Case 99227

Information relating to the identity of persons who made allegations against the requester - whether the information was given in confidence in relation to the enforcement or administration of the civil law - section 23(1)(b)

Case Summary

Facts

The Mid-Western Health Board (the Board) received information which raised concerns about the requester's children. Following its investigations, the Board decided not to pursue the matter any further and closed the case. The requester sought access to records containing information relating to the identity of the person who made the allegations to the Board.

Decision

The Commissioner considered the application of section 23(1)(b) of the Act. The Commissioner found that a number of factors are relevant in determining whether information was given to a public body in confidence. Those factors include the circumstances of the case, the nature of the information provided, any assurances given at the time it was provided, the practice of the public body with regard to information of that nature, the identities of all the persons concerned and the procedures or enforcement process which would be expected in such a case. The Commissioner accepted that where information relating to the welfare of children is provided to a health board, there will often be an understanding that the information provided will be used only for the purpose for which it was given and, subject to that, the identity of the provider of the information would be protected. The Commissioner accepted that the information provided in this case related to the enforcement or administration of the civil law, i.e. the Child Care Act, 1991.

The Commissioner also found that discouraging the making of false and malicious allegations would be an issue to be considered by a public body when considering an FOI request. The head of a public body may exercise his or her discretion under section 23 in favour of disclosure. The records in this case did not show that the Board considered the allegations to have been made maliciously.

The Commissioner found that section 23(1)(b) applied and affirmed the decision of the Board.

Date of Decision: 12.11.2001

DECISION UNDER SECTION 34(2) OF THE FREEDOM OF INFORMATION ACT, 1997 IN RELATION TO CASE NUMBER 99227 MRS ACL AND THE MID-WESTERN HEALTH BOARD

Background:

[1.] On 27 January 1999 the Mid-Western Health Board (the Board) received a request under the Freedom of Information (FOI) Act, 1997 from Mr and Mrs ACL for access to records relating to statements or allegations made to the Board about them. The Board had previously received information which raised concerns about the welfare of their children. During January 1999 staff of the Board met with Mr and Mrs ACL to discuss those concerns. Having carried out its own inquiries and investigation into the concerns which had been raised, the Board decided not to pursue the matter any further and closed the case in February 1999.

[2.] In their FOI request, Mr and Mrs ACL sought "copies of all details either written or on computer, copies of all statements or allegations made" about them to certain named social workers. On 23 February 1999 the Board refused access to the records sought pursuant to sections 23(1)(b), 26(1)(a) and 46(1)(f) of the FOI Act. Mr and Mrs ACL sought an internal review of that decision. In its internal review decision made on 21 April 1999 the Board refused access to the records pursuant to sections 23(1)(b) and 26(1)(a) of the Act. On 28 May 1999 Mr and Mrs ACL applied to my Office for a review of that decision and I accepted the matter for review.

[3.] The request and the application for review to my Office in this case were made by Mr and Mrs ACL jointly. Regrettably, Mr ACL died after the application for review was made to my Office. Having confirmed with Mrs ACL that she wished to proceed with her application, the review proceeded.

Scope of Review

[4.] During the course of this review Mrs ACL clarified that she was only seeking access to records containing information relating to the identity of the person who had made the allegations to the Board. She agreed that the scope of the request could be narrowed accordingly.

[5.] The file of records furnished by the Board to this Office in this case comprised 44 records. Having examined the records, I note that extracts from 17 records which existed at the time of the request identify, or could enable the identification of, the person who provided the information to the Board or the source of that information and thus fall within the scope of this review. This review is concerned solely with the question of whether the Board's decision to refuse access to those 17 records (or parts of records) was justified.

[6.] I received submissions from the Board and from Mr and Mrs ACL. My Office wrote to Mrs ACL expressing the preliminary view that the records containing information relating to the identity of the person who provided the information to the Board were exempt and offered her the opportunity of commenting on that view and the explanations provided. My Office has not received a response to that letter.

