Case 99146

Whether social work records relating to child welfare were exempt pursuant to section 22(1)(a) - legal professional privilege - and others were exempt pursuant to section 22(1)(b) - contempt of court.

Case Summary

Facts

The Southern Health Board received a number of referrals regarding the requester's child. In 1996 the District Court made a Supervision Order regarding the child under the Child Care Act, 1991 which required the Board to carry out an investigation of the child's circumstances. The Board social worker subsequently made a recommendation to the court (in a Court Report) regarding custody of the child. The requester sought access to the records held by the Board, especially those concerning the father/child aspect. The Board granted access to some of the records and refused access to others. The requester applied to the Commissioner for a review of that decision.

Decision

The Commissioner decided that certain records were exempt pursuant to section 22(1)(a) - legal professional privilege - and others were exempt pursuant to section 22(1)(b) - contempt of court.

The Commissioner was satisfied that the Board was carrying out an inquiry or investigation into the welfare of the child which was an inquiry or investigation within the meaning of section 21(1)(a) of the Act. He was satisfied that in conducting their inquiries or investigations in such matters, health boards rely, in part, on information received from certain individuals and professionals. He did not accept that all information furnished to health boards in such cases is always given on the basis of it being in confidence. However, he was satisfied that, in certain circumstances, release of information received by health boards could reasonably be expected to inhibit the co-operation they receive and to prejudice the effectiveness of their inquiries or investigations. The Commissioner considered various public interest factors to be of relevance under section 21(2), including a public interest in furnishing information to an individual where a health board uses or intends to use the information to the detriment of that individual. He found a number of records were exempt pursuant to section 21(1)(a) of the Act.

Apart from a small amount of personal information which was solely about the requester, the Commissioner found that the information in the remaining records within the scope of his review constituted personal information about individuals other than the requester or joint personal information about such individuals and the requester. With the exception of a small number of records access to which should be granted by inspection, the Commissioner decided that the public interest in granting access to the records did not outweigh the right to privacy of the other individuals concerned.

The names of individual members of An Garda Síochána appeared in some of the records. The Commissioner commented that An Garda Síochána is the national police force and its officers are public servants. The identity of a Garda as the Garda who was involved in particular matters in the course of his official duties is not personal information about that Garda within the meaning of section 2 of the Act. Given the content of some of the records in which Gardaí were mentioned, the Commissioner was satisfied that the identity of the Gardaí in those records was not subject to a duty of confidence nor could disclosure of the identity reveal or lead to the revelation of the identity of a person who had provided information to a public body in confidence in relation to the enforcement of the criminal law within the meaning of section 46(1)(f)(i). With the exception of two records where the information about the Gardaí constituted personal information about those Gardaí, the Commissioner found that the names of the members of An Garda Síochána were not exempt.

Date of Decision: 21.02.2002

Our Reference: 99146

21.02.2002

Mr X

Dear Mr X

I refer to your application under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the Southern Health Board (the Board) to refuse to grant you access to certain records sought by you in your request dated 19 November 1998. Please accept my apologies for the delay in dealing with your case. Unfortunately, due to staff shortages and the large number of reviews on hands, it has not proved possible to complete reviews as quickly as I would wish.

Background

In your request of 19 November 1998 (which was received by the Board on 4 December 1998) you sought access to all records in your case and "especially those relating to the father/son aspect". The records sought by you are the records of the Board's Social Work Services and relate to the involvement of the Board with your family concerning the welfare of your child, Y. The Board decided to grant access to some of the records sought by you and refuse access to other records. The records refused by the Board are listed in the schedule of records prepared by the Board and furnished to you with the Board's internal review decision. Out of a total of 136 records, some 65 were refused or partially refused. By letter dated 6 April 1999 you applied to this Office for a review of the Board's internal review decision of 30 March 1999 and the matter was accepted for review.

