Case 99491, 020593, 030587. Request by a parent for access to records of his family - personal information - section 28 (1) - access by parent to medical records of a minor - primary position that presumption exists that parent is entitled to access to records of a minor child - whether circumstances exist to rebut the presumption that release of records 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 to privacy of the individual be upheld - section 28(5)(a).

Case Summary

See also case numbers 000128A and 000137.See also the Supreme Court Judgment of 24 January 2006 in N.McK and the Information Commissioner [2006] IESC 2 which remitted case number 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 has two children, a daughter and a son, and at the time of his requests his wife had died. In each case, the HSE decision granted access to a number of records and refused access to others. The HSE relied on a number of different exemptions including sections 20, 21, 23, 26 and 28 of the FOI Act. In each case, the requester applied to the Commissioner for review of the HSE decision.

The requester, on three separate occasions between October 1999 and May 2003, sought all records relating to his family which were held by a health board [now the Health Service Executive (HSE)].

These reviews, along with another review application from the requester, were 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 a Dublin hospital. The High Court delivered its judgment on 14 January 2004; it 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 High Court remitted that case to the Commissioner with a direction to grant the requester access to the records.

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 [Case 000128A - N.McK and a Dublin Hospital]

The Commissioner resumed her reviews in light of the Supreme Court judgment. Given that the only distinction between the requester's three applications for review was the operative dates, a composite review covering the three decisions was carried out.

In conducting this composite review, the Commissioner considered submissions from the requester, his daughter, her joint guardian and the Health Service Executive. In the course of considering Case 000128A, the Commissioner's staff had met with the minor whose records were at issue. The requester was unwilling to consent to his son being contacted by the Commissioner for the purposes of establishing his son's views on the release of his personal records to his father.

Decision

The Commissioner was satisfied that all of the records at issue disclosed, to a greater or lesser extent, the personal information of the requester's daughter and/or of his son. Therefore, the Commissioner took the view that the key exemption requiring consideration was section 28(1) of the FOI Act. On the face of it, all of the records would be exempt by reference to section 28(1) unless it were found that one of the exceptions to the application of section 28(1) were to apply. Of these exceptions, the two of most relevance were section 28(6) and section 28(5).

In the context of section 28(6) which provides for a parent having access to the personal records of a minor (and which had been the focus of the appeal to the Supreme Court), 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. As regards the application of section 28(6) to the personal records of the requester's son, the Commissioner took the view that, as she had not been able to establish the views of the son, she was not in a position to reach any conclusion on the matter. 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 Commissioner found that all of the records were exempt on the basis of section 28(1), she did not find it necessary to consider the other exemptions also relied upon by the HSE in its decisions.

Date of Decision: 29.05.2006

COMPOSITE DECISION UNDER THE FREEDOM OF INFORMATION ACTS, 1997 & 2003 IN CASE NUMBERS 99491, 020593, 030587 - NMCK AND THE HSE)

Background:

The requester, NMCK, applied to the Information Commissioner ("the Commissioner") on 6 October 1999, 14 November 2002 and 26 May 2003 for reviews of the decisions of the Health Service Executive ("the HSE" hereafter), on three requests made by him under the Freedom of Information ("FOI") Act. The three requests were identical in wording in that each was for access to: "all records, in all formats relating to myself and any members of my family system including my children, LMCK and RMCK, and my late wife DMCK." It appears that the purpose of making the two later requests was to be given access to those relevant records, held by the HSE, which had been created or acquired since the making of the earlier request. The three FOI requests were made to the HSE on 7 May 1999, 17 January 2000 and 24 January 2003, respectively.

The requester, whose wife died on [date], is the father of two children. The couple had been separated since [year] when their children were four and two years old, respectively. The children had lived with their mother until very shortly before her death. Following their mother's death, the Circuit Family Court awarded joint custody of the children to their maternal uncle and his wife, M and B. While the requester retained his guardianship and custody rights, the Court directed that the children should live with M and B. The Court also ordered, under the Guardianship of Infants Act, 1964, as amended, that M and B would share guardianship of the children with the requester. The Court also specified the access arrangements for the requester to visit with his children and ordered that those access visits would be supervised by specified persons. B died in [year] and the children have lived with M alone since then.

