Judge Maureen Harding Clark'sjudgment of 13 July 2009Case 000478 & 000549. These decisions were appealed to the High Court and were remitted to the OIC for fresh review, on foot of [2006 No. 4 M.C.A.].

Case No. 000478 & 000549: Mr X and the former Eastern Health Board (the Board)

Case No. 000479: Mr X and Our Lady's Hospital for Sick Children (the Hospital)

Requests by Mr X for records of information provided to the above bodies by Ms Y as to comments made by her young daughter (Ms Z) that Ms Z had been touched inappropriately by Mr X - whether joint personal information - section 28(5B) - whether public interest warranted the breach of rights to privacy of parties other than Mr X - section 28(5)(a).

Case Summary

Facts

On 30 January 1998, the Board contacted Mr X to say that it had been informed by Ms Y that her daughter Ms Z had told her she had been touched inappropriately by Mr X. Ms Z was born during Ms Y's marriage to Mr X. The Board referred Ms Z for assessment to St Louise's Unit of the Hospital and it also notified An Garda Síochána. The notification to An Garda Síochána did not name anyone as the alleged perpetrator of inappropriate behaviour. The Commissioner understood that Mr X was invited to take part in the St Louise's Unit assessment but declined to do so. St Louise's Unit ultimately found the case to be "unconfirmed". On 6 October 1999, the Board told Mr X that the "concerns or allegations are unconfirmed" and said that it would notify An Garda Síochána of the outcome of the assessment.

On dates in 1999, Mr X sought from the bodies records relating to himself and records relating to Ms X. Mr X subsequently excluded records of Ms Z other than those which referred to Ms Z and himself jointly, saying that an application had been made to the Courts to have his "status as the legal father of [Ms Z] altered".

While records relating to the applicant were released, records containing the joint personal information of himself, Ms Z and others were withheld from him by both bodies under section 28 of the FOI Act. The decisions also cited section 26, which the Commissioner did not consider necessary to review for reasons set out below.

Findings

The Commissioner found that the records at issue disclosed the personal information of Mr X and Ms Z jointly while some disclosed, in addition, the personal information of third parties. Thus, section 28(5B) of the FOI Act applied to the records. She was satisfied that it was not feasible to isolate portions of the records with a view to releasing them. As the Commissioner had found, as a matter of fact, that all of the records disclosed, to a greater or lesser extent, the personal information of Ms Z, it was clear that the release of any record would involve the disclosure of her personal information. Thus, the key issue was whether any of Ms Z's personal information should be released to the applicant. If so, it would be necessary to consider whether the personal information of any third parties in those records should also be released.

The Commissioner found that the only possible exceptions to section 28(5B) in this case were those at sections 28(5)(a), 28(5)(b) and 28(6) of the FOI Act.

Having considered section 28(5)(b), the Commissioner was not satisfied that the release to Mr X of personal information of Ms Z would be to Ms Z's benefit, and thus found that no right of access arose under this provision of the FOI Act. In respect of section 28(6), the Commissioner found that, due to the de novo nature of her review, the fact that Mr X had had the status of Ms Z's father at the time of his requests was irrelevant to her consideration. She found that, as he had ultimately been found by the Courts not to be Ms Z's father, he could not be so regarded for the purposes of section 28(6) and the relevant Regulations. While Mr X's submissions to the Commissioner suggested that he might still be regarded as Ms Z's guardian, the Commissioner said that this was not an issue for her to determine. As there was no evidence to support Mr X's contention in regard to the guardianship issue, the Commissioner found him not entitled to access to Ms Z's records by reference to section 28(6) and the relevant Regulations.

Thus, the review turned on the Commissioner's assessment of the weights of the public interests in release of the records against those in favour of protecting Ms Z's right to privacy.

The Commissioner considered a number of arguments made in this regard by Mr X, including that in support of facilitating persons, against whom malicious allegations have been made, in pursuing such malicious allegations by way of a civil legal action. The Commissioner considered she was not entitled in the circumstances of this case to take a view that the information provided to the Board had been provided maliciously. She also found that although the protection of personal privacy, as recognised in the Constitution, is not absolute, the release of the sensitive information in this case would be a very significant breach of Ms Z's right to privacy. Her finding was that the cumulative impact of Mr X's public interest arguments was not such as to displace the very strong public interest served by the protection of Ms Z's privacy rights.

