Case 99036

Request by a former industrial school inmate for records concerning him held by industrial schools attended - request for records of late sister held by industrial schools attended by her - section 6(9) - whether relationship between Department and industrial schools based on contract for services - whether relevant records of industrial schools concerned deemed to be held by Department.

Case Summary

Facts

The requester made two separate requests to the Department, one in respect of his own records and another in respect of records of his late sister, both of whom had spent lengthy periods in industrial schools during their childhoods. The Department granted the requests in substantial part; though some deletions from records were made. Ultimately, the requester applied to the Information Commissioner for a review of the Department's decisions in both cases and these reviews were conducted together by the Commissioner. The requester contended that the Department had failed to deal with his right of access to records, concerning his sister and himself, held by the religious orders which operated the particular industrial schools. While the Commissioner's decision deals with a number of separate matters raised in the joint review, the matter of wider significance is the question of whether records held by the religious orders, concerning the requester and his late sister, are deemed to be held by the Department and thus potentially releasable under the FOI Act.

Findings

The key issue for decision, in so far as records held by the religious orders is concerned, is whether the relationship between the Department and the industrial schools was one based on a contract for services. The Commissioner found that this relationship was one governed by statute and not one based on a contract freely entered into by the parties. The Commissioner found that section 6(9) did not apply and that the Department could not be deemed to hold such records relating to the requester and his sister, relating to their time in the industrial schools, as might be held by the religious orders which had operated the industrial schools.

Note:

1) The entire decision of the Commissioner is published below; the issue of section 6(9) is dealt with towards the end of the Findings section of the decision.

(2) The requester appealed this decision on a point of law to the High Court. In its judgment of 30 March 2007 the High Court rejected the appeal. John O'Grady and the Information Commissioner and the Minister for Education and Science

Date of Decision: 09.01.2002

Our Reference: 99036

09.01.2002

Mr. X

Dear Mr X,

I refer to your application under the Freedom of Information (FOI) Act for a review of the decisions of the Department of Education and Science (the Department) on the FOI requests made by you on 11 October 1998. Please accept my apologies for the delay which has arisen in dealing with your application. As you know from previous correspondence relating to other reviews, this delay was due to staffing shortages (now resolved) and to the volume of applications received by this Office.

I have now completed my review of the Department's decisions on your requests. Because this review deals with two separate requests, and because of the complexity of some of the issues raised, this decision is necessarily lengthy and detailed.

Background

On 11 October 1998 you made two FOI requests to the Department. One was in respect of yourself in which you asked for copies of all records relating to your detention in two institutions, St. Michael's School, Cappoquin and St. Joseph's School, Ferryhouse, Clonmel. In this request in relation to yourself you specifically sought the detention orders for both schools, school reports, health records and information on any examinations undertaken by you when you were at these schools. You requested access to all information in relation to yourself. In a separate request, made on the same date, you requested access to all records relating to your late sister, Ms X, in connection with her stay at St. Francis Xavier School in Ballaghadereen, Co. Roscommon and at St. Joseph's School, Limerick. You specified that you wished, in particular, to have details of the delay in having her released from institutional care.

The Department's response to your requests (in two separate decisions) was to grant you access to a number of records and partial access to some others. The Department refused access outright in the case of two records on the grounds that the records were not personal to yourself or your late sister. The Department said that it does not hold any records regarding your health or regarding examinations taken by you. You sought internal review of both decisions and in the internal review decisions the Department affirmed its earlier decisions. You applied to my Office on 10 January 1999 for a review of the Department's decisions.

In conducting this review, I have taken into account submissions by yourself (both written and oral) as well as a detailed submission from the Department. I have also had regard to the provisions of the Freedom of Information Act generally.

Scope of Review

This review is concerned with whether the Department is justified in its decisions to refuse your requests for access to the records which it holds in relation to yourself and your sister Ms X and which were withheld from you, either partially or in their entirety. You also raised the question of whether the Department is justified in not requiring the institutions concerned to make their records available to the Department for the purpose of dealing with your FOI requests. As it appears your FOI requests were intended to encompass any such records held by the religious orders or institutions involved, I will address this element of your request in my decision also.

Findings

Your request is for records relating to yourself and to your late sister. You have an underlying right of access to personal information relating to yourself. Your potential entitlement to personal information relating to Ms X is derived from Section 28(6) of the FOI Act which provides that access to the records of a deceased person may be given to a requester who "is a member of a class specified" by regulation. The relevant regulation, Statutory Instrument No. 47 of 1999, in addition to providing for the release of such records to either the personal representative of the deceased or to a person appointed by law, also provides for the release of such records to a requester where that person is the "next of kin... or any such person...as the head considers appropriate having regard to all the circumstances..." surrounding the request. I consider that you are such an "appropriate" person in this case. I note that the Department has not, in principle, queried your right of access to records relating to your late sister.

