Case 000128. Note: The decision on this case was appealed by the requester to the High Court. The judgement on that appeal was given by the High Court on 14 January 2004. The Office of the Information Commissioner appealed Mr Justice Quirke's judgement to the Supreme Court. The Supreme Court delivered its judgment on 24 January 2006. 

Request for access to records relating to requester's daughter (a minor) - whether release of personal information concerning his daughter was in her best interests i.e. whether a right of access arose under regulations provided for at section 28(6) of the Freedom of Information Act - whether release of personal information in relation to third parties was in the public interest - section 28(5)(a).

Case Summary

Facts

Mr. X applied for access to records held by the hospital relating to himself, his deceased wife and his two children (both minors). The hospital did not issue a decision on his request or his request for an internal review and Mr. X applied to the Commissioner for a review of the hospital's deemed refusal of his request. During the course of the review the hospital issued a decision to Mr. X. In its decision it indicated that it had identified 39 records falling within the scope of his request - six records relating to his son and 33 records relating to his daughter. The hospital refused access to all records on the grounds that they were exempt under section 28 as they contained personal information in relation to third parties and on the grounds that they contained information which was given in confidence and so were also exempt under section 26 of the FOI Act. Subsequently the hospital agreed to release the six records relating to the requester's son.

Decision

The Commissioner's authorised officer considered that all of the 33 remaining records contained personal information in relation to the requester's daughter and that seven of those records also contained joint personal information in relation to his child and third parties. The Commissioner's authorised officer found that the requester was not entitled to access to personal information related solely to his child or jointly to himself and his child under the Freedom of Information Act, 1997 Section 28(6) Regulations 1999 (SI No. 47 of 1999). The Commissioner's authorised officer found that in the absence of evidence showing that disclosure would actually be in the child's best interest, the requirement to protect her privacy remained strong. Although the Commissioner's authorised officer decided that it had not been proved that disclosure would be to the child's detriment, he was not satisfied that release would benefit the child or serve her best interests. The Commissioner's authorised officer also decided that the public interest factors in favour of granting access to personal information in relation to third parties (including the requester's daughter) did not outweigh the right to privacy of the third parties concerned and that section 28(5)(a) did not apply.

Date of Decision: 12.08.2002

Our Reference: 000128

12.08.2002

Mr X

Dear Mr X,

I refer to your application to the Information Commissioner for a review of the decision of the Adelaide and Meath Hospital in relation to your Freedom of Information (FOI) request for access to records held by the Hospital in relation to you, your late wife and your children.

I have been authorised by the Information Commissioner to conduct this review on his behalf. At the outset, I wish to apologise for the delay which has arisen in dealing with this case. This letter relates solely to your FOI request to the Adelaide and Meath Hospital (the Hospital), made originally on 17 January 2000.

Background

When you applied to this Office on 10 March 2000, the Hospital had not given any decision on your request or on your subsequent application for internal review of the deemed refusal of your request. However on 25 January 2001, during the course of this review, the Hospital decided that all of the records sought by you should be refused on the grounds of section 28 of the FOI Act which protects personal information. In a subsequent submission to this Office the Hospital argued that the records are also exempt from release under section 26 of the FOI Act which protects information obtained in confidence.

The records at issue here consist of (a) six pages of notes relating to your son, arising from his attendances at hospital and (b) 33 pages of notes relating to your daughter, arising from her attendance at hospital. During the course of this review, the Hospital agreed to the release of the records relating to your son so it is not necessary to consider these records further in this decision.

I have now completed my review of the Hospital's decision. In carrying out this review, I have had regard to the Hospital's conclusions on the matter and its submissions to this Office. I have also had regard to your submissions to the Hospital and to this Office, and to the provisions of the FOI Act generally. I have also examined the relevant records.

Scope of Review

This review is concerned solely with the question of whether the Hospital's decision, to refuse you access to the records of your daughter (as described above), is justified in terms of the FOI Act, 1997.

Findings

Section 28 - Personal Information

Section 28 of the FOI Act is an exemption which protects the privacy of personal information. Section 28(1) provides that, subject to the other provisions of that section, access to a record shall be refused where it would involve the disclosure of personal information. All of the records now at issue contain personal information in relation to your daughter, Miss X. One record contains information solely in relation to yourself and your daughter. Seven of the records, in addition to containing personal information in relation to your daughter, also contain information in relation to third parties; of these seven records, five of them contain references or information in relation to you (as well as in relation to your daughter and to third parties).

Where a record discloses personal information solely about you, as the requester, access may be granted by virtue of section 28(2)(a). However, none of the records at issue in this case relate solely to you. Accordingly, the release of any of these records would necessarily involve disclosing personal information about people other than yourself. I take the view that any extracts which might be regarded as relating solely to you would, by themselves be misleading. The release of any such extracts is not, accordingly, a realistic option. In order to decide on whether these records, or any of them, or portions of any of them, should be released to you, it is necessary to consider how the FOI Act applies (a) in relation to joint personal information and (b) in situations where the requester is the parent or guardian of the person to whom the records relate.

Joint Personal Information

This is the term used to describe a record which contains personal information about more than one person. As set out above, several of the records at issue here may be regarded as joint personal information as they relate to yourself and your daughter or to yourself, your daughter and third parties.

The provisions of the Freedom of Information Act, 1997 (Section 28(1)) (Amendment) Regulations, 1998 (SI No. 521 of 1998) apply to joint personal information. Article 3 of these Regulations provides as follows:

"3. Notwithstanding the provisions of section 28(2)(a), for the purposes of section 28(1) a head shall, subject to the provisions of sections 28(2)(b) to (e), 28(5) and 28(6), refuse to grant a request under section 7 if, in the opinion of the head, 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. "

The effect of these Regulations is that a record containing joint personal information cannot be released to one of the individuals to whom it relates unless one of the other relevant provisions of section 28 apply, i.e. 28(2)(b) to (e), 28(5) or 28(6). In my opinion, the exceptions in section 28(2)(b) to (e) do not apply to any of the records at issue; and no case has been made that they do apply. However, it is necessary to consider the applicability of section 28(6) and of section 28(5).

Section 28(6) - Personal information in relation to minors

The Freedom of Information Act, 1997 Section 28(6) Regulations, 1999 (SI 47 of 1999) make provision for access by parents or guardians to personal information in relation to minors in certain circumstances. The Regulations provide that a request for records relating to personal information about a minor may be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances, to release the records to the parent/guardian would be in the minor's best interests. These Regulations do not provide a basis for releasing records, or parts of records, which contain personal information relating both to a minor and a third party (joint personal information) except where the third party is the requester. The Regulations, however, have the potential to authorise the release to you of material containing personal information relating solely to your daughter or relating jointly to your daughter and to yourself. A total of 26 of the records in this case fall into these two categories.

As you are the father and joint guardian of Miss X, it is clear that you satisfy the first of the two requirements set out above. Accordingly, the question to be addressed is whether release to you of material containing personal information relating solely to your daughter, or relating jointly to your daughter and to yourself, would be in your daughter's best interests.

In the ordinary course of events, and in general terms, one might accept that it is likely to be in the best interests of a minor that a parent/guardian will have access to the minor's medical records. However, in the ordinary course of events, the parents/guardians are likely to be in agreement on the matter. As you know, both in contacts with this Office and with the Hospital, Mr. and Mrs. Y (joint guardians and custodians of Miss X) have opposed the release of these records. Furthermore, it is the view of the Hospital that the records should not be released to you. In any situation in which there is disagreement between parents/guardians regarding the release of records relating to a minor, the Commissioner has taken the view that release should only be directed where there is tangible evidence that such release would actually serve the best interests of the minor.

I note you make the case that, as the father of Miss X and as a person holding joint guardianship and custody in relation to her, you hold certain rights in relation to decision-making regarding her health and general welfare. You maintain that release of the records to you may assist in the making of such decisions regarding your daughter and would therefore be in her best interests. I accept that in certain instances access by parents or guardians to medical records in relation to children may offer substantial assistance to them in making decisions in relation to the seeking of medical treatment for their children or consenting to such treatment. Having regard to the contents of the records in this case, I consider that their release would not offer substantial assistance to you in relation to the making of decisions to seek medical treatment, or to consent to medical treatment, for your daughter in the future. Further I note that, where appropriate, such records could be made available to medical personnel treating your daughter in the future. On balance, I find that you have not presented evidence that release of your daughter's medical records to you would actually serve her best interests.

In the absence of evidence showing that disclosure would actually be in your daughter's best interests, the requirement to protect her privacy remains strong. While it has not been proven that release of the records would be to the detriment of your daughter, neither am I satisfied that release of the information would be to her benefit or serve her best interests. I do not see any significant benefit accruing, or likely to accrue, to your daughter by granting you access to these records. I am not satisfied that the requirements of SI 47 of 1999 are met in this case and I find, therefore, that you do not have a right of access to these records pursuant to its provisions.

Section 28(5)(a) - Public interest test

Section 28(5)(a) provides for the granting of access to records which disclose personal information about third parties where the public interest that the request should be granted outweighs the public interest that the right to privacy of the third party should be upheld. (In this context, the reference to "third parties" includes reference to your daughter.) It is necessary to consider the application of section 28(5)(a) to all the records in this case.

I consider that the following public interest factors, in favour of the release of the records, arise in this case:

• the public interest in members of the public knowing how a public body performs its functions and,
• the public interest in members of the public knowing that information held by public bodies about them is accurate;
• the 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.

On the other side, in considering the public interest in upholding the right to privacy of the other individuals to whom the information in this case relates, I have taken into account the following factors.

• the public interest in protecting the right to privacy of members of the public;
• the public interest in members of the public being able to communicate in confidence with public bodies and without fear of disclosure in relation to personal or sensitive matters;
• the public interest in safeguarding the flow of information to public bodies;
• the public interest in public bodies being enabled to perform their functions effectively particularly in relation to issues involving the welfare, treatment and care of children.

On balance I consider that the public interest in granting this request does not outweigh the right to privacy of the third parties concerned, particularly the children. Accordingly, I find that section 28(5)(a) does not apply in this case.

Section 28(5)(b) - Release Benefits Record Subject

Section 28(5)(b) provides for the granting of access to records which disclose personal information about a third party where such release would benefit that third party. In relation to your daughter, I have already taken the view that it has not been shown that release of personal information in relation to her would be in her best interests. For the very same reasons, I find that it has not been shown that release of these records would benefit her. In relation to the other third parties, it is difficult to envisage any argument that release of their personal information would benefit those third parties. No such argument has been made, in any event. In the circumstances, I find that section 28(5)(b) does not apply in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the Adelaide and Meath Hospital to refuse access to the records sought in your request of 17 January 2000.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator