Case 010321. Records relating to name of person who reported child abuse concerns to the Board - information given in confidence - section 23(1)(b).

Case Summary

Facts

The issue in this case is whether the requesters will be given the names of the persons who gave information to the health board suggesting that the requesters (and particularly Mr. A) had physically abused their son. The decision affirms the public body's decision to withhold records which would identify the source of the information. The health board relied on section 26(1)(a) but the decision relies on section 23(1)(b).

The Commissioner's decision reflects the discretionary application of section 23(1)(b).

"Section 23(1)(b) does not constitute a mandatory exemption in the sense that, once the elements necessary for its operation have been found to exist, the exemption must be applied. As with all non-mandatory exemptions in the FOI Act, I take the view that it must be demonstrated that it is necessary to apply the exemption. While the Board's justification for exempting the remaining records from release was given in the context of section 26(1)(a), I accept, in the circumstances of this particular case, that this justification may, in general terms, be taken to apply also in the context of section 23(1)(b) of the FOI Act. In brief, the exemption is justified in order to protect a valid understanding of confidence and where the repudiation of that confidence would be likely to impact negatively on the performance by the Board of its statutory functions in the area of child protection.

Accordingly, I am satisfied that this is a case in which it is proper to exercise the discretion to apply the section 23(1)(b) exemption and I find accordingly."

The Commissioner affirmed the decision of the Board.

Date of Decision: 19.05.2005

Our Reference: 010321

19.05.2005

Mr. & Mrs. A

Dear Mr. & Mrs. A,

I refer to your application to this Office under the Freedom of Information (FOI) Act for a review of the decision of the X Health Board on your FOI request of 4 April 2001. The X Health Board has now been replaced by the Health Service Executive (X Area) but for the purposes of this decision is referred to as "the Board".

Please accept my apologies for the long delay which has arisen in dealing with your case. Unfortunately, due to the high level of applications received in the early years of FOI, substantial arrears of work built up in this Office and yours is one of the cases affected by this situation.

Background

In your FOI request of 4 April 2001 you sought access to "the names of the people who reported us to Mr. B". The Board, in its initial decision, dated 23 May 2001, released some records and refused access to other records/portions of records on the grounds that the records concerned were exempt under section 26(1)(a) of the FOI Act. Following your application for an internal review, the Board affirmed its original decision on 13 July 2001. You then applied to the Information Commissioner on 15 August 2001 for a review of the Board's decision.

I have now completed my review of the Board's decision. In carrying out this review I have had regard to the following matters:

• the correspondence which passed between you and the Board in relation to your request;
• the Board's conclusions on the matter;
• your application to this Office;
• the detailed enquiries and correspondence between the Board and this Office,
• the contents of the records in question (copies of which have been provided to this Office by the Board for the purposes of this review),
• your letter to this Office dated 6 March 2005; and,
• the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information [Amendment] Act, 2003.

All references in this letter to particular sections of the FOI Act, unless otherwise stated, refer to the FOI Act, 1997 as amended by the FOI Act, 2003.

I understand that the making of allegations and the subsequent investigation by the Board have caused you hurt and upset. You will appreciate, however, that it is not part of my remit as Information Commissioner to make findings regarding the manner in which the Board dealt with the issues raised in the information it received in relation to your family. My role in such cases is to review the FOI decision of the public body and decide whether that decision was justified.

Scope of Review

This review is concerned with the sole issue of whether or not the Board is correct in refusing you access to the material concerned on the basis that it is exempt from release under the provisions of the FOI Act.

Findings

The Board has sought to claim that the material concerned is exempt from release under the provisions of section 26(1)(a) of the FOI Act. However, as the records at issue here were all created by the Board, and because of the application of section 26(2) of the FOI Act, these records are not capable of being exempted by reference to section 26(1)(a) of the FOI Act.

However, given that what is at issue here is the identification of whoever gave information to Mr. B, the possible application of the exemption contained in section 23(1)(b) of the Act must be considered.

Section 23(1)(b).

Section 23(1)(b) of the FOI Act provides as follows:
"23(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to ...
(b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".

In order for this exemption to apply, three separate requirements must be met: (i) that release of the withheld details could reveal, whether directly or indirectly, the identity of the supplier of the information; (ii) that the information in the record must have been given in confidence and (iii) that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

Having examined the records I find that the withheld portions of the records could lead to the revelation of the identity (ies) of the supplier(s) of the information.

I must now address the issue of whether the information was given to the Board in confidence. Where public bodies receive information in relation to the enforcement or administration of the civil law, they will generally be expected to act on foot of the information they receive. Members of the public who provide such information to a public body cannot expect that the body will not make use of the information provided. However, the fact that public bodies act on foot of the information provided does not mean that the information was not given in confidence. In many cases some or all of the information provided will subsequently be revealed by the public body in order to perform its functions properly. The real issue, in the present context, is whether the public body may act in such a way that it will reveal or lead to the revelation of the identity of the informant. That issue will be determined by reference to the facts of the case including any express or implied understanding between the informant and the public body.

It is clear to me that health boards have a duty to investigate allegations or concerns brought to their attention relating to the welfare of children. The Board has argued that, because of the nature of child care, much information is received in confidence from people who do not wish to be identified. Indeed, in some instances, the information in question may be passed to a health board through an intermediary, as is the case in the present instance. The Board has argued that, if people providing it with information in such cases were not reassured as to the guarantee of confidentiality, the information gathering process would be compromised by the withholding of such information. In my view, the receipt by health boards of information about children at risk, or potentially at risk, is very important in enabling health boards to carry out their functions. Such information will frequently come from persons known to, or even close to, the children concerned or their families. I accept that without an assurance or understanding that the information provided was being provided in confidence, such persons may be reluctant to provide the information.

It is clear to me that the provider(s) of the information to the Board did not wish to be identified subsequently. I accept that there was an implied understanding between the Board and the provider(s) of the information that, so far as possible, the Board would try to ensure there was no identification subsequently. Taking account of the nature of the information provided, the source of the information and the circumstances of the case, I find that the information was given in confidence.

I am satisfied that in receiving information about children in its area who are, or may be, at risk and in carrying out its inquiries or investigations in such matters, a health board is performing its statutory functions under the Child Care Act, 1991. The Child Care Act, 1991, imposes a legal obligation on the Board to investigate all allegations of child abuse or neglect. In carrying out its functions in this case, the Board was engaged in the enforcement and administration of the Child Care Act, 1991.

I note that in your letter dated 6 March 2005 you claim that the allegations were made maliciously. In determining whether information was provided in confidence, the issue of whether the information was provided in good faith is a factor to be considered. Allegations which are known to be false, and which are made maliciously, cannot be seen as having been made in good faith and it is difficult to see how, in such circumstances, they could be regarded as having been made in confidence. However, the mere fact that allegations made prove subsequently to be without substance does not, in itself, suggest bad faith. It is arguable that where information known to be false is given maliciously, with the intent of causing injury or distress and without assisting the enforcement or administration of the civil law, section 23(1)(b) should not apply.

However, any claim that allegations were made in bad faith must be supported by evidence. The records in this case do not show such evidence. I cannot, from my examination of the copy of the records provided by the Board, find any indication that the allegations were made in bad faith. There is nothing in the records held by the Board which would indicate that the allegations were made out of malice. Nor has the Board expressed any view that the allegations were made in bad faith. While I appreciate that it is difficult for you to substantiate your belief that the allegations were made maliciously, I have no evidence to support such a contention. In these circumstances, I find that the allegations were made in good faith and received by the Board on a confidential basis.

For these reasons, I find that access to the withheld information could reasonably be expected to "reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other sources of such information given in confidence". On this basis, all of the requirements for the application of section 23(1)(b) have been met. Section 23(1)(b) does not constitute a mandatory exemption in the sense that, once the elements necessary for its operation have been found to exist, the exemption must be applied. As with all non-mandatory exemptions in the FOI Act, I take the view that it must be demonstrated that it is necessary to apply the exemption. While the Board's justification for exempting the remaining records from release was given in the context of section 26(1)(a), I accept, in the circumstances of this particular case, that this justification may, in general terms, be taken to apply also in the context of section 23(1)(b) of the FOI Act. In brief, the exemption is justified in order to protect a valid understanding of confidence and where the repudiation of that confidence would be likely to impact negatively on the performance by the Board of its statutory functions in the area of child protection.

Accordingly, I am satisfied that this is a case in which it is proper to exercise the discretion to apply the section 23(1)(b) exemption and I find accordingly.

Section 23(3)

Section 23(3) provides that in certain limited circumstances specified in section 23(3)(a) and where the public interest would, on balance, be better served by granting than by refusing to grant the request, section 23(1)(b) does not apply. I am satisfied that the circumstances specified in section 23(3)(a) do not occur in this case and, thus, a consideration of the public interest does not arise. I find, therefore, that section 23(3) does not apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 [as amended], I hereby affirm the Board's decision in this case.

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