Case Summary

Facts

The requester sought access to all records held by the Board relating to him and his children. The Board refused access to many of the records sought including certain records on the basis that they had been furnished to the requester on foot of the discovery process in the course of High Court proceedings between the requester and the Board. The Board was not agreeable to granting access to the records which had been furnished on discovery without the express permission of the Court. It also refused access to certain records relating to the school work of the requester's children.

Decision

The Commissioner considered the potential relevance of the possible waiving of the implied undertaking given by the party receiving documents on discovery; this undertaking is given for the benefit of the party furnishing the documents. He found that in a discovery case involving only the usual, implied undertaking given to a public body, the waiver of that undertaking is a matter wholly within the power of the public body with the result that the question of whether or not disclosure of the records would constitute contempt of court is a matter within the public body's control. He did not accept that waiver of the implied undertaking may not occur other than following an application to the Court. The Commissioner considered certain records which had been openly exchanged between the Board and the requester prior to being listed in the Affidavit of Discovery. The Commissioner was of the view that these records had been exchanged outside the fetters of both the discovery process and the FOI regime. He found that it would be inconsistent with the rationale for the undertaking given on discovery to consider that these restrictions extended to such documents. He found that the implied undertaking applied to the remaining records which had been furnished on discovery and those records were exempt pursuant to section 22(1)(b).

Some of the personal information about the requester's children in the records concerned their school work. Such information did not relate to the children's family situation or their perceptions regarding the family. The Commissioner considered that where records disclosing personal information about children relate to conflict or disagreement within the family, it is reasonable to regard the interests of children as separate from the interests of either parent. Where the information is routine school work, unrelated to the family circumstances, the interests of the child need not be regarded as separate from the interests of the parents unless the circumstances suggest otherwise. Taking account of a number of factors including the age of the records involved, the ages of the children, the necessity for consultation and the value of the records to the requester as guardian, the Commissioner did not find that the granting of access to these records would be in the best interests of the children.

Date of Decision: 19.05.2003

Our Reference: 99276

19.05.2003

Mr X

Dear Mr X

I refer to your application for review under the Freedom of Information (FOI) Act, 1997 of a decision of the Eastern Health Board (the Board), now the Eastern Regional Health Authority, to refuse to grant you access to certain records sought in your request dated 27 January 1999. I wish to apologise for the long delay which has arisen in dealing with your application. As you are aware, there is a very large number of records involved in this case.

Background

In your request to the Board dated 27 January 1999 you sought access to all records relating to you and your children and copies of records of certain Board personnel, in particular. In its decisions of 15 March 1999 and 31 March 1999 the Board granted access to some of the records sought by you and refused access to other records. By letter dated 19 April 1999 you sought an internal review of that decision. Following non-reply by the Board to your application for internal review within the statutory period, you applied to my Office for a review of the Board's decision. On 9 July 1999 your application for review of the Board's decision was accepted. In its letter of 26 July 1999, in response to your internal review application, the Board granted access to further records.

Scope of Review

Your request was received by the Board on 28 January 1999. The Board refused to grant you access to some of the records sought in your request. Accordingly, the records within the scope of this review consist of those records held by the Board on 28 January 1999 access to which was refused by the Board. My review is concerned solely with the question of whether or not the Board is justified in refusing to grant you access to those records in accordance with the terms of the FOI Acts.

I note that in correspondence with the Board and this Office regarding this request, you raise questions concerning the Board's practices and culture, the manner in which Board personnel acted and the manner in which the Board performed its functions. It is not part of my function as Information Commissioner to adjudicate on how public bodies perform their functions generally. The matter which I address is whether the decision of the Board on your FOI request is justified. In your application for internal review of the Board's decision, you stated that it was inappropriate for you to address your application to Ms Clarke as you were also seeking documents in her possession. As it transpires, the internal review decision was not made by the Board within the statutory period and your application for review to this Office was accepted before Ms Clarke responded. I would also add that it is not uncommon for FOI decision-makers to have familiarity with, or prior involvement with, the records in question. Familiarity or prior involvement does not, of itself, establish a conflict of interest.

I note that in your letter to this Office of 16 August 1999 you asked how it would be possible for you to have information amended (presumably in accordance with section 17 of the 1997 Act) if information is not furnished to you. As I have already pointed out in a previous case (Case No 98169 Ms ABY and the Department of Education and Science), the right to have records amended does not mean that a requester must be given access to an otherwise exempt record.

Having examined the contents of records 34 and 325 on File 6, I note that the information in these records consists of a few hand-written words, including (in the case of record 325) a name. The name does not appear to relate to you or any member of your family; it seems to me that the record may have been placed inadvertently on your file. I am satisfied that these two records do not relate to you or your children. Record 35 on File 6 is an end/cover page of a copy book and only contains information which may be described as general advertising information. It contains no reference to you or your children. Record 55 on File 9 is a blank page. I am satisfied that all of these records do not fall within the terms of your request and thus do not fall within the scope of this review. I am also satisfied that a right of access does not arise to these records pursuant to section 6(5)(b) - I refer to this further below.

The Board has claimed that a number of records on File 6 (records 664/665 and lines 6-9 on page 666 and line 1 on 693) are not covered by this request. These pages are part of hand-written notes made by Dr Leader in connection with a court application connected with your family. Given that you sought all records relating to you and your children and that you specifically sought notes on the files of named individuals, including Dr Leader, I do not accept that these records are not covered by your request. I find that these records fall within the terms of your request.

During the course of this review, my Office brought it to the attention of the Board that a number of records listed in the schedules of records in this case did not appear among the records provided to my Office. The Board has now clarified that in preparing the schedules for the records in this case some numbers were inadvertently skipped. This means that there were no records corresponding to certain numbers in the schedules. In some cases this is apparent from the schedules themselves. I am satisfied that there are no records corresponding to the following numbers in the schedules: File 6 - records: 23-31, 71-79, 101, 667-676.

I have noted that there are, in fact, two records numbered 677 on File 6 - one of which is a letter from the Board's solicitors to the Board and another of which comprises one of a number of pages of hand-written notes by Dr Leader. For the purpose of this decision, I will refer to the page of Dr Leader's notes as Record 677 and to the letter from the Board's solicitors as Records 677A.

As you are also aware, during discussions with you regarding records which had already been made available to you on foot of discovery, you agreed that certain records could be excluded from the scope of the review, namely Records 1-3 and 516-518 on File 6 and records 71-73 on Mr Lowe's file (comprising copies of the Order for Discovery) and record 105 on File 8 (comprising a message of 8 November 1993).