In its decisions on the three FOI requests at issue, the HSE granted the requester either full or partial access to 293 records from its files dealing with a number of areas of activity within the HSE - Social Work Files, Child Psychology Files and Child Psychiatry Files. The HSE refused access of any kind in the case of 297 records and withheld portions of records in the case of a further 40 records. The HSE relied on one or other (and, in some cases, a combination) of the following exemptions as the basis for the refusal of the records: section 20 (protecting the deliberations of public bodies), section 21 (protecting the functions and negotiations of public bodies), section 22 (protecting matters relating to the courts), section 23 (protecting matters relating to law enforcement and public safety), section 26 (protecting information obtained in confidence), section 28 (protecting personal information) and section 46 (which excludes certain records from the operation of the FOI Act).

As a consequence of a High Court appeal by the requester against an earlier decision of the previous Information Commissioner (Case No. 000128), and because of the similarity of the issues involved, the Commissioner's reviews of the HSE decisions were suspended until such time as the High Court would have delivered its judgment. The High Court appeal concerned the Commissioner's review of a decision taken by a Dublin Hospital to refuse the requester access to his daughter's hospital records. In a letter dated 25 March 2003, the Commissioner's Office informed the requester that, in the circumstances, the three reviews were being suspended.

On 14 January 2004, the High Court delivered its judgment on the requester's appeal in Case No. 000128. The High Court found that the Commissioner had erred in law in his interpretation of the Freedom of Information Act, 1997 (section 28(6)) Regulations (S.I. No. 47 of 1999, referred to as "the 1999 Regulations" hereafter). The Court found that the Commissioner was wrong in applying a test which required the requester to furnish "tangible evidence" that the granting of access to him of his minor daughter's hospital records would be in her best interests; it remitted the case to the Commissioner with a direction that the Commissioner grant the requester access to the records. My Office lodged an appeal to the Supreme Court against the decision of the High Court and, pending the outcome of this appeal, the present three reviews remained suspended. The Supreme Court delivered its judgment on 24 January 2006 [N.McK and The Information Commissioner (2006) IESC2]; it affirmed the judgment of the High Court on the question of the "tangible evidence" test but varied it to the extent that it remitted the case to the Commissioner "for review in accordance with the correct test and in light of all of the circumstances".

Following this Supreme Court judgment, my Office resumed its reviews in the present three cases and informed the requester of this on 16 February 2006.

It is relevant to observe at the outset that the records sought by the requester are held by the HSE arising from its involvement with the requester's children under the Child Care Act, 1991. Under the 1991 Act, the HSE has responsibilities to children who are considered to be at risk or in need of protection. The HSE's initial contact with the requester and his family, in the present context, arose from an allegation of sexual abuse of LMCK by her father, the requester. This matter was investigated by the HSE, and subsequently by a Dublin Hospital. A prosecution was not taken in the case and the Hospital's assessment was "inconclusive". There were family law proceedings between the requester and his wife and, following the death of the requester's wife, there were custody and guardianship proceedings in which the HSE had a role. By definition, then, the records at issue in this case have come into existence because of the HSE's statutory involvement with the requester's children and all of them, to a greater or lesser extent, disclose the personal information of the children.

Scope of the Review

Given that the three requests to the HSE concerned the same type of record, I am satisfied that it is appropriate to conduct one composite review of the three HSE decisions. The issue in this review is whether the HSE is justified, in accordance with the provisions of the FOI Act, in its decisions to refuse the requester access of any kind to some 297 records and to withhold access in the case of portions of a further 40 records.

At the time of its decisions, the HSE provided the requester with schedules describing the records at issue and identifying those records to which access was being granted, refused or part refused. For the purposes of this decision, I am happy to rely on these schedules. Accompanying my decision is a Schedule, derived from those produced by the HSE, which identifies and describes the records at issue in this composite review.

Process of the Review

The judgment of the Supreme Court in the related case (No. 000128) has had a direct bearing on the manner in which I conducted the present review. Therefore, it is relevant to set out the nature of the appeal to the High Court, and subsequently to the Supreme Court, as well as the pertinent points in the eventual judgment of the Supreme Court. It is also relevant to note that these reviews, involving HSE records, were conducted at the same time as were two other reviews sought by the same requester: (a) the new review required by the Supreme Court in relation to LMCK's hospital records (Case No. 000128A) and (b) my review of the FOI decision of a Dublin Hospital involving records of the children, their late mother and of the wider family (Case No. 000137). These latter reviews have now been completed.

The appeals to the Courts focused on the application of section 28(6) of the FOI Act to the hospital records of the requester's daughter. In brief, section 28(6) makes provision for the release, in certain circumstances, of the personal information of a minor to a parent or guardian of that minor. The key element in this, provided for in regulations made under section 28(6) - the 1999 Regulations - is that the decision maker must form the view that release of the minor's personal information would be in the minor's best interests. (This provision is dealt with in some detail later in this decision.) The Supreme Court affirmed the High Court's judgment that section 28(6) of the FOI Act should be interpreted in the light of the Constitution (particularly Article 41) and that, as a parent, the requester enjoys a fundamental presumption that his actions are in the best interests of his child. The Supreme Court found that the Commissioner had erred in requiring the requester to show, by way of tangible evidence, that release of the records would be in his daughter's best interests. It held that the Commissioner should have acknowledged the presumed entitlement of the requester and then proceeded to consider any evidence which suggested that release of the records to him would be contrary to the best interests of his daughter. The Supreme Court noted, in the context of considering evidence that release of her records might not serve her interests, that LMCK is now in her 18th year and that "her wishes now are most relevant". Furthermore, the Supreme Court noted that the "circumstances may be such that the presumption [in favour of release of the records to her father] may be rebutted" and that "... in considering the circumstances, her welfare is paramount".

While the present reviews are concerned also with the records of RMCK and the late DMCK, I am taking particular account of the impending majority of LMCK so as to conclude these reviews before she reaches 18 years.

Because of the need to conduct three separate reviews (counting this composite review as one) within a relatively short time period, and because each of the reviews involved the requester's right of access to his children's personal records, there has inevitably been a degree of overlap in the conduct of the three reviews. In many instances, communications from the requester were stated to relate to all three reviews. The same has been true in the case of some communications from my Office to the requester including the provision to him of the details of the submissions made by his daughter and by his co-guardian, M.

Furthermore, in the course of the three reviews, the requester raised a series of issues relating to FOI in a general way. Many of these were dealt with by way of written reply in the course of one or other of the reviews. Some are dealt with in the body of this decision and/or have been dealt with already in the course of the decisions given in Cases No. 000128A and 000137.

Contacts with the Requester

By letter dated 16 February 2006, my Office informed the requester that my reviews of the HSE decisions were being resumed following the judgment of the Supreme Court on 24 January 2006. The requester was also told that it was open to him to provide his views, in relation to the matter for decision by me, at that time or, should he so choose, following consideration by him of the preliminary views of the investigator involved (which would issue "within the next month or so".)

By letter dated 2 March 2006, my Office further clarified for the requester that the principles laid down by the Supreme Court, in relation to his daughter's medical records, would be taken into account for the purposes of these reviews. This included the requirement to establish, and have regard to, the views of his daughter regarding his having access to her personal information. The requester was also informed that, while the Supreme Court judgment concerned only the medical records of LMCK, I was taking the view that his son RMCK, who will be 16 years of age on [date], should also be afforded the opportunity to make his views, attitude and wishes in relation to his records known to me. The requester was informed that, given the proximity of LMCK's 18th birthday and the fact that both children will be sitting State examinations this year, the invitations to them to furnish their views to the Commissioner would issue in the near future.

In the course of further correspondence on the question of inviting RMCK to make his views known, the requester made it clear that he did not want his son involved in the process. On 6 April 2006, my Office informed the requester by way of an email message that, in the event of his not agreeing to my Office contacting his son for the purposes of the review "then the Commissioner will not be in a position to reach a decision on records relating to RMCK."

The requester replied later that same day (6 April 2006) to confirm the position he was taking. He stated that to involve RMCK "in this dispute, and make no mistake this is a dispute" would be to "put him in the invidious position of been (sic) used as a pawn in these proceedings". The requester stated that he would "pursue any one ... who attempts to involve RMCK in these proceedings". On 10 April 2006, my Office informed the requester that we would abide by his wishes in relation to RMCK. Subsequently, in a letter of 3 May 2006, my Office advised the requester of the consequences of his prohibiting contact with RMCK, namely, that the Commissioner would not be able to reach any conclusion on whether access should be granted to RMCK's records on the basis of section 28(6) of the FOI Act.

