Case 050126. Access to records giving the age of the Applicant's grandmother when she gave birth to the Applicant's mother at the Rotunda Hospital on a date in 1935 - personal information - section 28 - information given in confidence - section 26

Case Summary

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Date of Decision: 20.12.2007

Our Reference: 050126

20.12.2007

Ms X

Dear Ms X

I refer to your application under the Freedom of Information (FOI) Act, for a review of the decision of the Rotunda Hospital, Dublin (the Hospital) on your request, for access to records relating to your grandmother. I have been authorised by the Information Commissioner to conduct this review on her behalf.

I regret the delay which has arisen in dealing with your application and I appreciate that this has been frustrating for you and your mother. Unfortunately, due to the high volume of applications received in the first few years of operation of the FOI Act, this Office built up considerable arrears of work. The delay was compounded by the fact that, as staff from this Office have explained to you, difficult legal issues arise in this and other cases before the Commissioner where records involving the requester's "origins" are involved. The Hospital says that the issues raised in this type of case are not confined to those directly involved and that consideration should be given to "the wider affected group". At this stage, I consider that we are obliged to give you the formal, binding decision on your application to which you are entitled.

Background

On 15 April 2004, you made an FOI request for information about your grandmother, Ms Y, who gave birth to your mother, Ms Z, in the Rotunda Hospital on a date in 1935. You asked for your grandmother's age and the number of pregnancies she had had.

On 2 July 2004, the Hospital informed you that a search of its records had confirmed an entry in the Labour Ward Book for 1935 showing a Ms Y having given birth to a female child on a date in 1935. This, together with the baby's time of birth and weight at birth had previously been given to you in the Hospital's correspondence of 5 February 2004. The Hospital's decision was to refuse access to the entry in the Labour Ward Book on the basis that release would involve the disclosure of personal information of an individual other than yourself [section 28(1)] and that the right of privacy of Ms Y outweighs the public interest in granting your request. The issue of patient confidentiality was also mentioned in the decision.

The Hospital further informed you that, since no further records about your grandmother were located in the Hospital's archive, your request in relation to such a record was being refused under section 10(1)(a) of the FOI Act on the basis that the record does not exist or cannot be found after all reasonable steps have been taken to ascertain its whereabouts.

On 23 November 2004, Mr W, T.D. wrote to the Hospital on your behalf; it appears that its response of 18 January 2005 encompassed an internal review upholding the original decision. Your application for review to this Office was received on 25 April 2005.

In the course of the review, you submitted copies of your mother's birth and baptismal certificates. Your mother Ms Z also provided a letter asking that any information about her mother be given to you.

In reviewing this case, I have had regard to the following:

•  the information contained in the records at issue;
• the Hospital's decisions in the matter;
• the Hospital's submissions to this Office;
• your communications with this Office and with the Hospital and
• the provisions of the FOI Acts.

Scope of Review

In the course of the review, the Hospital told this Office that it had located an entry in the "Porter's Lodge Book" (held in the National Archive) which related to Ms y's admission to the Hospital in 1935. I understand that you were notified of this additional record and that you indicated that you are satisfied that the Hospital's searches did not reveal any further records containing the information you require.

It is important to note that Ms Y's age in 1935 (and not her date of birth) is the only "new" information which you and your mother would receive if the records involved were to be released. This review is concerned solely with the question of whether the Hospital is justified, under the FOI Act, in its decision to refuse access to the two records (from the Labour Ward Book and the Porter's Lodge Book) which contain an entry for the age (in 1935) of Ms Y.  As this Office has clarified for you, the records provided to us contain limited information about Ms Y and do not include her date of birth. You appear to have accepted the Hospital's position that no additional records can be found concerning your grandmother and your mother's birth. In addition, you have agreed to exclude the number of other pregnancies from the information you are seeking in your request. Accordingly, this review will focus on the two records identified.

Findings

At the outset, I wish to draw attention to the provision at section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." The effect of this provision is to place the onus on the public body concerned to displace the inherent assumption in the FOI Act that records held by public bodies will be released where sought under the Act.

Exemptions Relied on by Hospital

The Hospital's decision was that access to those records should be refused on the basis that their release would involve the disclosure of personal information of an individual other than yourself [section 28(1) of the FOI Act]. Subsequently, in the course of this review, the Hospital argued that the information contained in the records had been obtained in confidence and that the records are also exempt from release on this basis [section 26(1)(a) & (b)].

Section 28 - Personal Information

The Statutory Provision

It would appear that the age of an individual may constitute "personal information" as defined at section 2(1) of the FOI Act. Item (vi) in the list of items included in the definition of "personal information" reads: "information relating to the religion, age, sexual orientation or marital status of the individual".

If it is the case that information on the age of an individual constitutes personal information, then a record which discloses such information is, on the face of it, exempt by virtue of section 28(1) of the FOI Act. However, this exemption does not apply where "information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public." [section 28(2)(c)].

The General Register Office (GRO) operates the regime of registration of deaths, births and marriages in this country. In a recent decision, Case No. 050305 the Information Commissioner dealt in some detail with the implications of the operation of the GRO system for FOI cases such as yours. In brief, the registration system administered by the GRO is an "open" system under which information on the age of any individual is available through that individual's birth certificate and, if that individual is married, also through the marriage certificate; and if the individual has died, through the death certificate. The Commissioner noted that where one is seeking to establish the date of birth of any individual whose name has been established, a searcher will, in principle, be able to trace that individual's date of birth through one or other of the GRO's registration certificates. Given that the circumstances of your case and Case No. 050305 are very closely related, I am happy to apply the Commissioner's analysis and conclusions in relation to section 28(1) and section 28(2)(c) as contained in her decision in Case No. 050305.