Arising from the queries raised by my Office, the Board carried out further searches for records falling within the terms of your request. As a result, some additional records were located. Three files, which are now described as Files A, B and C, were located by the Social Work department. The Board also confirmed that during its further searches, additional records were located comprising two "All About Me" booklets, one copy book and one drawing book. Copies of these records were furnished to my Office and I have considered those records in this review. Details of the enquiries made and searches carried out are provided below. Those records which were held by the Board on 28 January 1999 are within the scope of this review.

Process of the Review

In your correspondence to this Office you suggested that further records exist and you stated that a number of documents were missing entirely from the records in this case. As I have indicated above, enquiries were made by my Office regarding the existence of further records and I refer to these further below. During the course of this review, the Board agreed to the release of further records and I also refer to these below.

During the course of this review I received submissions from you and the Board. Ms Connolly of my Office wrote to you on 12 November 2001 expressing her preliminary views with regard to this case and offering you the opportunity of making further comments or submissions in the matter. Ms Connolly provided a similar opportunity to the Board. Further submissions were received from you and the Board. Ms Connolly also wrote to you and the Board concerning searches for further records and the records furnished on discovery. Both you and the Board responded. My Office also received further correspondence from you. I have considered the contents of your application for review and all the submissions and correspondence received by my Office.

Findings

Section 10(1)(a)

Section 10 (1)(a) of the 1997 Act provides 10.(1) A head to whom a request under section 7 is made may refuse to grant the request if(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken, In your letter of 16 June 1999 you stated that a number of documents were missing entirely from the records in this case. In subsequent correspondence you suggested that further records exist or ought to exist. My Office raised this issue with the Board. My Office also raised the issue of certain other records which were referred to in the schedule of records for File 6, copies of which had not been furnished by the Board to my Office.

Records on File 6

My Office sought copies of certain records which are referred to in the schedule of records which had been prepared by the Board for File 6 but were not included in the records furnished to my Office for the purpose of this review. File 6, which is a large file with nearly 700 records, is the file of the psychiatric services. Following searches made on foot of these enquiries, the Board has been unable to locate the following records: File 6: records 339, 508, 562, 577, 614-615, 696, 697. Some of those records have been released to you by the Board, namely records 339, 508 and 697. However, the remaining five records are within the scope of this review as the Board claimed that they were exempt; that is, records 562, 577, 614-615 and 696. My Office sought details of the searches carried out for those records, the enquiries that had been made and details of where File 6 had been stored. The Board responded stating that it appeared that these five records missing from File 6, which were on file at the time of the initial decision, were isolated as not being for release to you and were not returned to the file. It stated that it carried out a further search of its records in the Central Office and checked with staff members involved with the request/ decision at earlier stages. It has furnished my Office with copies of the responses it received from those staff members. The staff members concerned stated that, to the best of their knowledge, they returned all the documents to the file and the records on the file were complete when the decision issued. They also stated that they were not aware of any alternative filing location for the missing records, nor did they have them in their possession.

The Board stated that the file was stored in its Central Office which was located in James's Street and was returned to Dr Leader as it was required to deal with an enquiry received from you. The file was later recalled for submission to my Office. The Board stated that following a further search of records which were transferred from St James's to Central FOI Office, Naas, these missing records failed to turn up. Dr Leader has also confirmed that she carried out a search and no further records were located.

It is apparent that the five records existed at the time of the Board's decision in March 1999 and were located on the file at that time. The records are no longer located on that file. It appears possible that these records (together with the three records, copies of which had been released to you and which are also no longer on file) were mislaid or misplaced during the movements of the file in this case. It is clearly unsatisfactory that records, which existed at the time of the initial decision in this case, have now gone missing. In my view this is likely to have been the result of poor file management on the part of the Board. I would add that the copies of the records on that file which were submitted to my Office were in some disorder. The records were numbered but the numbers were in many cases illegible and in some cases incorrect. A considerable number of the records were completely out of sequence. In these circumstances it is easy to see how records may be misplaced or mislaid.

I have taken into account that File 6 contains a large number of records, that there were a number of requests made by you to the Board which would have necessitated recourse to the file and there was a number of file movements. I accept that the file in question was large and was needed for a number of purposes over a period of time. I note that, in addition to the five missing records which were refused, there are three missing records access to which was granted. In the circumstances, I am satisfied that the Board has taken all reasonable steps to locate these five records. While it is clearly unsatisfactory, I am satisfied that the records in question cannot be found after all reasonable steps have been taken to locate their whereabouts and that access may, therefore, be refused pursuant to section 10(1)(a) of the 1997 Act.

Further Records which you claim exist.

In your letter of 16 June 1999 you stated that a number of documents were missing entirely from the records in this case. This issue was raised by my Office with the Board and the Board was asked to supply full details of the steps taken to locate the records and, if the records did not exist, to provide an explanation of why the records would not exist. You also stated that records of certain Board personnel were missing.

It is apparent from the documents and information supplied by the Board that it sought the records from the relevant sections within the Board after it received your request and for the purposes of responding to that request. Information provided to my Office shows that enquiries were made of a number of sections in the Board in February/ March 1999 for records and there were further enquiries in November 1999. My Office has also been provided with information showing further searches carried out in early 2002. I give further details of these searches below.

The Board has stated that it carried out an extensive search for further records falling within the scope of your request, including searches in its archives in St Brendan's Hospital where inactive records of the Board are stored. The Board's searches sourced a file, a copy of which was provided to my Office. I have examined the records on that file and I am satisfied that those records were created after the date of your request and relate to the processing of your request. Indeed, I note that a large number of the records comprise copies of correspondence between you and the Board concerning the request. They do not, therefore, fall within the scope of this review.

As I stated above, the Board also confirmed that during its further search, additional records were located comprising two "All About Me" booklets, one child's copy book and one child's drawing book. The "All About Me" booklets were completed by the children during their visits to Dr Leader. Copies of these records were furnished to my Office and I have considered those records in this review.

The Board also stated that its search located another file in the Senior Medical Officer's section which comprised fifteen documents all of which were duplicates of records on File 9.