Date of Decision: 17.11.2005

Our Reference: 000478/000549

17.11.2005

Mr X

Dear Mr X

I refer to your applications to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decisions of the former Eastern Health Board on your FOI requests dated 25 February 1999 and 15 November 1999. Since you made your requests, the Eastern Health Board has been subject to a number of changes in title. I understand that since January 2005 the former Eastern Health Board has been subsumed into the new Health Service Executive which has replaced all of the former health boards. However, for the purposes of this decision I refer to the former Eastern Health Board as "the Board" throughout. Any liability arising, or action required, consequent on this review, will be a matter for the Health Service Executive.

I very much regret the very long delay which has arisen in completing this review and I appreciate the patience you have shown during this time.

Background

On 30 January 1998, the Board contacted you to say that it had information from Ms Y that her daughter Ms Z had told her that she (Ms Z) had been touched inappropriately by you. The Board referred Ms Z for assessment to St Louise's Unit of Our Lady's Hospital for Sick Children (the Hospital) and it also notified An Garda Síochána. The notification to An Garda Síochána did not name anyone as the alleged perpetrator of inappropriate behaviour. I understand that you were invited to take part in the St Louise's Unit assessment but that you declined to do so. In the event, St Louise's Unit found the case to be "unconfirmed". On 6 October 1999, the Board told you that the "concerns or allegations are unconfirmed" and said that it would notify An Garda Síochána of the outcome of the assessment.

On 25 February 1999 you made a request under the FOI Act for all records held by the Board relating to yourself [and] all records relating to Ms Z [another aspect of the request was subsequently withdrawn]. In its decision of 28 June 1999, the Board told you:

1. that it was releasing those records which related to you with the exception of certain records containing information given to the Board in confidence which, it contended, are exempt by virtue of section 26(1)(a) of the FOI Act; and
2. that it was withholding all records relating to Ms Z as the Board considered these to be exempt under section 28(1) of the FOI Act.

On 15 November 1999 you made a separate FOI request for access to those additional related records which had been created by the Board since the date of your previous request. In its decision on this second request, dated 25 November 1999, the Board held that, with the exception of one record which it was releasing to you, the only records on its files which related to you and which were created subsequent to your first request, comprised of correspondence between you and the Board. It held that four records relating to Ms Z had been created in the intervening time but that it was refusing these on the basis of section 28(1) of the FOI Act.

On 18 December 1999 you sought an internal review of the Board's two decisions. However, in seeking this internal review, you further narrowed the scope of your request to exclude records of Ms Z other than those which refer to Ms Z and yourself jointly. You told the Board that an application had been made to the Courts to have your "status as the legal father of Ms Z altered" and in these circumstances you said:

"... I am not currently pursuing access to her own personal records and you may act accordingly. However, where any of Ms Z's records also refer to myself, then I continue to seek such records as might properly be released to myself. My original request included a request for Ms Z's files. I had based this request on my position as Ms Z's father."

On 27 April 2000, the Board gave its decision on your composite internal review application; it affirmed its initial decisions with respect to all the withheld records. You made your review application to this Office on 25 October 2000.

In the course of this review, it emerged that there existed a number of relevant records which, for various reasons, had not been considered by the Board in its decision making process. By that stage, the Board did not know which of the records at issue had been considered by it already, and it agreed, at the request of my Office, to review all relevant records created by the Board up to 15 November 1999. On 6 June 2003, the Board sent you copies of those records it was releasing to you from each relevant file, along with schedules outlining the level of access it was granting in respect of the contents of those files. In doing this, the Board took into account the fact that you had specified, both to the Board and to this Office, that you wanted access only to those records relating to yourself, or those relating jointly to yourself and to Ms Z.

In the interests of clarity, I wish to make it clear that while the decision under review, in accordance with section 34(1)(a) of the FOI Act, is the Board's composite internal review decision of 27 April 2000, this does not preclude me from considering those additional relevant records identified by the Board in the course of the review. In conducting my review, I have had regard to details of correspondence between you and this Office. In particular I have considered a letter sent to you by Ms Moran, Investigator, dated 19 June 2003, in which she outlined her preliminary views on your applications, and her further letters dated 14 August 2003 and 27 January 2004. I have noted the contents of your 98-page submission, and other material provided by you to this Office in response to Ms Moran's letter of 19 June 2003, along with the contents of your letters dated 21 August 2003, 13 October 2003, 21 January 2004 and 9 February 2004.

I have also taken into account details of correspondence between this Office and the Board, as well as details of correspondence between this Office and Ms Z's mother, Ms Y. I have considered copies of the records themselves, which were supplied to my Office for inspection. Finally, I have conducted this review in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended.

