Case 010288. Request for records relating to the preparation of a report by a court-appointed Guardian ad Litem concerning the requester's son - whether release of the records to the requester was in contempt of court - section 22(1)(b) - whether records contain personal information about other parties - section 28(1) - public interest - section 28(5)

Case Summary

Facts

The requester sought access to the records held by the Lucena Clinic (the Clinic) concerning his son and himself. A Health Board had applied to the District Court under the Child Care Act, 1991, for a supervision order for the requester's son, Y, following which a Guardian ad Litem was appointed for Y. The Court ordered all records in relation to Y to be made available to the Guardian ad Litem for the purposes of facilitating her report to the Court. It also ordered that Y be examined by a Consultant Child Psychiatrist. The Guardian ad Litem then arranged with a Consultant Psychiatrist at the Clinic to carry out the examination and to furnish a medico-legal report to her for the purposes of the Court case. The Guardian ad Litem obtained various papers in relation to Y as directed by the Court, which were provided to the Clinic prior to its assessment of Y.

The Clinic claimed that all documentation it held in relation to Y came into its possession solely for the purposes of the preparation of the medico-legal report, which was requested by Court Order in the context of the legal proceedings.

Decision

The Commissioner's authorised officer categorised the records into four groups:
(i) Records not created by the Clinic but which were made available to it by Y's Guardian ad Litem ;
(ii) Records created by the Clinic;
(iii) Records created by the Guardian ad Litem;
(iv) Records created by third parties after the Court Hearing.

A supervision order was granted to the Board on foot of the proceedings held under the Child Care Act, 1991, following the presentation of the Guardian ad Litem's report to the Court. Court proceedings under the Child Care Act, 1991 are held otherwise than in public and the in camera rule applies to such proceedings; it is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority.

The requester argued that release of the records to him would not breach the in camera rule as he was a party to the proceedings. The Commissioner's authorised officer commented that disclosure of the records to the requester cannot be distinguished from disclosure to the world at large and that release to him, of the records subject to the in camera rule, would be in breach of section 22(1)(b) of the FOI Act.

As regards the Group (i) records, the Commissioner's authorised officer found that, while they were all created prior to the court proceedings, the fact that they were obtained by the Guardian ad Litem for the purpose of assisting her preparation of her report to the Court indicates that they became court documents subject to the in camera rule. He commented that the fact that the requester was a party to the proceedings and that he knew the content of some of the records, did not take from the fact that release to him would be in breach of the in camera rule and of section 22(1)(b). He also made the point that his finding applied only to copies of these records as held by the Clinic and that it did not purport to apply to the records as held by other agencies or individuals.

As regards the Group (ii) records, he noted that some of the records were created by the Clinic before the final court proceedings and some were created after the court proceedings. The Commissioner's authorised officer found that the records created prior to the hearing were created as a direct consequence of the Guardian ad Litem's request for a medico-legal report for the Court hearing, and were exempt under section 22(1)(b) of the FOI Act. In relation to those created after the proceedings, he commented that, although their subject matter may relate in some way to the proceedings, he did not consider them to be records to which the in camera rule applied. He found them not to be exempt under section 22(1)(b).

In relation to the Group (iii) records, he noted that the records contained background information provided to the Clinic for the purpose of the preparation of the medico-legal report. As the Commissioner's authorised officer considered that to release documents associated with the preparation of the report would be in breach of the in camera rule, he found that section 22(1)(b) applied.

The Commissioner's authorised officer found that section 22(1)(b) did not apply to the Group (iv) records. He considered the application of section 28 to these records, and to those Group (ii) records he had not found to be exempt under section 22(1)(b). He found that section 28 did not apply to some of the records concerned and directed their release. However, in relation to two of the records, he found that the records contained personal information of a third party who had not consented to their release and that section 28(1) applied; he found that the public interest did not warrant release of these records.

Date of Decision: 04.04.2003

Our Reference: 010288

04.04.2003

Mr. X

Dear Mr. X

I refer to your application for a review of the decision of the Lucena Clinic (the Clinic) on your request, under the Freedom of Information (FOI) Act, for access to records relating to yourself and your son, Y. I have been authorised by the Information Commissioner to conduct this review on his behalf.

I am sorry there has been such a long delay in dealing with this case. I am aware that this Office has already written to you to explain this delay and to offer our apologies.

Background

In your FOI request, made on 28 February 2001, you sought access to all records held by the Clinic and its employees on your son, Y, and yourself.

In carrying out this review, I have had regard to the various submissions which you have made to this Office and to the submissions of the Clinic. I have taken into account relevant case law and the provisions of the FOI Act. I have also examined the records in question. I note that Ms. Doyle, Investigator, wrote to you on 13 March 2002 to inform you of her preliminary observations on your case and to invite comments on the issues involved. You replied to this letter on 3 April 2002 by way of two separate emails. In reaching my decision in this matter, I have considered the arguments advanced by you in these email messages.

Scope of Review

My review of the decision of the Lucena Clinic is concerned solely with the records which come within the scope of your FOI request of 28 February 2001; records created after that date are not encompassed by the request and do not come within the scope of my review.

In the course of contacts with Ms. Doyle of this Office, you narrowed the scope of your request to 28 specific records; these are identified on the attached schedule. The schedule follows the record numbering arrangement used by the Clinic in correspondence with this Office. I note in particular that the medico-legal report (numbered 14 and 56 on the Clinic's schedule) is not included in your revised application as that report is already in your possession.

My review is concerned solely with the question of whether the decision of the Clinic, to refuse access to the records specified in the attached schedule, is in accordance with the provisions of the FOI Act.

Findings

Preliminary

In her letter of 13 March 2002, Ms. Doyle outlined how the Lucena Clinic came to assess Y. It is important to note, in the context of your FOI request, that [name of Health Board in question deleted] applied to a District Court under section 19 of the Child Care Act, 1991 for a supervision order for Y. A Guardian ad Litem was appointed for Yin the context of this application. On [date] the Court ordered, among other things, that "all....records and memoranda, of every kind ...in relation to Y...shall be made available to the Guardian ad Litem, for the purposes of facilitating her report to the Court." The Court also ordered that Y be examined by a Consultant Child Psychiatrist. The Guardian ad Litem arranged with a Consultant Psychiatrist at the Lucena Clinic to carry out the examination and to furnish a medico-legal report to her for the purposes of the Court case, which was adjourned until such time as she made her report. The Guardian ad Litem obtained various papers in relation to Y, as the Court had directed. These were provided to the Clinic prior to its assessment of Y.

The Clinic says that all the documentation it holds in relation to Y came into its possession solely for the purposes of the preparation of the medico-legal report, which was requested by Court Order in the context of the legal proceedings.

When the Clinic refused your request, it relied on the following sections of the Act for its refusal:
26(1)(a) - information given in confidence
28(1) - personal information about individuals other than yourself
22(1)(b)- disclosure would be contempt of court
23(1)(b) - could reveal the identity of persons who provide information in confidence in relation to the administration of the civil law
46(1)(a)(i) - records held by the Courts

Ms. Doyle has taken the view, with which I agree, that the most relevant of these potential exemptions is that at section 22(1)(b) of the FOI Act. It is my view, as set out in detail below, that the majority of the records requested by you cannot be released because of the mandatory application of this exemption. In these circumstances I have only examined other exemptions claimed by the Clinic in the case of records to which I consider section 22(1)(b) is not applicable.

Records

For ease of reference, I have grouped the records in question as follows:

Group 1 - these records were not created by the Clinic itself but were made available to the Clinic by Y's Guardian ad Litem: Records 21, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 37 and 40.

Group 2 - these records were created by the Clinic: Records 11,16, 17, 42, 48, 49, 50, 52, 53, 55, 57 and 58.

Group 3 - Record 44/45 was created by the Guardian ad Litem.

Group 4 - Records 51 and 54 were created by third parties after the Court hearing of [date].

Section 22(1)(b)

Section 22(1)(b) provides that a request shall be refused if the record concerned "is such that its disclosure would constitute contempt of court".

Court proceedings instituted by the Health Board, under the Child Care Act 1991, resulted in a supervision order in respect of your son being granted to the Board on [date]. Pursuant to section 29 of the Child Care Act 1991, court proceedings under that Act are held otherwise than in public and the in camera rule applies to such proceedings. The proceedings of [date] were held in camera in accordance with this legislation. It is a contempt of court for any person to disseminate information derived from proceedings held in camera without prior judicial authority. The question for me to decide is whether the records you seek are covered by the in camera rule; if so, they will be exempt from release under the FOI Act in accordance with section 22(1)(b).

You have argued that release of the records to you would not breach the in camera rule as you were party to the proceedings in question. You suggest that the requirements of fair procedure, and your rights as your son's guardian, indicate that you should not be treated in the same way as an ordinary member of the public seeking access to the records. In this context in a previous case, the Commissioner took the view that the question to be addressed was whether any disclosure of the record would constitute contempt of court and the fact that disclosure to one party would not of itself constitute contempt was irrelevant. In the High Court judgment in the case of EH and EPH -v- the Information Commissioner, O'Neill J appeared to agree with this approach. He stated, in reference to section 22(1)(b), " the concept of disclosure is there in the widest sense and I would interpret that as meaning 'any disclosure' be it disclosure by the public body itself or disclosure by the person seeking the record or either of them. ....[I]n permitting disclosure a head of public body and the Commissioner must assume that the disclosure of a record will be to the world at large."

