindered in advising him and presenting his case. He claimed it was both in the public interest, and in the best interests of his children, that the matter be put fully and fairly before the court. He argued that the records were created by the Board at his request because of his concerns about the welfare of his children. He argued that, as he is now in prison and due to the location in which his solicitor is based, there would be a difficulty in organising access by means of inspection rather than by means of furnishing copies. Mr ACM sought access to copies of the records in full. In the alternative, he argued that the report should be released to his solicitor (rather than to himself) subject to his solicitor's undertaking that it would not be published, copied or used for any purpose other than court proceedings. He argued that, as the court proceedings would be held in camera, release in this manner would not prejudice the privacy rights of the members of his family.

Findings

Preliminary Issues

[8.] (i) A number of issues have arisen in this case which I would like to address at the outset. In correspondence with my Office, Ms ACM took issue with the contents and conclusions of the Board's assessment, the methodology used by the Board in completing the assessment and subsequent follow-up by the Board. I would like to make it clear that it is not part of my role as Information Commissioner to adjudicate on how public bodies perform their functions generally.

[9.] (ii) The solicitors for Ms ACM raised the procedural point that the decision by the Board to release the records in this case appeared to have been made by a person involved in the preparation of the actual report. While they confirmed that they had no reason to doubt the bona fides of the decision maker, they argued that this was not good practice. In response, the Board argued that the decision maker was not directly involved in the preparation of the actual report and that the decision maker could identify no conflict of interest in the case.

I would add the following comment. As this was a decision on a request to which section 29 applies, the decision is not one which is subject to internal review but comes directly to my Office on appeal. Whereas issues regarding the independence of the decision maker might possibly arise on internal review, it is not uncommon for the initial decision to be made by someone within the public body who is familiar with the records or with the issues involved. Indeed, it can sometimes be difficult for decision makers who are unfamiliar with the records and issues to make a decision on their release under the FOI Act. Where there is no conflict of interest or other inhibiting factor present, I do not consider that it is bad practice for an initial decision maker to have some familiarity with the records.

[10.] (iii) There is some discrepancy as between the positions of Mr ACM and his wife as to who requested the assessment to be carried out. Mr ACM has stated that it was requested in court through his solicitor and that it was carried out at his request because of his concerns about the welfare of the children. It has been argued on Ms ACM's behalf that the report was sought by her arising out of concerns for her children. The Board has stated that Ms ACM made her concerns about the children known to its social worker and was informed by the social worker of the normal procedure in such cases and that such procedures, including the assessment, were then put in place. The assessment report itself states that Ms ACM requested the referral. It is quite clear that both parents consented to the assessment of their children and that they both participated in the assessment. However, the issue of who requested the assessment is only relevant to the extent, if any, that it is material to the exemptions raised under the FOI Act.

[11.] (iv) This is a review of a decision on a request to which section 29 applies. Section 34(12)(a) provides that in such a review " (a) a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified".

This provision has the effect of placing the onus on Ms ACM, as the objector, to show to my satisfaction that the Board's decision to grant access to the records under review was not justified. However, I do not interpret section 34(12)(a) to mean that, in determining whether the Board's decision was justified, I am bound only by the arguments raised by Ms ACM. In conducting my review, I am also mindful of the Long Title to the FOI Act which states that its purpose is "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies . . . " (my emphasis). I consider that it would contravene the purposes of the Act to allow sensitive records to be released in a manner which would be inconsistent with the public interest and/or the right to privacy simply because the objector failed to identify any specific error on the part of the decision-maker. Accordingly, in applying the presumption provided for under section 34(12)(a) of the Act, I am nevertheless constrained to make an independent assessment of the decision.

[12.] (v) The Board considered section 26 and 28 in making its decision in this case. In the submissions made to my Office by or on behalf of Ms ACM it was suggested that release of the records would have a bearing on the conduct of the family law proceedings which have been issued. It was also argued that only the court should make a decision on the release of the records. These arguments may possibly be interpreted as a claim that release of the records would amount to a contempt of court and thus section 22(1)(b) would apply. It may also be seen as a claim that release of the records might prejudice the legal proceedings which have been issued and thus section 23(1)(a)(iv) would apply. It has also been stated that Ms ACM is claiming legal privilege in respect of the records. I take this to be an argument that section 22(1)(a) applies. I will therefore consider the application of sections 22(1)(a), 22(1)(b), 23(1)(a)(iv), 26 and 28 in this case.

Records Created Prior to Commencement of Act

[13.] Before considering the application of the various exemption sections of the Act, as identified above, it is relevant to note that the records in question were created before 3 September 1998. This means that the records were created before the date of commencement of the FOI Act, which in the case of health boards was 21 October 1998. A right of access to records created prior to the commencement of the Act arises where access is necessary or expedient in order to understand records created after such commencement [section 6(5)(a)] or where the records relate to personal information about the person seeking access to them [section 6(5)(b)]. Having examined the records in question, I am satisfied that the records in this case were created in the context of concerns raised about Mr ACM's children at a time when allegations of sexual abuse had been made against him. Arising from this, Mr ACM, his wife and the children were interviewed and an assessment was carried out. The records relate to the Board's enquiry into the possibility that the ACM children may have been abused by their father, the requester. The records were thus created directly in connection with personal information about the requester or joint personal information about the requester and his children. I am satisfied that the records relate to personal information about Mr ACM and, subject to the other provisions of the Act, a right of access to the records arises pursuant to section 6(5)(b). I note that neither Ms. ACM nor the Board has argued that a right of access to the records does not arise on the basis that they were created prior to the commencement of the FOI Act.

Section 28

[14.] In considering the application of the various exemptions in this case, I will first address the application of section 28. Section 28(1) of the FOI Act provides that a request shall be refused if access to the record concerned would involve the disclosure of personal information although this does not apply where the information concerned relates to the requester. The Board has referred to section 28(2)(b) and section 29(2)(b) as its reasons for consulting Ms ACM. Section 28(2)(b) provides that the exemption does not apply if the person to whom the information relates consents to its disclosure. Section 29(2)(b) provides that a public body must consult the person to whom the information relates before deciding, in the public interest, to grant access to the records containing personal information. Ms ACM objected to the release of information relating to her own interview with the Board staff arguing that it was her "personal file". I will therefore consider the application of section 28 to these records.

[15.] Section 2 of the FOI Act provides specifically that personal information includes information relating to the medical or psychological history of an individual. Section 28(3), which makes special provision for the refusal of certain records containing personal information, makes reference to records kept for the purposes of social work.

[16.] As I said above, the records in this case contain details of the appointment dates made by the Child Advisory Team with various members of the ACM family, the family composition, the background to the referral, what transpired during the appointments and the conclusions and recommendations of the Child Assessment Team regarding the matter. In the course of the appointments, members of the family discussed personal and family matters. Further, the information was collected and the records were created by health board social workers in the context of a health board inquiry into concerns about the ACM children including concerns that they may have been abused. I find that the records disclose personal information about the various members of the ACM family referred to in the records, including Mr ACM, the requester. Some of the personal information is solely about Mr ACM, the requester. Some of the personal information relates solely to individual members of the family other than the requester and some of the personal information relates jointly to Mr ACM and to other members of his family.

Personal Information relating to Minors

[17.] Before addressing the application of the provisions of section 28 generally, I will address the issue raised by the fact that the records in this case contain personal information relating to the ACM children, all of whom are minors. The Board has stated that it took the provisions of section 28(6)(a) into consideration in making its decision. The Freedom of Information Act 1997 (Section 28(6)) Regulations, 1999 (SI 47 of 1999), which concern access to records which disclose personal information about minors, were made pursuant to section 28(6) of the Act. The effect of SI 47 of 1999 is that access to a record which discloses personal information about a requester's child shall be granted to the requester as parent or guardian of the child where, having regard to all the circumstances of the case and any guidelines drawn up by the Minister, the granting of access would be in the best interests of the child. Mr ACM has argued that access should be granted pursuant to SI 47 of 1999 and that the granting of access would be in the best interests of the children.

[18.] The application of these Regulations is relevant for two reasons. Firstly, if a right of access were established pursuant to the Regulations, then as a consequence such a right of access would apply (subject to the exemptions in the Act) to pre-commencement records by virtue of the provisions of the Freedom of Information Act, 1997 (Section 6(4)(b)) Regulations, 1999�(SI 46 of 1999). However, I have already decided that the requester has a right of access (subject of course to the other provisions of the Act) pursuant to section 6(5)(b). Secondly, the Regulations operate as an exception to the exemption contained in section 28(1) of the Act. It is for this reason that I now consider the application of the Regulations in this case.

[19.] The key question to be addressed in deciding whether access to records should be granted pursuant to SI 47 of 1999 is whether the granting of access would be in the best interests of the children. It has been argued on behalf of Ms ACM that the assessment was carried out at a time when Mr ACM had not admitted his guilt in relation to the criminal charges brought against him and that Mr ACM was likely to use the records "based as they are on a fundamental misconception fostered by Mr ACM himself to try and exonerate his role as a parent to the children". Ms ACM's solicitors argued that this could have a very detrimental effect on the mental and emotional well being of the children. It was also argued that the Board did not advert to the welfare of the children in making the decision to grant access to these records. On the other hand Mr ACM, in arguing that release of the record was in the best interests of the children, stated "that the matter should be put fully and fairly before the Court and that it is then for the Court to decide what in fact is in the best interests of the children in making its decision".

[20.] It is clear that children may find themselves in vulnerable positions in cases of family disputes. By their nature, these cases are complex, there can be conflicting interests and the issues can be finely balanced. In the absence of evidence showing that disclosure would actually be in the best interests of the child, the requirement to protect the privacy of the children remains strong.

[21.] I am aware that proceedings in relation to access to the children are pending before the courts and Mr ACM argues that granting access to the records would enable his legal representatives to advise him properly and enable the case to be put fully and fairly before the court. However, I am satisfied that if the records are required for the purpose of those proceedings, procedures exist within the court system to enable the records to be produced in full if the court decides that this is appropriate There is nothing to prevent Mr ACM seeking the records or the attendance, as witnesses, of the authors of the records through the procedures available to him in court. The grant or refusal of a request under FOI should not affect his position in that regard in any way.

[22.] In determining whether access to these records should be granted under the FOI Act, I must make my determination by reference to the principles of that Act which may be quite different from those which arise in the course of litigation. The fact that a requester may be entitled to access records by way of discovery, or by compelling the attendance in court of the authors of the records, does not mean that s/he is necessarily entitled to access the records pursuant to the FOI Act. In addition, if records are used in family law proceedings, conditions and restrictions may be attached to their use. Such conditions and restrictions exist in large part to protect the interests of children. There is nothing in the FOI Act which qualifies or restricts the use by requesters of information released to them under the Act.

[23.] It has not been shown to my satisfaction that use by Mr ACM of the records would be to the detriment of the children. Neither, however, am I satisfied that release of the information would benefit the children or serve their best interests. I do not see any benefit accruing or likely to accrue to the children in this case by granting access to their father to the records containing personal information about them. In my view, in cases of this nature where there is a potential for conflict between the interests of a child and its parent, there is a relatively high test to be met in order to establish that it is in the best interests of the child to grant access to records to the parent pursuant to SI 47 of 1999. I am not satisfied that the requirements of SI 47 of 1999 are met in this case and I therefore find that Mr ACM does not have a right of access to these records pursuant to its provisions.

Personal Information relating to the Requester

[24.] Where personal information relates solely to Mr ACM and can be separated from the information relating to other members of the family, section 28(2)(a) applies and that information is not exempt pursuant to section 28(1). In my view there is a small amount of information which comprises personal information relating solely to Mr ACM, the requester, or which does not comprise personal information relating to any other member of the ACM family, and which is not exempt pursuant to section 28.

Personal Information Relating to Individuals other than the Requester

[25.] Where the record or part of the record discloses personal information about a member of the family other than the requester which can be separated from the information relating to the requester, the information falls within section 28(1) of the FOI Act and is, subject to the other provisions of that section, exempt information. Where the record or part of the record discloses personal information about both the requester and other member(s) of the family, and where the information about Mr ACM cannot be separated from the information about the other members of the family, it can be described as joint personal information and the provisions of the Freedom of Information Act, 1997 (Section 28(1) Amendment) Regulations 1998 (SI 521 of 1998) must be considered. These Regulations require that, subject to the other provisions of section 28, a request shall be refused if access to the record concerned would, in addition to involving disclosure of personal information relating to the requester, also involve disclosure of personal information relating to an individual or individuals other than the requester.

[26.] I find that access to the two records in this case (with the exception of those parts which disclose personal information solely about the requester) would involve the disclosure of personal information about individuals other than the requester and/or the disclosure of joint personal information about Mr ACM and those individuals. This means that it is necessary to consider the relevant provisions of section 28 as they apply to personal information about other members of the ACM family and as they apply to joint personal information relating to other member(s) of the family and to Mr ACM, the requester.

Accordingly, I must now consider the other provisions of section 28. It has not been argued that the provisions of section 28(2)(b),(c),(d) or (e) apply and I am satisfied that none of these provisions are relevant in this case. However, the relevance of section 28(5) does require to be considered.

The Public Interes

t[27.] Section 28(5)(a) provides that access to a record may be granted where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. There is a number of public interest factors which, in my view, are relevant considerations in favour of the release of this information. In my view there is a public interest in individuals, against whom concerns or allegations have been raised, knowing what those concerns or allegations are and being in a position to respond to them. There is a public interest in individuals who have voluntarily participated in a process of investigation or assessment, conducted by a public body, knowing how the public body performed its functions in that regard and knowing the outcome of the process. There is also a public interest in enabling individuals to defend and vindicate their good name. There is a public interest in parents being able to exercise guardianship rights in relation to their children where the exercise of this right is facilitated by having access to records relating to their children. I consider that these issues are not matters of private rights. In my view, the principle of justice to the individual arising in these issues constitutes a public interest.

[28.] I have taken account of the following public interest factors which, in my view, weigh against the release of this information. There is a public interest in protecting the right to privacy of the individuals to whom the information relates. There is a public interest in individuals being able to communicate in confidence with public bodies concerning sensitive, family matters. There is also a public interest in public bodies being enabled to carry out assessments or investigations in cases concerning children and there is the risk that release of information of this nature would make this more difficult.

[29.] Mr ACM has argued that access to the records would enable his legal representatives to put his case fully and fairly before the court. It could be argued that this may be a further public interest consideration in favour of the release of the records. On the other hand, section 8(4) of the Act provides (4) In deciding whether to grant or refuse to grant a request under section 7 (a) any reason that the requester gives for the request, and (b) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded.

[30.] I have already considered this provision and the relative weight which I should attach to the public interest considerations arising under section 28 in Case No. 99001, Ms ACF and the North Eastern Health Board. As I stated in that case: "This means that any motive which the requester may have in seeking the information must be disregarded for the purpose of the decision under FOI. It also means that a requester need not show that he or she has any particular standing in order to make an FOI request. It could be argued, therefore, that little or no weight should be attached to the arguments that the requester, as a person who was in the care of the Board, should have access to information concerning her care. It seems to me, however, that section 8(4) does not necessarily mean that in certain particular cases the identity or history of the requester may not be relevant to a decision regarding the public interest in the release of information." (Decision of the Information Commissioner, 4 July 2001)

In particular cases the interest of an individual requester may be a matter of public interest and not merely a matter of private interests or rights. The degree of weight attaching to such a public interest would depend very much on the facts of the case.

[31.] In this case I have taken account of the fact, as I have said above, that procedures exist within the court system designed to ensure that the principles of natural justice are preserved and which enable the records to be produced if the court decides that this is appropriate. I have also taken account of the fact that family law proceedings are pending in this case in which the court may address the issue of the exercise by the parents, including the requester, of their guardianship rights. These proceedings will enable the guardianship issues to be determined. [32.] In considering the application of section 28 in Case No 99001, Ms ACF and the North Eastern Health Board, referred to above, I found that the public interest in the protection of the right to privacy was strong. "Section 28(5) refers to the public interest in upholding the right to privacy. The Long Title of the Act refers to members of the public obtaining access to the greatest extent possible �consistent with the public interest and the right to privacy�. The public interest in protecting the right to privacy is a strong one. In my view, in the context of FOI, the protection of an individual's privacy is also a public interest and not a matter of protecting private rights.

Section 28 is a mandatory exemption which means that a request for records falling within the terms of the section must be refused unless other provisions in the section are met. I also note that section 28 provides that access shall be refused where it would 'involve the disclosure of personal information�. This wording is significantly different from the wording of the FOI Act of the Commonwealth of Australia which refers to the �unreasonable disclosure� of personal information. I am of the view that the protection of personal privacy afforded by the section 28 exemption is intended to be a strong one.

I should add that the right of a requester to seek access under the FOI Act to personal information relating to him or her held by a public body is subject to the provisions of the Act itself. The right of access to personal information is not an absolute right and requesters do not have an automatic right of access to such information (e.g. section 23 or section 26 could serve to prevent release of personal information)."

[33.] The records in this case relate to an investigation by a health board concerning possible sexual abuse of children. The interviews with all the members of the family, including the parents, were part of that investigation. The interview with Ms ACM is concerned primarily with the children. I consider that the public interest in the protection of the right to privacy of individuals involved in cases of child sexual abuse or alleged child sexual abuse is very strong indeed. In considering the very many contexts in which personal information about an individual might exist, I consider cases of sexual abuse or assault, including child sexual abuse, to be among the most sensitive. The need for the protection of the right to privacy in such circumstances is very great.

[34.] As I stated in Case No. 99001, Ms ACF and the North Eastern Health Board: "[T]here is nothing in the FOI Act which qualifies or restricts the use by requesters of information released to them under the FOI Act. This contrasts with the situation that generally arises, for example, where cases of sexual abuse or sexual assault come before the courts or where child care cases are heard by the courts. Statutory provisions governing the conduct of such cases allow for the proceedings to be held otherwise than in public or for the exclusion from court of all persons except those directly concerned with the case. There is also statutory provision enabling the identity of both the complainant and accused to be protected and for the prohibition of publication or broadcast of certain matters. Documents furnished in the course of such proceedings may be similarly restricted. These provisions reflect a public interest in protecting the privacy of the persons involved. There is no restriction or qualification on the dissemination of information released under FOI. Thus, release of information to a particular requester is not qualified and any further use made of the information released cannot be restricted."

[35.] I have also taken account of the fact that, according to the Board, both parents in this case were informed at the outset of the procedure the Board intended to follow and were informed that the conclusions would be made known to both parties. In my view, this is very important and where disclosure in accordance with the procedure of the Board is anticipated, it reduces the weight attaching to the privacy of the individuals involved, especially the adults.

[36.] As I have said above, there is a public interest in individuals against whom allegations are raised knowing what those allegations are and being placed in a position which enables them to respond. In this case, I have taken account of the fact that Mr ACM was aware of the background for the referral, was made aware of the concerns at that time, was given an opportunity to participate in the assessment process and availed of that opportunity. Further, he was informed orally by the Board of its findings and recommendations. I accept that the granting of access to the information would enable an individual to verify the public body's account of the information previously given orally and enables the individual to see for himself or herself the information held by the public body. On the other hand, it could be argued that the fact that the requester was made aware of the concerns, that he participated in the assessment process and was given information orally concerning the findings and recommendations of the assessment team - all serve to reduce the public interest in granting access to the information in this case.

[37.] While recognising the public interest factors in favour of the release of this information, I do not consider that they require that the requester be granted access to the records in their entirety. In my view, the requirements of the public interest can be met in this case by granting Mr ACM access to the substance, or summary, of the report which shows the manner in which the Board carried out the assessment, the individuals who were interviewed and the conclusions or recommendations of the Assessment Team.

[38.] In considering where the balance of the public interest lies in this case, I am satisfied that the interests of Ms ACM and the children are adequately protected by withholding the personal information relating to them with the exception of the information detailed below comprising the background to the investigation and the substance or summary of the report and its conclusion. Accordingly, my finding is that the records sought should be provided to the extent only, but subject to the paragraph which follows, that they disclose the background to the investigation, the substance or summary of the report and its conclusion. In addition, my view is that the privacy interests of Ms ACM and the children will be further protected by granting access by means of inspection rather than by the provision of copies of the records. I refer to this further below.

Page 204

[39.] I will now deal with page 204 in the records which is that portion of the Child Assessment Team report which contains details of the interview with Mr ACM. This section of the record contains personal information relating to Mr ACM, the requester, and also contains personal information relating to other members of the family. To the extent that it contains details relating to other members of the family, it comprises joint personal information. However, in my view, given the fact that the joint personal information comprises information given by the requester to the Board concerning other family members, the infringement of the privacy of those family members, by release to the requester of that information, is minimal. In addition, there is a public interest in members of the public ensuring that records relating to meetings or interviews between them and public bodies are accurately recorded. For these reasons, I find that the public interest in granting access to the part of the records which relates to the interview with Mr ACM, the requester, on 12 November 1997 (page 204) outweighs the public interest that the right to privacy of the other family members mentioned should be upheld.

Section 12 - Manner of Access

[40.] The Board's initial decision in this case was to release copies of the records in full to Mr ACM. However, Ms ACM has objected to this and appealed that decision to my Office. In considering the objections of Ms ACM, I have found that section 28(1) and the provisions of SI 521 of 1998 apply as appropriate to the personal information about members of the ACM family other than the requester and to the joint personal information relating to the requester and the other members of his family. In my view, the public interest that Mr ACM be granted access to the substance or conclusion of the report and to the information contained in page 204 outweighs the public interest that the right to privacy of the other individuals to whom the information relates should be upheld. However, I am conscious of the fact that the right to privacy of these individuals would be impaired by this. I have therefore considered the provisions of section 12(2)(b)(iv) of the Act which provides : (2) Where a head decides to grant a request under section 7 and the request is for access in a particular form or manner to a record, such access shall be given in that form or manner unless the head concerned is satisfied .... (b) that the giving of access in the form or manner requested would ..... (iv) prejudice, impair or damage any interest protected by Part III or section 46.

[41.] I have therefore considered the question of granting access by means of providing Mr ACM with a reasonable opportunity to inspect the records. In his request, Mr ACM sought access to the records by being provided with copies of the records. He has argued that, as he is in prison and due to the location in which his solicitor is based, there would be particular difficulties in relation to organising the inspection of the records. In a letter to the Board, my Office raised the issue of access by means of inspection. The Board, in its response, stated that it recognised the balance being attempted were access to be offered by means of inspecting the records.

[42.] Mr ACM has argued that the records need not necessarily be released to him but might be released to his solicitor. He has suggested that this could be done on his solicitor's strict undertaking that the records would not be published, copied or used for any purpose other than the purpose of presenting the case to court. He requested that a copy of the records be released in full to his solicitor. I have absolutely no reason to doubt the bona fides or integrity of the requester's solicitor in any way. However, such an alternative poses significant difficulties where records are being released under the FOI Act. While section 45(5) does not give immunity from legal proceedings for defamation or breach of confidence if the requester or any other person publishes the records to which he/she has been granted access, neither is there anything which qualifies or restricts the use by requesters of records released under the FOI Act. This is different from the situation where cases of this nature come before the courts. Undertakings given to, or orders made by, the courts with regard to the use to be made of records may be enforced by the courts through their own procedures. The powers of the courts and their inherent and statutory jurisdiction allow for the imposing and enforcing of conditions and undertakings in a manner which is not possible for me as Information Commissioner in a decision under section 34(2) of the FOI Act. For these reasons, I am of the view that the furnishing of undertakings by the requester's solicitors is not a practicable alternative in this case. I am aware that Mr ACM also made this suggestion with regard to granting access to his solicitor in order that, in his view, the matter could be fairly presented to the court. However, I have already expressed the view that the right to fair procedure is respected by the courts in any court proceeding.

[43.] My conclusion is that, in the case of those records or portions of records which are to be released, access should be granted by means of providing Mr ACM or his solicitor with a reasonable opportunity to inspect the records. Mr ACM's argument relating to the particular difficulties posed by inspection in this case, by reason of the fact that he is currently in prison, was raised with the Board. If, as Mr ACM suggests, there may be some difficulty in arranging inspection of the records by either Mr ACM himself or his solicitor at the offices of the Board, the Board has agreed that it will make arrangements for the records to be brought to the prison, in which Mr ACM is detained, for the purpose of inspection.

Section 22(1)(a)

[44.] Section 22(1)(a) provides that access shall be refused where the record would be exempt from production in proceedings in a court on the ground of legal professional privilege. It has been argued on behalf of Ms ACM that she made the request for the referral in this case. It was claimed that the report was clearly confidential and was sent to Ms ACM as the client. It was argued that the report would be protected from disclosure under the usual legal privilege relating to documents prepared in anticipation of legal proceedings by one party against another. It was also claimed that it was clearly contemplated at the time that legal proceedings may be initiated in relation to custody of the children. This may be construed as an argument that the record is exempt pursuant to section 22(1)(a) of the FOI Act.

[45.] Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and
• communications made between the client and a legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

It is clear to me that the records in this case do not comprise communications for the purpose of obtaining or giving legal advice and do not fall within the first type of communication described above.

[46.] It is clear that the records do not comprise communication between Ms ACM and her legal advisers. I have considered whether the records comprise communications between either Ms ACM or her legal advisers and a third party with the dominant purpose of preparation for litigation. Whereas the report is marked confidential, it was not addressed to Ms ACM. I note that the introductory heading of the report states that it is for the information only of the persons to whom it is addressed and Ms ACM is not one of the persons to whom it was addressed. The report specifies that no responsibility was accepted if the report came to the attention of any other person "including the client and his/her family". The Board has informed my Office that both parents were informed that the normal procedure in such cases was to reach conclusions which would be made known to both parents. The Board has stated that both parents were individually fully informed of the findings and recommendations of the assessment team. I am satisfied that the records were prepared by the staff of the Board in the course of the performance of its functions and it was open to the Board to use the records created in any way that the Board found necessary for the proper performance of those functions. In my opinion, the Board was independent in its role and was not acting as an agent, expert or adviser solely to Ms ACM.

[47.] In addition I note that Ms ACM's solicitors have claimed that the records were compiled principally for the benefit of their client and the children "to ease her fears that her own children were not abused by Mr ACM." This indicates that, in agreeing to the assessment, Ms ACM was concerned with the possibility that one or more of her children had been abused or was at risk of abuse. I am satisfied that whereas litigation may have been a possibility, it does not appear to have been the dominant purpose for which the records were created.

For these reasons, I find that section 22(1)(a) does not apply to these records.

Section 22(1)(b)

[48.] Section 22(1)(b) provides that access shall be refused where disclosure of the record would constitute contempt of court. The solicitors for Ms ACM have stated that family law proceedings have been issued by their client including proceedings in relation to custody of, and access to, the children and that the decision as to which reports should be released to the parties should only be made by the court. It was argued that Mr ACM could seek access to the report by using the discovery procedure in the family law proceedings. It seems to me that these arguments may possibly be construed as arguments that the records are exempt pursuant to section 22(1)(b).

[49.] I note that it has not been suggested that the records in this case have been used or referred to in in camera proceedings in court or that these records emanate from or derive from such proceedings. Nor has it been suggested that a court has prohibited access to these records. There is no evidence before me that the records at issue have been the subject of discovery or that any undertaking given to a court or court imposed condition attaches to the records in this case which would prohibit their release. These issues were raised by my Office in a letter to Ms ACM's solicitors and no response was received to that letter.

[50.] I note the comment that the requester could seek access to the records through the discovery procedure. I accept that, if and when this matter comes before the court, the court may direct the production or release of reports to either party in the case. The mere fact that at some future date a court may make an order or give directions regarding the production or release of a record does not, in my view, mean that such a record is exempt under section 22(1)(b). The fact that there may be another procedure through which Mr ACM may seek access to the records (other than pursuant to an FOI request) does not mean that his right of access to the record under the FOI Act no longer applies. Indeed, I note that in his judgement in the case of EH and The Information Commissioner, Mr Justice O'Neill stated "I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the [FOI] Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery." (High Court, Unreported, 4 April 2001).

For these reasons and bearing in mind the provisions of section 34(12)(a) which I have referred to above, I find that section 22(1)(b) does not apply to these records.

Section 23(1)(a)(iv)

[51.] Section 23(1)(a)(iv) provides that access to a record may be refused where it could reasonably be expected to prejudice or impair the fairness of civil proceedings in a court or other tribunal. The solicitors for Ms ACM have argued that, in the context of pending proceedings, it is likely that the court will request psychological evaluations of the children and that it is appropriate that only the court should make decisions as to which reports should be released to the parties. They have also argued that the records at issue here were prepared at a time when Mr ACM had not admitted guilt in the case of the charges of sexual abuse of children which had been brought against him. They claimed that it was entirely inappropriate that reports prepared in such a context would be released to Mr ACM. They have argued that if they were released to him, they would be used by him to the detriment of the children.

[52.] Mr ACM has argued that, unless his legal representatives have the opportunity to have access in full to the records, their ability to advise him fully and to present his case to the court fairly would be seriously fettered. He argued that it would be contrary to fair procedures and contrary to the public interest and the best interests of the children if the records were not released.

[53.] It has not been shown to me how release of the records could reasonably be expected to prejudice or impair the fairness of any such pending proceedings. In my view, these records do not reveal a secret or confidential aspect of either side's case nor do they reveal an argument or tactic of either side. According to the Board, both parents have already been informed of the findings and recommendations of the assessment team. It has not been shown to me that there is anything to prevent either party from seeking to use the report in court or to call the authors of the report to give evidence.

[54.] As I have said above, the fact that the discovery procedure may be available to Mr ACM does not mean that his rights under the FOI Act no longer apply. The availability of such a procedure does not, of itself, mean that release of records under the FOI Act could reasonably be expected to prejudice or impair the fairness of court proceedings. On the other hand, the fact that a requester may be entitled to access records by way of discovery does not, in my view, mean that he is necessarily entitled to the records pursuant to the FOI Act. The courts have practices and procedures in place designed to ensure that the principles of natural justice are preserved and they will apply the relevant criteria so as to ensure that this is done. The question which I have to address in a review under the FOI Act is whether the decision of the public body is justified within the terms of that Act.

[55.] I note the argument that Mr ACM had not admitted his guilt to the charges brought against him at the time of the assessment. I would point out that, at the time the report of the assessment was completed, Mr ACM was serving a prison sentence, a fact known to the social workers who prepared the report and referred to in the report itself. In any event, it seems to me that the issues raised by Ms ACM may be raised by her, whether in cross examination or otherwise, in the context of any court proceedings which transpire; they do not mean release of the records on foot of an FOI request could reasonably be expected to prejudice or impair the fairness of the proceedings.

For these reasons, and bearing in mind the provisions of section 34(12)(a), I find that section 23(1)(a)(iv) does not apply to these records.

Section 26

[56.] In its submissions to my Office, the Board referred to section 26(1)(a) as a relevant provision and the decision maker stated that, in her opinion, the public interest would, on balance, be better served by granting the request than by refusing it. No argument was advanced by or on behalf of Ms ACM that the information contained in the records was given to the Board in confidence.

[57.] Section 26(1)(a) exempts records containing information given to the public body in confidence. However, section 26(2) provides that section 26(1) shall not apply to a record which is prepared by a member of the staff of a public body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law. In addition, information given in confidence and to which section 26(1)(a) applies must be released if the public interest would, on balance, be better served by granting, than by refusing to grant, access to the record.

[58.] I find that the two records in this case were created by members of staff of the Board in the course of the performance of their functions. The effect of section 26(2) is that such records do not qualify for exemption under section 26(1) unless disclosure of the information would constitute a breach of a duty of confidence owed to someone other than a public body.

[59.] It has not been argued that a duty of confidence arises by statute or agreement in this case and in my view such a duty of confidence does not exist. A duty of confidence can also arise by operation of law. In Case Number 98049, Henry Ford & Others and the Office of Public Works, I considered the equitable duty of confidence and adopted the tests set out in the English case of Coco -v- AN Clarke (Engineers) Ltd. [1969] FSR 415 in which Megarry J. stated as follows: "Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself... must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

[60.] Page No. 209 of the records comprises the details of the appointment dates of the Child Advisory Team with various members of the ACM family. This record does not contain information provided by members of the family to the Board and cannot, in my view, comprise confidential information imparted in circumstances imposing an obligation of confidence.

[61.] Pages Nos. 198-208 are the Child Assessment Team report and contain information of a personal and sensitive nature relating to members of the ACM family. The context in which the information was given to the Board, and in which the assessment report was created, is critical in this case. The Board has informed my Office that Ms ACM, on making her concerns known to the Board, was informed that the normal procedure in such cases is to interview and assess the children with the consent of the parents, and to reach conclusions which would be made known to both parents. The Board has informed my Office that Ms ACM felt that this was appropriate and the procedure was put in train. The Board has stated that both parents consented in writing and in person to the Child Advisory Team assessment, both were fully informed in person of the then concerns and the procedures to be used in the assessment. The Board also argues that, given that both parents were individually fully informed in person of the findings and recommendations of the assessment team, the record of the written report has already been made available to both parties orally.

[62.] I do not see how, in these circumstances, either party could reasonably expect that the outcome of the assessment or the report would be withheld from the other party. In my view, given the circumstances of the assessment, it must have been anticipated that a formal report of the assessment would be prepared and that such a report would be used by the Board as it deemed necessary in order to carry out its child protection functions. In addition, Mr ACM has already been informed orally of the findings and recommendations of the assessment team. Because of that, it is clear that the information relating to the findings and recommendations would not have the necessary quality of confidence or degree of secrecy necessary for it to be the subject of an obligation to withhold it from Mr ACM. In addition, given the circumstances of this assessment, I am satisfied that the information in pages 198-208 was not imparted in circumstances which would render release of the information to Mr ACM a breach of a duty of confidence owed to the ACM family. For these reasons, I find that the information in the Child Assessment Team report was not imparted in circumstances imposing an obligation to withhold the information from Mr ACM and I find that release of the information by the Board to Mr ACM would not be an unauthorised use of the information.

For these reasons, I find that disclosure of the information in these two sets of records (page 209 and pages 198-208) would not constitute a breach of a duty of confidence and that, by virtue of section 26(2), section 26(1)(a) does not apply.

Decision

[63.] Having completed my review under section 34(2) of the Act, I have decided to annul the decision made by the Board regarding the records falling within the scope of this review and I make the following decision. Mr ACM should be granted access to the following parts of the records : Pages 208 & 209 - in their entirety Page 207 - down to and including the words "Recorded by M Carey" Page 205 - the final paragraph Page 204 - in its entirety Page 199 - the Paragraph commencing "Conclusion". Page 198 - in its entirety. Access should be granted by providing Mr ACM or his solicitor with a reasonable opportunity to inspect the records. Access should be granted within a period of eight weeks from the expiration of the time for the bringing of an appeal from this decision. Access to the remaining parts of the records which are the subject of this review should be refused.

Information Commissioner

19 December 2001