Scope of Review

Records at Issue

The records at issue in this case were divided into six files by the Board, as follows:

• File 1 (General Manager's File - First FOI Request), containing 68 records.
• File 2 (General Manager's File - Second FOI Request), containing 19 records.
• File 3 (Complaint File Mr X), containing 60 records.
• File 4 (Social Work File Mr X), containing 36 records.
• File 5 (Social Work File Ms Z), containing 236 records.
• File 6 (Social Work File Ms Z), containing 49 records.

In her letter of 19 June 2003, Ms Moran listed those records already released to you by the Board, as well as those records created after the date of your later request, and told you that these records would not be covered by the scope of my review. For ease of reference, those records are listed at Appendix 1 to this decision.

You have asked, in the case of records which have been released from one file, and of which there are duplicate copies on other files, that I direct the release to you of such duplicate copies as may be held on the other files. I note that the Board's schedules, as well as Ms Moran's letter of 19 June 2003, identify those records (whether released or withheld from you) which are duplicated on the various files. In a situation in which a particular record has already been released to you, and where you have been made aware of the existence of a duplicate of that record being held on another file, I take the view that it is not necessary to direct that you be given a further copy of such a record.

Records relating to Ms Z only

In your internal review application of 18 December 1999, covering both requests, you said that you were not "currently pursuing access to [Ms Z's] personal records...". You also said in your letter to this Office dated 8 March 2002 that, in the light of Ms Z's parentage having been determined by the Courts, you felt it was not appropriate for you to continue to seek her records, and commented that you may have to make a new application under the FOI Act for such records at some point in the future. Ms Moran adverted to this narrowing of the scope of your requests in her letters to you of 19 June 2003 and 14 August 2003 and I note that you did not take issue with this.

However, in some of your communications to this Office, I note that you make various comments about what you perceive as your "right" to access records in respect of Ms Z. It is unclear whether you are now seeking to resile from the terms on which you sought the internal review. However, for the purposes of this review, I can deal only with those records considered by the Board to come under the scope of your revised request. Accordingly, the issue of access to those records referring to Ms Z alone will not arise in this review. On this basis, I am excluding the two records concerned from the scope of this review (please see Appendix 1 for details of the records), both of which may be described as containing information about Ms Z solely.

Personal Information in relation to Third Parties

In her letter of 19 June 2003 Ms Moran suggested that certain records were outside the scope of this review for the reason that they contain personal information of parties other than yourself or of yourself and Ms Z. I note that you have not disputed this. However, there has been some confusion in this regard in as much as the Board appears to have treated such records as covered by the scope of your request. It is clear from the terms of the requests, as made by you, that you did not seek access to records concerning such third parties. Accordingly, I have excluded from this review those records which concern third parties but which do not also concern you or concern both you and Ms Z. These excluded records are identified in Appendix 1 to this decision. However, where records disclose your personal information, or the personal information of yourself and Ms Z jointly, in addition to disclosing the personal information of third parties, such records are within the scope of this review.

Records within Scope of this Review

In the interests of clarity, Appendix 2 accompanying this decision identifies each of the records, from the six files involved, which are considered for the purposes of this review.

Scope of the Review

The issue in this review is whether the Board is justified, by reference to the provisions of the FOI Act, in its decision to withhold the records identified in Appendix 2 accompanying this decision.

Findings

Preliminary Matters

There are some preliminary points which I must make before dealing with the substance of this review.

The first such point is that I must have regard to section 8(4) of the FOI Act which provides:

"Subject to the provisions of this Act, in deciding whether to grant or to refuse to grant a request under section 7_

(a) any reason that the requester gives for the request, and

(b) any belief or opinion of the head as to what are the reasons of the requester for the request,

shall be disregarded."

While it is clear from your lengthy submissions that you are very anxious to have access to the records in question, it is equally clear that, in general, section 8(4) does not allow me to have regard to the reasons why you are seeking these records. To a considerable extent, the points made in your submissions are linked to particular reasons for your wanting access to the records in question. The motivation, or perceived motivation, of a requester may be linked to very specific circumstances and, in some cases, these specific circumstances may inform the application of a public interest test. Where this is the case, it is important to be clear that such specific circumstances are relevant only to the extent that they exemplify a matter which serves the public interest. By definition, something which serves the public interest is a matter of general application and not solely something which serves the interests of an individual or of a small group. However, what serves the interests of an individual or of a small group may also serve the public interest. This is an important distinction which will be of relevance later in this decision.

My second preliminary point has to do with the submissions and supporting material you have provided. Your right of access falls to be determined under the provisions of the FOI Act and it is these provisions, primarily, which require to be considered in this review. Much of your submissions is not directly relevant to this review; nevertheless all the points made have been considered. However, I do not believe it is either reasonable or necessary that I should address each of your points individually in this decision.