On 3 May 2006, Ms. Marie O'Brien of my Office (the Investigator dealing directly with the HSE reviews) sent the requester a detailed letter setting out her preliminary views on the case. It is often the practice in reviews that the relevant investigator will send such a preliminary views letter to the requester and to invite a response. While the preliminary views of the investigator are not binding, and may be accepted or rejected by the Commissioner, the procedure is useful in that it serves to identify the issues, summarise the arguments being made by the various parties and puts forward a proposed outcome for consideration by the Commissioner. From the point of view of the parties concerned (the requester, the public body and, in this case, other third parties) the preliminary views letter provides an opportunity to provide a final, focused response on the issues arising. Ms. O'Brien's preliminary conclusion was that the decisions of the HSE should be affirmed. Ms. O'Brien referred specifically to the views of his daughter, as ascertained by my Office. Ms. O'Brien concluded, in all the circumstances, that the weight to be given to these views was sufficient to rebut the presumption that disclosure of LMCK's records to her father (the requester) would serve her best interests. The requester was invited to respond, should he wish, by 12 May 2006. In the event, my Office received no response from the requester.

Contacts with other Parties

On 2 March 2006 my Office wrote to M in her capacity as co-guardian of the children. The purpose of the letter was to inform her of the Supreme Court judgment and that, as a consequence of that judgment, I was in a position to resume my consideration of the three HSE decisions to refuse access to the records sought by the requester. M was informed that she could state her views on the question of the requester's access to the HSE records of the children. It was made clear to her that the views she had already given to my Office, in the context of the separate review in Case No. 000128A, related only to the question of whether the requester should have access to his daughter's hospital records from January 2000. M had attended at my Office on 20 February 2006 for the purpose of giving those views.

In our letter of 2 March 2006 to M, we brought to her attention that, unlike LMCK, RMCK had not had any direct contact with my Office and that it would, in due course, be necessary to invite his views with regard to those HSE records which relate to him. In an email dated 26 March 2006, M set out her views and asked that her previous submissions, in relation to Case 000128A, be taken into account in this case. Details of M's submissions on these particular reviews are summarised later in this decision.

In view of her age and of the Supreme Court's observation that her views now are "very relevant", my Office wrote directly to the requester's daughter on 2 March 2006 and invited her, should she so wish, to state her views on the matter of the requester's having access to her HSE records. My Office informed her that, as she had already provided her views recently in connection with Case No. 000128A that it might be that she would also wish to have those same views taken into account for the purposes of these three reviews. She was asked to make her position in the matter known to me. On 26 March 2006, LMCK 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. The details of LMCK's submissions are summarised later in this decision.

In the ordinary course, having regard to his age and to the principles set down by the Supreme Court, my Office would have sought to establish the views of the requester's son, RMCK, on the issue of the requester having access to his (RMCK's) HSE records. In fact, RMCK sent an unsolicited email to my Office on 26 March 2006 in which he set out certain views on this matter. It would have been my intention that RMCK would be invited to meet with my staff - as happened in the case of his sister - in order to ascertain his views as fully as possible. However, given the requester's expressed opposition to such a course of action, I did not feel able to proceed with the exercise to establish the views of RMCK. On 10 April 2006, my Office wrote to the requester to inform him of our having received an email message from RMCK and to clarify for him that, in accordance with the requester's express wishes, we would not proceed with the intended meeting with RMCK. It is important to make it clear that, for the purposes of this decision, I have not had any regard to the content of the unsolicited email received from the requester's son.

On 9 February 2006, my Office wrote to the HSE to say that my review in the three HSE cases was now being resumed following the judgment of the Supreme Court on 24 January 2006. My Office provided the HSE with a copy of the Supreme Court judgment and invited it to make a submission in support of its decision to refuse the records at issue in these reviews. On 6 April 2006, the HSE made a detailed submission in support of its decisions.

Submissions

While only the main points of the various submissions received are set out below, I wish to make it clear that I have considered very carefully all of the submissions received. The results of that consideration are contained in the "Findings" section of my decision.

The Requester

The requester has asked that submissions he has made in relation to Cases No. 000128A and 000137 would be taken into account for the purposes of the present reviews involving the HSE records.

To a very large extent, the requester's submissions focus on the question of his right to access the records of his daughter. 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 (in Case No. 000128) be treated as part of his submissions. To this end, in addition to the submissions detailed further below, I have considered the following:

• the requester's initial requests to the HSE dated 7 May 1999, 17 January 2000 and 24 January 2003 respectively as well as his related internal review applications;
• the requester's applications for review to my Office dated 6 October 1999, 14 November 2002 and 26 May 2003;
• 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 Cases No. 99492, 000007 and 000128 on which decisions were given by my Office in 2002 and Cases No. 000128A and 000137 on which my decisions issued on 28 April 2006 and 19 May 2006, respectively.

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 his daughter'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 LMCK'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, along with himself, 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.

The requester also made a number of earlier submissions to my Office which related directly to the reviews of the individual decisions of the HSE, i.e. letters of 29 October 2002, 24 January 2003, 19 March 2003 and 27 February 2004. Since the requester was advised on 16 February 2006 that my review of the HSE decisions was being resumed, he has made a number of further submissions. These are:

• Letters of 16 March 2006 and 23 March 2006 and 6 April 2006 to Marie O'Brien, Investigator
• Letter dated 24 March 2006 and joint email to Marie O'Brien, Investigator and Elizabeth Dolan, Investigator.

In his submission dated 16 March 2006, the requester asked to be provided with the "set of ground rules that you apply to what YOU consider to be 3rd party personal information" and he mentioned that he had asked for this information before. He attached copies of his submissions dated 24 January 2003 and 19 March 2003 in this regard. He queried, in particular, whether references to third parties could be inserted into records for the intended purpose of rendering records exempt as being the personal information of other persons.

I note in particular that, whereas the requester was sent details of the submission made by his daughter, and indicated that he would be replying to this submission, he has not made any submission dealing directly with the views and wishes of his daughter.

LMCK

In the course of my review in the related Case No. 000128A, (dealing with the requester’s right of access to his daughter's hospital records) LMCK made an oral submission to my Office. This submission was sought by my Office in the light of the principles laid down by the Supreme Court in its judgment of 24 January 2006. For the purposes of the present reviews involving the HSE records, LMCK asked (in her email of 26 March 2006) that I would have regard to the submission already made by her in Case No. 000128A. The details of this submission are summarised immediately below.

In her oral submission to my Office, LMCK 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. LMCK 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 LMCK, 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 LMCK's view, her father's 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.

LMCK 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 a Dublin Hospital in January 2000 (the period covered by the records at issue in Case 000128 and in N.McK. and the Information Commissioner). In LMCK'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 a Dublin Hospital) in the newspaper, LMCK 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, LMCK said "thinking that he might get my personal information makes me physically sick." She referred also to the records of her contacts with the HSE and said that these contacts were confidential and that she had been given promises

to this effect by two named staff (a Social Worker and a Psychologist) of the HSE. Finally in her email submission of 26 March 2006, LMCK concludes by stating: "I want to express in the strongest way possible that I will never ever give my consent to my ‘father’ getting access to information about me."

M

M, in her capacity as co-guardian, had made a detailed oral submission to my Office in connection with my review in Case No. 000128A. While making a number of additional points specific to these reviews, involving the HSE records, M asked that her previous submission be taken into account for the purposes of this present decision. The details of her oral submission are set out immediately below.

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 LMCK. 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 LMCK's Leaving Certificate examinations. She said that LMCK 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 LMCK in relation to the FOI review until after her Leaving Certificate.

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

M set out some of the family background and sequence of events. She said that NMCK and DMCK had lived apart since [year] and that DMCK had got a barring order against her husband on [date]. According to M, DMCK had had sole custody of the two children. Just before DMCK died in [year], NMCK 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 HSE went to visit DMCK in hospital as the Board was to look after the children's interests. M said that DMCK told the social worker "to fight for her children and protect them from their father." When DMCK 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 above, the requester disputes this interpretation].

M said that LMCK 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. NMCK's access to his daughter since she was four years old has been supervised. In LMCK's mind, he is "always there to torment her".

An unsupervised access visit by NMCK, when LMCK was in hospital in 2000, was referred to by M. She said that NMCK 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 LMCK felt a lack of safety and security with male figures.

M described LMCK as articulate and being able to see things clearly. She said that LMCK 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 NMCK had caused disappointment and uncertainty for LMCK which, according to M, had been very upsetting.

M stated that LMCK 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 LMCK went on access visits because she did not want to be accused of alienating LMCK from her father. However, M said that since LMCK turned 16, she (M) is respecting her wishes not to go on access visits.

M referred to her view that NMCK caused stress and uncertainty for LMCK over the issue of which school she would attend. M said she felt that at that time LMCK 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 NMCK 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 LMCK's best interests and would affect her schooling in this very important year. According to M, LMCK 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 LMCK's views absolutely. She said that LMCK's views are well grounded; her experiences in relation to her father have been negative and controlling.