I note that there is some suggestion that Ms Y might have given incorrect details about herself on admission to the Hospital. I consider that the possibility that incorrect details are given or recorded, either deliberately or through an error, exists in virtually all cases. I consider that the FOI request and this review fall to be considered on the basis of the information that appears on the face of the records being sought. Any difficulty in accessing the information from sources available to the public does not take away from the fact that the ages of individuals whose births, marriages or deaths were registered is available to the general public as outlined above. As the Commissioner found in Case No. 050305, the requirements of section 28(2)(c) are satisfied by the availability to the general public of information relating to the age of a named person whose birth, marriage or death has been registered.

In the light of the above, I find that section 28(2)(c) applies in relation to the age of Ms Y. This has the effect of undoing the exemption at section 28(1) and it not, therefore, necessary for me to make findings on the other exceptions to section 28(1) contained within that section.

Position of the Hospital

The Hospital made detailed submissions in the course of the review. I do not address all of the Hospital's points in view of my finding that section 28(2)(c) has the effect of dis-applying the provisions of section 28(1) of the FOI Act in this case. I consider that the public interest arguments put forward by the Hospital in favour of withholding the records do not fall to be considered.

In the course of this review, the Hospital stated that while it can confirm that a person of the name of Ms Y gave birth to a female child a date in 1935, it cannot be sure that the baby who was born was Ms Z. As I have stated above in relation to the possibility of incorrect information having been given, I cannot see how we can proceed other than on the basis of the information on the face of the Hospital's records in circumstances where that information corresponds with that on Ms Z's birth certificate and baptismal certificate (copies of which you have provided to this Office). It is fair to say that, in the normal course, a person's identity is confirmed by reference to official or State recognised documents and I do not consider that it is appropriate or feasible to go beyond such material in this case.

Section 28(6)(b)

Your grandmother would be of an advanced age if she is still living and, on balance, the probability is that we are dealing with the records of a deceased person. The Commissioner has made a number of decisions (see, for example, Case No. 040149 - Mr X and the Health Service Executive) directing the release to next of kin of records containing personal information relating to a deceased person. She concluded that where a next of kin seek records relating to a deceased person, he or she will generally have an entitlement to gain access to such records within the terms of section 28(6)(b) of the FOI Act and of article 3(1)(b)(iii) of Statutory Instrument No. 47 of 1999 and subject to there not being any other statutory exemption which prohibits release of the records. Given the possibility (albeit a statistically unlikely one) that Ms Y is not deceased, and given my finding above that section 28(1) does not apply in this particular case [dis-applied by virtue of section 28(2)(c)], I do not propose to make a finding on this issue.

Section 26 - Information Obtained in Confidence

I will now consider whether the information at issue i.e. the age of your grandmother in 1935, may be protected under the FOI Act on the basis of confidentiality. Section 26(1) of the FOI Act states that:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-

(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

The Hospital contends that the records at issue - which disclose no more than the age of Ms. Y when she gave birth to your mother in 1935 - are exempt by virtue of section 26(1)(a) & (b) of the FOI Act. The application of section 26 has been the subject of many previous decisions by the Commissioner and it is not necessary for present purposes to set out a detailed analysis of its provisions. A prerequisite for the application of either of the provisions is that the information contained in the record at issue must have the necessary quality of confidence.

In her decision in Case No. 050305, to which I refer above, the Commissioner said as follows:

"The definition of the term "confidence" is derived from the law relating to breach of duty of confidence: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose." ("B" v. Brisbane North Regional Health Authority, (1994) 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.). Based on this definition, I cannot see how information that is available to the public through the GRO, as outlined above, can be concerned with private or secret matters. I accept that Ms. [X's] imparting of information to the Hospital was, in a very general sense, concerned with "private or secret matters". However in the present circumstances, where your father (and yourself) knew the name of his mother and some other details about his birth, I cannot accept that information about his mother's age can be treated as having the necessary quality of confidence. On this basis, I cannot accept that either of the provisions at section 26(1) applies. I find accordingly."

The Information Commissioner went on in that decision to state that, even if there was a finding that section 26(1)(a) applied, she would find that on balance the public interest would be better served by releasing the records than by their being withheld. In relation to section 26(1)(b), her conclusion in Case No. 050305 was that this exemption was not applicable and that disclosure of the woman's age to her grand-daughter would not constitute a breach of a duty of confidence. I am happy to adopt the same position in your case and I find, therefore, that section 26 of the FOI Act does not apply to exempt from release to you and your mother the records containing the age of Ms Y.

Decision

Having carried out a review under Section 34(2) of the Freedom of Information Act 1997, as amended, I hereby annul the decision of the Rotunda Hospital to refuse access to the records in question. I direct the Hospital to grant access, in the form of a copy, to the two entries in the records identified showing the age of Ms Y in 1935. This is subject to the Hospital's verification in the normal way (if it has not already done so) of your identity as the daughter of Ms Z and the grand-daughter of Ms Y.

Right of Appeal

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

Yours sincerely

Fintan Butler
Senior Investigator