I accept, therefore, that disclosure of the records to you cannot be distinguished from disclosure to the world at large and consequently disclosure of records to you which are subject to the in camera rule would be in breach of section 22(1)(b) of the Act.

I must now decide which of the records you requested are subject to the in camera rule.

Group 1 Records

Records 21, 24, 26, 27, 28 ,29, 30, 31, 32, 33, 34, 37 and 40 were not created by the Clinic, but came into the Clinic's possession when forwarded by the Guardian ad Litem as background material in the case. It is clear that these are records which the Court required to be made available to the Guardian ad Litem in the Court Order of [date] quoted above. I consider that, while they were all created prior to the proceedings, the fact that they were obtained by the Guardian ad Litem for the purpose of assisting her preparation of her report to the Court indicates that they became court documents subject to the in camera rule of confidentiality. I am aware that you were a party to these proceedings. I am also aware that some of these records are already known to you, if not already in your possession. However, this does not detract from the fact that to release them to you now would be in breach of section 22(1)(b) and of the in camera rule. It should be noted that this finding applies only to the copies of these records actually held by the Clinic. The finding does not purport to apply to the records as held by other agencies or individuals.

Group 2 Records

Records 11,16, 17, 42, 48, 49, 50, 52, 53, 55, 57 and 58 were created by the Clinic. Of these, Records 11, 16, 17, 42 and 53 were created prior to the proceedings of [date]. Records 57 and 58 are not dated but, in my opinion and having regard to the content, were created in preparation for the medico-legal report prior to the proceedings of [date]. The remaining five records (48, 49, 50, 52 and 55) were created after the proceedings of [date].

As regards the seven records identified above as having been created by the Clinic prior to [date]: Records 11, 57 and 58 consist of manuscript notes; Record 16 is a record of an interview with Y; Record 17 is a note of some telephone messages; Record 42 is a chronology of events and Record 53 is a fax cover sheet associated with your letter of 25 September 2000 to Dr. A of the Clinic. I understand that you already have the medico-legal report in your possession. It may be helpful for you to know that records 11, 16 and 42 are, for the most part, incorporated into the medico-legal report and constitute preparatory documents for that report. I have examined all seven records and in my opinion they were created as a direct consequence of the Guardian ad Litem's request for a medico-legal report for the Court hearing. It is clear that the medico-legal report is a record subject to the in camera rule of confidentiality; the fact that you were a party to the proceedings and have the report in your possession does not detract from the fact that to release it, or documents associated with its preparation, would be in breach of section 22(1)(b) and of the in camera rule.

This may seem to you to be an unfair or incorrect interpretation of the FOI Act, particularly in view of the fact that it operates to prevent you from obtaining, under the Act, some records which you already have in your possession. However, in the High Court decision cited earlier, EH and EPH -v- the Information Commissioner, O'Neill J was clear on this point. He said:

"In my view the purpose of Section 22(1)(b) is to prevent the Act from operating in such a way as to permit interference in the administration of justice a function which is reserved by the constitution solely to the Courts....If it were the case that one could under the provisions of the Act obtain documents disclosure of which was prohibited by the ruling of the Court or by an undertaking given to a Court, I have no doubt that this would amount to a gross and constitutionally impermissible interference in the administration of justice."

Records 48, 49, 50, 52 and 55 were created by the Clinic after the proceedings of [date]. I have examined these records which are clearly not material disclosed in the proceedings and although their subject matter may relate in some way to the proceedings it is my opinion that they are not records to which the in camera rule is applicable. I do not consider therefore, that their release would be in breach of section 22(1)(b). However, it is necessary to consider the application of other exemptions to these records, in particular, section 28.

Group 3 Records

Record 44/45 was created by the Guardian ad Litem. You will know, from the schedule sent to you by Ms. Doyle on 16 April 2002, that it is a covering letter from the Guardian ad Litem to the Clinic in which background material is provided to the Clinic for the purpose of the preparation of the medico-legal report. In my opinion this record, as with the medico-legal report itself, is a record which was created directly as a consequence of the Guardian ad Litem's request for a medico-legal report for the Court hearing. As it is my opinion that the medico-legal report is a record subject to the in camera rule of confidentiality, I consider that to release documents associated with its preparation would be in breach of section 22(1)(b) and of the in camera rule.

Group 4 Records

Records 51 and 54 were created by third parties after the Court hearing of 4 December 2000. It is clear that these records do not constitute material disclosed in the Court proceedings and, although their subject matter may relate in some way to the proceedings, it is my opinion that they are not records to which the in camera rule is applicable. I do not consider therefore, that their release would be in breach of section 22(1)(b). However, it is necessary to consider the application of other exemptions to these records, in particular, section 28.