In relation to the specific HSE records at issue in these reviews, M makes the point that the children had no say in the decision to have them assessed by the HSE whereas this was something to which their father gave his consent; she argues that he would have known that the children's dealings with the HSE were confidential and that "it is too late to change the rules when the process is over". She argues that any breach of this confidentiality now will cause the children "to lose trust in the people they believed were there to protect them after their mother's death". Finally, M argues that, while parents have "special rights" in relation to their children, the exercise of these rights should not be to the detriment of the children.

Health Service Executive (HSE)

The HSE's position is that the records already released to the requester represent as full a disclosure as is possible, consistent with the provisions of the FOI Act.

The HSE's submission is stated to be made in the light of the Supreme Court judgment which ruled that the primary position is that a presumption exists that the release of the medical information in question (in the circumstances of the case before the Court) would serve the best interests of the minor. That presumption could be affected by evidence to show that it would not be in the minor's best interests that the parent should be furnished with such information. The HSE seeks to draw a distinction between the issue which has been before the Supreme Court - access to hospital records - and access to health service records which is the issue in this composite review. The health service records include, for example, Social Work files and Clinical Psychology files. The HSE contends that the information contained in the records which are the subject of this composite review are not medical in nature; rather they are records containing social/therapeutic, personal and other sensitive information. The HSE points out that the hospital records, which were the subject of the case before the Supreme Court, covered a four day period in January 2000 while the health service records at issue here cover a period of eight years during which the HSE carried out its statutory role under the Child Care Act, 1991 in relation to the two children.

The HSE points out that the earliest of the records at issue were created in 1992 when the children were four and two years old respectively. It argues that all the information provided by the children between 1992 and 24 January 2003 (date of latest of the three FOI requests being dealt with in this review) was given in a climate of confidentiality and in the context of trusting relationships with various members of HSE staff. The HSE pointed out that these relationships were developed over a number of years and at a time in the early childhood of the requester's children when they were very vulnerable.

The HSE contends that release of the withheld records to the requester would prejudice the therapeutic and trusting relationships developed over the years. It points out that RMCK has some time to go before he reaches his majority and that the HSE must be in a position to continue to work with him, as may be necessary, during that time.

The HSE concludes its submission with the argument that section 28(1) of the FOI Act applies to the information in all the withheld records by virtue of the fact that they contain the personal information of persons other than the requester.

Findings

Preliminary Matters

It is appropriate to dispose of one particular issue before directly addressing the application of the FOI Act to the groups of records withheld.

Contacts with the Children

In his most recent letter, dated 6 April 2006, the requester has reiterated his view that involving his children in this matter was "abusive" and had impacted negatively on his relationship with them "contrary to natural, moral and constitutional law". This comment resulted from advice to the requester (a) that the position of his daughter, as expressed for purposes of Case No. 000128A, would be taken into account in this composite review and (b) that my Office believed it was necessary to seek to ascertain the views of his son, with regard to those records which relate to him.

The position is that, as a consequence of the Supreme Court judgment of 24 January 2006, I am satisfied that I could not make any decision on the requester's right of access to his daughter's records without first having ascertained her views and wishes. Therefore, LMCK's views are being taken into account in this composite review and LMCK has expressly indicated to my Office that she wishes this to be the case. The fact that LMCK's views are being taken into account does not necessarily imply that those views are a determining or disproportionate factor, either way, in my reaching a decision in this case.

It is necessary to explain the circumstances in which I have obtained the views of LMCK while not obtaining the views of RMCK. I take the view that, in the case of minors, it would be very undesirable to involve them in a legal process (such as the present review) without having obtained the consent of their parents or guardians. In the course of my review in Case No. 000128A - the review directed by the Supreme Court - my Office informed both guardians of our intention to seek the views of LMCK. M consented to this being done. In the case of the requester, my Office notified him that it was our intention to meet with LMCK on a specified date; in the absence of any objection from the requester, this meeting went ahead. Having obtained LMCK's views in that particular case, and in circumstances where she informed my Office that she wished these views to be taken into account also in the other reviews (including the present composite review), I proceeded on the basis that her views were before me validly and that they should be taken into account for the purposes of this present review. I am strengthened in this approach by the very clear statement of the Supreme Court that LMCK's "wishes are now most relevant"; if they should be taken into account in Case No. 000128A, then I am satisfied that they should be taken into account in the present case also.

The position in the case of RMCK is quite different. While M consented to RMCK being contacted by my Office, the requester conveyed very clearly that he was not consenting to such contact. In the absence of this consent, and in a context in which the Supreme Court had not considered and drawn any conclusions in relation to RMCK, I felt unable to proceed with my intention to invite RMCK to express his views and wishes. I have already made it clear that, while RMCK sent my Office unsolicited views, these views have not been taken into account for the purposes of this review. My Office made it clear to the requester that our inability to ascertain the views of RMCK would be likely to have consequences for the review. In fact, and as dealt with later in this decision, my inability to establish the views of RMCK - who is almost 16 years old - has placed me in the position that I feel unable to make any decision as to the requester's right of access to RMCK's records.

I am acutely aware that the timing of these reviews is coinciding with the lead-up to State examinations for both children. This would have been avoided if it had been at all possible. However, given that LMCK will cease to be a minor from [date], and given the relevance of this to the requester's potential right of access as the parent of a minor, it is important that a decision on the composite review should issue before [date].

Findings

The HSE, in refusing access to 297 records in full and to 40 records in part, has relied on a number of different exemptions in the FOI Act. In the case of individual records, it has relied on more than one exemption in many cases. The Schedule accompanying this decision identifies each of the records at issue as well as the specific exemption or exemptions being relied on by the HSE as the basis for its refusal of access. For the purposes of this review, it will be sufficient if any one of the exemptions claimed by the HSE, in the case of a specific record, is found to apply. In this event, it will not be necessary to consider the application of all of the individual exemptions claimed.

As is the case with the two other related reviews (Cases No. 000128A and 000137) decided recently, I take the view that the key exemption at issue in this decision is that at section 28(1) of the FOI Act.

Section 28 - Personal Information

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

"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 ....".

In the present context, and given the requester's experience of having received decisions on two related reviews in recent times, I feel it is not necessary to deal again with the definition of "personal information" as set out in the FOI Act.

Having examined the records at issue in this review, I am satisfied that each of them discloses, to a greater or lesser extent, the personal information of the requester's daughter and/or of his son. Two of the records (Nos. 76 and 87 on the Child Psychology file) disclose the personal information of RMCK only. However, all of the other records disclose the personal information of LMCK on her own or of LMCK and RMCK together. Some of the records, in addition to disclosing the personal information of LMCK and RMCK, disclose also the personal information of other parties; such parties include the requester, his late wife as well as some other members of the requester's own family. In some instances the personal information within a record may, on the face of it, appear to be primarily about a party other than one of the children; but in all such instances the record also discloses the personal information of one or other or both of the children. As explained in some detail below, it is not possible to edit any of these records with a view to producing an extract whose content would not disclose the personal information of one or other or both of the children. These records were created or acquired by the HSE solely because of its statutory involvement with the children. To the extent that other parties feature in these records, it is true to say that the personal information of such parties is held by the HSE solely because of its involvement with the children. It may be argued that it should be possible to release extracts from records containing what is, ostensibly, information solely about another party. However, any such extracts would by definition be extracts from records held on the HSE's files on the children and would, again by definition, relate to the children. There are references to certain members of the requester's own family but these arise in the context of, for example, the supervision of the requester's access meetings with his children. In addition, having examined records in this case, I am satisfied that extracts which might be regarded as relating solely to the requester or to third parties other than his children or late wife, 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.

I find, as a matter of fact, that to release any of the withheld records would be to disclose the personal information of LMCK and/or of RMCK. On the face of it, therefore, all of the records are exempt on the basis of section 28(1) of the FOI Act unless one or other of the exceptions to section 28(1) - contained within section 28 - applies.

Exceptions to the section 28(1) Exemption

Section 28 contains within it a number of exceptions to the general protection afforded to personal information. Of these, two are of particular relevance in the present context, i.e. section 28(6) and section 28(5).

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 ..."

The Minister for Finance has made relevant regulations in the form of the 1999 Regulations, article 3(1) of which 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 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 their best interests, or ...".

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

I have already found that, with the possible exception of two records which relate solely to her brother, RMCK, all of the records at issue disclose the personal information of LMCK or the joint personal information of LMCK and her brother.

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. For present purposes, while I accept the HSE argument that the records at issue here are not strictly "medical records", I am not at all certain that it is reasonable to confine the principles set out in the Supreme Court judgment to records of a minor which are strictly "medical". Rather, I take the view that it is reasonable to apply these Supreme Court principles to the type of record at issue in the present case. Given that the records as a whole were created in the context of the HSE'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 (and related) information about his daughter.

It is clear from the Supreme Court's decision that it is very relevant that LMCK 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 records, the wishes, attitude and views of LMCK herself require careful and detailed consideration.

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

Arising from the submissions of LMCK 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:

• LMCK 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 LMCK 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 LMCK 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 LMCK'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 LMCK feels in relation to the release of her personal records to her father corresponds with LMCK'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 LMCK'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 No. 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. Given my acceptance that the Supreme Court's principles should not necessarily be confined to "medical records", I take the view also that the relevance of the Non-Fatal Offences Against the Person Act, in the present context, is capable of extending to records of the type at issue in these reviews. I consider that section 23(1) of the Non-Fatal Offences Against the Person Act, 1997 supports the importance attaching to LMCK's views and gives some indication of the weight which I must give to what she has decided is in her best interests.

In assessing the views of LMCK and the circumstances as described above, I must bear in mind the findings of the courts that LMCK's objections to the release of the records, even when supported by the views of M and the HSE, 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 LMCK'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".

Having considered the matter carefully, I am satisfied, based on the facts established and listed above, that the evidence given by LMCK (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 LMCK'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 the particular records at issue has caused, and is continuing to cause, her great stress and anxiety. Given that LMCK'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 LMCK'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.

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. The issue here is whether the personal information of the children should be released to their father in the public interest. 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. Essentially, the situation in this regard is the same as in the other two related reviews (Cases No. 000128A and 000137) which I completed recently.

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 children;
• 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 LMCK's views as described above must also be given very serious consideration in weighing up the relative strengths of these opposing public interests. In the case of RMCK (only two of whose records are "stand alone" records), I take it that there is a public interest in hearing the views of a minor, almost 16 years of age. The requester's refusal of consent has resulted in my being unable to ascertain his son's views and wishes. Nevertheless, the public interest in recognising the validity of such views of a minor remains and, in the circumstances, I take the view that release of RMCK's records, in the absence of ascertaining his views, would not be in the public interest.

While 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 predecessor'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 - 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 child protection agency 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 HSE in relation to his family. 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 HSE's acts and decisions affecting him. The HSE has already released to the requester a substantial number of records; many more have been available to him, or his lawyers, in the course of various family law and custody/guardianship proceedings. I am satisfied that the requester has already been given substantial information regarding the dealings of the HSE with his family and that it is not necessary to provide access to the withheld records in order to have a reasonable grasp of the HSE's involvement with his family.

Having considered the matter carefully, I consider that the public interest in preserving the privacy of the individuals 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.

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" (the requester's children, 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 their personal information as it appears in these records would result in the children having increased contact with their 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 - Summary of Findings

The following is a summary of my findings under section 28(1):

1. All of the records disclose the personal information of LMCK and/or of RMCK.

2. The release of any of the records, or of any version of a record, would be to release the personal information of one or other or both of the children.

3. These records are exempt by virtue of section 28(1) of the FOI Act.

4. None of the exceptions to the section 28(1) exemption applies in relation to these records.

5. In the case of the two records solely about RMCK, I am unable to come to any conclusion as to whether the requester has a right of access under section 28(6) and the 1999 Regulations. However, I find that none of the other exceptions to the section 28(1) exemption applies in relation to these records.

Section 22(1) - Court Matters

Given my finding that all of the records are exempt by virtue of section 28(1), it is not strictly necessary to consider the applicability of the other exemptions relied upon by the Health Service Executive. However, if it were necessary to do so, I would find that the HSE's reliance on section 22(1)(a) and (b) in the case of certain records is warranted. The records to which the section 22 exemption would apply are those identified in the Schedule accompanying this decision.

Section 22(1)(a) provides:

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

(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court"

This exemption is a mandatory one and, unlike many of the exemptions in the FOI Act, is not subject to a public interest override. Legal professional privilege and contempt of court arising from a breach of the in camera rule have been dealt with in considerable detail in my recent decision in Case No. 000137. Accordingly, I do not believe it is necessary to deal with these matters again in any detail in this present composite decision.

Decision

Having completed my review under section 34(2) of the FOI Act, as amended, I have decided to affirm the decisions reached by the HSE not to grant access to the records for the reasons outlined above. I make no decision in the case of the two records identified as disclosing solely the personal information of the requester's son, RMCK.

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Any such appeal must be initiated not later than eight weeks from the date of this decision.

Emily O'Reilly

Information Commissioner

29 May 2006