Submissions

Mr and Mrs ACL

[7.] Mr and Mrs ACL stated that they wanted to prove that the allegations were made maliciously and were intended to cause them damage and upset. They stated that they believed that the Board acted in good faith but hoped that the Board would admit that the allegations were made maliciously. They complained about the manner in which the Board had conducted its inquiries in the matter. They stated that they had been affected by the matter and that both of them had received counselling as a result of the actions of the Board.

The Board

[8.] The Board relied on section 26(1)(a) and 23(1)(b) of the FOI Act for its refusal to grant access to the records. It argued that the Child Care Act 1991 imposed a statutory obligation on health boards to promote the welfare of children who were not receiving adequate care and protection. It stated that its functions included the co-ordination of information from all relevant sources relating to children in its area. It stated that the information in this case was expressly given in confidence. It stated that much of the information received by it in child care cases is received in confidence from people who do not wish to be identified. The Board argued that information given to it by named sources can be validated for accuracy and quality more readily than information given anonymously. It argued that failure to protect the confidentiality of a source would have a deterrent effect on other potential informants which would create enormous difficulty for the Board in meeting its statutory obligations in relation to the protection of children.

[9.] The Board argued that the public interest in maintaining the confidentiality of its sources outweighed the public interest in the public knowing what the sources were. It stated that the public interest factors it had considered in favour of release were the importance of disclosure of records on issues affecting the community and the necessity to be open and transparent in its business. The public interest factors it had considered against release were (1) the need to protect sources of information given in confidence in order to ensure compliance with its statutory duties and (2) the need to receive such information in the future.

Findings

[10.] While accepting that the Board acted in good faith, Mr and Mrs ACL complained about the manner in which the Board had carried out its inquiries or investigation in this matter. It is not part of my function as Information Commissioner to adjudicate on how public bodies perform their functions generally. The sole matter which I address in this decision is whether the Board was justified, under the terms of the FOI Act, in refusing to grant access to the records within the scope of this review.

Section 23(1)(b)

[11.] Section 23(1)(b) provides as follows: 23.(1) 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 ..... (b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence,

It is important to make it clear that the only records which fall within the scope of this review are the records, or parts of the records, which contain information relating to the identity of the person who provided information to the Board concerning the ACL family or the source of that information. This review does not concern the substance of that information. I note from a review of the records in this case that the requesters were informed by staff of the Board of the substance of the allegations which had been made.

Revealing the Identity of a Person

[12.] By definition, the information in the records sought would "reveal or lead to the revelation of the identity of a person who has given information to a public body .... or any other source of such information". Indeed, it is specifically that information which the requester now seeks. It is also self evident that, given the limited nature of the information sought, it would not be possible to prepare copies of the records, in accordance with section 13 of the FOI Act, in such a manner that it would not lead to the identification of such a person.

Information Given in Confidence

[13.] I must now address the issue of whether the information was given to the Board in confidence. Where public bodies receive information in relation to the enforcement or administration of the civil law, they will generally be expected to act on foot of the information they receive. Members of the public who provide such information to a public body cannot expect that the body will not make use of the information provided. However, the fact that public bodies act on foot of the information provided does not mean that the information was not given in confidence. In many cases some or all of the information provided will subsequently be revealed by the public body in order to perform its functions properly. The real issue, in the present context, is whether the public body may act in such a way that it will reveal or lead to the revelation of the identity of the informant. That issue will be determined by reference to the facts of the case including any express or implied understanding between the informant and the public body.

[14.] In the case of McEniery and the Medical Board of Queensland (1994) 1 QAR 349, the Information Commissioner of Queensland (Qld) considered the application of section 42(1)(b) of the Queensland Freedom of Information Act, 1992 which provides that matter is exempt if its disclosure could reasonably be expected to

"enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained;"

The Qld Commissioner stated that, in considering whether there was an implicit understanding between the source of the information and the public body that the identity of the source of the information would remain confidential, a careful evaluation of all the relevant circumstances was necessary. He stated that these circumstances included: "the nature of the information conveyed, the relationship of the informant to the person informed upon, whether the informant stands in a position analogous to that of an informer..., whether it could reasonably have been understood by the informant and recipient that appropriate action could be taken in respect of the information conveyed while still preserving the confidentiality of its source, whether there is any real (as opposed to fanciful) risk that the informant may be subjected to harassment or other retributive action or could otherwise suffer detriment if the informant's identity were to be disclosed, and any indications of a desire on the part of the informant to keep his or her identity confidential (e.g. a failure or refusal to supply a name and/or address)..."