My third preliminary point has to do with the relevance to your application of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). I note that the European Convention on Human Rights Act, 2003 provides that, in interpreting and applying law, "a court shall, in so far as is possible, subject to the rules of law relating to such interpretation and application, do so in a manner compatible with the State's obligations under the Convention provisions"; the Act also provides that, "[s]ubject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State's obligations under the Convention provisions." You have drawn my attention to certain decisions of the European Court of Human Rights (ECHR) to the effect that there is a "positive obligation" on the State to protect and respect the right to family life. The ECHR decisions to which you refer relate to adults seeking social work records from their childhood and where the Court has found, for particular reasons, that the applicants' right to family life (protected by Article 8 of the Convention) had been breached. As I understand it, you suggest that there is a corresponding right under the Convention providing for "access by a parent to the social service records of a child" and that such a right is "vested in [yourself] as father of Ms Z...". Whatever the merits of this view, its relevance (if any) would appear to hinge on your having the status of parent in relation to Ms Z. If you do not have the status of parent then, presumably, any argument based on the Convention cannot be sustained. This matter is dealt with later in this decision.

My fourth preliminary point is to clarify the nature of my review under section 34 of the FOI Act. My review decisions are de novo, which means that they are based on the circumstances and the law as they pertain at the time of my decision. I note that Ms. Moran of my Office has already mentioned this matter to you and that you have disputed the validity of this approach. You contend that this approach is "at variance with the normal application of the law in the Courts in general" and that "[n]o legislative provision enacted in Ireland which sought to be retrospective in its application and effect, has ever survived the test as to its constitutionality".

I refer you to the High Court judgment in the case of Minister for Education and Science v Information Commissioner where Mr. Justice O'Caoimh, commenting on the nature of a review under section 34 of the FOI Act, said that "importance must be attached to the fact that the nature of the appeal agreed between the parties arising under Section 34 of the Act is by way of a hearing de novo by the Information Commissioner" and that "the decision that was to be made by Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision". As I understand it, the basis for this aspect of Mr. Justice O'Caoimh's decision was that rights under the FOI Act do not constitute "vested" rights until the completion of the overall FOI process, including the completion of the review process (where necessary) by my Office, and that this approach does not involve the breaching of a "vested" right. Furthermore, Mr. Justice O'Caoimh supported the view that the review process engaged in by my Office does not constitute the "administration of justice". For these reasons, I do not accept the arguments you have made regarding the conduct by me of the review process under section 34 of the FOI Act.

Findings

The Records

By definition, having regard to the wording of your requests, the records at issue in this review disclose the personal information of yourself or of Ms Z and yourself jointly. Records solely about Ms Z are not within the scope of the review. Some of the records, in addition, disclose the personal information of third parties.

In her letter of 19 June 2003, Ms. Moran of my Office referred to the fact that she was seeking further comment from the Board in the case of certain records. At that stage, Ms. Moran held the view that some of these records or portions of records might be releasable to you. However, from my examination of the records in question, I am satisfied that none of them may be characterised as disclosing personal information solely about you. This is my finding also in relation to those portions of records which mention you or which otherwise relate to you. I am satisfied that it is not feasible to isolate individual sentences or phrases which relate to you, or mention you, with a view to releasing them to you. In making this finding, I have taken account of your submission in this regard and of the comparison you have drawn with the process of discovery in court proceedings. I do not accept that the practice in the case of court discovery, as you describe it, is relevant in this context.

In the case of those records which also disclose the personal information of third parties, and for the same reasons as set out immediately above, I am satisfied that it is not feasible to isolate portions of these records with a view to releasing them to you. To release any of these records, or portions of them, will involve the release of personal information about Ms Z.

Because I find, as a matter of fact, that all of the records disclose, to a greater or lesser extent, the personal information of Ms Z, it is clear that the release of any record will involve the disclosure of her personal information. Accordingly, the key issue in this review is whether any of the personal information of Ms Z should be released to you. If the answer to this is in the negative, then no record will be released. If the answer is in the positive, then it will be necessary to consider the situation in relation to the personal information of third parties (whose personal information is disclosed in any record which also discloses the personal information of Ms Z and of yourself).