I note that in your letter of 3 October 2001 you stated that you were not interested in the records "pertaining to the mother/son or other personal information surrounding individuals in the files concerned." You stressed that you wanted to know why you were deemed unfit or unsuitable to have either custody or shared custody of your son. As has already been explained to you, a request for a statement of the reasons for a decision of a public body is a separate matter from a request for records under FOI and applications for such a statement must be made separately. As the request made by you in this case was a request for records, I have considered whether your letter of 3 October 2001 served to narrow the focus of your original request, i.e. that you were only seeking access to records which would answer the question of why you were deemed unfit to have custody or shared custody of your son. However, having examined the records in this case, I do not consider that is it practicable to narrow the focus of your request. Indeed, attempting to do so may operate to exclude records which you may possibly have intended to include within your request. It is possible that some of the records which might be excluded would have some bearing on the issue of major concern to you. I have not, therefore, treated your letter as a narrowing of the scope of your request.

I have now completed my review of the Board's decision in accordance with section 34(2) of the FOI Act. In carrying out that review, I have had regard to your application for review, to the submissions of the Board to this Office and to your letters of 4 November 1999, 3 October 2001, 25 October 2001 and 5 February 2002. I note that Ms Connolly, Investigator, wrote to you on 6 September 2001 outlining her preliminary observations on the matter and that your letters of 3 October 2001 and 25 October 2001 were written in response to her letter.

Before addressing the details of this review, I think I should explain my approach to the granting of access to parts of records. Section 2 of the Act defines "record" as including "anything that is a part or a copy" of what would be a record. Section 13 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, in my view, the definition of a record and the provisions of section 13 neither envisage nor require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Indeed the extracting of particular sentences or occasional paragraphs from a record which is otherwise exempt will frequently not be practicable and the granting of access to such extracts may be misleading. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. However, I am mindful that in this case you argue that you have not been made aware of the reasons why the Board deemed that you should not have custody or shared custody of your son. As you will see below, I consider this argument to be relevant to the consideration of the public interest. In particular cases, depending on the contents of the records concerned and the facts of the case, it may, in my view, be reasonable to extract some sentences, paragraphs or parts of paragraphs for the purpose of granting access. However, as a general rule, I do not consider that this is required where the record is otherwise exempt and where the extracting of such information is either impracticable or would render the extract misleading.

Scope of Review

In her letter of 6 September 2001 Ms Connolly has described the scope of this review. My review is concerned solely with the question of whether the decision of the Board to refuse to grant you access to all of the records sought in your request was justified. I would like to make it clear that it is not part of my role as Information Commissioner to adjudicate on how public bodies perform their functions generally. My review is only concerned with the question of release of records under the FOI Act.

Findings

Pre-Commencement Records

The records which are the subject of this review were created prior to the commencement of the FOI Act which in this case was 21 April 1998. Public bodies are generally only required to grant access to records created prior to the commencement of the Act (a) if access is necessary or expedient in order to understand records created after the date of the commencement of the Act [Section 6(5)(a) of the FOI Act] or (b) if the records relate to personal information about the person seeking access to them [Section 6(5)(b) of the FOI Act].

I note that in your letter of 3 October 2001 you state that the records in the case were created from 1995 to date, that they were ongoing and unchallenged. You argue that the information provided to date yielded no clue as to why the Board deemed you unfit to have custody or shared custody of your son. The Board has stated that all records within the scope of your request have been furnished to my Office. They are the records numbered 1 to 136 in the schedule of records received by you from the Board and all of them were created prior to the commencement of the Act. It has not been shown to me that there are any records created after the commencement of the Act which, in order to be understood, would render it necessary or expedient to have access to the earlier records. I find that access to those records is not necessary or expedient in order to understand a record created after the commencement of the Act. I therefore find that a right of access does not arise under section 6(5)(a).

Having examined the records in this case I find that they contain information about you, your child, your wife and the custody/access arrangements for your child. I note that during the course of proceedings under the Guardianship of Infants Act, 1964 between Y's mother and yourself the Board was directed by the District Court to undertake an investigation of Y's circumstances. I am satisfied that information concerning your relationship with your son and custody/access arrangements for your son constitutes personal information about you. I am also satisfied that the records within the scope of this review relate to personal information about you, were created directly in connection with records containing personal information about you or have a sufficiently substantial link with personal information about you and a right of access exists to those records pursuant to section 6(5)(b), provided that they are not otherwise exempt under the Act.

