Case 000479 - Mr X & Our Lady's Hospital for Sick Children (the Hospital)

These decisions were appealed to the High Court and were remitted to the OIC for fresh review, on foot of | Judge Maureen Harding Clark's judgment of 13 July 2009 [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.

A small number of records were withheld on the grounds that they attracted legal professional privilege and thus were exempt under section 22(1)(a) of the FOI Act. The Commissioner also upheld such refusal.

Date of Decision: 28.11.2005

Our Reference: 000479

28.11.2005

Mr X

Dear Mr X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of Our Lady's Hospital for Sick Children (the Hospital) on your FOI request dated 7 October 1999.

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

This application is one of three review applications received from you in late 1999 all of which arise from the same set of circumstances. The other two applications - Case No.s 000478 and 000549 - related to the former Eastern Health Board and I issued my review decision on these cases on 17 November 2005. In that decision, referred to in what follows as "the previous decision", I set out in some detail the background to your FOI requests. I take it that it is not necessary to set out that background again in the present case. Indeed, given the very close links between this present review and the previous decision, this review decision should be read in conjunction with the previous decision.

On 7 October 1999, you sought from the Hospital:

1. all records relating to yourself;
2. all records relating to Ms Z held on file in the offices of St. Louise's Unit of the Hospital; and
3. all records relating to Ms Z retained on file in the main Hospital itself, including those relating to several visits to the Outpatients Department and one admission.

In its decision of 16 November 1999, the Hospital granted your request in part. It released certain records from a file called "St. Louise's Unit Chart" while refusing other records from that file; it also refused to release an entry on St Louise's Unit Database and two videos. On 25 April 2000, you sought an internal review of the Hospital's decision. The Hospital upheld its decision on 25 May 2000, and you applied to this Office on 25 October 2000.

In your letter to this Office dated 8 March 2002, you stated that you were "not pursuing, at this point, such...records being held by Our Lady's Hospital in Crumlin as relate exclusively to Ms Z." You said that you sought access to all records that referred to Ms Z and yourself, and "[i]n particular, EACH AND EVERY RECORD, OR PORTION THEREOF, as was considered by St. Louise's Unit in Crumlin, in its evaluation/assessment/investigation/validation" of the alleged abuse.

In conducting my review, I have had regard to details of various correspondence between you and this Office, and between Ms Y and this Office, as set out in the previous decision. I have taken into account details of correspondence between this Office and the Hospital. I have had regard to the content of the videos and to copies of the records the subject of the review, 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 are to the 1997 FOI Act as amended.

Scope of Review

I have taken it that your decision not to seek access to records which "relate exclusively to Ms Z" includes those records listed at item 3. of your request, given that such records would be likely to refer solely to Ms Z. You have not raised the issue of access to such records at any stage during the course of this review. Accordingly, my review will exclude those records.

St Louise's Unit Chart

The Hospital considered 265 records on St Louise's Unit Chart as being relevant to your request; and of these it released the following:

Nos. 19; 23-24; 28-30; 36-37; 38-39; 41; 67; 90-91; 92; 93; 94; 98; 99-100; 101; 103-104; 106-109; 110-113; 114-117; 145; 177; 201-202; 210; 211-213; 215; 216; 217 (with the exception of paragraph 3); 218; 220; 223-224; 225-228; 255; 256; 257; 258 and 259-260.

In the course of this review, the Hospital said it is willing to fully release to you records 148 and 252-253, as well as lines 3 -8 of record 40.

For reasons set out in the previous decision, and having regard to the wording of your original request and to your letter of 8 March 2002, I am satisfied that the issue of access to those records that refer to Ms Z alone does not arise in this review. On this basis, I am excluding the records concerned (Nos. 32, 161-163, 176, 251 and 254) from the scope of my review.

I am also satisfied that your request does not include records concerning 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. The excluded records are:

Nos. 4-5; 8-9; 10-12; 20; 27; 31; 33; 34; 35; 40 (the remainder i.e. lines 1-2); 42-44; 46-48; 50-52; 55; 62-66; 86-87; 140; 141-144; 146; 147; 178; 179-180; 214 and 222.

Accordingly, the issue in this review is whether the Hospital's decision to refuse the remaining records is in accordance with the terms of the FOI Act. Those records are:

Nos. 1-3; 6-7; 13-18; 21-22; 25-26; 45; 49; 53; 54; 56-61; 68-85; 88-89; 95-96; 97; 102; 105; 118; 119-139; 149-160; 164-175; 181-200; 203-209; 217 (third paragraph); 219; 221; 229; 230-250; 261-264 and 265.

From my examination of all 265 records on St Louise's Unit Chart, I am satisfied that the records listed in the previous paragraph are the only ones that may be described as containing the personal information of yourself and Ms Z, or the personal information of yourself, Ms Z and other parties.

You will note that I have included in the scope of my review some records that were considered by Ms Moran of my Office - who was in contact with you in the course of the review - to be outside that scope, and vice versa. One record I have excluded is No. 222, which Ms Moran had told you was likely to be exempt under section 22(1)(a) of the FOI Act. However, from my examination of this record, I am satisfied that it is not covered by the scope of the review, in that it contains the personal information of parties other than yourself and does not refer to you in any way.

Other Records

The Hospital also withheld from you one entry on St Louise's Unit Database, and two videos. I am satisfied that the content of the entry on the Database is reflected in records 42-66 on St Louise's Unit Chart. I have listed (above) those individual records, from within the group records 42-66, which I consider to fall within the scope of my review. Therefore, the findings I make in respect of the St Louise's Unit Chart will apply equally to the entry on the Database.

Findings

The previous decision set out a detailed analysis, both of various preliminary matters and of the application of the relevant provisions of the FOI Act, which were relevant to that decision. The same analysis is relevant to this case and, in the light of my earlier comments, it is not necessary to repeat it in this decision letter. Given that your detailed submissions to my Office dealt with all three of your applications together, I take it that you will have no difficulty with this approach.

Having regard to the wording of your request, the records at issue in this review must disclose either your own personal information, that of Ms Z and yourself jointly, or that of Ms Z and yourself along with that of another party or parties. Records solely about Ms Z are not within the scope of the review.

None of the remaining records 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.

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

In her detailed preliminary views letter of 9 April 2003, Ms Moran of my Office dealt with the application of section 22(1)(a) to certain of the records on the St Louise's Unit Chart. I note from your submission that "no issue arises" in respect of any record that may be described as being a confidential communication made between the Hospital and its legal adviser for the purpose of obtaining and/or giving legal advice, or in respect of any internal record by a body in contemplation of litigation. I am satisfied that records 118-119 attract legal professional privilege in that these are records pertaining to the seeking of legal advice by the Hospital (record 118) and the giving of legal advice to the Hospital by its professional legal adviser (record 119).

Joint Personal Information

I am satisfied that the remaining records can be described as containing either the joint personal information of yourself and Ms Z, or of yourself, Ms Z and others. I also consider that the two videos can be described as containing the joint personal information of yourself, Ms Z and others. (The word "record" in the remainder of this decision is intended to include the videos.)

As I find, as a matter of fact, that all of the withheld records disclose, to a greater or lesser extent, the personal information of Ms Z, it follows that the release of any record will involve the disclosure of her personal information. Therefore, the key issue to be determined is identical to that considered in the previous decision, that is, whether any of Ms Z's personal information should be released to you. For the reasons set out in the previous decision, I find that the remaining records are exempt under section 28(5B) of the FOI Act and that you are not entitled to access under either sections 28(5)(a) or (b) of the FOI Act, or by reference to section 28(6) and the relevant Regulations (SI No. 47 of 1999), or by reference to any of the other exceptions within section 28.

In the light of this finding, there is no need for me to deal with any other exemption relied on by the Hospital.

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 Hospital to refuse access to those records identified above as being within the scope of this review.

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