The further searches of the Board also resulted in the location of three further files from Social Worker Section, Area 6 (now referred to as Files A, B and C). The Board stated that those files contained, with some exceptions, copies of records which were on the files which had already been located and were the subject of the Board's decision. I note that a further record, Record 88 on File C, is also a copy of a record which was on one of the files already located (File 5: Record 15) and which had already been released by the Board in its decision. The records on Files A, B and C are copies of records which had been the subject of the Board's decision with the following exceptions: File A: Records 3-4, 43-45, 47-50, 52, 53, 56-59, 60- 88, 89-91 File B: Records 1-7, 9 File C: Records 7, 81, 97-98, 99, 100-102, 103-105. I note that some of the records on these three files were created after the date of your request and do not fall, therefore, fall within the scope of this review; namely File A: records 47-50, 52, 53, 56-59, 60-88. File B: records 1-5, 7, 9. File C: records 97-98, 100, 102, 103-105. The Board has indicated that access could be granted to some of these records. I note that some of the records which the Board has indicated could be released, disclose personal information or joint personal information and I have therefore considered them in the context of section 28 below. However, having examined the records, I am satisfied that the following records are not exempt and may be released: File A: records 3-4, 44. File B: record 6 File C: records 7, 81 and 99.

Your letter of 16 June 1999 stated that records of certain named Board personnel were missing. As I have said above, records of the enquiries carried out by the Board in February/ March 1999 in this case have been furnished to my Office. Searches at that time included searches for records held by the programme manager, social work records and senior area medical officer records. Further searches which were carried out in November 1999 included searches of the following sections - Community Welfare, Social Work, Physiotherapy, Occupational Therapy, Public Health, Child Care, Area Medical Officer, Speech and Language Therapy, Area Administration and Dentistry. In April 2002, following contact from my Office about the matter, the Board confirmed that it had made extensive enquiries with the personnel named by you in your letter of 16 June 1999 or their offices. Records supplied to my Office show the outcome of these searches carried out by the personnel or their offices/departments. The records show that additional enquiries were made by the Board for further records from personnel in the following areas - Senior Area Medical Officer, Director of Community Care, Child Care (incorporating previous function of Director of Community Care), Assistant Chief Executive Officer/ Secretariat/ Programme Manager, Social Work Services, Pre-school Officer, Public Health Nurse and Roselawn Health Centre.

The Board also contacted its solicitors regarding the records sought in your request and the solicitors have stated that the Board has in its possession all of the original files concerning you. The solicitors have confirmed that they hold only copies of those files and that they have re-checked their files to confirm this.

With the exception of the additional records found which I have referred to above, all records that were located during these searches were copies of records already found on earlier files. With regard to records which in your view should be held by personnel from the Secretariat/ Chief Executive Officer (CEO)/ Programme Manager sections, the Board stated that the procedure of the CEO's office is to re-direct correspondence to the Secretariat without it being logged or acknowledged. The procedure of the Secretariat was for correspondence to be acknowledged and passed to the relevant section for investigation/ reply. Specific named files were not kept, with all correspondence from the public filed on a general file in date order. The general file contained only copies of the correspondence received and the acknowledgements issued.

Contact was made with all sections currently responsible for the areas where the personnel identified by you worked. The records of the searches also show that direct contact was made with many of the personnel named by you; namely, Dr Anne O'Connor, Ms Brid Clarke, Ms Maureen Wyndle, Dr Helen Leader.

Arising out of the questions and issues raised by you in your letter of 20 March 2002, my Office raised the issue of records relating to communications between the Programme Manger and social work department or within the social work department in response to enquires received from you. My Office asked the Board to check particularly for copies of such records and for any briefing material that may have been prepared for the replies which issued to you, and for the letter from Mr Pat Dunne to you of 27 November 1998, in particular. A copy of this letter was located on file A referred to above (record 45). Record 44 on the same file contains a note from Mr Dunne to Mr Peter Coughlan regarding the preparation of the reply. The Board also suggests that another record on the files could have been the basis for a reply to you. Mr Coughlan no longer works for the Board. I should add, however, that a response sent on behalf of Mr Coughlan to earlier searches for the records in 1999 states that a thorough search had been carried out and no further social work files had been located.

I am satisfied that all relevant sections were contacted for records at the time of this request and have been contacted again following the enquiries raised by my Office. Records held by Community Care Area 6 have now been searched three times. I note that your letter to my Office of 20 March 2002 presents a number of arguments why, in your view, further records exist. You have argued that further records exist to form the basis for Mr McLoughlin's letter to you of 27 August 1999, Ms Clarke's letter of 1 December 1999 and Mr Dunne's letter of 27 November 1998. It seems to me that this is not necessarily the case and I am satisfied that sufficient information existed on the files at that time for such letters to be written.

Having considered the matter and the considerable efforts made by the Board to locate all records falling within the terms of your request, I am now satisfied that all reasonable steps have been taken to ascertain their whereabouts and that access to any further records may be refused pursuant to section 10(1)(a) of the 1997 Act on the basis that such records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts.

Pre-commencement records - section 6(5)

Section 6(5) of the 1997 Act as amended provides that public bodies are only required to grant access to records created prior to the commencement of the Act if - (a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or(b) records created before such commencement relate to personal information about the person seeking access to them.

As Ms Connolly has explained, most of the records within the scope of this review were created prior to the commencement of the 1997 Act. I am satisfied that, with the exception of records 34, 35 and 325 on File 6 and record 55 on File 9 referred to above, the records relate to personal information about you and, subject to the other provisions of the Act, a right of access to the records arises pursuant to section 6(5)(b). I am satisfied that section 6(5)(a) and 6(5)(b) do not apply to records 34, 35 and 325 on File 6 or to record 55 on File 9.

Record 622 on File 6 is a note of a telephone call to the Board in which the caller is not named. The record does not contain any reference to you or your children. The Board has stated that the fact that it is filed on this file suggests that it had been suspected that the call had been made by you. In my view, this seems to be a reasonable assumption and the placing of the record on this file suggests that the call was regarded by the Board as connected with you or your family, for example, that it was made by you or someone connected to you. I am satisfied that it was not a matter of mere inadvertence that this record was placed on the file. In the circumstances, I am satisfied that there is sufficient connection between the record and you to find that the record relates to personal information about you for the purpose of section 6(5)(b).

Section 22(1)(a)

The Board has relied upon section 22(1)(a) of the 1997 Act for its refusal to grant access to certain records. Section 22(1(a) applies where the record concerned would be exempt from production in proceedings in a 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 in this case, I am satisfied that legal professional privilege applies to the records of communications between the Board and its solicitors (1) in relation to the High Court proceedings brought by you against the Board; (2) for the purpose of legal advice concerning its involvement in, and for the purpose of a court application in, family law proceedings between you and your wife; (3) for the purpose of legal advice concerning its general role.