Section 22(1)(a) - Legal Professional Privilege

As Ms Connolly has already explained, section 22(1)(a) of the FOI Act provides that access to records shall be refused if the records would be exempt from production in court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and communications made between the client and a legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation.

Having examined the records I find that the following records are exempt pursuant to section 22(1)(a): Records 25, 26, 34, 42, 53, 56, 61 and 80.

Section 22(1)(b) - Contempt of Court

It has also been explained to you that section 22(1)(b) provides that access to a record shall be refused if its disclosure would constitute contempt of court. Records 22, 23 and 24 comprise copies of orders made by the District Court pursuant to the Guardianship of Infants Act, 1964 and the Child Care Act, 1991. Records 57-60 comprise a copy of a Social Work Report prepared for the court arising out of the Board's investigation under section 20 of the Child Care Act, 1991. Record 106 (entry of 3/7/97) comprises notes of a court hearing.

Court proceedings under the Guardianship of Infants Act and Child Care Act are held in camera and thus, the in camera rule applies. It is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. No such judicial authorisation has been brought to my attention. I therefore find that the following records are exempt pursuant to section 22(1)(b): Records 22, 23, 24, 57, 58, 59, 60 and 106 (entry of 3/7/97).

You should note that section 22(1)(b) is a mandatory exemption and once it is found to apply there is no provision for the records to be released even where it may appear that the public interest might be better served by doing so. However, my understanding is that your legal representative would have had access to these records including the Social Work Report for the purpose of the court hearing.

Section 21(1)(a)

Section 21(1)(a) provides that access to records may be refused if it could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of public bodies.

Health boards have a statutory duty to promote the welfare of children and their functions include the co-ordination of information relating to children. In this case, the Board received information concerning the welfare of your child and was directed by the District Court, pursuant to the Child Care Act, 1991 to undertake an investigation of your child's circumstances. I am satisfied that the Board was carrying out an inquiry or investigation into the welfare of the child which was an inquiry or investigation within the meaning of section 21(1)(a) of the FOI Act.

As has already been explained, in considering the application of section 21(1)(a) it is necessary, firstly, to identify the potential harm to the functions covered by the exemption that might arise from the disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur.

The Board has argued that in cases of this nature it depends on frank and open information regarding the child's condition. It also argued that it is critical for its social workers to have an open and frank working relationship with certain individuals in order to ensure that the best interests of the child are held paramount as required under the Child Care Act, 1991. The Board has argued that there is a clear understanding that its investigations are carried out on a confidential basis. It argued that, in order to ensure full co-operation with other agencies, it is vital that all contact of such a nature is confidential and that this is necessary to ensure that the welfare of the child is safeguarded.

I am satisfied that in conducting their inquiries or investigations in child protection matters, health boards rely, in part, on information received from individuals and professionals who have contact with, or knowledge of, the family concerned. Receipt of such information is important to health boards in the conduct of such inquiries or investigations. I am satisfied that release of such information has the potential of inhibiting the co-operation and information which health boards receive and, thus, has the potential of harming their inquiries or investigations. Whereas I do not accept that all information furnished to health boards is always given on the basis of it being in confidence, I am satisfied that, in certain circumstances, release of information received by health boards in the course of their inquiries or investigations could reasonably be expected to inhibit the co-operation which health boards receive in such matters and could reasonably be expected to prejudice the effectiveness of the boards' inquiries or investigations in such matters. Having examined the records, I am satisfied that a very small number of records which contain information received by the staff of the Board in the course of, and which was relevant to, its inquiry or investigation in this matter are exempt pursuant to section 21(1)(a). I would add that some of those records also contain information comprising personal information about individuals other than yourself. Those records are: Record 27 (entries of 14 November 1995 and 11 December 1995), Record 28 (first paragraph of the entry of 19 December 1995), Record 31 (third sentence of the entry of 6 February 1996), Record 32 (entry of 27 February 1996), Record 35 (last two paragraphs) / Record 72 (last two paragraphs of the entry of 24 April 1996, which is a typed version of the last two paragraphs of Record 35)