There are three distinct strands to your application with which I will deal in turn: (1) records relating to you and Ms X which have been located by the Department, (2) relevant records which may be held by the Department but which have not been located and (3) records held by institutions other than the Department.

(1) Records Located by the Department

(A) Records located by the Department relating to You

In its decision of 18 November 1998 the Department sent you six unabridged records relating to yourself (as detailed in its "Schedule A", a copy of which, marked "John", is enclosed with this decision). The Department also sent you copies of two records which were abridged and withheld two further records in full. The abridged records had portions deleted from them on the grounds that the deleted portions did not contain information which was personal to you. The two records withheld in full, and which are dated 18 February 1966, were withheld on the grounds that the information contained in them was personal to individuals other than yourself. The Department has relied on section 28 of the FOI Act for its decision to withhold these records (whether in full or in part).

The two records released in part are copies of two standard forms referred to as Form A and Form D. Form A is headed "Particulars of a Child Ordered to be Detained in a Reformatory or Industrial School" and Form D is headed "Notice of Discharge, Release or Suspension, Transfer....etc". The two records withheld in full are dated 18 February 1966 and make reference to both yourself and your late sister. I have examined each of these records.

Section 28

Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information (excluding personal information relating to the requester). Section 2 of the FOI Act defines "personal information" as

"... information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as

confidential,"

Section 28(1) provides a strong protection for personal information and where a record consists of personal information relating to a person other than the requester, then that record is prima facie exempt from disclosure.

Having examined the records in question, I am satisfied that the withheld records or part records are records which relate to personal information about you and/or your sister.. However, as I am satisfied that the release of the records in full would disclose some personal information about third parties, I believe it is necessary to consider whether this third party personal information should be released or withheld. In this context, I am for the moment accepting at face value the Department's decision that all of the withheld material constitutes personal information relating to third parties.

The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2) or 28(5). I do not intend to go into the details of section 28(2) here as I do not consider the situations which it covers arise in this case; and no case has been made to me that they do arise. The provisions of section 28(5) must, however, be considered. I note that whereas the Department refused access to these records under section 28, there is no evidence that consideration was given to the relevance to these records of section 28(5).

Section 28(5) provides as follows:

"Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance

(a) 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, or

(b) the grant of the request would benefit the individual aforesaid, the head may, subject to section 29, grant the request."

In my view the granting of the request in this case would not benefit the individual to whom the information relates. I therefore find that section 28(5)(b) does not apply. However, the question of release in the public interest requires to be considered.

Public Interest - Section 28(5)(a)

Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. Thus, in order that you may obtain access to the withheld records, it is necessary to identify a positive public interest which outweighs the privacy rights of the third party.

I have identified the following public interest factors which favour release of the information in your case:

• the public interest in individuals, who have been in the care of the State, having access to information relevant to the decision to take them into care and to decisions made by or on behalf of the State regarding their welfare while in such care;
• the public interest in members of the public knowing how public bodies perform their functions;
• the public interest in individuals ensuring that information about them, held by public bodies, is accurate;
• the public interest in individuals being as fully informed as possible about their origins and family history especially in the case of individuals raised away from their family of origin.

I also consider that there is a number of public interest arguments against the release of this information:

• the public interest, recognised by the FOI Act, in upholding or protecting the right to privacy of each individual;
• the public interest in safeguarding the flow of information to public bodies;
• the public interest in persons being able to communicate with public bodies in confidence and without fear of disclosure in relation to personal or sensitive matters.

In weighing up the relative strengths of these opposing public interests in this case, one consideration is the extent to which release of the records at issue would actually constitute an invasion of the privacy of the third parties concerned. Having regard (a) to the records already released to you by the Department as well as those released to you directly by St. Joseph's School, Ferryhouse and (b) to contacts you have had with this Office in relation to other reviews, it appears to me that the substance of the information is already known to you. Another consideration is the age of the records at issue, all of which are more than 30 years old. However, perhaps the most compelling consideration is the very strong public interest served when the State adopts a policy of maximum openness in relation to people who, as children, were institutionalised in reformatories and industrial schools. There is an undoubted public interest served where the State demonstrates that, whatever regrettable events may have occurred in the past, it is now completely open in relation to what may have occurred in these institutions. Whereas the content of the records withheld in this case may not add, in any significant way, to your knowledge of your own and your late sister's time in the institutions, I understand that the withholding of the records may cause you to believe that the State is not pursuing a policy of openness in relation to people who spent time in reformatories and industrial schools.