For those reasons, I find that the following records are exempt pursuant to section 22(1)(a): File 1: records 28, 62, 69-70, 94, 96-97; File 2: records 4; File 3: record 13; File 5: records 4,5, 8, 13-14, 16-18, 22-23, 36-39, 65, 67, 76, 82, 85, 87-89, 92; File 6: records 412, 448 (the hand-written note), 472, 503/504, 519/520, 527/528, 538, 560/561, 568, 574, 575, 576, 603, 611, 616-619, 621, 628, 643, 650, 655, 677A; File 7 records 1, 6, 32, 42/43, 53, 63/64. File 8: records 44, 63, File 9: records 1-3, 6, 21, 23/24, 33/34, 58, 70-72, 78/79, 87-90. Mr Lowe's File - record 59 , 60, 63-70, During the course of this review, the Board acknowledged that section 22(1)(a) did not apply to all of the records for which it had originally been claimed. It stated that many of those records which it had originally claimed were exempt pursuant to section 22(1)(a) could be released and claimed that other records were exempt pursuant to other sections of the FOI Acts. Having examined the records, I note that many of those records (which the Board were of the view could be released) disclose personal information within the meaning of section 28 of the Act and I deal with those records below in that part of my decision which considers records disclosing personal information. However, having examined the records I am satisfied that some of the records which the Board stated may be released do not disclose personal information about individuals other than yourself. I am also satisfied that they are not otherwise exempt under the Act. Access should therefore be granted to those records, which are as follows: File 1: record 27 (with the exception of paragraph 9), [File 2: record 3 and File 9: records 4 and 5 are copies of this record] File 5: records 72, 73, 74 (with the exception of paragraph 16), 75 (with the exception of paragraph 3). File 6: records 448 (with the exception of the hand-written note), 620, 646. File 9: records 84/85, 86 (with the exception of paragraph No. 3).

Section 22(1)(b)

Section 22(1)(b) of the 1997 Act (as amended) provides that access to a record shall be refused where the public body knows or ought reasonably to have known that its disclosure would constitute a contempt of court.

The In Camera Rule

It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to the family law proceedings between Ms X (formerly Ms Y) and yourself. The following records relate to those proceedings and comprise court orders, affidavits, notices of motion, pleadings, a social worker report for court, a medico-legal report, a Temple Street hospital report addressed to the court and notes of the court hearing. I find that these records are exempt pursuant to section 22(1)(b): File 1: records 75 - 93; File 5: records 2-3, 6-7,10-12, 47-64, 90; File 6: records 244-259, 262-265, 267, 268, 314-316, 600-602, 623-627, 629-631, 639, 640/641, 644; File 9: records 39-54, 56/57, ; Mr Lowe's File: 62, 74-79.

I note that in your letter of 28 November 2001 you indicate that you agree that section 22(1)(b) applies to records derived from the proceedings between you and your wife "if this means that there will be no problem with mine of the 16 September 1999, the 24 September 1999, the 5 October 1999 and the 21 January 2000". It is not clear what you are referring to or what point you are making. In any event, such records would have been created after the date of your request and are not included in the records within the scope of this review. My review is concerned solely with the question of whether the Board's decision to refuse access to the records within the scope of this review was justified in accordance with the terms of the FOI Acts. I am satisfied that the records listed above are exempt pursuant to section 22(1)(b) as amended.

I note that you dispute a statement by Ms Clarke that Judge Lindsay directed that the social workers were to act solely with and on behalf of the children and that their identities were not to be revealed. My findings with regard to the records above arise out of the usual requirements of the in camera rule in family law cases and, therefore, I do not consider it necessary for me to consider the matter of Judge Lindsay's directions in connection with my decision on these records.

A considerable number of the records comprising correspondence between your solicitors, your wife's solicitors and the solicitors for the Board relate to the family law proceedings and refer to those proceedings and contain information emanating from or derived from those proceedings. Those records, or at least portions of those records, may also be covered by the in camera rule. However, I am satisfied that they are otherwise exempt under the FOI Acts. As I explain below, I have found that those records are exempt pursuant to section 28 and therefore I do not find it necessary to consider them further in the context of section 22(1)(b).

The Board since the commencement of this review claimed that section 22(1)(b) applied either solely, or in addition to other exemptions, to certain records in addition to the records which I have found to be exempt pursuant to section 22(1)(b). It claims that section 22(1)(b) solely applies to File 6: records 32, 261, 680 (lines 4-10). It has also claimed that, in addition to other exemptions, section 22(1)(b) applies to other records. These records mainly concern the work done by the Board in monitoring access and also correspondence from Temple Street Hospital. I am satisfied that they are otherwise exempt under the FOI Acts. As I explain below, I have found that those records are exempt pursuant to section 28 of the Act. I therefore do not consider it necessary to consider the application of section 22(1)(b) to these records.

The Discovery Records

The Board has also refused access to certain records which were made available to you on foot of discovery and which are listed in an Affidavit of Discovery sworn by an official of the Board. An Order for Discovery was made by the Master of the High Court on 27 July 1995 in High Court proceedings in which you and the Board were parties. The Board has furnished my Office with a copy of the Affidavit of Discovery sworn on 14 March 1996 by an official of the Board pursuant to that Order. There are 173 documents listed in the First Part of the First Schedule of that Affidavit which, I understand, were furnished to you on foot of discovery. The Board's position is that access to these records must be refused on the basis of section 22(1)(b).

Undertakings on Discovery

It is a clearly accepted rule of law that a party obtaining the production of documents by discovery in an action is prohibited from making any use of the documents or the information contained in them otherwise than for the purpose of the action (Murdoch's Irish Legal Companion). The following statement of the terms of the undertaking given on discovery appears in Matthews & Malek on Discovery: "Any party on whom a list of documents is served or to whom documents are produced on discovery or pursuant to an order of the Court impliedly undertakes to the Court that he will not use them or any information derived from them for a collateral or ulterior purpose, without the leave of the Court or consent of the party providing such discovery." The Records at Issue A considerable number of the records which are listed in the Affidavit of Discovery disclose personal information about individuals other than yourself or joint personal information and I deal with those records in the context of my consideration of the application of section 28 below. As I explain below, I have found that those records are exempt pursuant to section 28 and therefore I do not consider it necessary to consider them further in the context of section 22(1)(b). However, a small number of records listed in the Affidavit of Discovery do not disclose personal information or joint personal information and the Board has not argued that these records are otherwise exempt. Those records are: File 4: record 11, 13, 14, 17, 18-20, 24; File 6: records 1-3, 260, 516-518; File 7: record 13, File 8: record 52, 97/98, 100, 102, 105, 106B, Mr Lowe's file: records 71-73.