Section 21(2) provides that the exemption contained in section 21(1)(a) does not apply if the public interest would, on balance, be better served by granting than by refusing the request. Ms Connolly outlined a number of public interest factors in her letter of 6 September last. I am satisfied that those factors are relevant to my considerations in this case. Those factors which favour the release of the records are:

• the public interest in members of the public knowing how a public body performs its functions, and, as in this case,
• what a public body does when requested to carry out an assessment or when it receives notice of concerns or allegations the public interest in members of the public knowing that information held by public bodies about them is accurate
• the public interest in individuals against whom allegations are made being made aware of those allegations and being given an opportunity to refute them
• 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.

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

• 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 issues involving the welfare of children.

I am also of the view that in the context of the exemption in section 21(1)(a), where the outcome of the investigation or inquiry may affect the interest of an individual, there is a public interest in the public body adopting fair procedures in the conduct of that investigation or inquiry. This is also reflected in the public interest in individuals being made aware of allegations against them as mentioned above.

I note from your letters of 3 October 2001 and 25 October 2001 that an issue of major concern to you is that you wish to know why you were deemed unfit to have custody or shared custody of your son. I note that you believe that all people have a natural human right to know how a public body performs its functions, including how it arrives at professional conclusions or recommendations especially those involving child welfare. I note from your letter of 3 October 2001 that you think that it would be appropriate to pursue the route of seeking reasons for decisions under section 18 of the FOI Act. As has already been explained to you, such an application must be made by way of separate application to the public body and should be expressed to be made under section 18 of the Act. The current review is in relation to your request for access to records only. Insofar as your comments are relevant to this review, you will note that I have accepted that there is a public interest in the public knowing how a public body performs its functions and, as in this case, what a public body does when requested to carry out an assessment or when it receives notice of concerns or allegations. I also accept that there is a public interest in an individual, who is affected by an act or decision of a public body, knowing the basis for the public body's decision. There is a public interest in public bodies being open, transparent and accountable in the manner in which they perform their functions.

However, such public interest considerations in favour of release are not total or absolute. Nor do they require the release of each and every record related to the issue. These public interest considerations must also be weighed against other public interest considerations which favour the refusal of access to records. In many cases of this nature the issues are finely balanced and will depend on the facts of the case and the contents of the particular records. In weighing up the relative strengths of these 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 acts or decisions.

In my view, the Board has released to you records which reflect its views regarding its contact with you, its role in the case and its views about you. I also note that the decision regarding custody in this case was made by the courts. Insofar as the court may have based its decision on recommendations of the Board, such recommendations are contained in the Social Work Report referred to above and which I have already decided is exempt pursuant to section 22(1)(b). This Report represents the recommendations of the Board following its inquiry or investigation in the case.

I note your comments regarding your attempt to appeal the court's decision, the lack of opportunity afforded for cross-examination and your views on the operation of the family courts. However, the issue of access to the report prepared for the court (if not already granted to you or your solicitor) is something which must be addressed through the courts. I am satisfied that where a health board uses or intends to use information to the detriment of an individual, there is a strong public interest in furnishing that information to the individual who may be affected and in affording that individual an opportunity to respond. However, to the extent that any such active use was made by the Board of the information which it held in this case, it comprises the information contained in the Social Work Report which was produced in court and a copy of which, I understand, was furnished to your solicitor.

I have also considered whether release of the records would add significantly to your understanding of the issues in this case. Having examined the records, I consider that the release of the records at issue would not add to your understanding in any significant respect. For these reasons, I have decided that the public interest would not, on balance, be better served by granting than by refusing to grant access to the records concerned.

Accordingly, I find that the following records are exempt pursuant to section 21(1)(a): Record 27 (entries of 14 November 1995 and 11 December 1995), Record 28 (first paragraph of the entry of 19 December 1995), Record 31 (third sentence of the entry of 6 February 1996), Record 32 (entry of 27 February 1996), Record 35 (last two paragraphs) / Record 72 (last two paragraphs of the entry of 24 April 1996, which is a typed version of the paragraphs in Record 35).

