Case 000078. Request for access to records concerning requester's son (a minor) - whether release of joint personal information concerning the requester, his son and his son's mother was warranted in the public interest - section 28(5)(a) - whether release of the records to the requester was in the best interests of his son i.e. whether a right of access arose under the regulations provided for at section 28(6) of the FOI Act.

Case Summary

Facts

The requester sought access to a number of records concerning appointments between his son and a clinician in the Brothers of Charity. (The requester was present at some but not all of these appointments.) The Brothers of Charity refused access to the records on the grounds of section 28(1) of the FOI Act in that release of the information would disclose personal information about a person other than the requester. The records contained information about the requester's son alone; information about his son closely intertwined with personal information about his son's mother; and personal information relating to the requester intertwined with personal information about his son.

In relation to some of the records, the Commissioner identified a number of public interest factors in support of their release, as well as a number which favoured withholding them. He found, on balance, that the public interest factors favouring release of the records were not sufficient to outweigh those in favour of withholding the records and concluded that no right of access arose under section 28(5)(a) of the FOI Act.

The regulations made under section 28(6) provide that a request for records relating to personal information about a minor may be granted, where the requester is the minor's parent or guardian and where, having regard to all the circumstances, to release the records to the parent/guardian would be in the minor's best interests. The Commissioner commented that these regulations do not provide a basis for releasing records, or parts of records, which contain personal information relating both to a minor and a third party (joint personal information) except where the third party is the requester. He noted that they did not authorise the release to the requester of joint personal information relating to his son and his son's mother but that they did have the potential to authorise the release to the requester of information relating solely to his son or relating jointly to his son and himself.

The Commissioner commented that, although the requester was the father and joint guardian of his son and that evidently the first requirement of the regulations was met, it would be necessary for him to be satisfied that access to records relating solely to the requester's son, or jointly to the requester and his son, would serve his son's best interests.

The Brothers of Charity contended that release of the records would have a detrimental effect on the trusting relationship between the clinician and the requester's son, especially in relation to those records relating to meetings at which the requester was not present. They were concerned that release would undermine the confidential relationship which they believed must exist, if their professional involvement with the requester's son was to be successful. The requester made the point that he doubted if a child of ten years may have spoken in confidence to the clinician. However, the Commissioner accepted that the requester's son spoke to the clinician in confidence and that it was important that the confidential nature of that relationship be protected.

Furthermore, the Commissioner noted that the minor's mother had said she would not continue to provide to the Brothers of Charity any information concerning herself or her son, in the event that these records were released to the requester. He commented that this would not be in the bests interests of the requesters son. The Commissioner went onto say that where there is conflict between the parents of a minor as to how the minor's best interests are to be served, he will generally need strong supporting evidence before departing from the position adopted by any professionals involved in the welfare of that minor. He continued that this was not to say that the professionals have a monopoly of wisdom in the matter and that their position cannot be rejected but that he accepted that the position adopted by the professionals, acting in good faith, should not be disturbed except in the light of strong supporting evidence. The Commissioner found that no such evidence had been put before him in this case and he found that access to the records in question was not authorised by reference to section 28(6) of the FOI Act.

Date of Decision: 04.09.2001

Our Reference: 000078

04.09.2001

Mr X

Dear Mr X,

I refer to your application under the Freedom of Information (FOI) Act for a review of the decision of the Brothers of Charity, Southern Services, concerning access to records relating to your son, Y. I apologise for the delay in dealing with this case. I note that you have a separate review application (Reference 000417) open involving the Southern Health Board and I expect to issue a decision in that case in the near future.

Background

Your request was made originally to the Southern Health Board which transferred it to the Brothers of Charity (as the public body actually holding the records sought) on 5 October 1999.

I have now completed my review of the decision of the Brothers of Charity. In carrying out this review, I have had regard to the submissions which you made to this Office as well as to the submissions of the Brothers of Charity. I have also examined the records to which you were refused access. I note that Ms. Doyle, Investigator, wrote to you on 21 June 2001 to inform you of her preliminary observations on your case and I am taking account, in arriving at my decision, of the points you made in your reply of 9 July 2001. I note that in writing to you Ms. Doyle sent you copies of the relevant sections of the FOI Act and so, for the purposes of this decision, I shall assume some familiarity with these sections of the Act.

Scope of Review

My review is concerned solely with the question of whether the decision to refuse you access to the records detailed below is in accordance with the provisions of the FOI Act. There are five records at issue and all were created by Dr. Julie Kennelly. The records are as follows:

Record 1 - dated 25/02/99
Record 2 - dated 02/03/99
Record 3 - undated but refers to an appointment on 12/03/99
Record 4 - dated 05/07/99
Record 5 - undated but refers to an appointment on 31/08/99

In her letter of 21 June Ms. Doyle explained that a sixth record, dated 11 October 1999, does not come within the scope of your request as it post-dated your FOI request. This record is excluded from the scope of my review.

