Case 99013. NOTE: The South Western Area Health Board (now the Health Service Executive South Western Area) appealed aspects of this decision to the High Court. The High Court judgement of 31 May 2005 found in favour of the Board. The Commissioner has decided not to appeal the judgement to the Supreme Court.

Access to records relating to requester's adoption - whether disclosure of such records prohibited by any enactment - section 32(1) - whether records disclose personal information of third party - section 28(1) - whether public interest better served by release - section 28(5)(a)

Case Summary

Facts

At issue in this case is the requester's right of access to the file containing the records of her adoption in 1965 as well as subsequent "tracing" records created in response to the requester's approach to the Board for assistance in tracing her birth mother. The Board refused all of the records under section 32 of the FOI Act. In the course of the review, the Board agreed that certain of the records in the latter category could be released but maintained that others of the records in that category were exempt by virtue of section 28.

Decision

In considering whether section 32 applied, the Commissioner asked the Board to identify the statutory "non-disclosure" provisions which would have the effect of overriding the right of access provided by the FOI Act. The Board identified two such provisions: section 22(5) of the Adoption Act, 1952 and section 8 of the Adoption Act, 1976. While the Commissioner was satisfied that certain of the records were of a type which fell within the scope of these two statutory provisions, the question arose as to whether such records were subject to the "non-disclosure" provisions where they were held by a health board rather than by the Adoption Board or the General Register Office (the two entities to which the "non-disclosure" provisions referred specifically). The Commissioner decided that the wording of section 32(1) of the FOI Act is such as to convey the clear intention of the Oireachtas that an existing "non-disclosure" rule is to be extended for FOI purposes to any public body which holds information of the same type. The Commissioner took the view that the objective of the section 32(1) provision - subject to the exceptions specified in the Third Schedule - is to protect the actual information whether it is held by the body specified in the original enactment or by some other public body. However, the Commissioner did not accept the Board's initial position that all of the records were exempt by virtue of section 32 and identified a group of records which were not exempt on that basis. The Commissioner found that these records (referred to as "Group 2" records in the decision) included some information which constituted joint personal information as between the requester and her birth mother. However, the Commissioner categorised such personal information about the birth mother as "non-identifying" in the sense that it did not include her name, address or other identifying details. While the joint personal information was exempt by virtue of section 28(1), the Commissioner considered whether it should nevertheless be released in the public interest [section 28(5)(a)]. In considering the various public interest arguments both for and against release of these records, the Commissioner had regard to a number of matters specific to this case, including:

• his view that release of the records would not interfere with "the Board's current role in the adoption process";
• his view that the degree of invasion of the birth mother's privacy would be minimal; and
• the fact that much of the information in the records had already been provided to the requester by the Board.

The Commissioner decided that section 28(5)(a) applied to the Group 2 records and, subject to the deletion of some references to the birth mother alone (and where these had not already been released by the Board), that they should be released.

Date of Decision: 24.10.2002

Our Reference: 99013

24.10.2002

Ms X

Dear Ms X

I refer to your application under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the South Western Area Health Board ("the Board"), formerly the Eastern Health Board, to refuse to grant you access to records held about your adoption. Please accept my apologies for the long delay in dealing with this case. Unfortunately, due to staff shortages, the volume of reviews before me and the complexity of the issues involved, it has not proved possible to complete this review before now.

Background

Your original request to the Board in November 1998 was for access to the file relating to your adoption in 1965. The Board's decision was to refuse access to all of the records covered by your request. This position was subsequently maintained by the Board in its decision following your application for internal review.

The records at issue in this review consist of those contained in (a) the Adoption File and (b) the Social Work File. The Adoption File was initially created by the [...] Adoption Society, the records of which are under the control of the Board. In addition to the Adoption File, the Board has made available to this Office a copy of its social work file which was created following your enquiries in 1995 about tracing your birth mother. You have confirmed to my Office that your request is intended to cover the Board's "tracing" records as well as the original Adoption File. In dealing with your request, the Board appears to have treated this later file as a sub-file of the Adoption File and, since it includes copies of records relating to your adoption, I am treating the records in this file as coming within the scope of your request. I refer to this second file as "the Social Work File" throughout this decision.

In carrying out this review, I have had regard to your submissions both to the Board and to my Office, to the Board's decisions on the matter, to its submissions to my Office as well as to the provisions of the FOI Act and other relevant enactments. In addition, I have considered proposals by the Department of Health and Children to give adopted persons statutory rights to information about their adoption as well as to provide for the setting up of a voluntary contact register for persons seeking contact with their birth parents. I have also examined the records themselves. I note that Elizabeth Dolan of my Office wrote to you on 10 May 2002 setting out the scope of the review and giving you her preliminary views on the relevant exemptions and how they might apply to the records which you are seeking. I have taken account of your response to Ms Dolan's letter in your telephone conversation with her on 24 May 2002. In addition, I have taken into account the comments of the Board, received in July 2002, in response to a similar letter.

Scope of Review

In the course of this review, and in response to a communication from Ms Dolan, you clarified that you do not wish to have access to records or parts of records containing personal information relating solely to individuals other than yourself and/or to your birth mother. The effect of this is that in this review I do not consider records or parts of records relating primarily to your adoptive parents, or to other children who were placed for adoption around the same time as you were, except where such records also contain personal information relating to yourself and/or to your birth mother. Accordingly, the records at issue in this review are those listed in the schedule attached to Ms Dolan's letter to you of 10 May 2002 except for records numbered 1-9, 14 and parts of 23 and 47 on the Adoption File. I note also that records numbered 45-46 from that file and part of record 43 (last 4 lines) and record 44 on the Social Work File, were created after your FOI request was received by the Board and so do not come within the scope of your request or of this review.

The Board initially refused access to all of the records on the basis that they are exempt under section 32 of the FOI Act. However, in the course of this review the Board agreed that a number of the records are not exempt and can be released. While I appreciate this move on the Board's part, I have opted in the interests of clarity to deal in this review decision with all of the records as identified above.

Accordingly, the sole issue to be decided in this review is whether the Board is justified in withholding the records (as identified above) in full or in part.

Findings

As a preliminary observation, and as Ms Dolan has already explained to you, section 8(4) of the FOI Act provides that decision makers shall disregard any reasons that the requester has, or is believed to have, for making the request. This means that, in considering whether the Act allows you to have access to the records, I cannot take into account your motivation for seeking access to your adoption file.

A further preliminary observation is that all of the records at issue were created before the commencement of the FOI Act for health boards (21 October 1998). In the normal course, such "pre-commencement" records are not accessible under the FOI Act. However, as all of the records relate to personal information about you there is, subject to any exemptions which might apply, a potential right of access to them under section 6(5)(b) of the FOI Act. Section 32The Board claims that the records in question are exempt under section 32 of the FOI Act. I note from the submissions of the Board that it was advised by the Adoption Board that it (Adoption Board) considered that the Adoption File in its entirety could not be disclosed under the FOI Act by virtue of section 32. The relevant portion of section 32 provides as follows:

32.(1) A head shall refuse to grant a request under section 7 if

(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule), or

(b) the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

The effect of section 32 is that, where records are subject to a statutory secrecy provision, that secrecy provision overrides any right of access under FOI unless that particular secrecy provision is specified in the Third Schedule to the FOI Act.

The Board has identified two statutory provisions which it regards as prohibiting disclosure of the records. The first is that at section 22(5) of the Adoption Act, 1952 which provides that:

"An tArd-Chláraitheoir shall keep an index to make traceable the connection between each entry and the corresponding entry in the register of births. That index shall not be open to public inspection; and no information from it shall be given to any person except by order of a Court or of the Board. "

The second provision it has identified is that at section 8 of the Adoption Act, 1976 which provides that:

"A court shall not make an order under section 22 (5) of the Principal Act [viz. the Adoption Act, 1952] or an order for the discovery, inspection, production or copying of any book, document or record of the Board (or of any extracts therefrom), or otherwise in relation to the giving or obtaining of information therefrom, unless it is satisfied that it is in the best interests of any child concerned to do so."

As Ms Dolan has pointed out, the "Board" referred to in the Adoption Acts is the Adoption Board and the "Ard-Chláraitheoir" is the head of the General Register Office which has responsibility for the registration of births, marriages and deaths and other matters including the maintenance of an Adopted Children Register.

Neither of the two provisions of the Adoption Acts is specified in the Third Schedule to the FOI Act which lists statutes and statutory instruments which are excluded from the application of section 32. There are exceptions to this "non-disclosure" rule within the provisions of the Adoption Acts. However, these exceptions may only be invoked where the person concerned can satisfy the court or the Adoption Board that the best interests of the child favour the lifting of the prohibition. I consider that these provisions do constitute the type of prohibition on disclosure envisaged by section 32(1)(a) of the FOI Act.

The question arising here is whether section 32(1)(a) of the FOI Act applies to records containing information of the type specified in the two provisions of the Adoption Acts (outlined above) but where the records are actually held by a health board (as opposed to the Adoption Board or the General Register Office). In other words, for section 32(1)(a) to apply must the statutory prohibition on disclosure explicitly provide that the prohibition applies to the particular body to which the FOI request is made?

I have considered this issue very carefully and, indeed, taken account of advice provided by my Office's legal adviser. There is nothing in the wording of section 32(1) to suggest that the intention is simply to re-state the existing statutory prohibition on release of a record by the body (or bodies) identified in the original enactment. Rather, the wording is such as to convey the clear intention of the Oireachtas that the existing "non-disclosure" rule is to be extended for FOI purposes to any public body which holds information of the same type. It seems to me that the objective of the section 32(1) provision - subject to the exceptions specified in the Third Schedule - is to protect the actual information whether it is held by the body specified in the original enactment or by some other public body.

Applying this conclusion to your case it seems to me that, where the Board holds information of a type which equates with information whose release is prohibited by the two Adoption Acts provisions (cited above), the exemption at section 32(1) of the FOI Act will apply to such information.

As you know, the records on the Adoption File include copies of records which were created by, or sent to, the Adoption Board in or around the time of your adoption. There are also records in the Adoption File and in the Social Work File which contain information which was obtained or which derives from the records of the Adoption Board. While I accept in principle that section 32(1) does apply to some of the records at issue, I do not accept that a "blanket" or "class" exemption may be applied either to the Board's Adoption File or to its Social Work File. Accordingly, I have examined each of the records on the Adoption File and on the Social Work File individually for the purposes of this review. (In a number of instances the same record appears on both files but I have decided in the interests of clarity to treat each record, in each file, individually.)

Group 1 Records

I find that the following records and parts of records (referred to as Group 1) held on the Adoption File or on the Social Work File contain information of the type which is covered by the "secrecy provision" and prohibited from disclosure under the Adoption Acts except by order of a court or of the Adoption Board:

Adoption File: surname in line 1 of record 11; record 12; register entry number in record 13; records 15 - 17, 18 - 23; register entry number in record 25; records 26, 27; date of birth, names and addresses in lines 1-2, 4-5, 7-8 of record 29; register entry number in record 44; surname in line 1 at entry of 16/5/65 and register entry number in record 47.(Personal information relating to third parties, as described in the "Scope" section above, is also to be excluded.)

Social Work File: lines 1-2, 4-5, 7-8 of record 2 (which is a copy of record 29 from Adoption File); record 16; surname in line 10 of record 18; register entry number in record 26; names and address in lines 2-5 in record 27; record 29; name and hand-written entry for 7/2/97 after "... my letter-" in record 42; register entry number and name in hand-written entry for 4/3/97 in record 43.

The key information in this "secrecy" category is the name and address of your birth mother. I take the view that this information would "make traceable the connection" between an entry "in the Adopted Children Register and the corresponding entry in the Register of Births". This is the information which the Adoption Acts seek to protect from disclosure to the extent that the information can only be released by the Adoption Board or by order of the court where the court is satisfied that the obtaining of the information is in the best interests of the child.

Section 8 of the Adoption Act, 1976 amends the Adoption Act 1952 in order to prescribe that a court, when considering the making of an order under section 22(5) of the 1952 Act, or an application for discovery or related application in relation to records of the Adoption Board, shall consider the best interests of the child. In my opinion, the type of information which it is intended to protect is that which reveals the linkage between the adopted child and its natural parent (as opposed to other, less sensitive, records of the Adoption Board). In this context, I note that section 22 of the 1952 Act requires, amongst other things, that An tArd-Chláraitheoir shall maintain an Adopted Children Register and an index to it and that members of the public shall be entitled to search the index and to obtain certified copies of entries. The Second Schedule to the 1952 Act prescribes the form of such entries in the Adopted Children Register and includes such information as date and country of birth, Christian name or first name, sex, particulars of the adopter(s) and date of adoption order.

My conclusion is that the release of information identifying your birth mother, as described above, would disclose information covered by the secrecy provisions in the Adoption Acts. As a consequence, it is my finding that I cannot, by virtue of section 32(1)(a) of the FOI Act, direct the release of the Group 1 records which contain such information.

Group 2 Records

In addition to the Group 1 records described above, there are records and parts of records at issue in relation to which it is my finding that section 32(1)(a) does not apply. I shall refer to these as the Group 2 records. Some records are mentioned in both Group 1 and Group 2 by virtue of the type of information contained in them. Release of the Group 2 records would disclose personal information relating to you, some of which is linked to personal information relating to your birth mother and, in a small number of records, to your adoptive parents.

The information about your birth mother in the Group 2 records comprises information the release of which would not make traceable the connection between the entry in the Adopted Persons Register and the Register of Births. This information does not include your birth mother's name, address or other identifying details. In other words it can be said that, for the present at least, and in the absence of the name and address, this amounts to non-identifying information in relation to your birth mother. In almost all instances, as is perhaps inevitable in this situation, the information about your mother is to be found in records which also contain personal information relating to you. The records which the Board has said it is now willing to release are to be found in this group. Because there are some records and parts of records still at issue, I intend to deal with the group as a whole in the context of the exemptions which are relevant under the Act.

Section 28Section 28(1) of the FOI Act provides that, subject to the other provisions of section 28, access to records shall be refused where the granting of access would involve the disclosure of personal information about another person.

Joint Personal Information My Office has already provided you with a copy of The Freedom of Information Act, 1997 [Section 28(1) (Amendment)] Regulations, 1998 (SI 521 of 1998). These Regulations provide that, subject to the other provisions of section 28, a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve disclosure of personal information relating to another individual. Where the personal information relating to the requester cannot be separated from the personal information relating to the other individual, the information comprises joint personal information. Where the personal information relating to you can be separated from the personal information relating to other individuals, section 28(2)(a) applies and the information is not exempt under that particular section.

Section 28(2)(b) - consent to releaseOne of the situations in which personal information relating to a third party may be released is where the individual, to whom the information relates, consents to its disclosure to the requester. This is provided for at section 28(2)(b) of the FOI Act. I agree with Ms Dolan's view that this is the type of case in which it was reasonable and proper for the Board not to seek such a consent. Given that your birth mother, via the Board, has already made known her views regarding contact with you, I do not think it would be appropriate for my Office or the Board to contact her further in this matter. Accordingly, I find that this is not a situation where the prohibition on release of personal information of a third party in section 28(1) may be lifted under the provisions of section 28(2)(b).

Section 28(5) - The Public Interest Section 28(5)(a) of the FOI Act provides that, notwithstanding section 28(1), access may be granted to records which disclose personal information 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. You will notice, in relation to the records which I have found to be exempt under section 32, that there is no public interest test to be applied to that mandatory exemption under the Act. Therefore, it is not open to me to consider whether there is a public interest in adopted persons being allowed to gain access to identifying details of their birth parents so as to be able to contact them. Accordingly, the public interest test as described above may only be applied in the case of the Group 2 records.

Those public interest factors which favour the release of the Group 2 records in this case include:

• the public interest in members of the public knowing how a public body performs its functions;
• the public interest in members of the public knowing what information is held about them and that such information is accurate;
• the public interest in supporting the right to maximum information on one's identity and family history, particularly for those reared away from their family of origin; in the case of adopted persons, this includes enabling them to ascertain to the fullest extent possible details of their birth, their placement for adoption and information about their background.

The public interest factors which favour refusal of the request for these records include:

• 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 able to perform their functions effectively particularly in relation to sensitive and confidential issues.

In considering the public interest in public bodies dealing with adoption matters being enabled to perform their functions, I note in particular that mothers who had their children adopted in the past were often given assurances about the confidentiality of the process. However, in this situation where the Group 2 records do not contain the name and address of your birth mother, or can be considered for release subject to the deletion of information which would lead to her identification, and where much of the information has already been given to you by the Board, I am satisfied that disclosure of the information in the records would not be likely to interfere with the Board's current role in the adoption process or related work.

In relation to the records which contain the joint personal information of yourself and your birth mother, I note that contact has already been made with your birth mother through the Board's social workers. She has made clear that she does not wish details of her identity or specific whereabouts to be given to you. There is no indication that she objects to the release of non-identifying, background information; indeed, it is clear she is aware that you are seeking to contact her. In any case, it is evident from the Board's file that you have been given, verbally and in writing, quite an amount of information which is identical to that contained in these records. In the absence of her name and address, it might be argued that the information in these records is not at all linked to an identifiable individual i.e. to your birth mother. The Board makes the point that the possibility of your birth mother's identity becoming known to you in the future should not be ruled out. Therefore, for the purposes of my review, I am considering these records as if they do contain joint personal information and the protection in the Act for such personal information on privacy grounds remains strong. In weighing up the relative strengths of the opposing public interests, an attempt must also be made to measure the actual benefit to you which would result from release of the records. In doing so, I have considered the extent to which relevant records have already been released to you and whether release of the records at issue would actually add significantly to your understanding of the Board's role in your adoption and its involvement in tracing your birth mother.

In relation to the non-identifying information about your birth mother, I consider that most of this is joint personal information about the circumstances of your birth and it has already been furnished to you through the Board. I take the view that the degree of invasion of your birth mother's privacy is minimal given that neither her identity nor current whereabouts is revealed in the records. While there is some medical information about your mother's own health in these records, I consider that, for the most part, such information relates to conditions in and around the time of your own birth and this should be released to you. In reaching this conclusion, I have taken account of the fact that the details in the records about your mother and your birth did not emanate directly from her but apparently from the records of [...] Mother and Baby Home, where you were born. Although the Board has given you the information itself in summary form, you have told my staff that you wish to have access to the entire file and that you are not satisfied that the social workers' synopsis of the information covered all of what is on your file. From this I take it that that you wish to have copies, insofar as is possible, of the original records. I attach significant weight to the fact that having access to as much information about your background as is possible is a matter of great importance to you. I note also that the legislation proposed by the Department of Health and Children would give adopted persons rights to their birth certificate and personal information from the adoption file. However, I should point out it is my understanding that, in addition to a planned Voluntary Contact Register and state-funded assistance in tracing and reunion, it is intended by the Department that a "Contact Veto Register" will be put in place so that people who do not wish to be contacted can register that wish.

As well as the public interest in your having information about your background and your adoption, including the limited amount of information in the records about your birth mother's health, I take the view that the public interest also favours your knowing how the Board dealt with your request in 1995 for information about your birth mother. Accordingly, it is my finding that the public interest in your having access to these records overrides the rights to privacy of your birth mother having regard to the fact that you do not have access to her name and address, that you have already been made aware of most of the information in the records through the Board's social workers and that your mother is aware of your efforts to trace her.

Ms Dolan's letter of 10 May 2002 set out in some detail my approach to granting access to parts of records as provided for in section 13 of the FOI Act. I do not find it necessary to repeat that here except to say that this is a case in which I consider that it is possible to delete the identifying details from certain records without rendering the remainder misleading. My conclusion is that a number of records containing joint personal information relating to you and to your birth mother can thus be released, in the public interest, subject to deletion of identifying information about your birth mother.

In addition, there are a few items of correspondence (records 19-21, 28, 31) in the Social Work File which the Board argues contain personal information about your birth mother, the release of which could constitute a breach of a duty of confidence which, the Board says, it owes to her. The fact that personal details relating to your birth mother (other than her name and address) and to the Board's contacts with her have already been released to you by the Board would indicate that, in general, the remaining "non-identifying" information no longer has the quality of confidence about it which would be necessary to sustain a claim that section 26(1)(a) or section 26(1)(b) of the Act applies. In addition, I note that, insofar as exemption under section 26(1)(a) might be claimed, section 26(3) of the Act provides that the "information obtained in confidence" exemption shall not apply where "the public interest would, on balance, be better served by granting than by refusing to grant the request" for access to records.

I have considered this matter carefully and find that small portions of the records which contain information given to the Board, relating solely to your birth mother and which have not been otherwise released to you, are exempt because they contain personal information relating only to your birth mother (as opposed to the type of joint personal information discussed above); further I find that, on balance, the public interest does not require that such portions be released to you. (Details are set out below of those portions of records which are to be deleted before the records are released to you.)

I also find that you are entitled under the Act to have access to those records which contain, primarily, your own personal information and/or information about the handling of your request to have your birth mother traced by the Board.

Accordingly, I find that the following Group 2 records should be released by virtue of section 28(5)(a) of the Act:

Adoption File: record 10; record 11 except surname in line 1; record 13 except register entry number; record 24; record 25 except register entry number; record 28; record 29 except date of birth, names and addresses in lines 1-2, 4-5, 7-8; records 30-42; record 43, record 44 except register entry number; last 7 lines of record 47 except register entry number.

Social Work File: record 1; record 2 except date of birth, names and addresses in lines 1-2, 4-5, 7-8; records 3-5, 5a-15; record 17; record 18 except surname in line 10; record 19; record 20 except second and third sentences in paragraph 1 from "and had... to ...ago"; records 21-25; record 26 except register entry number; record 27 except names and address in lines 2-5; record 28 except second and third sentence; record 30; record 31 except first paragraph (including salutation); records 32, 33-40 (duplicate of 7-14), 41, 41a; record 42 except name and hand-written entry of 7/2/97 after "...my letter-"; record 43 up to and including the entry for 4/3/97 except name in that entry.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Board in relation to the records and parts of records identified above as the Group 1 records.

I annul the decision of the Board in relation to the Group 2 records and decide that they should be released with deletion of the information specified above.

A party to a review, or any other person affected by the 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

Information Commissioner