In summary, it is my opinion that the following records are exempt from release in accordance with the application of section 22(1)(b): Records 11,16,17, 21, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 37, 40, 42, 44/45, 53, 57 and 58.

Section 28

I turn now to a consideration of the application of section 28 to Records 48, 49, 50, 51, 52, 54 and 55.

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). All of these records contain personal information relating to your son, Y. Records 48, 50, 51, 52 and 54 also contain personal information relating to other third parties. Record 55 is a note of a telephone message from you to the Clinic; while the note names both you and Y, it consists primarily of personal information about you and is releasable to you in accordance with section 28.

The FOI Act does not place an absolute prohibition on the release to a requester of personal information which relates to a third party. Section 28(2) outlines a number of situations in which personal information relating to a third party may be released. One such situation is where the record subject consents to the release. In the case of two of these records, 51 and 54, the third parties involved have given their consent for release of the records. Record 54 is a letter to the Clinic to which records 49 and 50 are replies. Record 51 is an acknowledgement by the recipient of receipt of record 49. Given that the authors of records 51 and 54 have given their consent to the release of these records, I consider that they are not exempt from release under section 28(1). As records 49 and 50 contain no substantial additional information, and are related to records 51 and 54, it is my opinion that the exemption provided for in section 28(1) is not applicable to them either. Records 48 and 52, however, contain personal information relating to a third party who has not consented to release of the records and cannot, therefore, be considered for release under section 28(2).

The remaining records to be considered here are Records 48 and 52. Section 28(5) of the FOI Act provides two further grounds on which personal information relating to a third party may be released. The first ground is where the public interest in the granting of the request outweighs the public interest that the right to privacy of the third party be upheld. The second ground is where the grant of the request would benefit the third party. No case has been made that the latter situation applies and, accordingly, I find that it does not apply. However, the question of the public interest being better served by the breach of the privacy rights of the third party (or third parties) does require consideration. I must clarify here that the third parties involved in a consideration of both records 48 and 52 are Y and Ms Z, your former wife and Y's mother.

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

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

In considering the public interest factors which favour withholding the records, I have taken the following into account:

• the public interest in protecting the right to privacy of members of the public
• the public interest in public bodies being enabled to perform their functions effectively particularly in relation to issues involving the welfare of children.

In weighing up the relative strengths of these opposing public interests, I must attempt to measure the actual benefit to yourself (particularly in your role as guardian to your son) which would result from release of the records. Key considerations here are (1) the extent to which relevant records have already been released to you and (2) whether release of the records at issue would actually add significantly to your understanding of the role played by the Clinic in relation to your son. I am satisfied that as you have possession of the Clinic's medico-legal report you have quite a full picture of its involvement in relation to your son up to the time of the proceedings of [date]. While I believe that release of these records would add, in a relatively minor way, to your understanding of events subsequent to the proceedings, the release of Records 48 and 52 would impinge on the privacy rights of Ms Z. Accordingly, I find in relation to Records 48 and 52 that the public interest in preserving the privacy rights of the third party concerned outweighs the public interest which would be served were these two records to be released to you.

In summary, I find that section 28(1) of the FOI Act applies to Records 48 and 52 but does not apply to Records 49, 50, 51, 54 and 55.

Other exemptions claimed

Other exemptions claimed by the Clinic were those contained in section 26(1)(a), which relates to information given in confidence, section 23(1)(b) which is an exemption designed to protect the identity of persons who provide information in confidence in relation to the civil law and section 46(1)(a)(i) which exempts records held by the Courts from release under the FOI Act. I have found that the majority of the records requested by you are exempt under either section 22(1)(b) or section 28(1) of the Act. I must consider now whether the remaining records 49, 50, 51, 54 and 55 are exempt under the other exemptions claimed. It is my opinion that the information supplied in records 51 and 54 cannot be said to have been supplied in confidence as the authors of those letters gave their consent to release of the records concerned. Therefore, section 26(1)(a) and section 23(1)(b) do not apply to these records. It is my opinion that the records to which they relate (as outlined above), records 49 and 50 are, similarly, not exempt under these sections. Record 55, the note of a telephone message from you to the Clinic, is clearly not covered by these exemptions either.

Records 49, 50, 51, 54 and 55 are not records held by "..the courts... and relating to, or to proceedings in, a court..." as specified by section 46(1)(a). Therefore I do not find them exempt under section 46(1)(a).

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby vary that decision in the following terms: I direct that Records 49, 50, 51, 54 and 55 be released but that the remaining 23 records, as identified in the attached schedule, be refused (as provided in the Clinic's own 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

Fintan Butler
Senior Investigator