[15.] In considering, for the purpose of section 23(1)(b), whether the information was given in confidence, a number of factors are relevant. The first factor to be considered is whether or not an express, mutual understanding has been reached or an express assurance given that the informant's identity would remain confidential. Even if this is found to be the case, questions may arise, depending on the circumstances of the case, as to the appropriateness of assurances given by public bodies. On occasion, the requirements of fair procedures or the enforcement procedures may require disclosure of the identity. On occasion, the contents of the information provided may suggest that the information was not given in confidence, for example, if the information is already generally known.

[16.] In determining whether or not there is an implied understanding of confidence, the circumstances of the case must be considered. Factors to be taken into account include the practice generally with regard to the information provided and the policy of the public body with regard to the receipt and handling of such information (and of the information relating to the identity of the informant, in particular). Depending on the action which the public body will be required to take on foot of the information provided, it may or may not be reasonable for the source of the information and the public body to expect to maintain the confidentiality of the information including the identity of the source. The facts of the case, the relationship between the source of the information and the public body, the relationship between the source of the information and any person(s) about whom information has been given, the procedures or enforcement process which are likely to arise, the nature or content of the information given and the likely consequences of disclosing the information - all of these are factors relevant to the consideration of this issue. Determining whether or not the information was provided in confidence will also depend on the time at which such determination must be made. It is possible that the confidentiality will be lost over time depending on the factors above.

[17.] It is clear to me that health boards have a duty to investigate allegations or concerns brought to their attention relating to the welfare of children. The Board has argued that, because of the nature of child care, much information is received in confidence from people who do not wish to be identified. It has argued that, if people providing information to the Board in such cases were not reassured as to the guarantee of confidentiality, the information gathering process would be compromised either by (a) the withholding of such information or (b) by it being provided anonymously. In my view, the receipt by health boards of information about children at risk, or potentially at risk, is very important in enabling health boards to carry out their functions. Such information will frequently come from persons known to, or even close to, the children concerned or their families. I accept that without an assurance or understanding that the information provided was being provided in confidence, such persons may be reluctant to provide the information. In some cases, these persons will fear loss of contact with the family or, indeed, loss of their ability to provide support and assistance to the children concerned. Occasionally, they may even fear recrimination or that some other form of action may be taken against them. I accept that, where information of this nature is provided to health boards, there will often be an express or implied understanding that the information provided will be used only for the purpose for which it was given and, subject to that, the identity of the provider will be protected.

[18.] In the course of carrying out its investigations or inquiries in relation to child protection, health board staff will normally interview members of the family which is the subject of the investigation and will normally provide a certain amount of information to those family members about the allegations or concerns which have been raised. In my view, this is quite proper and is necessary in order to carry out a full and fair investigation in the matter. On occasion, this may mean that the members of the family concerned will become aware of some or all of the information provided to the health board and of the identity, or of the possible identity, of the person(s) who provided the information to the health board. In certain cases the person(s) who provide the information to the health board may not object to the information being disclosed. In some cases the matter may result in court proceedings in the course of which the information and the identity of the person(s) who provided the information may be disclosed. The extent to which the information provided will be disclosed to the family members concerned and, if so, at what stage such information is disclosed, will depend on the facts of each case.

[19.] In this case, an express assurance was given by staff of the Board to the provider(s) of the information that his/her/their identity(ies) would remain confidential insofar as this was possible. In my view, this was a reasonable assurance to give in the circumstances. It was also clear that, in order to act on the information provided, the Board would have to disclose some of the information to Mr and Mrs ACL. Whereas the Board would take all necessary steps to protect the identity of the source, it was not possible to give a total or absolute guarantee that protection would be maintained. It was possible, as I have said above, that depending on the eventual outcome of the case, the identity of the provider(s) might be revealed. However, unless and until that occurs, the understanding underpinning the giving of the information remains.