The Law - FOI Provisions

Records attracting Legal Professional Privilege

In your submission you state that "no issue arises" in respect of any record that may be described as being a confidential communication made between the Board and its legal adviser for the purpose of obtaining and/or giving legal advice and, which, accordingly, is exempt under section 22(1)(a) of the FOI Act. Ms Moran has told you that the following records are records of confidential contacts between the Board and its legal advisor, for the purpose of seeking or receiving legal advice: File 3 - Records 52 - 55; File 5 - Records 18 (paragraphs 2 & 4); 42 (lines 1 - 17); 156-158; 159 and 209 (lines 21 - 25).

I have examined these records and am satisfied that Ms Moran's view is justified. I find these records to be exempt under section 22(1)(a) of the FOI Act.

I note that you have set out in your submissions detailed arguments on one aspect of the application of legal professional privilege and that you dispute the position on that aspect as conveyed to you by Ms. Moran. The records found to be exempt on the grounds of legal professional privilege belong in the category of confidential communications, between client and legal advisor, for the purposes of seeking or receiving legal advice. The reservation expressed by you, as to this Office's approach to legal professional privilege, does not arise in relation to these above records.

The Board has relied on sections 28 and 26 for its refusal of the remaining records at issue.

Section 28

Section 28(5B) provides that, subject to the other provisions of section 28, a request for information shall be refused where "access to the record concerned, would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester."

While you are not disputing that the records disclose personal information, it may be helpful to set out the FOI definition of personal information. Section 2(1) of the FOI Act defines "personal information" as:

"... information about an identifiable individual that -

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

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

Clauses (i) to (xii) of section 2(1) go on to list categories of information which may be considered as being personal information. This list includes information relating to an individual's financial affairs, medical history, employment history, age, sex, property, tax affairs, etc. It is clear from section 28(3) of the FOI Act that social work records are encompassed in the definition of "personal information". However, these categories of information must also satisfy the requirements of either (a) or (b) above in order to meet the definition of personal information set out in the Act. I am satisfied that the records in question, which consist of social work/medical records, do constitute personal information for the purposes of the FOI Act.

All of the records at issue in this review disclose the personal information of Ms Z and, on the face of it, are exempt by virtue of section 28(5B) of the FOI Act.

Section 28(5B) does not constitute an absolute prohibition on the release of personal information; the provision is subject to a number of other provisions within section 28 which, where they apply, have the effect of undoing the exemption contained at sub-section (5B). The relevant "excepting" provisions in section 28 are those contained at 28(2)(b) to (e), 28(5) and 28(6).

The effect of section 28(2) (b) - (e) is that the exemption at sub-section (5B) does not apply where:

"( b ) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

( c ) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

( d ) the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

( e ) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,"

In my opinion, the exceptions in section 28(2) do not arise - indeed, it is difficult to see how they might arise in this particular case. In the case of section 28(5) and 28(6), the question of their application in this case is considered below.

Section 26

Section 26 of the FOI Act contains an exemption from release in the case of records disclosing information obtained in confidence. I note that Ms. Moran, in her letter to you of 19 June 2003, has already given you a detailed description of the provisions of section 26 and, in these circumstances, it is not necessary to repeat that description here.

Analysis

Section 28(5)

Section 28(5) provides two separate grounds on which the normal protection for personal information will be set aside; firstly, on the basis of the public interest and, secondly, where release of the personal information will benefit the person to whom it relates (Ms Z, in this case). Section 28(5) reads as follows:

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

(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid,

the head may, subject to section 29, grant the request."

 Section 28(5)(a) - Public Interest

The FOI Act recognises a very strong public interest in protecting privacy rights and this is recognised both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). In the case of section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. In considering whether the public interest in preserving Ms Z's privacy is outweighed by the public interest in granting your request, I have considered all of your submissions. In what follows below, I set out my thinking on those aspects of your submissions which I consider to be of greatest potential relevance to my consideration of the public interest question. For convenience, my comments are set out by reference to the headings in your submission of July 2003.

False Allegations of Sexual Abuse

You contend that the Board's refusal of the remaining records means that you are unable to establish the feasibility and appropriateness of your pursuing a civil action in the event of the allegations involving you having been made maliciously. In the context of the public interest question, I take this to be an argument that the public interest is served where a person, against whom malicious allegations have been made, is facilitated in pursuing such malicious allegations by way of a civil legal action. You have also raised, in more general terms, the public interest in deterring the making of false allegations of child abuse.