I am satisfied that these records are not otherwise exempt under the Act. The only issue of relevance regarding these records is that they were made available by the Board to you pursuant to the discovery process in the High Court. The issue which I must consider is whether the Board is justified in its claim that, by that reason alone, disclosure of the records would constitute a contempt of court within the meaning of section 22(1)(b). I would stress that the records in question are not subject to any other exemption or condition such as, for example, the in camera rule. In fact, the records comprise, in large part, copies of correspondence/ communications between you and the Board.

You asked that the records which had previously been made available to you pursuant to discovery should be included within the scope of this review. You stated that you did not consider that you were able to comment on those records without causing prejudice to the High Court case. You argued that you were unable to make use of the copies made available to you pursuant to discovery in any other matter and release under FOI might give you other options. My Office sought to reach agreement with you regarding the extent of the records listed above which you wished to have included in this review. As I mentioned earlier in this decision, arising from these discussions you agreed that certain records could be excluded from the scope of this review, namely File 6: records 1-3 and 516-518 and Mr Lowe's File: records 71-73 (comprising copies of the Master's Order for Discovery) and File 8 record 105 (a copy of a message of 8.11.93). However, a decision is still necessary with regard to the remaining records listed above.

The Board's position

In its original decision the Board refused access to the records which had previously been given to you in the discovery process pursuant to section 28(2)(c) of the 1997 Act, stating that the records had been "previously given to Mr X under Affidavit of Discovery" or, in the case of records 71-73 on Mr Lowe's file, that the records were "already available". Section 28(2)(c) is, in fact, a provision of the Act which provides that certain personal information is not exempt where information of the same kind as that contained in the record is available to the general public. In its letter of 26 July 1999 the Board acknowledged that this had been an incorrect interpretation of this section of the Act. The Board stated that those records would be made available to you if you so wished. It stated, however, that as the information was already available to you it would be necessary to charge a photocopying fee of 3 pence per page. I understand that you did not avail of the access afforded to you by the Board at that time.

By letter dated 11 February 2002, in response to enquiries raised by my Office regarding these records, the Board referred to the High Court judgement in the case of EH & EPH -v- the Information Commissioner and stated that it was of the view that the records should not have been offered to you at the time of its letter of 26 July 1999. It later explained that its offer of access in its letter of 26 July 1999 was made prior to that judgement when, it stated, it was unaware of the contempt implications of such an action. The Board's reference to the High Court judgement relates to the implied undertaking which is given by a party to proceedings to whom documents are produced on discovery (referred to above) and which would have arisen on the furnishing of the discovery documents in your case. Following further communications with my Office regarding a waiver of that undertaking, the Board stated that it was satisfied that any variation of the undertaking given by you in the course of your application to obtain an Order for Discovery against the Board should be as a result of an application by you to the High Court, on notice to the Board, seeking the express permission of the Court to the release of you from your undertaking. It stated that "it may well be that a number of documents in respect of which the current undertaking with regard to disclosure has been received ... may fall within categories of documents in which such undertaking may either be varied or waived.". It is clear, however, that the Board was not agreeable to granting access to the records furnished on discovery without the express permission of the Court.

Waiver of the Implied Undertaking

The Board has referred to the judgement of Mr J O'Neill in the High Court - EH and EPH -v- the Information Commissioner [2001] 2 IR 463 - where he stated: "I have come to the conclusion that where a head of a public body or the Commissioner is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b)." That judgement of the High Court concerned an appeal against two decisions made by me under section 34 of the FOI Act. My decisions (Case 99011 - Mr ABK and the Eastern Health Board, 28 September 1999) related to records which had been made available to the requester in that case, where the requester had given a specific express undertaking to the court to preserve their total confidentiality. The High Court had also made an order imposing conditions on certain records discovered. I found that those records were exempt pursuant to section 22(1)(b) of the Act.

The records now at issue in this case were the subject only of the usual, implied undertaking given on discovery. In his judgement Mr J O'Neill also made the following comments: "True, in the case of the usual implied undertaking the party for whose benefit it is given, i.e. the party making disclosure can waive the undertaking but in the absence of such waiver as in the present case the undertaking continues as an undertaking to the court with all of the attending consequences... ...Undertakings given to a court can only be discharged either in the case of the usual undertaking in relation to discovery by waiver of the party making discovery or otherwise by the express permission of the court itself." It is clear that the usual, implied undertaking given on discovery may be waived by the person making discovery. Where a public body furnishes records to a party to proceedings on foot of discovery, the undertaking is given by the party receiving the records. The undertaking is given for the benefit of the party furnishing the records and the party furnishing the records may release the party who receives the records from the requirements of the undertaking. Thus, in a case involving only the usual, implied undertaking, the waiver or modification of that undertaking is a matter wholly within the power of the public body with the result that the question of whether or not disclosure of the records would constitute contempt of court is a matter within its control.

The Necessity of a Court Application

It seems to me that a number of issues possibly arise from the Board's stated position in this matter. The Board is suggesting that the only way in which the undertaking may be varied is by court order. In my view, a public body cannot assert that, whatever about its positive inclinations towards granting the request for access to some or all of the records previously furnished by it to a requester by means of discovery, it is forced by the mandatory exemption contained in section 22(1)(b) to refuse to grant the request. As I have said above, in a case involving only the usual undertaking, the waiver or modification of the undertaking is a matter wholly within the power of the public body, with the result that the question of whether or not disclosure of the records would constitute contempt of court is a matter within its control. If the public body waives the undertaking in whole or in part, there is a corresponding disappearance or dilution of the parallel undertaking to the Court. I would also add that, in my view, it is possible for a person to waive or modify the undertaking in relation to certain, specified records and to leave it in place in relation to others. Thus, to the extent that the Board's position suggests that waiver of the implied undertaking may not occur other than following an application to the Court, I do not accept this to be the case. It is clear, however, that the Board is not waiving any undertaking which applies in this case.

Records Previously Exchanged between the Parties

A further issue arises in this case. A number of records at issue were freely exchanged between you and the Board prior to the Order for Discovery being made and the Affidavit of Discovery being sworn in this case. These records comprise communications (letters and faxes) between you and the Board.