Findings

The Brothers of Charity relied on section 28(1) of the Act in refusing access to the records requested by you. In the initial decision the Brothers also relied on section 26(1)(a) but this was not relied upon in the internal review decision of 27 January 2000.

In her letter of 21 June, Ms. Doyle outlined her preliminary observation that the exemption provided for in section 28(1) of the FOI Act applies to the records in question. I agree with this opinion insofar as it relates to records 1, 2 and 3 detailed above which I will discuss separately from the other two records.

Records 1, 2 and 3

These three records concern appointments with Y at which you were not present. I must stress here that it is not my role to comment on whether it was correct to have proceeded with these appointments in your absence. The fact is you were not present for these appointments and the records relating to them comprise personal information relating to Y alone (record 2) and, in the case of records 1 and 3, personal information relating to both Y and his mother. My only role is to decide whether the records of the appointments may be released to you in accordance with the terms of the FOI Act.

Section 28(1) provides a strong protection for personal information and where a record consists of personal information relating to a person other than the requester, then that record is prima facie exempt from disclosure in accordance with the terms of section 28(1), subject to the terms of section 28(2), section 28(5) and section 28(6), which I discuss below.

I am satisfied that, given their context and content, records 1, 2 and 3 do not contain information which is personal information relating solely to you. However, records 1 and 3 each contain one sentence which could be considered to comprise personal information relating to both you and your son. In my view, this is joint personal information. Records 1 and 3 also contain joint personal information relating to Y and his mother as well as information relating solely to Y.

The approach to be adopted in relation to the disclosure of records containing joint personal information are set out in Regulations made under section 28 of the FOI Act. Paragraph 3 of these Regulations - the Freedom of Information Act, 1997 (Section 28(1)) (Amendment) Regulations, 1998 (SI No. 521 of 1998) - provides as follows:

"3. Notwithstanding the provisions of section 28(2)(a), for the purposes of section 28(1) a head shall, subject to the provisions of sections 28(2)(b) to (e), 28(5) and 28(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 disclosure of personal information relating to the requester, also involve disclosure of personal information relating to an individual or individuals other than the requester. "

The effect of these Regulations is that a record containing joint personal information cannot be released to one of the individuals to whom it relates unless one of the other relevant provisions of section 28 apply, i.e. 28(2)(b) to (e), 28(5) or 28(6). These other provisions of section 28 must also be considered in relation to the release of personal information relating solely to individuals other than the requester and must therefore be considered in relation to all the records within the scope of this review.

In my opinion, the exceptions in section 28(2) do not arise and no case has been made that they do arise. However the question of whether the provisions of either section 28(5) or 28(6) apply does require to be considered.

Section 28(5)

Section 28(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. Thus, in order that you may obtain access to the withheld records it is necessary to identify a positive public interest which outweighs the privacy rights of the third parties concerned.

I consider the following public interest factors, in favour of the release of the records, arise in this case:

the public interest in parents being able to exercise guardianship rights in relation to their children, which would include access to records relating to their 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.

In considering the public interest factors which favour the withholding the records I have taken the following into account:

the public interest in protecting the right to privacy of members of the public
the public interest in members of the public being able to communicate in confidence with public bodies, particularly in relation to issues involving the welfare of children.

I note that a great deal of information has been released to you already by the Board. In my view this weakens somewhat the public interest in granting access to the withheld records particularly as, having examined these records, their non-disclosure does not appear to me to be to your detriment. On balance, and taking account of all the circumstances of this case, I am not persuaded that the public interest considerations favouring release of the records are sufficient to outweigh the public interest considerations (as described above) which favour the withholding of the records.. Accordingly, I am not satisfied that section 28(5) provides a basis for releasing records 1, 2 and 3 to you.

Section 28(6)

Regulations made under section 28(6) provide that a request for records relating to personal information about a minor may be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances, to release the records to the parent/guardian would be in the minor's best interests. These Regulations do not provide a basis for releasing records, or parts of records, which contain personal information relating both to a minor and a third party (joint personal information) except where the third party is the requester. In other words, and in relation to the present case, these Regulations cannot authorise the release of joint personal information which relates to Y and his mother. The Regulations, however, have the potential to authorise the release to you of material containing personal information relating solely to Y or relating jointly to Y and to yourself.

As you are the father and joint guardian of Y, it is clear that you satisfy the first of the two requirements set out immediately above. Accordingly, the question to be addressed is whether release to you of material containing personal information relating solely to Y, or relating jointly to Y and to yourself, would be in Y's best interests. You have pointed to difficulties in interpreting the phrase "best interests" and I accept that such difficulties do exist. However, for access to records 1, 2 and 3 to be granted under these Regulations it is necessary for me to be satisfied that such access would, in fact, serve the best interests of your son.

As I understand it, the position of the Brothers of Charity professionals is that release of the records will not serve the best interests of Y. As you know, the Brothers take the view that Y spoke to Dr. Kennelly in confidence and have submitted that release of the records would have a detrimental effect on the trusting relationship between the clinician and himself, particularly in the case of records relating to meetings at which you were not present. (Meetings at which you were present are another matter, with which I deal below in relation to records 4 and 5). They are concerned that such release would undermine the confidential relationship which, they believe, must exist if their professional involvement with Y is to be successful. You make the point that you doubt whether a child of ten years may speak in confidence with a stranger i.e. the clinician in this case. I find that I disagree with you on this point. I accept that your son spoke to Dr. Kennelly in confidence and I also accept that it is important that the confidential nature of a patient/clinician relationship be protected.

I note that Y's mother is opposed to the release of any of the records. Whereas it appears she is primarily concerned that information given by her in relation to herself and/or in relation to Y should not be released, it appears she is also opposed to the release of records relating solely to Y. She claims she understood that any information given by her was being given in confidence and has suggested that she will not be able to continue to provide any information in relation to herself or to Y in the event that records are released to you. Clearly, it would not be in Y's best interests were his mother to cease to co-operate with the Brothers of Charity in their therapeutic involvement with Y.

In a case such as this, where there is conflict between the parents of a minor as to how his best interests are to be served, I will generally need strong supporting evidence before departing from the position adopted by any professionals involved in the welfare of that minor. This is not to say that the professionals have a monopoly of wisdom in the matter and that their position cannot be rejected. However, I do accept that the position adopted by the professionals, acting in good faith, should not be disturbed except in the light of strong supporting evidence. In this particular case there is no such evidence that release of the records would be in Y's best interests and, accordingly, I find that release of the records would not serve his best interests. On this basis, I find that access to records 1, 2 and 3 is not authorised by reference to section 28(6) of the FOI Act.

***

In summary, my finding in relation to records 1, 2 and 3 is that they are exempt records on the basis that section 28(1) applies to them. In the light of this finding, it is not necessary to consider whether these records are also exempt by reference to section 26.

Records 4 and 5

Records 4 and 5 relate to appointments which you attended and they contain personal information relating to Y, his mother and to yourself. In weighing up the various public interest factors in the release of these particular records, I take the view that the degree of invasion of privacy of the other individuals involved (your son and his mother) is considerably less than in the case of records 1, 2 and 3.

The appointment dealt with in record 4 took place on 18 June 1999 in your presence and therefore you are, or ought to be, already aware of the information contained in the record. Anything said by the other participants at the meeting was said in the knowledge that you were present. There is a public interest in a participant at a meeting with a public body knowing that the public body accurately recorded the meeting. I consider, therefore, that you should be given access to record 4, with the exception of two sentences which contain personal information relating to Y. These two sentences record information conveyed by Y to Dr. Kennelly at some point in the past, that is, not at the appointment of 18 June 1999. I consider that the arguments outlined above in relation to the personal information relating to Y, contained in records 1, 2 and 3, apply to these sentences. Accordingly, I find these two sentences should be deleted from the copy of record 4 when it is sent to you.

Record 5 relates, in part, to a meeting between you and Dr. Kennelly on 31 August 1999. However, the bulk of the record contains information which, in my opinion, is joint personal information relating to you, to your son and to his mother. I consider that the arguments which I have outlined in relation to records 1, 2 and 3 also apply to the joint personal information contained in the greater portion of this record. On this basis, I find that the public interest test provided for under section 28(5)(a) does not favour the breach of the privacy rights of your son and his mother. In relation to material containing personal information relating solely to Y, there is no compelling evidence that release of this material would be in his best interests and, accordingly, I find that section 28(6) does not authorise the release of that material.

In short, my finding in relation to record 5 is that you should only be given access to that portion of the record which relates to your meeting with Dr. Kennelly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I have decided to annul the decision of the Brothers of Charity, Southern Services on your request of 6 September 1999. I hereby replace that decision with the following decision:

I direct that you be refused access in relation to records 1, 2 and 3 as described in the "Scope" section above.

I direct that you be given access to record 4, with the two sentences relating to personal information concerning your son, Y, deleted.

I direct that you be given access to that portion of record 5 which relates to your meeting with Dr. Kennelly (that is, the portion commencing "I met the father..." , paragraph two).

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 four weeks from the date of this letter.

Yours sincerely

Information Commissioner