The Board informed you on 6 October 1999 that the concerns or allegations were "unconfirmed". Subsequently, on 28 October 1999, the Board told you that the description of case closure categories includes a category of "unfounded" and explained to you how a case might be closed under this heading. As you know, my Office is also dealing with a related review application from you involving Our Lady's Hospital for Sick Children/St. Louise's Unit and it is appropriate here to set out the position of the Hospital on the nature of the allegations made against you. The Hospital has told my Office that "while the allegations are classed as 'unconfirmed', this is a category covering a wide spectrum ranging from almost sufficient evidence to confirm to nearly no evidence". The Hospital's position is that this category of outcome is applicable to cases "where it is not possible to form a clear opinion", in that the allegations have neither been confirmed nor completely ruled out. It is the Hospital's position, therefore, that while it was unable to confirm that abuse had taken place in the case of Ms Z, neither could it "rule out the possibility that sexual abuse may have occurred". In these circumstances, I take it to be the Hospital's position that it does not regard the allegations as having been made maliciously. This position, as I understand it, is in line with that of the Board.

While there might in some cases be circumstances in which I, as Information Commissioner, would feel entitled to take a view as to whether a particular allegation had been made maliciously, this is not such a case. It is clear from the records in question that the information provided to the Board, and which formed the basis for the Board's decision to refer Ms Z to St. Louise's Unit, was provided on the basis of possible grounds for concern; the person conveying the information did not make any allegation. In the absence of any evidence that the matter was raised with the Board for malicious purposes, and in the light of the positions adopted by the Board and the Hospital, I have no basis for concluding that the approach to the Board was malicious.

In the light of the above, I find that your arguments under the heading "False Allegations of Sexual Abuse" have no particular relevance to the application of the public interest test [section 28(5)(a)] in this case.

Peril of an erroneous "validation" by a public body of a false allegation of child sexual abuse

Your points under this heading have to do with the manner in which child abuse allegations are investigated and concerns which have been expressed - and in some instances substantiated - regarding the integrity of these investigations. Expressed in public interest terms, your argument would seem to be that it is in the public interest that such investigations are conducted professionally, thoroughly, without prejudice and with due regard to the presumption of innocence. A related point is that the public interest is served by the avoidance of erroneous "validations" in cases in which false allegations have been made. A further point is that the public interest is served where a "false accuser" is "actively pursued".

I agree, in general terms, that these points represent valid public interest matters. They are relevant in this review, however, only where the release of Ms Z's personal information serves to promote or support these public interests. It is important to bear in mind that the Hospital did not "validate" the concerns expressed that Ms Z may have been abused. Accordingly, this is not a situation in which there has been an erroneous "validation".

It is important to bear in mind also that the subject of the Board's intervention (and that of the Hospital on behalf of the Board) was Ms Z. If there had been a "validation" of abuse, the matter of identifying and charging the abuser would have been a matter for the Gardaí, not for the Board or the Hospital. Any issue of fair procedure in relation to a person alleged to have abused a child - and I accept that ensuring fair procedure serves the public interest - would have been a matter, primarily, for An Garda Síochána.

While I understand that, in the present case, An Garda Síochána was notified of an allegation having been made to the Board that Ms Z had been abused, you were not named in that notification. I also understand that the Board subsequently informed An Garda Síochána that the allegation had not been confirmed.

In the light of all this, it seems to me that there does not exist an erroneous "validation" either (a) of Ms Z having been abused or (b) of your having committed an abuse. In these circumstances, I find that your arguments under the above heading do not have any very significant bearing on the public interest in release of the records to you.

A Right to Good Administration

The thrust of your argument under this heading is that, where a public body fails or neglects to apply the principles of good administration in a particular case, this should be taken into account into determining whether records pertaining to that case should be released in the public interest. However, you qualify this argument by stating that "this could not be considered as a possible ground to override the personal rights of other persons involved, but it may well pertain to the internal documents of the public body relating to the management of the case ...".

All of the records at issue in this review disclose the personal information of Ms Z and their release to you would, as you put it, "override [her] personal rights". In any event, it is not for me to determine whether or not the Board abided by the principles of good administration in its dealing with the concerns expressed in relation to Ms Z. In these circumstances, I find your arguments under the above heading not to be of significance in considering the application of section 28(5)(a) of the FOI Act in this case.

Right to Correct Information Held by a Public Body

In your submission, you refer to two records the contents of which you dispute. While you accept that a fresh application must be made to the Board for the amendment of such records, you say that it is reasonable to surmise that similar or related records relating to yourself might exist on the files which might contain information of a "defective, misleading or incorrect" nature, and point out that you are "precluded from seeking to amend or correct a defective or misleading personal record which [you] cannot firstly see."

Expressed in public interest terms, I take it your argument here is that there is a public interest in individuals having access to their personal records in order to be in a position to ensure that such records are not incorrect or misleading. In the present case, none of the records discloses personal information about you solely. On the other hand, all of the records disclose the personal information of Ms Z. In these circumstances, I find your arguments under the above heading not to be of significance in considering the application of section 28(5)(a) of the FOI Act in this case.

Parentage and Guardianship - Parental Separation

Your arguments under this heading are more relevant to the consideration of section 28(6) than to section 28(5)(a) and will be dealt with below in the context of the former provision.

"Equality of Arms" - Deprivation of a Right of Action

Expressed in public interest terms, your argument here would seem to be that the public interest is served by measures (the granting of access to Ms Z's records, in this case) which respect the legal principle of "equality of arms" and support your capacity to initiate civil legal action.

Some of these arguments have already been considered above. Particularly relevant considerations here are (a) that the allegations have not been confirmed; (b) that there is no evidence that the allegations were made maliciously and (c) that your name was not mentioned to Gardaí in connection with the allegations. Furthermore, in so far as your arguments concern your capacity to initiate legal proceedings, I have to assume that the arrangements operated by the Courts (including discovery) are fair and that is not necessary to rely on the FOI Act in order to be enabled to initiate such proceedings.

In any case, as I am sure you appreciate, there is a significant difference between accessing records under the FOI Act and accessing records on the basis of a Court order for discovery. In the case of FOI, records are released without any restriction as to how they may be used and, in effect, FOI release is regarded as release to the world at large. In the case of discovery, records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question; no further use or passing-on is allowed.

In the circumstances, I find your arguments under the above heading not to be of significance in considering the application of section 28(5)(a) of the FOI Act in this case.

Public Interest - Finding

It is clear that the protection of personal information provided at section 28 of the FOI Act reflects the constitutionally recognised right to privacy. The right to privacy, to the extent that it is recognised in the Constitution, is not absolute. However, it seems reasonable to believe that the extent to which this right must be recognised is, to some extent, governed by the nature of the material whose release would result in a breach of privacy. In the present case, the records at issue constitute not just personal information in relation to Ms Z; they constitute extremely sensitive personal information the release of which would constitute a very significant breach of her right to privacy.

I acknowledge that your submissions contain elements which constitute valid public interest arguments in support of granting your request. However, my overall finding is that the cumulative impact of these public interest arguments is not such as to displace the very strong public interest served by the protection of the privacy rights of Ms Z in relation to an aspect of her life which is particularly sensitive. On this basis, I find that the public interest in granting your request does not outweigh the public interest in upholding Ms Z's right to privacy.

Section 28(5)(b) - Release Benefits the Record Subject

Under section 28(5)(b), personal information may be released where to do so "would benefit the individual" in question (Ms Z, in this case).

In your submissions you mention your desire to re-establish your relationship with Ms Z at some stage in the future and you argue that having access to the records in question would facilitate this. I take this to be an argument that release of the records to you will, at some point in the future, be of benefit to Ms Z.

Ms Z's mother, on the other hand, has voiced strong concerns over the possible release of the records to you. She contends that release of the records would have "a deep destructive" effect on Ms Z's mental and emotional welfare. I understand that the investigation of the allegations in question has taken place in the context of a marital dispute between yourself and Ms Y. It is clear that there have been major differences of opinion between you and Ms Y over a variety of issues in the past and that these differences revolved, to some degree, around Ms Z.

I think it is generally accepted that, for any child, having to go through an assessment process such as was conducted by St. Louise's Unit in the case of Ms Z is in itself a traumatic event. This is the case irrespective of the outcome of the assessment. I understand there is professional advice to the effect that Ms Z's welfare is best served by an avoidance of reference to the assessment and to the circumstances in which it came about.

Having examined the records, it is difficult to see that your having access to them will facilitate a future re-establishment of your relationship with Ms Z. Nor do I accept that not having access to the records will make it more difficult for you to re-establish a relationship with Ms Z. In any case, should she so wish, it will presumably be open to Ms Z to seek access to her own records at some stage in the future.

Having considered the matter carefully, I am not satisfied that release to you of Ms Z's records will be to her benefit. I find, therefore, that section 28(5)(b) does not apply in this case.

Section 28(6) - Access by Parent/Guardian to Records of Minor

Section 28(6) of the FOI Act provides that the Minister for Finance may, by regulation, provide for access to the records of specified classes of person where the requester is the parent or guardian of the individual, the subject of the records. The Freedom of Information Act, 1997 Section 28(6) Regulations, 1999 (SI No. 47 of 1999) make provision for access by parents or guardians to personal information in relation to minors in certain circumstances. The Regulations provide that a request for records relating to personal information about a minor may be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances, to release the records to the parent/guardian would be in the minor's best interests.