These documents were openly exchanged between the Board and you otherwise than by way of discovery prior to their subsequently being listed, presumably for the sake of completeness, in the relevant schedule to the Board's Affidavit of Discovery. It is important to note, as I have said above, that these records do not disclose personal information or joint personal information nor are they subject to any other exemption or condition such as, for example, the in camera rule. In my view, they were exchanged outside of the fetters of both the discovery process and the FOI regime. It may be that, in light of the listing of the records in the schedule of the Affidavit of Discovery and in order to free yourself from the undertaking which you impliedly gave to the Court, you now feel that you need to seek access to these records under FOI. Insofar as you may feel that this is necessary, it seems to me that you are being overcautious.

The rationale for the undertaking which applies on discovery is that it is, as it were, the price to be paid for the inroad being made into the rights to privacy and confidentiality otherwise enjoyed by parties outside of the discovery process. Thus, where a public body has, prior to making discovery, freely exchanged records with the other party, it would be inconsistent with this rationale to consider the implied undertaking given by the party obtaining discovery as extending to or covering such records. Such an approach would create a restriction on use where previously no such restriction existed. Accordingly, it seems to me that the undertaking may reasonably be regarded as having been impliedly waived in relation to the records which had been freely exchanged between the parties prior to discovery.

For these reasons, I am satisfied that section 22(1)(b) does not apply to the records exchanged between you and the Board prior to discovery, namely: File 4: record 11, 13, 14, 17, 18-20, 24. File 7: record 13 [File 8: record 106B is a copy of this record]. File 8: record 97, 106B. Accordingly, I find that such records are not exempt pursuant to section 22(1)(b). I am also satisfied, as I said above, that these records are not otherwise exempt under the FOI Acts. Access should therefore be granted to these records.

Exempt Records

It is clear from the judgement of Mr J O'Neill that, in the absence of a waiver of an undertaking, the undertaking remains and it is one that is given, not only to the party making discovery, but also to the court. As a result of the fact that it is also given to the court, and notwithstanding the fact that it exists for the benefit of the party making discovery, the absence of waiver or consent on the part of the latter would render any disclosure by a requester of records previously furnished on discovery a contempt of court. Thus, in the absence of a waiver (as in this case), the records ought not to be released to a requester under FOI unless the court's leave is obtained. Were records to be released under FOI, the public body cannot impose any conditions on access and any disclosure of the records would be a contempt of court.

I find that the following records which were furnished by the Board to you on foot of discovery are exempt pursuant to section 22(1)(b), namely: File 6: record 260 File 8: record 52, 98, 100, 102

I would add, however, that a question arises, in my view, as to the reasonableness of a public body's refusal to waive an undertaking in these circumstances. A public body, in making a decision under FOI, must give the reasons for its decision including, in particular "the findings on any material issues relevant to the decision" (section 8(2)(d)(ii) of the 1997 Act as amended refers). While it is not for me as Information Commissioner to decide on the reasonableness of the Board's decision in this matter, it seems to me that there may be other avenues open to you including, for example, a complaint to the Ombudsman. I would also add that I would generally expect a public body which refuses to waive an undertaking in these circumstances to provide reasons for its refusal to do so in its decision.

Records Disclosing Personal Information

I would also add the following comment. I am satisfied that the undertaking arising from the prior furnishing of records to you by the Board on foot of discovery in this case (unless specifically waived by the Board) binds you against making any use of those records otherwise than for the purpose of the particular proceedings in which they were furnished. As I have already explained, a large number of the records which are listed in the Affidavit of Discovery in this case disclose personal information or joint personal information. As you will note below, I have found that those records are exempt pursuant to section 28 of the Act. For that reason, I did not consider it necessary for me to consider those records in the context of section 22(1)(b). In my view such records which were furnished by the Board to you in the course of discovery and which I find to be exempt from release under other provisions of the FOI Acts, would continue to be subject to any applicable undertaking given by you to the court. The ultimate issue of the enforceability of an undertaking given to the court is clearly a function for the courts. However, I would also stress that nothing in my decision should be taken as affecting your obligations to the Board and to the court pursuant to your implied undertaking with regard to those exempt records.

Section 28

Personal Information

I will now consider the application of section 28 of the 1997 Act (as amended) to the remainder of the records within the scope of this review. As Ms Connolly has already explained, section 28(1) provides that a request shall be refused if access to the record concerned would involve the disclosure of personal information. Section 2 of the 1997 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) information which is held by a public body on the understanding that it would be treated by it as confidential. Section 2 also provides that personal information includes information relating to the medical or psychological history of an individual. Section 28(3), which makes special provision for the refusal of certain records containing personal information, makes reference to records kept for the purposes of social work.

A large number of the records in this case comprise records of a consultant child psychiatrist and records of the Board's Social Work Department. Having examined the records, I note that a very large number of them concern the Board's involvement with your children in the context of monitoring or assessing how access arrangements in your family were affecting them. Many of the records contain details of meetings with your children. They disclose details about the family circumstances and relationships of you and your children. Some of the records relate to a referral to the Board and an investigation of alleged child abuse. They include records containing details of the care of your children and concerns raised by you about your children's care. Some of the records contain information relating to the children and their perceptions of the family situation as recorded by the child psychiatry services. Many of the records refer to the family law proceedings between you and your wife and contain information concerning those proceedings and the orders of the court made in the course of those proceedings. I find that such information constitutes personal information about the individuals referred to in the records, including yourself. In the case of one record (Records 622 on File 6) referred to further below, I find that the record discloses personal information about a member of staff of the Board.

I note that in your letter of 28 November 2001 you state that any allegations of child abuse should be dealt with in accordance with Department of Health Guidelines and via case conference review. I also note that you raise a number of questions regarding the Board's role in this case. As I have said above, it is not part of my functions as Information Commissioner to adjudicate on how public bodies perform their functions. Your request in this case was for access to records and my function in this review is to decide whether the Board's decision to refuse access to the records within the scope of this review was justified in accordance with the FOI Acts. The questions raised by you may, however, be regarded as arguments relevant to the public interest, a matter which I address further below.

I note that in the same letter you also state that the Board has no involvement in relation to access arrangements as that is a matter for the Circuit Family Court. While clearly access arrangements are a matter for the Circuit Family Court, I am satisfied that a very large number of the records relate to the role of the Board personnel in working with your children and in monitoring or assessing how access arrangements were working for them. The records reflect the fact that the subject of access arrangements was discussed with Board personnel. Indeed, I note that the role of the Board personnel in monitoring or assessing access is mentioned in the orders of the Circuit Family Court and that Board personnel swore affidavits in the Circuit Family Court proceedings. I am satisfied that the records include details concerning access arrangements for members of the family and information relating to such access constitutes personal information about the family members concerned.

Where the personal information relates solely to individuals other than yourself, section 28(1) of the 1997 Act as amended applies and access to the records concerned shall, subject to the other provisions of section 28, be refused. Where the personal information relates both to you and to other individuals and the information relating to you cannot be separated from the information relating to other individuals, the information can be described as joint personal information and section 28(5B) applies. This provision has the same effect as the provisions of SI 521 of 1998 Freedom of Information Act, 1997 (Section 28(1) Amendment) Regulations 1998. Section 28(5B) and SI 521 of 1998 provide that, subject to other provisions of section 28, a request shall be refused where access to the record concerned would, in addition to involving the disclosure of personal information relating to you, also involve the disclosure of personal information relating to an individual other than yourself. Where the personal information relating to you can be separated from information relating to other individuals, section 28(2)(a) applies and the information is not exempt.

Bearing in mind the content of these records and the context in which they were created, it is my opinion that most of the information relating to your children and the information relating to you in these records must be considered to be joint personal information. I considered whether I might direct the release of those extracts from the records which make reference to you. I have previously considered the issue of extracting personal information in my decision in Case No. 99001 - Ms. ACF and the North Eastern Health Board - where I stated:

"... It is possible to extract occasional sentences or parts of sentences from the records within the scope of this review and argue that they comprise personal information relating solely to the requester. However, such information arose in the context of discussions between the Board personnel and the requester's parents. It is clear to me that although such discussions may have related to the requester, they also related to the requester's parents. In my view, given the context of the information, it may be more correctly described as joint personal information. I am satisfied that, given their context and content, none of the records within the scope of this review contain information which is personal information relating solely to the requester. I am satisfied that these records contain information which constitutes either (a) personal information relating to other members of the requester's family solely or (b) joint personal information relating both to the requester and those other members of the family. I am confirmed in this view by the consideration that if sentences or parts of sentences were extracted on the basis that they contained personal information relating solely to the requester, their release would be misleading - section 13(2)."

Having examined records, I am satisfied that most of the information which they contain in relation to you must be regarded as joint personal information as they also relate to your children. In my view, some extracts which might be regarded as relating solely to you would, by themselves, be misleading. The release of any such extracts is not, accordingly, a realistic option and I do not intend to direct the release of such extracts to you.

I am satisfied, however, in the case of a very small number of records that they do not disclose personal information or joint personal information or that it is possible to extract information solely about you in a manner which is not misleading. As I have said above, where the personal information solely relating to you can be separated from information relating to other individuals, section 28(2)(a) applies and the information is not exempt. I find that the following records do not disclose personal information about other individuals or disclose personal information solely about yourself and are, therefore, not exempt pursuant to section 28(1): File 7: 37, 39, 41. The Board has agreed to the release of these records.

File 6 - records 662-695

File 6 - records 662-695 (with the exception of 667-676 which do not exist, as I explained in the Background section above) are the pages of a small notebook containing hand-written notes made by Dr Leader which appear to have been related to a court hearing in the family law case related to your family. The Board no longer claims section 22(1)(a) with regard to these records although it claims that a number of other exemptions apply to most of the records, mainly section 28, but also section 22(1)(b) and section 26(1). I consider that it is convenient to consider these records separately. The Board has argued that parts of these records are not covered by your request. However, as I have already explained, I find that all these records fall within the terms of your request.

The Board has also argued that section 28(1) applies to portions of these records as they disclose personal information about Dr Leader; namely records 677-679, 694, 695 (lines 1-3). I have examined those parts of the records. In my view these records primarily disclose personal information about you and your family. The information about Dr Leader concerns her involvement in this case in her professional capacity only or is a note of general guidance to her. I consider that the information in these records relates to Dr Leader's views about her role in the case and her views about your family (including yourself). I do not consider that the records disclose personal information about Dr Leader. The records also relate to the children and their perceptions, a history of Dr Leader's involvement with the family. I find that the records disclose personal information about the members of your family, including yourself. Thus, they disclose joint personal information. I should add that, in these respects, these records are different in nature from record 622 on File 6, referred to above and referred to further below, which discloses personal information about a member of staff of the Board. The Board has indicated that a very small amount of information may be released . However, bearing in mind my comments above regarding the extracting of personal information from records, I am satisfied that those pieces of information comprise either personal information or joint personal information within the meaning of the FOI Acts.

I must consider the other relevant provisions of section 28 as they may apply to the personal information about other individuals and to the joint personal information about you, the requester, and other individuals. In my view the other relevant provisions in this case are the provisions of section 28(5)(a) concerning the public interest and the Regulations made pursuant to section 28(6) of the Act.

Personal information about Minors - section 28(6)

Ms Connolly has already referred to the Freedom of Information Act 1997 (Section 28(6)) Regulations (SI 47 of 1999). These regulations apply where records disclose personal information about a child and the requester is the parent or guardian of the child. The Regulations provide that access to such records shall be granted to the parent or guardian where, having regard to all the circumstances and to any guidelines drawn up by the Minister for Finance, access would be in the best interests of the child. These Regulations are relevant to my consideration of the application of section 28 to records disclosing personal information solely about your children or jointly about you and your children.

The key question to be addressed in deciding whether access to records should be granted pursuant to SI 47 of 1999 is whether the granting of access would be in the best interests of the children. In considering what constitutes the best interests of the children concerned, I must have regard to the family context. In particular, where there is disharmony and disagreement between the parents, I have to acknowledge that the children may be in a vulnerable position. There may well be conflicting interests at play in such situations and I take the view that great caution must be exercised in considering whether access should be granted pursuant to these Regulations. In the absence of evidence showing that disclosure would actually be in the best interests of the children, the requirement to protect the privacy of the children in cases of this nature remains strong.

In your letter of 28 November 2001 you responded to the issue of the application of section 28(6) which had been raised by Ms Connolly. You stated that it seemed to you that granting access to information would be in the best interests of your children since it was clear that the statutory body, in this case the Board, had failed both you and your children by failing to carry out its duties.

In considering the application of SI 47 of 1999 in this particular case, I have taken account of the context and contents of the records which disclose personal information about your children. It is relevant, in my view, that some of the records were created at a time of disharmony between their parents and in a context in which the Board was acting to protect the welfare of the children. It is clear from the records that the issue of access to the children has come before the family courts. In my view, the factors to be considered in this type of situation are different to those which arise in applying the provisions of SI 47 of 1999 to records of a routine nature such as, e.g. routine school examination reports, which I refer to below. In my view the requirement to protect the privacy of children, in a context in which their parents are in disagreement regarding their welfare, is strong. Where children express their own views about the situation in which they find themselves with regard to their parents, giving either or both parents access to the records of such views may well compromise the children in relation to the parent or parents concerned.

