Case 020271. Request for access to a letter purporting to have been sent to the Mid-Western Health Board by the requester - whether information contained in the letter was given in confidence - section 23(1)(b)

Case Summary

Facts

The requester was seeking access to records in relation to a letter of complaint received by the Mid-Western Health Board from a person using her name. In this case in order to determine whether the information was provided to the Board in confidence, the issue of whether the information was provided in good faith was a factor to be considered.

Decision

It was accepted by all the parties to the review that the author of the letter knowingly and fraudulently used an incorrect name and address, and that the name and address used were likely to be seen as being those of the requester's. It was, therefore, the intention of the author to create the impression that the requester was the writer of the letter. It was found that, as clearly the letter had not been written in good faith, the informant could not have any expectation that the communication would be treated in confidence. It was also found that a public body could not convey, even by implication, that information given in bad faith could be treated as confidential.

The same findings regarding the issue of confidence were also found to be relevant to the exemption applied by the Board under section 26(1)(a). It was found that the exemption at section 26(1)(a) did not apply.

Date of Decision: 30.08.2002

Our Reference: 020271

30.08.2002

Ms X

Dear Ms X

I refer to your application to the Information Commissioner for a review of the decision of the Mid-Western Health Board on your Freedom of Information (FOI) request of 8 February 2002. Your request was for a copy of a letter in the name of X, which had been received by the Fostering Section of the Board.

I have been authorised by the Information Commissioner to carry out this review on his behalf.

Background

Your original FOI request was made on 8 February 2002. The Board refused your request and confirmed this decision at internal review on 15 March 2002. The Board has claimed exemption from release of the record on the basis of the following sections of the FOI Act:

• section 23(1)(b), which protects the identity of a person who has given information in confidence to a public body in relation to the enforcement or administration of the civil law,
• section 26(1)(a), which protects information given in confidence to a public body; and
• section 28(1), which protects a record the release of which would involve the disclosure of personal information about someone other than the requester.

I note that it now agreed by all the parties to this review that the letter in question was composed in such a way as to give the impression that you are its author. I further note that all the parties to this review now accept that you are not, in fact, the author of the letter and, to the extent that the letter purports to come from you, it may be regarded as a forgery.

In the course of this review, and with the consent of Mrs Y (to whom, amongst others, the letter relates) the Board gave you a typed and edited version of the letter; as agreed by you, any information relating to third parties other than Mrs Y was deleted. However, I understand you are not satisfied with this partial granting of your request and that you are seeking a copy of the original letter including the signature on the letter (but with the personal information of third parties other than Mrs Y deleted) .

I now understand that the Board has released, under the terms of the FOI Act, a copy of the original letter to Mrs Y and that she has given you access to the letter. Nevertheless, I understand you wish to pursue your request for a review of the Board's decision on your own FOI request.

In concluding this review I have taken account of the position outlined by you, of the submissions made by the Board, and of the provisions of the FOI Act generally.

Scope of Review

This review is concerned solely with the question of whether the Board's decision not grant access to a copy of the original record (subject to deletions as agreed by you) is justified in accordance with the provisions of the FOI Act.

Findings

As outlined above, the Board has relied on three separate provisions of the FOI Act for its decision to refuse your request. Each of these provisions is considered, in turn, below.

Section 23(1)(b)

Section 23(1)(b) provides that a request for access to a record may be refused if release of the record 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 source of such information given in confidence".

In order for this exemption to apply, the three elements of the exemption must be met, i.e. (i) release of the record could reveal the identity of the supplier of information to the public body (ii) the information must have been given in confidence and (iii) the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

You are already aware - as I understand Mrs. Y has shown you the copy she acquired on the basis of her FOI request - that the letter in question is handwritten. I accept that seeing the handwriting in the original letter might reasonably be expected to lead to the revelation of the identity of the author. Accordingly, I accept that the first element of the section 23(1)(b) exemption is met. I am satisfied that in receiving information about children in its area who are, or may be, at risk and in carrying out inquiries or investigations in such matters, a health board is performing its statutory functions under the Child Care Act, 1991 and that the phrase "enforcement or administration of the civil law" in section 23(1)(b) is apt to cover such information. This means that the third element in the exemption is met.

This leaves the second element of the exemption (whether the information was given in confidence) to be considered. The Board considers the complaint regarding Mrs Y as having been made in confidence. In determining whether information was provided in confidence, the issue of whether the information was provided in good faith is a factor to be considered. It is, I understand, accepted by all the parties to this review that the author of the letter knowingly and fraudulently used an incorrect name and address and that the name and address used were likely to be seen as being your name and address. It would seem it was the intention of the author to create the impression that you were the author of the letter. It is clear that the letter was not written in good faith. For confidence to apply, there must be an understanding between the parties (whether express or implied) that the information has been given, and received, in confidence. Public bodies may well operate on the basis that it should accept certain information in confidence and continue to respect that confidence even where it subsequently transpires that the information is incorrect. However, where it transpires that information was given in bad faith, and may well have been malicious, the informant cannot have any expectation that the communication will be treated in confidence. Nor would a public body, even by implication, wish to convey that information given in bad faith will be treated as confidential. Accordingly, I am not satisfied that the second element of the section 23(1)(b) exemption applies.

In any event, the fact that the Board has already released a copy of the full letter to Mrs. Y means that, even if confidence did attach to it (which I do not accept), that confidence has now been set aside. Accordingly, I find that section 23(1)(b) does not apply in this case.

Section 26(1)(a)

This exemption protects information given to a public body in confidence. In the light of my comments above, in relation to section 23(1)(b), it is clear that I do not accept that any understanding of confidence, whether express or implied, attaches to the letter in question. Accordingly, I find that the exemption at section 26(1)(a) does not apply in this case.

Section 28(1)(a)

This exemption protects the privacy of personal information relating to third parties. As outlined above, you have already modified your request to exclude references in the letter to third parties, other than Mrs. Y who has consented to references to her in that letter being released to you. Mrs. Y's consent means that section 28(2)(b) of the FOI Act applies in respect of references to her and they may, accordingly, be released under the Act. As you are not seeking references to the personal information of any other third parties - and the letter does not disclose any personal information about the actual author - I find that the exemption at section 28(1) 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 annul the decision of the Board and direct that a copy of the original letter be released subject to references to third parties, other than Mrs. Y, being deleted.

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