These provisions do not provide an automatic right of access by a parent or guardian to a child's records as the Regulations specify that certain conditions must be met. You will be aware that the application of these provisions is currently the subject of an appeal to the Supreme Court where the net issue concerns the test to be met by the parent or guardian who is seeking access to the minor's records.

However, what is not in dispute is that section 28(6) and the relevant Regulations apply only where the requester is the parent or guardian of the individual minor whose records are being sought. In the present case, you have yourself informed my Office that you are not the father of Ms Z and that her birth certificate has been amended to reflect this fact. However, you have argued that the decision to be given by me should be based on the circumstances at the time of the request rather than on the circumstances at the time of my decision. You say that at the time of your request, and until the matter was decided definitively by the Courts on 19 May 2000, you had the status of father in respect of Ms Z. On this basis, I understand, you contend that section 28(6) and the relevant Regulations are applicable in this case.

I have outlined earlier in this decision the High Court's clarification of the nature of reviews conducted by me under section 34 of the FOI Act. In short, the High Court has found that when I conduct a review I do so de novo, meaning that I have regard to the law and the circumstances as they apply at the time of my decision. In the light of the High Court's ruling, I am clear that my decision must be based on the circumstances as they are now. As of now, you are not the legal father of Ms Z and you cannot be so regarded for the purposes of section 28(6) and the relevant Regulations.

You have made complex legal arguments to the effect that you may still be regarded as the guardian of Ms Z while not being her parent. In fairness, I note that you are not categorically asserting that you are currently Ms Z's guardian; rather, you appear to be suggesting that this is a possibility as opposed to a certainty.

In support of your arguments, you refer to comments made by Mr Justice Lavan of the High Court in a case similar to your own (JPDvMG); as follows:

"I reserve my position as to how positive DNA tests, confirming the defendant's (mother's) claim, could affect the plaintiff's (father's) position as guardian and parent with rights in relation to custody and access."

You subsequently acknowledged that "these comments do not clarify unequivocally the position of such a husband, in law." You go on to note that you are "unsure as to the position in law in respect of similar related records created subsequent to the 19th May 2000, arising out of the lack of legal clarity as to guardianship thereafter...". In your most recent submission, you refer to a case - MD v GD - in which you say that the judge found that the husband "continued to be a guardian of the child", although he was found not to be the father of the child in question. You say that the Superior Courts, in their judgments on both cases, "have determined that Guardianship is not inextricably bound to, and thus not solely determined by, biological parentage." You go on to say that "[t]here is no automatic consequential loss of the husband's status as Guardian, consequent to an adverse determination as to the biology of the relationship."

In relation to the issue of guardianship, I consider that it is not for me to determine whether or not you are Ms Z's guardian. Such a determination is outside my jurisdiction and is something which, I expect, is strictly a matter for the Courts. You acknowledge that Mr Justice Lavan's comments do not clarify beyond doubt the position of a husband who is found not to be the father of a child of his wife. In order for me to accept that you are a guardian of Ms Z, I consider that there must be some evidence put before me to demonstrate that this is the case, whether an Order of the Court appointing you as guardian, or a decision of the Court specifically supporting your contention that you remain as Ms Z's guardian.

I note that in the course of this review Ms. Moran specifically requested that you provide evidence to support your claim to having retained your status as Ms Z's guardian. While I fully appreciate the difficulties this presented for you, it remains the position that you have not provided any such evidence. From the information available to me, you have no rights of custody or access in relation to Ms Z. I am not aware of any Court Order appointing you as Ms Z's guardian, nor am I aware that the Courts have found that you have retained the status of guardian in relation to her. It seems to me, therefore, that on the facts before me, I have no reason to conclude that you are Ms Z's guardian.

Since it is accepted that you are not Ms Z's father, and having failed to show that you are her guardian, I can see no basis for concluding that you fall within the terms of section 28(6) and the relevant Regulations. I find, therefore, that you are not entitled to access to Ms Z's records by reference to section 28(6) and the relevant Regulations (SI No. 47 of 1999).

***

As I have found that none of the "exception" provisions of section 28 apply, the position is that all of the records at issue are exempt by virtue of sub-section (5B) of section 28 of the FOI Act and I find accordingly.

Section 26

The Board relied on section 26 as well as on section 28 in its decisions to refuse the records at issue. Given my finding that all of the records are exempt by reference to section 28, it is not necessary for me to deal with the relevance of section 26 to this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended, I hereby affirm the decision of the former Eastern Health Board to refuse access to those records, the subject of this review, and which are identified in Appendix 2 accompanying this 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 eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner