Case 000137. Request by a parent for access to medical records of a minor - primary position that presumption exists that the parent is entitled to access to the records - whether circumstances exist to rebut the presumption that release of information would best serve the minor's interests - section 28(6) - whether the public interest that the request be granted outweighs the public interest that the right of privacy of the individual be upheld - section 28(5)(a) - whether legal professional privilege applies where the client is deceased - section 22(1)(a) - whether disclosure of records would constitute contempt of court - whether breach of in camera rule would occur -section 22(1)(b)

Case Summary

Please see the Supreme Court Judgment of 24 January 2006 in N.McK and the Information Commissioner [2006] IESC 2 which remitted case 000128 to the Commissioner for fresh review. Details of the identity of the parties are disclosed only to the extent that they appear in the Supreme Court's judgment.

Facts

The requester sought records relating to himself and his family held by a Dublin hospital to which his daughter was referred for assessment in 1994 when she was six years old. The Hospital granted access to some records and refused access to the remainder on the basis that they were exempt under section 26(1) of the Act. It said that they contained information given in confidence by the requester's late wife. The requester made an application to the Commissioner for review. The review, along with several other review applications from the requester, was suspended in 2002 pending the outcome of the requester's appeal to the High Court of the decision of the Commissioner in Case Number 000128, involving the requester's right of access to his daughter's medical records held by another Dublin hospital. The High Court found that the Commissioner had erred in law in regard to the construction of the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999 (S.I. No. 47 of 1999) ["the 1999 Regulations"] and in the application of a test requiring the requester to furnish "tangible evidence" that his having access to his daughter's medical records would be in her best interests.

The Commissioner appealed the High Court's decision to the Supreme Court. The Supreme Court affirmed the High Court's decision but varied it in remitting the case to the Commissioner "for review in accordance with the correct test and in light of all the circumstances." It found that section 28(6) of the Act ought to be interpreted in the light of the Constitution and that the requester, as a parent, enjoys a fundamental presumption that his actions are in the best interests of his child. It held that the Commissioner should have acknowledged this and should have then proceeded to consider any evidence which exists addressing the issue that release of the records would not be in the minor's best interests. The Court said that the position is not absolute and that the circumstances may be such that the presumption may be rebutted and evidence produced that release of the records would not serve the child's best interests. It stated that, in considering the circumstances, the welfare of the minor is paramount. The Court made it clear that, as the child in question was nearing her majority, her views were very relevant.

The Commissioner's decision on the fresh review following the remitting of the case was made on 27 April 2006

In conducting this review in the light of the Supreme Court's judgment, the Commissioner considered submissions from the requester, his daughter, her joint guardian and the Hospital. In the course of considering Case 000128A, the Commissioner's staff had met with the minor whose records were at issue.

Decision:

The Commissioner found that some of the records qualified for legal professional privilege under section 22(1)(a) of the FOI Act in that they comprised communications between the Hospital and the late Mrs McK's solicitors, the dominant purpose of which was preparation for contemplated or pending litigation. The Commissioner noted that the courts have proceeded on the basis that legal professional privilege normally endures after the client who is entitled to the privilege is deceased.

In finding that several records were introduced before the courts in family law proceedings and proceedings involving minors which were held in camera, the Commissioner held that such records were exempt under section 22(1)(b) of the FOI Act.

The Commissioner's finding was that all of the records contained personal information of the requester's daughter and that most of those records also contained the personal information of the requester's late wife. The Commissioner pointed out that, unlike the situation in case 000128A where all the records were "medical records", not all of the records in this review contained medical information about the assessment or care of the requester's daughter. Nonetheless, the Commissioner proceeded on the basis that the Supreme Court judgment in N.McK and the Information Commissioner applied to all of the records since they were created in the context of the Hospital's involvement with the family.

The Commissioner made several findings of fact based primarily on the direct evidence of the requester's daughter. The Commissioner had regard to the age and maturity of the individual involved and the cogent reasons she advanced in relation to her views. The Commissioner found that the evidence to the effect that disclosure of the minor's records to her father would not serve her best interests was sufficient in order to rebut the presumption that such release would serve her best interests. The Commissioner found that section 28(6) (a) does not apply in this case to set aside the prohibition on release of the records as provided for in section 28(1) of the Act. She further found that neither section 28(5)(a) - the public interest override- nor any of the other exceptions to section 28(1) applied in the circumstances of this case.

As the finding was that all of the records disclosed the personal information of the requester's daughter, it was not necessary to consider whether the personal information of third parties as disclosed in some of the records fell to be released in the public interest or otherwise. However, the Commissioner referred to the issue of the requester's potential right of access to the records of his deceased spouse in accordance with section 28(6) of the FOI Act and the provisions of the 1999 Regulations. She considered that the requester might have a right of access to the personal information of the late Mrs McK if such information appeared in the records solely as the personal information of the late Mrs McK or as the joint personal information of the requester and his late spouse. Since all of the records included the personal information of the requester's daughter, which was found to be exempt from release, it was unnecessary to further consider the question of release of the deceased person's records.

Date of Decision: 19.05.2006

DECISION UNDER THE FREEDOM OF INFORMATION ACTS, 1997 - 2003 IN RELATION TO CASE NUMBER 000137 - MR N.McK AND A DUBLIN HOSPITAL

Background:

The requester, Mr McK, made application to the Information Commissioner on 16 March 2000 for a review of the decision of the Hospital to refuse his request under the Freedom of Information ("FOI") Act for access to the records held by the Hospital concerning himself and his family.

The requester and his late wife had two children.. The couple had been separated for some years prior to Mrs McK's death [date]. Following Mrs McK's death, a Circuit Family Court order [date] under the Guardianship of Infants Act, 1964, as amended, appointed "B" (Mrs McK's brother who subsequently died [date]) and "M" ("B"'s wife) to act with Mr McK as joint guardians of the children. The court order placed the children in the joint custody of B and M. It provided for limited, supervised access by Mr McK to the children who were to live with B and M.

The requester, his late wife and his daughter had had contact with X Unit in the Hospital in connection with an assessment carried out on Ms McK during [date] when she was six years old. The requester had sought the assessment, which was undertaken by a Consultant Child and Adolescent Psychiatrist and a Senior Clinical Psychologist, for the purposes of obtaining a second opinion on a [date] assessment and report carried out by [a health board] following an allegation of sexual abuse made against the requester. A prosecution was not taken in the case and the Hospital's assessment was "inconclusive".

The requester sought the records from the Hospital under the FOI Act on 17 January 2000. The Hospital's decision of 11 February 2000, which was upheld on internal review on 14 March 2000, was to grant access to certain records and to refuse access to the remainder of the records. The Hospital prepared a schedule of the records which identifies each individual record by number. The Hospital said that the withheld records were exempt under section 26(1) of the FOI Act as they contained information given to it in confidence by the requester's late wife, Mrs McK.

Scope of the Review

The original request was for "All records in all formats relating to myself and any members of my family system including my children [names] and my late wife [name]". The Hospital identified a total of 237 pages of records in five categories. It released to the requester copies of all of the paper records (together with a copy of a video recording) with the exception of the following:

• Correspondence In: pages 1, 7, 14, 17, 21, 24, 26 - 28, 31, 36, 37, 43 and 47.
• Correspondence Out: pages 1, 8, 11, 12, 14, 15 and 18.
• Consent: pages 1, 2, 7, 13 -16, 19 - 21, 27 - 29, 32 - 35.
• Assessment: pages 87 - 105.
• Legal Correspondence: pages 1 - 2.

The Hospital provided my Office with copies of these records and I adopt its numbering in this decision. My jurisdiction is this case is confined to deciding whether the Hospital is justified under the FOI Act in refusing access to the remaining records as identified above.

In broad terms, the records sought disclose the personal information of the requester, of his late wife and of his two children (but more particularly that of his daughter, Ms McK). Consideration of several outstanding review applications from the requester, including this one, was suspended in 2002 pending the outcome of the requester's appeal to the High Court of the decision of my Office following a review in another case from the requester. The case involved the requester's right of access to his daughter's medical records held by [another Dublin hospital] in regard to her admission and treatment there in 2000. In a telephone conversation with Mr Fintan Butler of my Office on 17 January 2003 and in letters of 25 March 2003 and 3 March 2004, the suspension of the reviews was explained to the requester.

Having heard the appeal in November 2003, the High Court delivered its judgment on 14 January 2004. Mr Justice Quirke allowed the appeal and directed that the matter be remitted to the Commissioner with a direction that the requester be granted access to his daughter's hospital records. The Court found that the Commissioner had erred in law in regard to the construction of the relevant regulations [the Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999 (S.I. No. 47 of 1999) - hereafter referred to as "the 1999 Regulations"] and in the application of a test requiring the requester to furnish "tangible evidence" that his having access to his daughter's medical records would be in her best interests.