Section 28 - Personal information

I will now consider the application of section 28 to the remaining records. Section 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. The Freedom of Information Act, 1997 [Section 28(1) (Amendment)] Regulations, 1998 (SI 521 of 1998) provide that, subject to the other provisions of section 28, access 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.

Having examined the remaining records in this case, it is clear that they include case notes, correspondence and notes of communications with you, members of your family and professional or other persons who had an involvement with your family, and other records related to the Board's involvement in this case. They were created in the context of a breakdown of the relationship between you and your wife, in the context of family law proceedings and in the context of concerns raised about the welfare of your child. They contain information relating to you, to your wife and/ or to your child and were created in the context just described. They include information relating to the situation of your wife and your child and to their perceptions.

The information in the remaining records constitutes personal information about the individual members of your family, including yourself. To the extent that the information reflects the views or opinions of another person about you, it is personal information about you which is potentially accessible under the Act but subject to the various exemptions in the Act. Where the personal information relating to you cannot be separated from the personal information relating to the other individuals, the information comprises joint personal information.

Where the personal information relating to you, the requester, can be separated from the personal information relating to other individuals, section 28(2)(a) applies and the information is not exempt. Having examined the records, I am satisfied that the information in the specified parts of the following records relates solely to you, the requester, and as such section 28(1) does not apply. Record 28 - The second paragraph comprising one line and commencing with the words "Home visit". Record 30 - The date 30 January 1996 and the first line under that entry. Record 31 - The first, second and fourth sentences of the entry of 6 February 1996 and the sentence commencing "Registered letter". Record 46 - The third paragraph (i.e. lines 15-17 inclusive).

I find that these records (as described immediately above) are not exempt by virtue of section 28. In any event, the Board has agreed to the release of these records with the exception of the name of the member of the Garda Síochána mentioned in the extract from record 46.

The Name of a Member of the Garda Síochána

The Board has argued that the name of a member of the Gardaí is personal information about that member and section 28(1) applies. The Board has argued that it did not consult An Garda Síochána, that the only written correspondence received from the Garda is clearly marked "confidential" and that, in the view of the Board, there is an implicit duty of confidence between the Board and the Gardaí in respect of the investigation and handling of child welfare issues. The Board states that there is an onus on the Board to respect that duty. It also argues that section 46(1)(f)(i) covers the identity of a person who has provided information to a public body in confidence in respect of the enforcement of the criminal law. The Board has agreed to the release of the content of the third paragraph of record 46 with the exception only of the name of the member of the Gardaí concerned.

Record 46 (third paragraph) refers to a telephone call from a social worker to a member of An Garda Síochána concerning a matter which the social worker had just discussed with you at that time. The telephone call to the member of the Gardaí was made in follow-up to the discussion with you. The records do not disclose whether the social worker had informed you of the name of the particular member of An Garda Síochána although it seems to me that, given the matter which was being discussed, she may have been likely to have done so. In any event, the Garda mentioned in the record was acting in an official capacity and in the course of his duties. The Board has argued that An Garda Síochána is not a public body for the purposes of FOI and, as such, it should be treated as a third party. An Garda Síochána is, however, the national police force and its officers are public servants. I would add that the mere fact that a person is referred to by name in a record does not, necessarily, constitute personal information about that person. Where an individual does something of a routine nature in the course of his/her employment such as, for example, signs a letter on behalf of his/her employer or in the course of his/her employment, such information alone does not, in my view, constitute personal information about the individual. Release of the name of Garda concerned in the case of this record would disclose to you the fact that the particular Garda did certain things or was involved in certain matters in the course of his duties. I am satisfied that the information, i.e. the identity of the particular Garda as the Garda who was involved in those matters in the course of his duties, is not personal information about that Garda within the meaning of section 2 of the FOI Act. I am satisfied that it is not information which would, in the ordinary course of event, be known only the individual or members of the family, or friends of the individual nor is it held by a public body on the understanding that it would be treated as confidential.

The Board has also argued that there is "an implicit duty of confidentiality" between the Board and the Gardaí in respect of the investigation of child welfare issues. While I accept that this may possibly arise in certain cases depending on the circumstances, it has not been shown to my satisfaction that such a duty exists with regard to the name of the Garda in this case. The Board has already agreed to the release of the substance of the information in the third paragraph of Record 46. The only information whose release it objects to is the name of the Garda. Given the contents of the information in this record, I am satisfied that the identity of the Garda, as the Garda who was involved in your case, is not information subject to a duty of confidence.

The Board has also argued that the name of the Garda is exempt by virtue of section 46(1)(f)(i) of the FOI Act which provides that the Act does not apply a record whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information to a public body in confidence in relation to the enforcement of the criminal law. I note that this record relates to a telephone call from the Board social worker to the Garda and to information given by the Board to the Garda. It does not relate to information provided to the Board. The Board has not identified which part of the criminal law or what particular offence may be at issue here. I am satisfied that the Board was, in the course of its work in this case, performing its functions under the Child Care Act, 1991 However, it has not been shown to me and I am not satisfied that it was engaged in the enforcement of the criminal law. While there is a limited number of criminal offences under the Child Care Act, 1991, it has not been claimed nor has it been shown that the enforcement of any of those particular provisions was at issue in this case. I am also satisfied that, given the nature of the information concerned, the information was not provided to the Board in confidence.

For these reasons, I find that the name of the Garda is not exempt information.

I find that section 28(1) and the provisions of SI 521 of 1998 apply to the remaining records (other than those described above which disclose personal information solely about you) and that the remaining records are, subject to the other provisions of section 28, exempt. I consider that the other provisions of section 28 which are relevant are section 28(5)(a) of the Act and the Regulations which were made pursuant to section 28(6) of the Act. I will now consider the application of the Regulations made pursuant to section 28(6) of the Act.

Personal Information about a Child

In her letter of 6 September 2001, Ms Connolly has already drawn your attention to the provisions of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999 (SI 47 of 1999). These Regulations provide that access to a record containing personal information about a child may be granted to a parent or guardian of the child where the granting of access would be in the best interests of the child.

In cases where there is disharmony between parents or a potential for conflict of interest between the child and his/her parent, great caution must be exercised in considering whether access should be granted pursuant to these Regulations. In my view, access will only be granted where it can be shown that granting access would be to the benefit of the child or children concerned or shown to be positively in their best interests. In my view this has not been shown in this case. The Board has argued that there is an onus on health boards to place the needs of the minor before all others. The Board states that the needs of the minor in this case would include the fact they are in a vulnerable position. The Board states that the records resulted from discussions with the minor on extremely sensitive personal issues and the welfare of the child is the paramount factor governing all investigations. I am satisfied that where minors are caught in cases of disagreement between their parents concerning their welfare, they are in a vulnerable position. In my view, in such cases, the interests of the minor may be regarded as separate from the interests of the parent and the minor's right to privacy remains strong. I am not satisfied that the granting of access to the records containing personal information about Jonathan or joint personal information about Jonathan and yourself would be in Jonathan's best interests. Accordingly, I find that a right of access to those records which disclose personal information about your child does not arise pursuant to SI 47 of 1999.

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 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. I have already addressed the public interest consideration arising under section 21 above and there is no need to repeat them here. In my view these considerations are also relevant under section 28(5)(a).

In considering the public interest in upholding the right to privacy of the individuals to whom the information relates, I have also had regard to the fact that these records relate to sensitive family matters and some of the records are records of interviews with your child carried out with a view to establishing which arrangements would be in the child's best interests. In my view, the right to privacy in relation to records created in a context of this nature is very strong. Further, as I have said above, health boards have a responsibility under the Child Care Act, 1991 to promote the welfare of children. In cases where health boards carry out assessments or investigations relating to children, or where there is a dispute regarding their welfare, children can find themselves in a vulnerable position. Where records are created by health boards in the context of the performance of their child protection functions, such records relate primarily to the child or children concerned. It is my view that in cases of this nature, where the issues can be finely balanced, the interests of the children are paramount and must take priority. I also consider that there is a public interest in health boards being able to continue to perform their functions in relation to children and there is some likelihood that release of information of this nature may make this more difficult. I also consider that the information relating to your child's mother relates primarily to her personal situation and to her perceptions as they relate to the child. (Indeed, I note from your letter of 3 October 2001 that you are not interested in records pertaining to the mother/son aspect of this case.) For these reasons, I think that that the public interest in protecting the right to privacy in this case is very strong.

However, some of the joint personal information consists of information which emanated from you, or someone acting on your behalf, or which has already been furnished to you, or someone acting on your behalf. These records contain personal information relating to you, the requester, and other individuals. To the extent that they contain details relating to other individuals, the information comprises joint personal information. In weighing up the various public interest factors in the release of these particular records, I take the view that the degree of invasion of privacy of the other individuals involved is very minimal and is certainly considerably less than in the case of the other records. In the case of records 18-19 the information is based on information given by you to An Garda Síochána. I also consider that there is a public interest in members of the public knowing that complaints made by them to public officials are acted upon and the appropriate procedures followed. I also consider that access to some of these records may, although to a rather limited extent, assist you in understanding the health board's role in this case.

You will note my comments in the Background section above regarding the extracting of sentences or paragraphs from records. As I said, I am mindful that in this case you argue that you have not been made aware of the reasons why the Board deemed that you should not have custody or shared custody of your son. As I have already said, there is a public interest in the public knowing how a public body performs its functions. Where an individual is affected by an act or decision of a public body, there is also a public interest in relevant information concerning the act or decision being furnished to the individual. The Board's report to the court on the custody issue, while exempt under FOI, may be available to you or your legal representative through the court's procedures. I also consider that some of the extracts below may, although to a rather limited extent, assist you in understanding the Board's role and actions in this case.

For these reasons, I find that the public interest in granting access to the following records or parts of records outweighs the public interest that the right to privacy of the other individuals should be upheld: Records 17, 18 and 19 Record 30 - the entry of 30 January 1996 (I have already found that the first line under that entry is not exempt) Record 32 - entry of March 1996 (with the exception of fifth sentence). Record 33 - the first paragraph on this page and the second paragraph of the entry of 16 April 1996 with the exception of the final sentence of that paragraph. Records 35 and 72 - from the beginning of the page down to the words ending "..goes to his father." Record 47 - from the words "I explained to ..." to the end of that paragraph. Records 67 and 78 - the paragraph commencing with the words "We were approached by.." Record 79 - entry of 02/07/96 with the exception of the final two lines of that entry. Record 84 Record 95 - from the line commencing "Letter sent to the Department of Health.."

Following contact from my Office, the Board has agreed to the release of these records with the exception of the names of individual members of An Garda Síochána mentioned in records 18, 19 and 33. In my view the Gardaí named in those records were acting in the normal course of their duties as Gardaí. I have already considered the issue of the names of Gardaí in connection with record 46 above, and for similar reasons, I consider that the names of the Gardaí as they appear in records 18, 19 and 33 do not constitute exempt information. While record 18 bears the word "confidential", the information in the record emanated from you. In the circumstances, release of the information to you would not breach any duty of confidence that might possibly exist and the Board has agreed to release the substance of the information. It is only the name of the Garda which the Board objects to release. In the circumstances, the name of the Garda alone in this and the other records cannot be the subject of a duty of confidence.

I have decided that the public interest favours release of the entry of March 1996 in Record 32 with the exception of the fifth sentence in that entry. The fifth sentence in that entry relates to a member of An Garda Síochána and is different in nature to the references to the Gardaí in the other records referred to above. The fifth sentence of that entry constitutes personal information about that Garda. The first part of the first paragraph in Record 47 before the words "I explained.." relate to another member of An Garda Síochána and, again, is different in nature to the references to the Gardaí in other records. The reference to the member of An Garda Síochána in Record 47 constitutes personal information about that individual. I find that the public interest in granting access to the information in those particular records (Record 32 and 47) does not outweigh the public interest that the right to privacy of the Gardaí concerned should be upheld.