[20.] Having examined the records in this case, I am satisfied that the information was provided to the Board in confidence. It is clear to me that the provider(s) of the information to the Board did not want his/her/their identity(ies) disclosed. This is expressly stated in the records. It is also clear that the Board staff gave assurances that, so far as possible, the Board would try to protect that identity or identities. Taking account of the nature of the information provided, the source of the information and the circumstances of the case, I find that the information was given in confidence.

The Enforcement or Administration of the Civil Law

[21.] The next issue which I must consider is whether the information which was provided to the Board in this case related to the enforcement or administration of the civil law. The Board has argued that it has a statutory duty to promote the welfare of children and that its functions include the co-ordination of information relating to children. I accept this argument. Section 3 of the Child Care Act, 1991 provides as follows:

3.� (1) It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection. (2) In the performance of this function, a health board shall ( a ) take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area;

The Child Care Act, 1991 also provides for health boards to take children into voluntary care, to seek care orders from the courts and, indeed, imposes a duty on health boards to make an application to court where it appears that a child is unlikely to receive the required care and protection unless a court order is made. I am satisfied that in receiving information about children in its area who are, or may be, at risk and in carrying out its inquiries or investigations in such matters, a health board is performing its statutory functions under the Child Care Act, 1991.

[22.] In this case, the Board received information concerning the requesters' children which raised concerns about the welfare of the children. Following receipt of the information, the Board carried out its inquiries or investigation into the welfare of the children. I am satisfied that in carrying out its functions in this case, the Board was engaged in the enforcement and administration of the Child Care Act, 1991.

[23.] I therefore find, as provided for in section 23(1)(b) of the FOI Act, that disclosure of the information sought in this case would reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence.

Public Interest

[24.] Section 23(3) provides that in certain limited circumstances specified in section 23(3)(a) and where the public interest would, on balance, be better served by granting than by refusing to grant the request, section 23(1)(b) does not apply. I am satisfied that the circumstances specified in section 23(3)(a) do not occur in this case and, thus, a consideration of the public interest does not arise. I find, therefore, that section 23(3) does not apply.

[25.] The requesters argued that the allegations in this case were made maliciously. It is not my function, nor is it necessary for me, to make a determination on that issue. There is, of course, a clear distinction to be made between, on the one hand, allegations which are known to be false and are made maliciously and, on the other hand, allegations made or information given in good faith which are ultimately discovered to be unfounded. The records in this case do not indicate that the Board considered the allegations to have been made maliciously.

[26.] I can envisage that in certain cases where a public body has established, or it has been otherwise proven, that allegations were made maliciously, this fact may be relevant in considering the release of such records under the FOI Act. Discouraging the making of false and malicious allegations which are designed only to cause distress would be an issue to be considered by the public body when considering a request for access to records. The head of a public body may exercise his or her discretion under section 23 in favour of disclosure.

[27.] In determining whether information was provided in confidence, the issue of whether the information was provided in good faith may be a factor to be considered. The making of malicious allegations which are known to be false is unlikely to have been made in good faith and it is difficult to see how, in such circumstances, they could be regarded as having been made in confidence. It might also be possible to argue that where information known to be false is given maliciously, with the intent of causing injury or distress and without assisting the enforcement or administration of the civil law, section 23(1)(b) should not apply. Even if I were to accept such an argument, it seems to me that there would have to be clear evidence to support it. As I have said above, the records in this case do not show that the Board considered the allegations to have been made maliciously. I am satisfied, on the basis of the information available, that the issue is not relevant to the determination of this case.

[28.] For these reasons, I find that access to the records within the scope of this review could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other sources of that information given in confidence and, as such, the Board's decision to refuse access to these records pursuant to section 23(1)(b) of the FOI Act was justified.

Section 26(1)(a)

[29.] Given my findings with regard to the application of section 23(1)(b) to the records sought, I do not consider it necessary to consider the application of section 26(1)(a) in this case.

Decision

[30.] Having completed my review under section 34(2) of the FOI Act, I have decided to affirm the decision of the Board regarding the records falling within the scope of this review.

Information Commissioner

12 November 2001