Subsequently, I appealed that decision to the Supreme Court. In its judgment - N.McK and The Information Commissioner [2006] IESC2 delivered on 24 January 2006 - the Supreme Court affirmed the decision of the High Court. However, the Supreme Court varied the decision of the High Court on the matter of the remittal of the case to my Office. The Supreme Court remitted the case "for review in accordance with the correct test and in the light of all the circumstances".

Section 28(6) of the FOI Act provides that, notwithstanding the general prohibition in section 28(1) on the release of records which disclose personal information about individuals other the requester, the Minister may provide by regulations for the grant of a request where the requester concerned is a parent or guardian of the individual to whom the records relate. The 1999 Regulations, provide, inter alia, for the granting of a request, subject to other provisions of the FOI Act, where the requester is a parent or guardian, where the information relates to individuals who, on the date of the request, have not reached the age of majority and where, in the decision maker's opinion, access to the record would be in the best interests of the minor concerned. The Supreme Court affirmed the High Court's judgment that section 28(6) of the FOI Act ought to be interpreted in the light of the Constitution (particularly Article 41) and that the requester enjoys a fundamental presumption that his actions are in the best interests of his child. The Court found that the Commissioner had erred in requiring the requester to show that release of the records would be in his daughter's best interests. It held that the Commissioner should have acknowledged that a parent is presumed to be entitled to such information and should have proceeded then to consider any evidence which exists addressing the issue that release of the records would not be in the minor's best interests.

On consideration of the Supreme Court judgment, I decided to begin the fresh review of the case the subject of the proceedings and to reactivate consideration of this application in the light of the judgment delivered on 24 January 2006. I noted the Court's reference to the fact that Ms McK will reach her majority in late May 2006 and I was anxious to conduct the review as expeditiously as practicable without compromising on fair procedures. By letter dated 21 February 2006, Elizabeth Dolan, Investigator of my Office informed the requester of my proposals for the carrying out of the review and set out her preliminary views on his entitlement to access to the records under the FOI Act.

In relation to the records which contain Ms McK's personal information, Ms Dolan put it to the requester that the Supreme Court had made it clear that "the primary position" is that the presumption exists that the requester, as a parent, is entitled to access information about the medical care his child has received. The Court held the correct approach to be that the "presumption is that the release of such medical information would best serve the interests of the minor". However, the Court also made clear that the position is not absolute and that the "circumstances may be such that the presumption may be rebutted" and that "...evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount." Ms Dolan also pointed out that the current case differs from that the subject of the Court proceedings insofar as Ms McK's personal information and the requester's personal information is intertwined with the personal information of the late Mrs McK and, to a lesser extent, that of other individuals.

In her letter to the requester of 21 February 2006, Ms Dolan outlined the type of records at issue and asked the requester to confirm whether he wished to have access to the personal information of his late wife, including correspondence between the Hospital and solicitors acting for the late Mrs McK. The requester's attention was also drawn to the issue of whether the release of some of the records, which contain information that had been put before the court in family law proceedings, would be in breach of the in camera rule.

The requester and the Hospital were invited to make submissions on the matter. My Office pointed out to the parties that, to the extent that this review concerns the records of Ms McK, the Supreme Court had found in a similar case that the Commissioner "...should have approached the request by acknowledging that a parent is presumed to be entitled to access the information" and that "... the Commissioner may then proceed to consider any evidence which exists addressing the issue that it would not be in the minor's best interests that the parent should be furnished with such information". In addition, the Supreme Court made it clear that Ms McK's views on the matter "now are very relevant". In affording the parties an opportunity to have submissions considered, my Office reminded them that, depending on the nature of any responses received, it might be necessary to put the issues raised to the other parties if these are to be relied upon in my decision.

On 24 March 2006, the requester responded to my Office's letter of 21 February 2006. He prefaced his submission by stating that, in his view, the review process "is a charade only acted out so you can be seen to discharge your responsibilities of inclusion when in fact your decision, as demonstrated by the very mind set you portray, has already been made." The letter referred in particular to this review and in general to other separate but related review applications by Mr McK which are being considered in my Office. This letter and correspondence relating to the new review being conducted by me (Case 000128A) as a result of the Supreme Court judgment referred to above, had been circulated to members of the Oireachtas under a heading "Removal of Commissioner". In these letters, certain allegations about my conduct of the review were made and it was alleged that delays in the case were part of a "deliberate strategy" by my Office of delaying the decision until Ms McK had reached her eighteenth birthday. The requester said that he was pursuing the taking of the decision process out of my Office's hands so that it could be dealt with by the Minister for Justice. He further claimed that my Office held a "gender specific misanthropic position".

The requester confirmed that he wished to have a formal, binding decision and that he wished to have access to all of the records, including those containing the personal information of his late wife.

My Office contacted Ms McK and her joint guardian M and invited them to make their views known in relation to this and other review applications under consideration by my Office. In the course of my review in Case 000128A [decision issued 28 April 2006], Ms McK met with my staff and gave her views on her father being granted access to her medical records relating to hospital treatment. As agreed at the meeting, a contemporaneous note of what she had said was prepared and sent to Ms McK for her agreement and signature. On 20 February 2006, Ms McK returned a signed copy of the note of the meeting with some hand-written amendments. On 26 March 2006, Ms McK stated in an email to my Office that she wished to have her previous submissions, in relation to Case 000128A, taken into account in relation to all of the records. On 8 May 2006, she confirmed to my Office what her position was in relation to the records the subject of this review.

M had also met with my staff and given her views in relation to the requester having access to Ms McK's medical records in Case 000128A. In an email dated 26 March 2006, she set out her views and asked that her previous submissions, in relation to Case 000128A, be taken into account in this case.

Summaries of the submissions of Ms McK and M had been sent to the requester on 6 March 2006 in connection with Case 000128A. The requester stated, in various correspondence submitted in relation to this and his other review applications, that he wished all of his submissions to be considered in all of the cases under review. In this regard, my Office was in correspondence with him during March 2006 on the question of the conduct of the reviews generally. My Office's letters of 27 March and 30 March 2006 expressed my deep concern at the nature of the requester's engagement in the reviews, including his unwarranted attacks on my integrity and that of my staff. We made the point that we accept absolutely the Supreme Court's judgment that the original decision relied on a test which has now been found to be unconstitutional. We said that to have made a mistake in law is an entirely different thing to being biased or prejudiced. My Office asked the requester to desist from any further copying of correspondence which was part of the review process to outside parties. It expressed concern that the identifying of the children and the linking of them to previous court proceedings may have been a breach of the in camera rule. The requester was asked to make a clear, unambiguous statement that he wished to have this review (and other cases in which he is involved) completed by me.

On 29 March 2006, the requester submitted comments in response to my Office's letter of 27 March 2006 and on 31 March 2006 he forwarded a message which read "Make your decisions."

In a further communication received in my Office on 3 April 2006, the requester indicated that he wished my Office to make decisions in his cases. However, he went on to request that one of my staff cease communicating with him and made serious unsubstantiated accusations against that senior staff member. The requester said that he apologised for any breaches of the in camera rule. Once again, this communication was copied by email to all members of the Oireachtas.

By letter dated 5 April 2006, my Office clarified certain issues raised by the requester which are specific to the records at issue in this case and which I address later in this decision. The requester's attention was also drawn to the question of whether correspondence with solicitors acting for his late wife would qualify for legal professional privilege.

Submissions

Following the Supreme Court judgment in N.McK. and the Information Commissioner, I set about conducting reviews in five separate cases. All of these cases have in common that the requester is seeking access to records held by a public body disclosing personal information of his daughter Ms McK or of Ms McK along with other parties [the requester's son "R" the late Mrs McK included). These reviews are being conducted over a relatively short timescale. The requester, Ms McK and M, in making their submissions addressing the individual cases, asked that all of their submissions (in respect of whatever case they were originally made) be taken into account in this particular review.

In setting out the material in summary form, I do not address explicitly each and every one of the points made; however, all submissions have been carefully considered. Lest there should be any doubt about it, neither does the inclusion in this summary of a particular point made by any of the parties imply that I accept its accuracy or relevance. However, I am satisfied that all the relevant matters are considered and dealt with in the analysis contained in the "Findings" section of this decision.

The Requester

To a very large extent, the requester's submissions focus on the question of his right to access the records of his daughter, Ms McK. As well as referring to all of his previous submissions on all applications for review to my Office, he also specified that the written submissions of his legal advisers in the High Court and Supreme Court be treated as part of his submissions. To this end, in addition to the submissions detailed above, I have considered the following:

• the requester's initial request to the Hospital of 17 January 2000, his internal review application of 24 February 2000;
• the requester's application for review to my Office dated 16 March 2000;
• Counsels' written submission to the High Court dated 26 May 2003 on behalf of the requester;
• Counsels' written submission to the Supreme Court dated 24 October 2005 on behalf of the requester;
• submissions, including letters, emails and telephone contacts with my staff, made by the requester in connection with his review applications arising from decisions of other public bodies insofar as the issues addressed also arise in relation to the right of access to records in this review. These submissions were made in connection with case reference numbers 99491, 020593 and 030587 which reviews have not yet been the subject of decisions, case numbers 99492, 000007 and 000128 on which decisions were given by my Office in 2002 and 000128A on which my decision issued on 28 April 2006.

The requester stated in his submission of 24 March 2006 that he should not be asked to provide "reasons or proof", since the Supreme Court judgment in his case had made it clear that the presumption exists that he has an entitlement to the records at issue. In his letter of 19 February 2006, in connection with the fresh review arising from the Supreme Court judgment (Case 000128A), the requester asked that I recognise that release of the records would not be detrimental to Ms McK's welfare. He sought confirmation from me also that his Constitutional rights and responsibilities and his right to "unhindered parenthood" had been breached by the State and by me. He went on to say that there is a constitutional obligation on me to do all in my power "to rectify the wrong doing that [my] office has perpetrated." He referred to his right "to inculcate" in his children his own moral and ethical standards and to make decisions concerning their medical treatment, educational, religious and other activities. He required me to furnish him with tangible evidence as to why these rights and responsibilities should not be upheld.

In one of his earlier submissions, dated 3 February 2003, the requester set out his understanding of the position of parental rights under the Irish Constitution. He argued that the State is required to show by clear and convincing evidence that a compelling state interest is at stake before it can terminate parental rights. He said that parental rights protect the interests of parents and children in a relationship that is natural and independent of the existence of the state and that their interests must be protected from undue state interference in the relationship. He stated that individuals will often make choices contrary to their own best interests or the best interests of their children but it does not follow from this that "government interference" to enforce the preferred course of action will be in the best interest of the individual or the child. He said that " The state has an interest in the well being of children and it has the power to interfere with parental rights directly and substantially BUT only upon showing by clear and convincing evidence that interference is necessary to prevent harm to the children, and that the interference with parental rights employed is the least restrictive means available to prevent this harm while at the same time protecting the children's right to a parenting relationship with their only remaining parent." The requester said that the prime issue for "post-bereavement stability and mental health" for his children is "continued close, frequent and meaningful interaction with their sole remaining parent."

The legal submissions of the requester's legal advisers were submitted to the High Court and the Supreme Court. It is clear from their decisions that both Courts accepted the requester's arguments in relation to the constitutional provision, the presumption that the father is acting in the best interests of his child and the claim that the Commissioner's approach, in requiring "tangible evidence" that the parent was acting in the child's best interests, was incorrect.

The requester responded to the submissions of M by sharing her concern that the review was being conducted in the period leading up to Ms McK's Leaving Certificate examination. However, he stated that the remainder of M's submissions was irrelevant to consideration of the rebuttal of the presumption that the requester has a right of access to his daughter's medical records. He referred to the comments of Mr Justice Quirke in the High Court when he said that "Reluctance by another family member to agree to access does not, in the absence of any supporting evidence, amount to rebuttal sufficient to displace the presumption referred to."

On the question of custody of the children, the requester stated that M was incorrect in her belief that he was given joint custody with [M and B] so as to ensure that he exercised his parental duties. He pointed out that he had already had custody at the time and that M and B were given, with Mr McK, the responsibility of joint custody. The requester said that M was making unsubstantiated and vexatious accusations to support her position. He claimed that M and B had "consistently tried to alienate" his children from him and from "their extended family". He said that he did not believe that M has any evidence to suggest any failure of duty on the requester's part of the kind contemplated by Article 42.5 of the Constitution. Since, in his view, M's submission painted the requester in a poor light, the requester stated that the submission should not have been included in my Office's correspondence to him. He commented that "...it is consistent with the Commissioner's gender specific misanthropic view" of him.

In regard to records containing personal information of individuals other than the requester and his children, the requester made a number of submissions and directed several questions to my Office on the application of the FOI Act to such "third party" information. He queried whether references to third parties could be deliberately inserted into records so as to make them qualify for exemption. He questioned whether a third party's name "or some inconsequential information" should be enough to make a record exempt. He said that, particularly in its application of the FOI Act to "joint personal information", my Office is not upholding the spirit of the Act.

In relation to the personal information of the late Mrs McK, the requester stated that he cannot see how Section 26 of the FOI Act can be relied upon by the Hospital as there is no question of disclosure being likely to prejudice the giving of further information by his late wife.

The requester commented that he finds it difficult to believe that not one electronic record is held by the Hospital. He said that it is for him to decide whether he has sufficient information to enable him to understand the involvement of health care professionals with his family.

Ms McK

In her oral submission to my Office, Ms McK stated that she did not want her father to have access to her medical records. She stated that she had not spoken to the requester in over two and a half years and that any communications he sent to her were through her brother. Ms McK recalled that the last time she had spoken to her father was when she was fifteen and a half years old. She referred in some detail to a row they had had and she said that afterwards she was so distraught by the things her father had said about herself, her brother and her "foster parents" that she began cutting herself. According to Ms McK, she had scars as a result of this and a doctor recommended that she see a counsellor. She said that she did not go for counselling then because she felt she had had enough of counsellors over the years.

In Ms McK's view, seeking the records amounted to an attack on her through seeking "information about my body". She said that if access to the records was given to the requester "he would make my life hell" and that the records would be something to "dangle over" her.

Ms McK described how contact with her father caused her stress and anxiety. She gave some examples of how her father's behaviour in the past had upset her. She stated that, in the past, incidents with her father and the anticipation of contacts with him caused her fear and nightmares. One incident referred to involved a visit by her father while she was in [name] Hospital in January 2000 (the period covered by the records at issue in Case 000128 and in N.McK.and the Information Commissioner) . In Ms McK's opinion, her father did not have due regard for her privacy. She said that she regarded this behaviour as intimidation.

Describing herself as being "in bits" when she read about the High Court and Supreme Court appeal proceedings (arising from my Office's original decision in relation to the medical records held by [another Dublin Hospital] in the newspaper, Ms McK said that "the build up to the whole thing" has caused her a lot of stress. She said that any contact was an attempt by her father to exercise control and that she has "had enough". She stated that she has a clear mind and does not want the requester to have her records under any circumstances.

In her email message of 26 March 2006, Ms McK said "thinking that he might get my personal information makes me physically sick."

"M"

M said that she had read the Supreme Court judgment, was fully aware of the position and was giving her views in her capacity as joint guardian to Ms McK. She said that she understood that the disagreement of the co-guardian would not be sufficient in itself to rebut the presumption that release of the records to the requester would be in his daughter's best interests.

M said that she accepts that, in the normal course, a father should have access to his child's medical records. However, she commented that this situation "is very far from normal". She is very concerned that this process is being conducted coming up to Ms McK's Leaving Certificate examinations. She said that Ms McK deserves a fair chance before the June exams and that, if the matter is not sorted out before Easter, M objects to any approaches being made to Ms McK in relation to the FOI review until after her Leaving Certificate.

M stated that she believes that to grant the requester access to Ms McK's records arising from assessments of her would not be in Ms McK's best interests.

M set out some of the family background and sequence of events. She said that Mr McK and Mrs McK had lived apart since 1992 and that Mrs McK had got a barring order against her husband on [date]. According to M, Mrs McK had had sole custody of the two children. Just before Mrs McK died in [date], Mr McK issued court proceedings to get custody of the children. M stated that it was at this point that she and her husband put themselves forward to look after the children. She recalled that a social worker from the [name] Health Board went to visit Mrs McK in hospital as the Board was to look after the children's interests. M said that Mrs McK told the social worker "to fight for her children and protect them from their father." When Mrs McK died, M and her husband B (who has since died) were given, with the requester, joint custody and guardianship of the children. M holds the view that the guardianship and joint custody rights were allowed by the Court in respect of the requester mainly to ensure that he exercised his parental duties, including maintenance. [As noted earlier in this decision, the requester disputes this interpretation].

M said that Ms McK does not have a normal relationship with her father; she has not lived with him since 1992 and he did not avail of his access rights to the full extent. Mr McK's access to his daughter since she was four years old has been supervised. In Ms McK's mind, he is "always there to torment her".

An unsupervised access visit by Mr McK, when Ms McK was in hospital in 2000, was referred to by M. She said that Mr McK would not have regarded this as wrong because "he never sees anything he does as wrong." His unsupervised visit was, according to M, in breach of a court order.

M said that a Child Psychologist in 1999 had indicated that Ms McK felt a lack of safety and security with male figures.

M described Ms McK as articulate and being able to see things clearly. She said that Ms McK feels "tormented by her Dad who is always out to get her". She put forward some examples of the requester's behaviour in the past which, in M's view, indicated that he was inclined to push everything to the limit. She also described incidents which she felt showed that Mr McK had caused disappointment and uncertainty for Ms McK which, according to M, had been very upsetting.

M stated that Ms McK has not spoken to or seen her father in over two and a half years. She saw him on access visits once a month until she was 16 years old. M said that she felt it was important that Ms McK went on access visits because she did not want to be accused of alienating Ms McK from her father. However, M said that since Ms McK turned 16, she (M) is respecting her wishes not to go on access visits.

M referred to her view that Mr McK caused stress and uncertainty for Ms McK over the issue of which school she would attend. M said she felt that at that time Ms McK lacked security and that after the difficulties she had been through, including her mother's illness and death, this was "totally unnecessary torment". M expressed the view that Mr McK can be quite aggressive and that there is a "controlling" aspect to his behaviour.

M said that she objects to release of the records because this would not be in Ms McK's best interests and would affect her schooling in this very important year. According to M, Ms McK feels that there is no way of escaping her father and that everything that comes from him "comes with a catch" - nothing is ever unconditional. M said that she accepts Ms McK's views absolutely. She said that Ms McK's views are well grounded; her experiences in relation to her father have been negative and controlling.

In her email of 26 March 2006 to my Office, M said that allowing access to the records would be to Ms McK's detriment.

The Hospital

The Hospital has not made a written submission on this review. In a phone conversation with my staff on 9 March 2006, the Hospital's Freedom of Information Officer stated that the Hospital was opposed to the release of the records. She said that access to the records should be refused on the basis that they contained the personal information of the late Mrs McK and Ms McK and that release would not be in the latter's best interests.

Findings

Preliminary Matters

In his submissions, the requester has made a number of points about the conduct of the review which I wish to address at this stage.

Nature of the Review

The requester has argued that I should have regard to the position as at the date of his request i.e. 17 January 2000. I have considered whether the review can be confined to a consideration of the circumstances at that time.

It has been my practice and that of my predecessor to base review decisions on the circumstances and the law as they pertain at the time of the decision. This approach would appear to have found support in the High Court judgment given on 31 July 2001 in the case of Minister for Education and Science v Information Commissioner (1999 No.99 MCA) where Mr. Justice Ó 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 the 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 Ó Caoimh's judgment 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 Ó Caoimh supported the view that the review process engaged in by my Office does not constitute the "administration of justice".

In the more recent case of Harold J. Gannon and the Information Commissioner (Irish Times Law Report 24 April 2004), Mr Justice Quirke, in a judgment delivered on 31 January 2006, stated that a review conducted by me pursuant to the provisions of section 34 of the FOI Act "correctly comprised a de novo review of the appellant's right of access."

Even if the above position did not obtain generally, I am conscious that the judgment of the Supreme Court in the appeal involving Ms McK's medical records was made on the basis that I must have regard to all the circumstances of the case as they obtain in 2006. I note especially that the Supreme Court stated that "the considerable elapse of time since the requester sought this information in 2000" was a regrettable factor and that "[t]he elapse of time has special relevance where a minor child is involved." It referred to the fact that "[s]ix years later she is in her 18th year" and that "[her] views now are very relevant". I take it from this that it is not open to me to consider the case solely in the light of the circumstances which prevailed in 2000.

Extent of Records Held

In his submission of 24 March 2006, the requester made reference to the fact that no electronic records appeared to be held. I appreciate that his comments in this regard may have been directed more at the other public bodies to which he has made FOI requests than at the Hospital. Insofar as this can be taken as an argument that not all of the records falling within the scope of his request have been identified for the purposes of this review, I have considered the point made that all of the records are paper records and that none appear to be copies of emails or other electronically generated records. In this regard, I agree with Ms Dolan's (of my staff) view as put to the requester on 5 April 2006, that, given the circumstances of the records' creation in and around the assessment of a very young child, it is not surprising that many of the records are hand-written internal notes prepared by the staff of the public bodies involved. Having regard to the sensitive nature of the information concerned and the fact that most of the records were created in the early 1990s, I do not consider the absence of emails to be unusual. Furthermore, gaps in the sequence of the records provided are not evident nor has the requester alleged that particular pages (other than those identified as being withheld) are missing from the material already released to him by the Hospital. Having regard to the circumstances outlined, together with the extent of the records released by the Hospital in its original decision, I have decided to conduct this review on the basis that the 59 records identified in the "Scope" section of this decision comprise the remaining records held.

Delay

As mentioned already, my Office's review in this case was suspended in late 2002, pending the outcome of the High Court appeal initiated by the requester in a separate case (Case 000128). Subsequently, I appealed to the Supreme Court in that same case. These appeals have had the effect of delaying the resumption of this review until February of this year.

I fully accept and have apologised to the requester for the error of law contained in the original review decision of 12 August 2002 in Case 000128. I recognise, as the Supreme Court has pointed out, that the considerable elapse of time since the requester sought access to the records has given rise to serious consequences. However, I reject as absolutely unfounded the requester's repeated allegations that the delay which has occurred since he first made his application in 2000 was the result of a "deliberate strategy" by my Office.

Contact with Ms McK

In a telephone conversation with a member of the staff of my Office on 15 April 2002 in the course of the review in Case 000128 (involving [another Dublin hospital) and in letters of 14 November 2002 and 3 February 2003 in relation to his other review applications, the requester expressed the view that any attempt to seek the views of his children in this matter is "in itself abusive as defined by the national guidelines for the Protection and Welfare of Children." In fact, up to the time of the remittal of the case by the Supreme Court and the conduct of the new review (Case 000128A), my Office had had no contact with Ms McK. In this regard, I believe that my Office's contacts since then with Ms McK were effectively sanctioned by the Supreme Court when it found that, in the circumstances of the case and in view of the fact that she is nearly 18 years of age, Ms McK's views "now are very relevant" and remitted the matter to me "to enable the matter to be reconsidered in accordance with the correct test and the circumstances of the case." Furthermore, the Supreme Court found that "... in considering the circumstances, her welfare is paramount."

I am satisfied that the approach sanctioned by the Supreme Court for my review in Case 000128A is applicable also in this present review.

I consider that it would be impossible for my Office to conduct this review in accordance with the terms of the Supreme Court decision without making contact with Ms McK and hearing her views. My Office informed the requester by letters of 2 February 2006 and 10 February 2006 of our proposals for contacting Ms McK and it also notified her joint guardian, B, of the arrangements. Having regard to the limited time available before she reaches her majority, I did not consider it feasible to defer the hearing of Ms McK's views. At all times, my staff endeavoured to facilitate Ms McK in a manner consistent with her welfare and convenience. I accept that it is most unfortunate that the review falls to be determined in the period immediately before Ms McK's Leaving Certificate examinations. However, my Office's contact with her by way of correspondence, telephone calls or meeting was kept to the minimum level practicable so as not to upset her unduly or interfere with her studies. Ms McK was advised that she might wish to consult with legal or other advisers or arrange for someone to accompany her if she chose to make an oral submission. However, she stated that she was comfortable in meeting with my staff without accompaniment.

The requester indicated that he would be responding to Ms McK's views as put to him by my Office in the course of the review on Case 000128A. However, the submissions received from him to date have not included such response.

Records already released

I am aware that the requester has been granted access under the FOI Act by several public bodies, including the Hospital, to a substantial number of records about his family. The fact that information similar or identical to that under examination in this review has already been released is not a relevant factor in my consideration of whether a record is exempt under the FOI Act in this review. However, the fact that information is known to the requester may be a consideration in the application of the public interest balancing test where this is appropriate.

Section 18 - Reasons for acts of a public body

The requester made reference to section 18 of the FOI Act in his original request to the Hospital. He asked that the records sought would include "any decision by your employers that has materially affected me or my family, a statement of the reasons for the decision and any findings of fact made for the purpose of reaching that decision. The requester did not specify what "acts" or decisions of the Hospital he had in mind in seeking a statement of reasons and any findings of fact. The Hospital made no reference to section 18 in its decision.

Section 34(1) of the FOI Act provides, inter alia, for the making of an application to me for a review of a decision under section 14 of the FOI Act. Section 14 (2) provides that the head of a public body, on application to him or her by a relevant person, may review a decision to which section 14 applies. Among the decisions specified in section 14(1) for this purpose is:

"...(f) a decision under section 18 in relation to the contents of a statement furnished under subsection (1) of that section or to refuse an application under that subsection,"

In its letter dated 5 April 2006, my Office explained to the requester that his request of 24 February 2000 to the Hospital for an internal review of its decision referred only to the refusal of access to some of the records. Having considered this matter, I find that I have no jurisdiction to review the issue of whether the Hospital is obliged to provide a statement under section 18 of the FOI Act since this element of the request was not included in the internal review application on foot of which the requester's application for review was submitted to my Office.

Records created before the commencement date of the FOI Act

Many of the withheld records were created before the commencement date of the FOI Act - 21 April 1998. Whilst the Hospital has not queried the requester's potential right of access to these records, I will identify the statutory basis on which this arises.

The FOI Act restricts access to such pre-commencement records to two scenarios. One scenario is where access to pre-commencement records is necessary or expedient in order to understand a record created after 21 April 1998 [section 6(5)(a) of the FOI Act]. The requester has not contended, nor am I aware, that any records exist, created after 21 April 1998, which cannot be understood without reference to these earlier records. Accordingly, I find that a right of access to the records in question does not arise under section 6(5)(a) of the FOI Act.

The second scenario is where the pre-commencement record relates to personal information about the person seeking access to the record [(section 6(5)(b) of the FOI Act]. Whilst some of the records contain no direct reference to the requester by name, I am satisfied that this does not prevent the records from being held to relate to personal information about him. On 21 December 2001, in his judgment in the case H. (E.) v Information Commissioner [2001] 1EHC 182 , O'Neill J. set out the approach to be taken in construing the term "relate to personal information" as contained in section 6(5)(b) of the FOI Act. He noted that it is "absolutely clear from the use of the phrase 'relates to' that a document need not itself contain'personal information' about the requester". He identified the relevant test to be applied, in determining whether or not a record relates to personal information, as:

"... 'whether there is a sufficiently substantial link between the requester's personal information (as defined in the Act) and the record in question'. I do not think one should go further than this in formulating a test in this regard."

Having examined the content of these records, I have no doubt that there is a sufficiently substantial link between the requester's personal information and the information in the records at issue to give him, subject to the other provisions of the FOI Act, a potential right of access to these records under section 6(5)(b) of the FOI Act.

Furthermore, section 28(6) of the FOI Act provides for the making of regulations by the Minister for Finance to enable access, in certain situations, to the personal information of minors and deceased persons. As outlined earlier in this decision, such regulations [SI No. 47 of 1999] provide for a right of access for the requester to records containing the personal information of his children . There is also a provision for a right of access to the records of his late wife which I address later in this decision. A a separate regulation [SI No. 46 of 1999] provides that requesters, having access to certain records by virtue of regulations made under section 28(6), may access such records created prior to commencement of the FOI Act. The effect of this regulation in the present context is that, where the requester has a right of access to records relating to personal information about his children and/or his late wife, this right extends to such records created prior to the commencement of the FOI Act.

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

Although the Hospital relied on section 26 of the FOI Act to refuse access to all of the withheld records, I have considered whether other exemptions might be more relevant to particular records. In this regard, records 1, 7, 14, 17, 21, 24, 26, 27, 28 and 31 of the Hospital's "Correspondence In " file, records 1, 11, 12, 14, 15 and 18 of its "Correspondence Out" file and record 1 of its "Legal Correspondence" file comprise correspondence between the Hospital and solicitors representing the late Mrs McK. In a letter dated 5 April 2006, my Office informed the requester that a question had arisen as to whether legal professional privilege might apply to such records. Section 22(1)(a) of the FOI Act provides as follows:

"A head shall refuse to grant a request under section 7 if the record concerned

(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

This exemption is a mandatory one and, unlike many of the exemptions in the FOI Act, is not subject to a public interest override. The conclusion reached by Mr Justice Kelly in the High Court in Duncan -v- Governor of Portlaoise Prison [1997] 2 ILRM 296 and upheld by the Supreme Court [unreported 5 March , 1997, ex tempore] is that legal professional privilege is more than a rule of evidence; it is a fundamental condition on which the administration of justice as a whole rests. In considering whether the records in question would be exempt from production in a court on the ground of legal professional privilege, I must ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client - the late Mrs McK in this case.

I note that the English case of Russell v Jackson (1851) 9 Hare 387; 68 ER 558 was cited in the United States Supreme Court's examination of cases addressing the existence of legal professional privilege after death in Swidler & Berlin v. United States 524 U.S. 399, 403, 141 L. Ed. 2d 379, 384 (1998). In the Swidler case, Chief Justice Rehnquist said that "The great body of this caselaw supports, either by holding or considered dicta, the position that the privilege does survive...". I am aware that in Irish cases such as Crawford v Treacy [1998] IEHC 158; [1999] 2 IR 171, the courts have proceeded on the basis that, although there can be exceptions to the rule (none of which arise in this case), a claim of legal professional privilege normally endures where the client who is entitled to the privilege is deceased. The question comes down simply to whether the client (or the personal representative of the deceased client) would succeed in withholding the documents on the ground of legal professional privilege in court proceedings.

Legal professional privilege enables the client to maintain the confidentiality of two types of communication being "advice privilege" and "litigation privilege" -:

1. confidential communications between a professional legal adviser and a client in the course of a professional legal relationship, made for the purpose of giving or receiving legal advice; and
2. confidential communications between a professional legal adviser and either a third party or the client; or between the client and a third party; or between the client and professional legal adviser, the dominant purpose of which is the preparation for contemplated or pending litigation.

I consider that the second limb of the legal professional privilege rule is the relevant one in this instance. The application of this part of the rule, commonly referred to as the dominant purpose test, was adopted by High Court in Silver Hill Duckling Limited v. Minister for Agriculture [1987] I.R. 289. In his judgment, O'Hanlon J. held that "Once litigation is apprehended or threatened, a party to such litigation is entitled to prepare his case, whether by means of communications passing between him and his legal advisers, or by means of communications passing between him and third parties, and to do so under the cloak of privilege."

I have examined each of the records identified above in order to decide whether this exemption is justified on the basis of the understanding of legal professional privilege set out above. It is clear from the records that solicitors were acting for Mrs McK in preparation for family law proceedings which appear to have been ongoing at the time that these records were created. Clearly, legal advisers for both parties to this litigation were, at that time, in correspondence with the Hospital as part of the preparation of their respective cases. It appears that the assessment requested in respect of Ms McK was to be used in court proceedings. Whether the report was introduced in any such proceedings is not an issue with which I need to concern myself in the context of whether the records would qualify for legal professional privilege. I consider that it is clear from the content of the records and the circumstances of their creation that the dominant purpose of Mrs McK's solicitors' confidential communications with the Hospital (the third party in this case) was the preparation for contemplated or pending litigation.

Accordingly, I find that section 22(1)(a) applies to records 1, 7, 14, 17, 21, 24, 26, 27, 28 and 31 of the Hospital's "Correspondence In" file, records 1, 11, 12, 14, 15 and 18 of its "Correspondence Out" file and record 1 of its "Legal Correspondence" file.

Section 22(1)(b) - Contempt of Court

Section 22(1)(b) of the FOI Act (as amended) provides that:-

"A head shall refuse to grant a request under section 7 if the record concerned -.... (b) is such that the head knows or ought reasonably to have known that its disclosure would constitute 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 (i.e. that proceedings be held otherwise than in public) applies to such family law proceedings as those between the late Mrs McK and the requester and to proceedings involving minors. It is apparent from the records that solicitors were acting for the requester and his wife in McK v. McK and that certain reports of assessments on Ms McK were introduced into the proceedings. The information contained in those records subsequently formed part of the material before the courts in proceedings relating to access to and guardianship of the requester's children.

Records 87-105 of the Hospital's "Assessment File" include a Psychological Report on Ms McK dated July 1993 by the NEHB's Clinical Psychologist. The notes on which the report is based, including interviews with the requester, Ms McK and the late Mrs McK and the report itself are also included in these records. I understand that at least parts of this report have previously been disclosed to the requester either through court proceedings or under FOI.

In addition, record 2 of the "Legal Correspondence File" is a report about Ms McK which was prepared in June 1993 by a consultant paediatrician of the NEHB.

In R.M. v. D.M. (Practice: in camera) [2000] 3 IR 373, Mr Justice Murphy examined the extent of the in camera provisions relating to family law matters in the light of the decision of Laffoy J. in M.P. v. A.P. (Practice: in camera) [1996] 1 I.R. 144 and the decision of Barr J. in Eastern Health Board v. Fitness to Practise Committee [1998] 3 IR 399. Murphy J's conclusions relate directly to the scope of the Judicial Separation and Family Law Reform Act, 1989 and, in particular, to section 34 of that Act which was held to be an absolute embargo on the production of information which was derived from, or was introduced in, family law proceedings. However, section 30 of that Act defines "family law proceedings" so that its provisions apply to various proceedings including those under the Guardianship of Infants Act, 1964. Murphy J found that the provisions of section 34 of the Judicial Separation and Family Law Reform Act are mandatory in the case of information in relation to certain proceedings, whether in documentary form or otherwise. However, he went on to comment that it appears "in any event, that reports, documents and evidence furnished for the assistance of the court, such as psychiatric, psychological or family reports intended for the use of the court in arriving at its decision ... could not, without the consent of the court be disclosed. " I note also his comments in the R.M v. D.M. judgment that the in camera rule "does not, in any way, affect a citizen's right to litigate and to exercise freedom of expression among other rights but it does restrict family law proceedings from being involved in such other proceedings."

My Office put it to the requester in our letter of 21 February 2006 that it appeared that records identified above had been introduced before the courts in family law proceedings and advised him that, if this was the case, they would be exempt under section 22(1)(b) of the FOI Act. In his response of 24 March 2006, the requester said that it is not up to him as a "non-legal professional" to make legal submissions on whether or not the position "has legality or not".

In relation to any argument which might be made that, because the requester and his family were amongst the parties involved in the proceedings, release to him of records under the FOI Act, could not be deemed to be a breach of the in camera rule, I refer to the judgment of O'Neill J. in the High Court in the case of H(E) v Information Commissioner [2001] IEHC58 [2001] 2 IR 463 (4 April 2001). That case involved an undertaking given to the courts in respect of certain records and it was held in relation to the question of contempt of court that:-

"The first issue of substantial contest in the case has to do with the meaning and effect of Section 22(1)(b). The first thing to be observed about this Section is that it is mandatory in its effect. It allows for no discretion once either the head or the Commissioner is satisfied that the disclosure of a record would constitute a contempt of Court. The second thing to be observed is that the concept of disclosure is there in the widest sense and I would interpret that as meaning "any disclosure" be it disclosure by the public body itself or disclosure by the person seeking the record or either of them.

I accept that neither a head of [a] public body or the Commissioner has any jurisdiction under the Act to impose any conditions on the type or extent of disclosure or the use of the documents after disclosure and hence in permitting disclosure a head of [a] public body and the Commissioner must assume that the disclosure of a record will be to the world at large. "

In the light of this, my conclusion is that neither the identity of the person seeking the records nor whether the information contained in the records is already known to the requester are relevant considerations in the application of section 22(1)(b).

Therefore, I am satisfied that the following records were introduced in family law proceedings, involving either the barring order application or other in camera proceedings and I find them to be exempt pursuant to section 22(1)(b) of the FOI Act, as amended:

"Assessment File": pages 87 - 105.

"Legal Correspondence File": page 2.

Section 28 - Personal Information

Although I have found the withheld records, with the exception of pages 36, 37, 43 and 47 of the "Correspondence In" file; page 8 of the "Correspondence Out" file; pages 1, 2, 7, 13 -16, 19 - 21, 27- 29, and 32 - 35 of the "Consent" file records, to be exempt under section 22(1), I have decided to examine the records in their entirety in the context of section 28 of the FOI Act. I do this because, of their nature, records of the type involved contain primarily the personal information of the requester and his family. Furthermore, in the light of the Supreme Court judgment in N.McK. and the Information Commissioner, I consider that it is important to examine, in relation these records, the presumption that the requester, as a parent, has the welfare of his child at heart, is acting in the child's best interests and is entitled to access records containing medical information in order to exercise his constitutional rights and duties as a parent and guardian regarding the child's medical care.

Legislative provisions

Section 28 (1) of the FOI Act provides that:

"28(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information ...".

However, section 28 contains within it a number of exceptions to this prohibition, two of which are particularly relevant in this case. Section 28(6) provides that:

" 28(6) Notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request under section 7 where:- (a) the individual to whom the record concerned relates to belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual or

(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations."

 Article 3(1) of the 1999 Regulations provides that:

" 3.(1) Notwithstanding section 28(1), a request under section 7 in relation to a record access to which involves the disclosure of personal information (including personal information relating to a deceased individual) shall, subject to the other provisions of the Freedom of Information Act, 1997, be granted where:

(a) the requester is a parent or guardian of the individual to whom the record concerned relates and that individual belongs to one of the following classes of individual:

(i) individuals who, on the date of the request, have not attained full age (within the meaning of the Age of Majority Act, 1985 (No. 2 of 1985)), or

(ii) individuals who have attained full age (within the meaning aforesaid), who at the time of the request have a mental condition or mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner and who, by reason thereof, are incapable of exercising their rights under the Act,

being individuals specified in clauses (i) and (ii) access to whose recordswould, in the opinion of the head having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in their best interests, or ...".

Article 3(1)(b) of the 1999 Regulations, dealing with the right of access to records of deceased persons, specifies the following classes of persons, for the purposes of section 28(6)(b) of the FOI Act, as requesters to whom access "shall" be granted:

(i) "a personal representative of the deceased acting in due course of administration of his or her estate..."

(ii) "a person on whom a function is conferred by law in relation to the individual [i.e. the deceased] or his or her estate acting in the course of the performance of such function

(iii) "the spouse or a next of kin of the individual or such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister."

In addition, there are other potentially relevant exceptions to the provisions of section 28(1) which, although not specifically addressed in the court proceedings arising from the decision in Case Number 000128, should be considered in the circumstances of this case. Section 28(2) provides that section 28(1) does not apply if -

" (b) ...any individual to whom the information relates consents...to its disclosure to the requester" 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".

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. 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."

Finally, it is of relevance that Section 28(5B) provides:

"Notwithstanding paragraph (a) of subsection (2), a head shall, subject to subsections (b) to (e) of that subsection and subsections (5) and (6), refuse to grant a request under section 7 if, in the opinion of the head, 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."

Analysis

Firstly, I find as a matter of fact that (i) none of the records in this case relate solely to the requester; (ii) all of the records contain information about Ms McK; (iii) many of the records contain information about the requester and Ms McK; (iv) most of the records contain information about Ms McK, her mother - Mrs McK (the requester's late wife) - and the requester. There are occasional references to third parties in some of the records; the latter information is examined in more detail later in this section of my decision.

Bearing in mind the content of these records and the context in which they were created (the assessment of Ms McK), I find that the information relating to the requester, his late wife, his daughter and his son (to whom there are occasional references in the 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 the requester. My predecessor, Mr Kevin Murphy, considered the issue of extracting personal information in his decision in Case No. 99001 - Ms. ACF and the North Eastern Health Board - where he 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'sfamily 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 in this case, I am satisfied that extracts which might be regarded as relating solely to the requester 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.

Section 28(6) and the "best interests" of minors - personal information of Ms McK

All of the records in this case either mention Ms McK or identify her in the context of the assessments being carried out on her or in the contacts made between the Hospital and solicitors acting for her parents. I have already found that all of them contain Ms McK's personal information.

Article 3(1) of the 1999 Regulations provides that access to records containing the personal information of a minor shall be granted to that individual's parent or guardian where

access to those records "would, in the opinion of the head having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in [her] best interests".

I note that the term "best interests" is not defined or clarified in FOI or other legislation.

In N. McK. and the Information Commissioner, the Supreme Court upheld the High Court judgment that my Office had erred in its original decision in determining that the release of the records would only be directed where there is tangible evidence that such release would actually serve the best interests of the minor who is the subject of the records. In accordance with the Supreme Court's judgment, I am proceeding to apply the provisions of the FOI Act on the basis that the requester is presumed, as a parent, to have the welfare of his child at heart, to be acting in the child's best interests and, accordingly, to be entitled to access records containing medical information in order to exercise his constitutional rights and duties as a parent and guardian regarding the child's medical care.

The position in this review in relation to Ms McK's personal information differs somewhat from that which obtained in Case 000128A in that not all of the information at issue in the present case could be deemed to be "medical information". Whilst much of the information was given by Ms McK and her parents to the psychiatrist and psychologists involved in the assessments, some of the records, including the legal correspondence discussed earlier in this decision, do not contain medical information relating to Ms McK's assessment or care. However, given that the records as a whole were created in the context of the Hospital's involvement with the family, I will proceed on the basis that the Supreme Court judgment applies to all of the records.

I refer to Denham J's comments in the Supreme Court judgment in N. McK. and the Information Commissioner - "As it is so quintessentially a matter arising in family law it may be that it is a matter more appropriately considered in a Family Law Court. However, this matter proceeded under the Act of 1997 procedures." The parties have made serious allegations and raised issues concerning access to and alleged alienation of the children involved. I think I should make clear that these issues are relevant to my review only insofar as they may be factors to be taken into account in considering whether evidence exists to rebut the presumption that release of his daughter's medical records to the requester is in her best interests. I take this opportunity to reiterate that my starting point in this review is an acknowledgement of the requester's constitutional rights as a parent and of the enjoyment by him of "parental primacy" in relation to access to records containing medical information about his daughter.

It is clear from the Supreme Court's decision that it is very relevant that Ms McK is nearing the age of majority. Apart from any other evidence adduced which might be capable of displacing the presumption that the requester is entitled to have access to his daughter's medical records, the wishes, attitude and views of Ms McK herself require careful and detailed consideration.

Three members of my staff met with Ms McK and much of my conclusion is based on the direct evidence provided by her. The interview which my staff had with Ms McK focused on the subject matter of the review in Case 000128A. Subsequent to that meeting, Ms McK notified my Office that she wished to have the views she had expressed considered in relation the other cases (including this one) which I am considering and which involve her personal information.

Arising from the submissions of Ms McK and her meeting with my staff, the following are the findings of fact which I have made relevant to the issues which I have to determine:

• Ms McK is of an age and maturity at which it is appropriate to take account of her wishes.
• Her views are very clear and strongly held. Her wishes are based on views which she has formed independently.
• She makes no distinction between any of the records at issue in this case or in the other cases involving records held by other public bodies or between any information contained therein; her views apply to the whole of the records rather than to any particular item of information.
• She has had no direct communication with her father in over two and a half years; she regards any contact as an attempt by her father to exercise control over her. She regards this "control" as being negative.
• She feels intimidated by her father and is in fear of him; she believes that his behaviour has caused and continues to cause her unnecessary stress.
• She believes that her father's efforts to obtain her personal records are an attack on her.
• She links access to her personal records by her father to invasion of her privacy and regards such access as primarily relating to information about her body.
• She believes that it would not be in her best interests for her father to have her medical records or any other personal records; she does not wish him to have access to the records under any circumstances.

It is extremely regrettable that Ms McK and her father have become estranged and that there is antagonism between the requester and the joint guardian of his children. However, it is clearly outside of my jurisdiction to make any comment on the issues of guardianship, custody or access in this situation or to purport to make findings as to any allegations made. Instead, I am relying primarily on what I have ascertained from Ms McK herself in relation to how she perceives the situation vis à vis the release of the records to her father.

Some of the evidence of M is relevant insofar as she draws attention to her concerns for Ms McK's welfare and happiness and objects very strongly to anything which would interfere with her progress in school and with her preparation for her Leaving Certificate examinations. In general, M's perception, as her joint guardian and the person with whom she lives, of how Ms McK feels in relation to the release of her medical records to her father corresponds with Ms McK's own submission. Whilst the objection of the joint guardian to release of the records would not, in itself, be sufficient to rebut the presumption that the requester is acting in his daughter's best interests, I regard M's views and concerns to be genuinely felt and it is clear to me that, as one of the minor's legal guardians, she believes that she is acting in Ms McK's best interests.

In addition, I have examined section 23(1) of the Non-Fatal Offences Against the Person Act, 1997 which provides as follows:

"23.(1) The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian."

This provision was brought to the requester's attention in the context of my review in Case 000128A.

In my opinion, the relevance of the Non-Fatal Offences Against the Person Act, 1997 to the circumstances to which I must have regard in my decision lies primarily in the recognition by the Oireachtas of the capacity of minors, who have attained the age of sixteen, to make major decisions in relation to their own best interests in the area of medical treatment. I consider this to be further evidence of the importance of Ms McK's views and an indication of the weight which I must give to what she has decided is in her best interests.

In assessing the views of Ms McK and the circumstances as described above, I must bear in mind the findings of the courts that Ms McK's objections to the release of the records, even when supported by the views of M and the Hospital, do not, of themselves, amount to rebuttal sufficient to displace the presumption of "parental primacy" identified by Hardiman J. in North Western Health Board v. HW. [2001] 3 IR 622. What I must do now is consider whether, on balance, there is evidence which tends to show that, in fact and in all the circumstances, it would not be in Ms McK's best interests for the records to be released to her father - the paramount consideration being the welfare of the child. In doing so, I believe it is appropriate to have regard to the direction of the Supreme Court in Case 000128 that the review be conducted "in accordance with the correct test and in light of all the circumstances".

Conclusions

Having considered the matter carefully, I am satisfied, based on the facts established and listed above, that the evidence given by Ms McK to the effect that disclosure of her records to the requester would not serve her best interests is sufficient in all the circumstances of this case to rebut the presumption that release of these records to her father would serve her best interests.

I make this finding having regard to the age and maturity of the minor involved and the cogent reasons that she has advanced in relation to her views. I recognise that this is an unusual and difficult case and that the fundamental presumptions operating in favour of the requester cannot be displaced lightly. I am satisfied that Ms McK's fear and anger in relation to what she perceives as her father's controlling behaviour towards her, allied to her concerns about personal privacy issues, are real and genuinely held, regardless of whether they are well founded. I am further satisfied that the issue of whether the requester should have access to records, relating to assessments carried out to try to establish whether Ms McK might have been sexually abused as a very young child, has caused and is continuing to cause her great stress and anxiety. In saying that, I totally accept that the delays involved were not of the requester's making and I very much regret the error made by my Office in its reliance in the original decision on Case 000128 on a test that has since been found to be unconstitutional. Given that Ms McK's welfare is paramount, I am convinced by the evidence that to grant her father access to the records at this time would, as a matter of probability, cause damage to her educationally and emotionally. I find in all the circumstances, and as a matter of fact, that it would not be in Ms McK's best interests that the requester be furnished with the records. Thus, I find that section 28(6) (a) does not apply in this case to set aside the prohibition on release of the records in section 28(1) of the FOI Act.

Other Exceptions to section 28(1)

There is a limited number of other exceptions to the provisions of section 28(1) of the FOI Act. One exception is where the person (or persons) to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act. Clearly, this is not a relevant provision in this case. Potential release of personal information is also provided for at section 28(5)(b) of the FOI Act in a situation where release of the information would "benefit the individual" (Ms McK, in this case) to whom it relates. The requester has said that his children would benefit from interaction with him as their parent. However, I have no evidence to suggest that release of her personal information as it appears in these records would result in Ms McK having increased contact with her father. The FOI Act also contains a mechanism for the release of a person's personal information where such release is necessary "in order to avoid a serious and imminent danger to the life or health of an individual" [section 28(2)(e)]. I have no evidence either to support the view that section 28(2)(e) applies.

Section 28(5)(a) - the Public Interest

Section 28(5)(a) provides that a record containing the personal information of a third party may be released if, on balance, 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. Whilst it is by no means certain that this subsection of section 28 can be applied where specific provision for the release of the records of minors to their parents or guardians is made in section 28(6), I will examine the public interest question in the interests of completeness.

I consider the public interest factors, in favour of the release of this information to the requester, can be set out as follows in this case:

• the public interest in the requester, having regard to the primacy of his position as a parent as recognised by the Constitution, being able to exercise his rights and duties in relation to his child;
• the public interest in members of the public knowing how a public body performs its functions;
• the public interest in members of the public knowing that information held by public bodies about them is accurate; and
• the public interest in individuals against whom allegations are made being made aware of those allegations and being given an opportunity to refute them.

On the other hand, the FOI Act recognises the right to privacy of individuals as a very strong right and that it is in the public interest that this right should be protected. Furthermore, since the Supreme Court has recognised that the wishes of a minor in her eighteenth year are most relevant and that, in considering the circumstances, her welfare is paramount, I take it that Ms McK's views as described above must also be given very serious consideration in weighing up the relative strengths of these opposing public interests.

Whilst the FOI Act is silent on the question of whether a particular requester's interest in the matters referred to in the records is something which may be taken into account in considering the public interest, I share my predessessor's view that, in certain limited cases, there may be a public interest in a particular requester, due to his/ her interest in the matter concerned, gaining access to information which would otherwise be exempt. As the previous Information Commissioner, Mr Kevin Murphy found in Case No. 99001 - Ms. ACF and the North Eastern Health Board [referred to earlier in this decision], this will arise where the interest of the individual requester concerned is of such a nature that it is not merely a matter of private interests or rights but involves principles of public interest. The degree of weight attaching to such a public interest would depend very much on the facts of the case. Equally, I believe that the upholding of the privacy rights of individuals, particularly those who have had sensitive areas of their lives assessed and recorded in the course of a hospital or other public body's involvement in their case, involves principles of public interest.

In weighing up the relative strengths of the opposing public interests, an attempt must also be made to measure the actual benefit to the requester which would result from release of the records. The requester has argued that, in the absence of the records, he cannot possibly know whether he already has sufficient information to enable him to understand the role and actions of the Hospital. I have considered the extent to which relevant records have already been released to him and whether release of the records at issue would actually add significantly to his understanding of the Hospital's acts and decisions affecting him. The Hospital has already released to the requester, or to his solicitor, substantial records, including its report and its conclusions following its assessment of Ms McK. Many of the released records concern the role of the public bodies involved, including the Hospital's records of meetings at which the requester was present and records of how it recorded his contacts with it during the period in question. The requester is aware, from meetings and correspondence with the Hospital and from family law proceedings, of the nature of the interviews conducted with his daughter and his late wife and the conclusions of the assessments in relation to whether Ms McK had been sexually abused. The fact that the requester would obviously wish to have access to all of the records held does not take away from the fact that he was made aware of how and when the Hospital acted in relation to his family. In my view, the fact that the requester was made aware of the nature of the complaints made against him, as well as the progress and outcome of the assessment, weakens the public interest in his having access to the remaining records in this instance.

It is also relevant to bear in mind that the involvement of the Hospital arose from the requester's own wish that his daughter undergo an assessment additional to that conducted by the [health board].

Having considered the matter carefully, I consider that the public interest in preserving the privacy of the individual at the centre of this case outweighs the public interest which would be served were the records to be released to the requester. I find, accordingly, that section 28(5)(a) does not apply in this case.

Personal Information of the late Mrs McK

The 1999 Regulations define "spouse" as including "a party to a marriage that has been dissolved" and also as including "a man or woman who was not married to but cohabited as husband or wife, with the deceased individual". This means that former spouses and former partners are recognised as "spouses" for the purposes of the Regulations.

Article 3(1)(b)(iii) specifies "the spouse or a next of kin of the individual or such other person or persons as the head considers appropriate having regard to all the circumstances and to any relevant guidelines drawn up and published by the Minister" for the purposes of section 28(6)(b) of the FOI Act, as requesters to whom access "shall" be granted.

In relation to the "guidelines", I understand the Department of Finance takes the view that the Minister has drawn up and published such guidelines - in the form of Guidance notes on Access to records by parents/guardians Access to records relating to deceased persons prepared under section 28(6) of the Freedom of Information Act, 1997 and published on the Department's website. On the other hand, when this matter was raised in the Supreme Court appeal hearing in November 2005, in N. McK. and The Information Commissioner, there appeared to be agreement between the legal teams involved that the guidelines published on the Department of Finance website do not constitute the guidelines envisaged in the 1999 Regulations. Unfortunately, the Supreme Court's judgment did not deal with this matter. Accordingly, it is fair to say that considerable confusion exists as to whether the guidelines actually published represent the guidelines envisaged in the 1999 Regulations.

I have been legally advised and I accept that a literal reading of the words of article 3(1)(b)(iii) supports the position that a spouse has a right of access to the records of the deceased person, (subject only to consideration of whether the result would be likely to offend against the Constitution).

Accordingly, the position is that the requester might well have a right of access to the late Mrs McK's personal information in the records at issue if such information appeared solely as the information of Mrs McK or the joint personal information of Mrs McK and the requester. However, I am satisfied, having examined the records, that the personal information of the deceased appears in these records as the joint personal information of Mrs McK, the requester, Ms McK and other persons.

As I have found above, all of the records disclose, to a greater or lesser extent, the personal information of Ms McK. Therefore, the situation is that the release of any record will involve the disclosure of her personal information. For the reasons stated earlier in this decision, I have found that her personal information should not be disclosed and that none of the records should be released. Therefore, it is not necessary for me to consider in this case whether the personal information of the late Mrs McK as disclosed in any record falls to be released under section 28(6)(b) of the FOI Act.

Personal information of individuals other than the requester and Ms McK

As outlined earlier in this decision under the heading "Scope of Review", I have decided to examine, as the requester has asked me to do, the position as regards the "third party" information as it appears in some of the records at issue.

It appears from the requester's submissions that he disputes whether the references in the records to persons other than himself, his late wife and his children constitute personal information about those other individuals. In the course of this review my Office referred the requester to a decision of my predecessor (Case No. 99001 - Ms. ACF and the North Eastern Health Board - the full text of the decision is on www.oic.gov.ie) which sets out the position generally in relation to "joint personal information". I deal here primarily with the requester's view that my Office has not been applying the provisions of the FOI Act in relation to "third party information" properly.

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 the definition in 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 and the views and opinions of another person about the individual. 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 from my examination of the records that there is information in some of the records which constitutes personal information, as defined by the FOI Act, about individuals other than the requester, his late wife and children.

I have found no evidence to support the suggestion made by the requester that the inclusion of any third party's name or other identifying material in these records could have been done deliberately in order to cause the records to be exempt from release. In the course of a public body, such as the Hospital or the health board, conducting interviews with parents and assessing a young child, I consider that it is reasonable to assume that the records created would contain references to adults connected with the family.

It is clear to me that where such personal information is found in these records, it arises in the context of Ms McK's assessment and it may be correctly described as joint personal information. The requester has argued that it should be possible to "blank out" the names so that the individual would no longer be identifiable. Given the context of the information, I consider it likely that the persons involved would be identifiable even if their names were deleted from the copies of the records. I am further satisfied, having regard to section 13(2) of the FOI Act, that, given their context and content, if sentences or parts of sentences relating to third parties were extracted from the records, their release would be misleading. Section 13 of the FOI Act provides as follows:

"(1) Where a request under section 7 would fall to be granted but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the head of the public body concerned, shall, if it is practicable to do so, prepare a copy, in such form as he or she considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy.

(2) Subsection (1) shall not apply in relation to a record if the copy provided for thereby would be misleading".

The requester has also implied in submissions to my Office that the fact that the third parties involved may be known to him is of relevance to my consideration of whether the records contain their personal information. He has also taken issue with the views of the investigator assigned to this case that the home address (contained in one of the records) of a member of staff of a public body constitutes the personal information of that individual and that it would not fall to be released under the FOI Act. In relation to this, I would point out that there is nothing in the FOI Act which qualifies or restricts the use by requesters of information released to them under the FOI Act. This contrasts with the situation that generally arises, for example, where child care cases are heard by the courts. There is no restriction or qualification on the dissemination of information released under FOI and, although certain information may seem inconsequential or of little sensitivity, it is, nonetheless, the personal information of the individual. As such, it would, ordinarily, be known only to the individual or members of the family, or friends, of the individual, or held by a public body on the understanding that it would be treated by it as confidential.

A few of the records contain brief references to R, the requester's son, who was an infant at the time most of these records were created. Where the records contain personal information about this individual, I find that, in all instances, this information appears in conjunction with the personal information of his sister and is, thus, joint personal information. I further find, for the reasons stated above, that to extract parts of sentences or other references to R, even if this were feasible, would be misleading. I did not consult R, who is now [age], to seek his views in this case because I am aware that the requester has indicated, in the course of other reviews which I am conducting, that he does not consent to my Office meeting with his son.

As I have found above, all of the records disclose, to a greater or lesser extent, the personal information of Ms McK. Therefore, the situation is 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 McK's should be released to the requester. As, for the reasons stated earlier in this decision, the answer to this is in the negative, I am not directing the release of any of the records. Therefore, it is not necessary for me to consider whether the personal information of third parties as disclosed in any record falls to be released in the public interest of otherwise under the provisions of section 28 of the FOI Act.

Section 26 - Information Obtained in Confidence

In its decision, the Hospital relied on section 26 of the FOI Act in holding that access to the records should be refused. The Hospital's position is that the information in the withheld records was "supplied by, and provided to" the late Mrs McK in confidence.

Whilst the Hospital has not made it clear as to whether it relied on section 26(1)(a) or section 26(1)(b) in its decision, it seems to me that, in circumstances where the records at issue were created by the Hospital's own staff or by the staff of a public body, section 26(1)(b) would be the more appropriate exemption for consideration in regard to most of the records having regard to the provisions of section 26(2). Neither has the Hospital addressed the question of whether a duty of confidence can be owed to a deceased person. Indeed, it is surprising and disappointing that the Hospital has failed to avail of the opportunity to make any written submission in the course of this review. Given my findings above that some of the records are exempt under section 22(1) of the FOI Act and that all of the records are exempt under section 28, I do not consider it necessary to examine the application of section 26 to these particular records. Furthermore, I note that the Supreme Court judgment does not address the matter of whether the existence of a duty of confidence which might be owed by a Hospital to a patient who is a minor could, in any circumstances, amount to a rebuttal of the presumption that it is in the best interests of the minor that such records be released to his or her parent.

Summary of findings

My finding is that particular records which I have identified qualify for exemption under section 22(1)(a) and section 22(1)(b) of the FOI, that all the records are exempt by virtue of section 28(1) of the FOI Act and that this latter exemption is not displaced by any of the exceptions contained in section 28.

Decision

Having completed my review under section 34(2) of the FOI Act, as amended, I have decided to annul the decision made by the Hospital in relation to these records and to make a new decision to refuse the requester's request for access to the records for the reasons set out above.

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 decision.

Emily O'Reilly

Information Commissioner

19 May 2006