The personal information about the children largely concerns the children's welfare, their perceptions and interests. The Board stated that Dr Leader advised the children at the time of their visits to her that she would not be discussing their conversations, writings or drawings with either of their parents unless the content indicated that the material needed to be released for their own mental health, safety or protection. I am also taking account of the fact that the issue of the children's welfare has been before the courts and the courts, in determining such issues, are guided by what is in the best interests of the children. In my view, in cases of this nature the interests of the child should be regarded as separate from the interests of the parents. I am not satisfied that release of the information relating to the children in this case would benefit the children or serve their best interests. I do not see that a benefit will accrue, or is likely to accrue, to the children in this case by granting access to the records containing personal information about them. In such cases, my view is that there is a relatively high test to be met in order to establish that it is in the best interests of the child to grant the parent access to the records pursuant to SI 47 of 1999. I am not satisfied that the requirements of SI 47 of 1999 are met in this case.

School Work

Some of the personal information about the children on the files in this case concerns their school work. These records include copies of routine school reports or examination reports, school copy books, school exercises and other school work. In my view, these records are different in nature to many of the other records relating to the children. The information in those records does not relate to the family situation or the children's perceptions regarding the family. It is, what I would describe as, routine school work. In my view, different considerations apply to these records.

Parents and guardians have a clear role in their children's education. Information of this nature is routinely made available to parents by schools. I regard information of this nature as being significantly different from information from or about the children created in the context of family disharmony or related to family disharmony. It is very different from information given by the children in the course of, or for the purposes of, meeting with health board personnel who are enquiring into their welfare in the context of family disagreement. Where records relate to the conflict or disagreement within the family, it is reasonable to regard the interests of the children as separate from the interests of either parent. Generally speaking, where the information is routine school work unrelated to family circumstances, the interests of the child need not be regarded as separate from the interests of the parents unless the circumstances suggest otherwise. Both parents continue to be guardians of their children even after custody of the children may be granted to one of the parents.

As I said, information of this nature is routinely made available by schools to parents. It is possible that these records have already been seen by you or made available to you through other channels. I have also taken account of the fact that these records are approximately 6-9 years old. While the records may have been of some relevance in or around the time they were created, it seems to me that they would be of little use or assistance to either parent at this stage. I have also considered the ages of the children. I note that Z is now 17 years of age. The Board has argued that, in view of the ages of both children and of the background of this case, the records should not be released without the consent of the children. Given the ages of the children and the family circumstances, it seems to me that this is a case in which consideration would have to be given to consulting with the children before making a decision to release the records. Before doing so, consideration would also have to be given to the likely effect of the consultation itself. I have also considered the value to you, as parent and guardian, of the contents of the records were they to be released, the likely benefit to the children which might result and the upset to the children and family that might possibly be caused by consultation. I do not consider that consultation is appropriate in this case.

For these reasons and having considered the factors above, I have decided that the requirements of SI 47 of 1999 have not been met in the case of the records of school work.

The Public Interest - section 28(5)

Section 28(5)(a) of the 1997 Act provides that access may be granted to a record, which would otherwise be refused pursuant to section 28(1), 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 consider that the following public interest factors favour the release of the personal information about individuals other than yourself in this case. There is a 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. There is a public interest in individuals, against whom concerns or allegations have been raised, knowing what those concerns or allegations are and being in a position to respond to them and in knowing that information held about them is accurate. There is a public interest in individuals knowing how a public body performs its functions. I consider that these issues are not matters of private rights. In my view, the principle of justice to the individual arising in these issues constitutes a public interest.

In considering the public interest in protecting the right to privacy, I am of the view that it is a strong one. In my view, in the context of FOI, the protection of an individual's privacy is also a public interest and not a matter of protecting private rights. Section 28 of the 1997 Act, as amended, is a mandatory exemption which means that a request for records falling within the terms of the section must be refused unless other provisions in the section are met. I should add that the right of a requester to seek access under FOI to personal information relating to himself or herself held by a public body is subject to the provisions of the FOI Acts themselves. It is also relevant to take account of the fact that the FOI Acts do not qualify or restrict the use by requesters of information released to them under FOI. This contrasts with the situation that generally arises when family law cases are heard by the courts.

I consider that the following factors also contribute to the strength of the public interest that the right to privacy of the individual to whom the information relates should be upheld. There is a public interest in individuals being able to communicate in confidence with public bodies concerning sensitive, family maters. There is also a public interest in enabling public bodies to carry out their functions in cases concerning children and there is a risk that the release of information would make this more difficult.

I have noted the questions you have raised regarding the actions of the Board in this case and I have considered whether release of the records disclosing personal information would add significantly to your understanding of the Board's actions. I have also considered the records already released to you pursuant to FOI, made available to you pursuant to discovery and made available to you outside of both these procedures. In light of those records, I do not consider that the contents of these records would add significantly to your understanding in the matter. I note that you contend that you are in receipt of nothing more than "holding letters". However, having examined the records in this case already released or made available, I do not hold the same view. I note, for example, that a

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended), I have decided to annul the decision of the Eastern Health Board, now the Eastern Regional Health Authority. I have decided that access should be granted to the following records by providing you with copies of those records:

File 1: record 27 (with the exception paragraph 9), [Note: File 2: record 3 and File 9: records 4 & 5 are copies of this record].
File 2: record 3 (with the exception of paragraph 9).
File 4: records 11, 13, 14, 17, 18-20, 24.
File 5: records 72, 73, 74 (with the exception of paragraph 16), 75 (with the exception of paragraph 3), [Note : File 9: records 84, 85 and 86 are copies of records 72, 73 and 75 respectively].
File 6: records: 448 (with the exception of the hand-written note), 620, 646.
File 7: 13 [Note: File 8: record 106B is a copy of this record], 37, 39, 41.
File 8: records 97, 106B.
File 9: records 4 and 5 (with the exception of paragraph 9), 84, 85, 86 (with the exception of paragraph 3),
File A: records 3-4, 44.
File B: record 6 [Note: File C: record 99 is a copy of this record]
File C: records 7, 81 and 99.

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 eight weeks from the date of this letter.

Yours sincerely