I am satisfied that any invasion of privacy arising from the release of these records would be minimal in the circumstances. Accordingly, and having regard to my comments immediately above, I find that the public interest in this case is better served by the release of these records than by their being withheld.

(B) Records located by the Department relating to Ms X

In November 1998 the Department released in full 13 records in relation to Ms X (as detailed in its "Schedule A", a copy of which is enclosed, marked "Ms X"). The Department also released copies of five records to which deletions had been made and it withheld two records in full. The two records withheld in full are, in fact, the same two records (dated 18 February 1966) which were withheld in relation to yourself. As I have already dealt with these records above, and decided they should be released, it is unnecessary to consider these two records further.

The Department abridged five records on the grounds that the withheld portions did not contain information which was personal to Ms X. The Department relied on section 28 of the Act for this aspect of its decision. I have examined the portions which were withheld and I find that the withheld information falls into two categories: (1) information relating to other children committed to care at the same time as your sister and (2) information relating to your mother and, to a lesser extent, your father. You have advised this Office (in speaking to Ms. Doyle) that you have no interest in gaining access to information relating to other children mentioned in documents which also concern your sister. Thus, I am excluding such information from my consideration of your case.

Having examined the remainder of the information withheld from these records concerning Ms X, I have come to the same conclusion as in the case of the equivalent records relating to yourself. This conclusion is that, accepting at face value the Department's position that all of the withheld material discloses personal information in relation to third parties, the public interest [which requires to be considered by virtue of section 28(5) of the FOI Act] is better served by the release of these portions of the records than by their being withheld.

(2) Records which may be Held by the Department but which have not been Located

I turn now to the possibility that the Department may have further relevant records in its possession which it has failed to locate in response to your request. The Department contends that all records which it holds relating to you and your sister, Ms X, have been located and dealt with in its decisions. In this situation, the Department is effectively relying on section 10(1)(a) of the FOI Act which states that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". What is involved here is whether the Department has undertaken adequate searches for any other relevant records which it may hold.

The searches which the Department says it has carried out are described below. It is relevant also to note that staff from this Office visited the Department's offices in Athlone - where industrial school records are stored - in order to see at first hand the methods followed by the Department in searching for records relating to former industrial school residents. In the light of this visit, it does appear that the Department now has a comprehensive system in place for the identification and retrieval of personal records relating to former industrial school residents.

My Office has established that the Department has now scanned onto a computer database the majority of all files held by it concerning industrial schools. Each of the scanned records from the (approximately) 12,000 personal files held, and from the Department's general administration files on the institutions concerned, can be retrieved by using specific search criteria such as name, date of birth, name of institution or by using key words. Any files which, to date, have not been scanned are checked manually to see if they contain personal information which relates to the requester. In your case, I understand from the Department that both manual and electronic searches have been carried out.

My function in this type of case is to be satisfied that the public body's decision was well founded, i.e. based on a proper search and taken in the light of normal record keeping practices in relation to records of the kind in question. It is not the function of my Office to conduct its own search for records. On the basis of the enquiries made by my Office, I am satisfied that the Department has taken all the steps it could reasonably have taken to locate records relevant to your request. Whereas some possibility remains that relevant records may, at some stage, come to light, I find that the Department has in the circumstances taken all reasonable steps to find such records and is justified in concluding that no additional records of relevance are held by it. I find, accordingly, that section 10(1)(a) of the FOI Act applies in your case in relation to any records which may be held by the Department but which have not been located.

(3) Records held by Institutions other than the Department

In your submissions you contend that the Department should have obtained relevant school records held by the religious institutions which operated the schools. You contend that these school records "are the property" of the Department because it "had a contract with the schools ....so therefore access to these records can be obtained and should have been obtained by [the Department] under section 6 ... and para. 9".

Section 6(9) of the Act, to which you refer, provides:

"A record in the possession of a person who is or was providing a service for a public body under a contract for services shall, if and in so far as it relates to the service, be deemed for the purposes of this Act to be held by the body, and there shall be deemed to be included in the contract a provision that the person shall, if so requested by the body for the purposes of this Act, give the record to the body for retention by it for such period as is reasonable in the particular circumstances."

In this case, there are four institutions concerned: St. Michael's School, Cappoquin, St. Joseph's School, Ferryhouse, Clonmel, St. Francis Xavier School, Ballaghadereen Co. Roscommon and St. Joseph's Reformatory School, Limerick. Only one of these currently operates as a school, that is, St. Joseph's, Ferryhouse. It is clear that the Department does not hold, in the simple sense of the word, the records of these institutions, because it does not have and, according to the Department never had, physical possession of the records in question. The Department acknowledges that more detailed records, such as the medical records sought by you, may still be in the possession of the religious orders which managed the schools in the past (although, clearly this could only be confirmed by the orders themselves). St. Michael's, Cappoquin was managed by the Sisters of Mercy, St. Francis Xavier School, Ballaghadereen by the Sisters of Charity and St. Joseph's School, Limerick by the Sisters of the Good Shepherd. Saint Joseph's School, Ferryhouse, Clonmel is still in operation and is managed by the Rosminians.

Contract for Services

The key question arising here is whether, as you contend, section 6(9) of the FOI Act should apply to any relevant records which may still be held by the religious orders. For section 6(9) to apply, it is necessary to establish that the relationship between the Department and the schools was based upon a contract for services. Unfortunately there is not, to my knowledge, any single, comprehensive definition as to what constitutes a "contract for services". Murdoch's Irish Legal Companion refers to it as a "contract with an independent contractor" and notes that there are no "hard and fast rules" on the matter; each case "has to be considered on its own facts in the light of the broad guidelines provided by case law". What is clear is that a contract for services is a very specific type of contract. There are certain requirements which must be satisfied for a contract to exist. Murdoch summarises these as follows:

"In general, for a contract to be valid and legally enforceable, there must be (1) an offer and unqualified acceptance; (2) an intention to create legal relations; (3) consensus ad idem; (4) legality of purpose; (5) contractual capacity of the parties; (6) possibility of performance; (7) sufficient certainty of terms; (8) valuable consideration."

In your submissions you make very clear your belief that the industrial schools were the agents of the State. However it is one thing to accept that the schools were, in a broad sense, the agents of the State; it is quite a different thing to establish that this agency role was founded on a legal relationship whose terms gave rise, not just to a contract, but to a very specific form of contract, i.e. a contract for services. I note that you have not made any specific arguments in support of your contention that such a contract exists or existed. The Department, for its part, expressly refutes the contention that such a contract for services exists or existed. According to the Department, its role in relation to industrial schools was primarily a regulatory one, involving certification and inspection as well as the payment of capitation grants in respect of the children admitted to the schools.

It appears to me that neither of the first two requirements for a contract, as outlined above in the extract from Murdoch, are likely to have applied. The relationship between the Department and the industrial schools was determined in statute (see below) rather than on the basis of an agreement between the parties. Accordingly, it would seem to me that the Department was not free to make any offer to the schools in the sense that it could decide not to avail of the services of the schools should the offer be rejected. Neither, it seems to me, could the Department have had the intention to create legal relations with the schools given that the nature of those relations was already established by statute.

The industrial schools themselves are/were statutory entities provided for at that time in the Children Act, 1908. It is relevant to bear in mind that, at least in the context of the present case, the decision to commit a child to such a school was taken by the courts and not by the Department. Once a child was committed to a certified school, and provided the school was within its approved quota, the Department was obliged in law to pay the appropriate capitation grant in respect of that child. In a context in which the Department's funding of the child's placement was required by law (sections 73 and 73 of the Children Act, 1908) it is difficult to envisage that the Department's relationship with the school was based on a contract for services. It may be that the relationship was quasi-contractual in the sense that it arose by operation of law and irrespective of the intentions of the parties. However, as I understand it, such a quasi-contractual relationship would not equate with a contract for services.

Given my view that two at least of the requirements for a contract were not met, I find that no contract for services exists or existed between the industrial schools and the Department. Having regard to the institutions concerned in this case and in the light of the arguments presented, I am satisfied that my finding is warranted. Arising from this finding I take the view that, in dealing with your FOI requests, the Department was not obliged to take account of relevant records which may be held by the religious orders which operate, or operated, the schools in question.

St. Joseph's School, Ferryhouse

I note the position of St. Joseph's School, Ferryhouse is that, even though it is not subject to the FOI Act, it willingly supplies copies of records to former pupils. A member of my staff has had contact with St. Joseph's School and I understand that it has provided you with copies of records relating to your time there. I note that all of the records provided to you by this school were unabridged. The school has advised my Office that there are no further records held by it relating to you.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby vary the decision of the Department of Education and Science in relation to your requests of 11 October 1998 and I direct that, subject to one exception, all of the material withheld, whether in part or in full, be released to you. The one exception is that material in these records which discloses personal information of other pupils, in any of the schools concerned, is not to be released.

In accordance with section 34(13) of the Freedom of Information Act, I specify that effect shall be given by the Department to my decision in this case within a period of ten working days of the expiration of the time for the bringing of an appeal to the High Court from the decision.

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

Kevin Murphy
Information Commissioner