I find that the remaining records in this case disclose personal information about individuals other than yourself or disclose joint personal information about other individuals and yourself. I find that the public interest in granting access to those records does not outweigh the public interest that the right to privacy of the other individuals should be upheld.

I find that access should be granted to you to the records listed above and the Board has agreed to grant access to those records with the exception of the names of the members of the Gardaí. I find that in the context of these records the names of the Gardaí is not exempt information. It is possible to extract occasional sentences or parts of sentences from the remaining records and argue that they contain personal information about you. However, given the content and context of those records, I find that access to the remaining records would involve the disclosure of personal information relating to individuals other than yourself or joint personal information relating to you and other individuals. I also find that the public interest that access be granted to those remaining records does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

Section 12 - Manner of Access

I have found that section 28(1) and the provisions of SI 521 of 1998 apply, as appropriate, to the personal information about individuals other than yourself and to the joint personal information relating to you and the other individuals. In my view, the public interest that you be granted access to the records listed above outweighs the public interest that the right to privacy of the other individuals to whom the information relates should be upheld. However, I am conscious of the fact that the right to privacy of these individuals would be impaired by this, albeit minimally so. I have therefore considered the provisions of section 12(2)(b)(iv) of the Act which provides : (2) Where a head decides to grant a request under section 7 and the request is for access in a particular form or manner to a record, such access shall be given in that form or manner unless the head concerned is satisfied .... (b) that the giving of access in the form or manner requested would ..... (iv) prejudice, impair or damage any interest protected by Part III or section 46.

I have therefore considered the question of granting access by means of providing you with a reasonable opportunity to inspect the records. I note that Ms Connolly mentioned this to you in her letter of 6 September 2001 and that you have not commented on the manner of access in your response. The granting of access by means of inspection was also raised with the Board and the Board confirmed that it had no difficulty in agreeing to the inspection of the records. I find that access to the records listed above should be granted by means of providing you with a reasonable opportunity to inspect the records. I am satisfied that if access is granted in that manner the interests of the individuals referred to in the records are not affected.

The Board raised a number of queries regarding the granting of access by means of inspection. Although it may not be strictly necessary for me to do so, for the guidance of the Board and yourself I would add the following comments. A reasonable opportunity to inspect records requires that a requester to be granted sufficient time to read the records. The amount of time will therefore depend on the number and complexity of the records. An opportunity to inspect the records does not mean an opportunity to transcribe the records. Section 12(1) specifies a number of different ways in which access may be granted and access by means of being provided with a transcript of the records is a separate and distinct method for the granting of access. An opportunity to inspect the records will require the public body to make the records available for inspection on one occasion only.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I have decided to annul the decision of the Southern Health Board and I have decided that access should be granted to the following records by providing you with copies of the following parts of records: Record 28 - The second paragraph comprising one line and commencing with the words "Home visit". Record 30 - The date 30 January 1996 and the first line under that entry. Record 31 - The first, second and fourth sentences of the entry of 6 February 1996 and the sentence commencing "Registered letter". Record 46 - The third paragraph (i.e. lines 15-17 inclusive).

I have also decided that you should be provided with a reasonable opportunity to inspect the following records or parts of records: Records 17, 18 and 19 Record 30 - the entry of 30 January 1996 (I have already decided that a copy of the first line under that entry should be released to you.) Record 32 - entry of March 1996 (with the exception of fifth sentence). Record 33 - the first paragraph on this page and the second paragraph of the entry of 16 April 1996 with the exception of the final sentence of that paragraph. Records 35 and 72 - from the beginning of the page down to the words ending "..goes to his father." Record 47 - from the words "I explained to ..." to the end of that paragraph. Records 67 and 78 - the paragraph commencing with the words "We were approached by.." Record 79 - entry of 02/07/96 with the exception of the final two lines of that entry. Record 84 Record 95 - from the line commencing "Letter sent to the Department of Health.."

I have decided that access to all the remaining records within the scope of this review should be refused.

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. You should also note that other parties have been made aware of parts of this decision and that, as a result, effect may not be given to this decision until the expiration of the time for the bringing of an appeal.

Yours sincerely

Information Commissioner