Case 050148. The decision of the Information Commissioner was appealed to the High Court by the Hospital.  The judgment of McCarthy J, which dismissed the appeal, was delivered onThe judgment of the Supreme Court (3 judgments) wasdelivered on 19 July 2011.2 July 2009.  That judgment was appealed to the Supreme Court by the Hospital. 

Request for access to information on the address, date of birth and age of a woman who gave birth to a baby in 1922 - whether the Hospital concerned was justified in refusing that access for the reasons that (a) records containing information on the address and date of birth of the woman did not exist and (b) the record containing information on the age of the woman contained her personal information and that her confidence was protected - section 10(1)(a) - section 26(1) - section 28(1)

Case Summary

Facts

The requester sought access, on behalf of her father, to the hospital records of her paternal grandmother.  The requester sought access to the address, date of birth and age of her grandmother at the time of her father's birth.  The requester's father had already received other information relating to his birth from the Hospital on foot of a separate FOI request.  Two records were identified as containing information on the woman's age (the Labour Ward Book and the Porter's Lodge Book), no additional records could be found.  The review focused on these two records to which access was refused because they contained personal information which was also confidential to the woman concerned. 

Decision

The Commissioner found that the woman's age was not encompassed by section 28(1) as her personal information for the reason that section 28(2)(c) excluded information which was freely available to the general public from the General Register Office.  

The Commissioner considered the confidentiality aspect under section 26(1) and, although it was not necessary to make a finding, concluded that the application of the public interest test would have been likely to favour the granting of access and that an obligation of confidence would not generally be enforced to restrain the disclosure of such information in the public interest.

Date of Decision: 14.12.2007

Our Reference: 050148

14.12.2007

Ms X

Dear Ms X

I refer to your application under the Freedom of Information (FOI) Acts 1997 -2003 for a review of the decision of the Rotunda Hospital, Dublin (the Hospital) on your request for access to records relating to your grandmother, Ms XX. I note that your request is stated to be made on behalf of your father, now aged 85 years, who is the son of Ms. XX.

I regret the delay which has arisen in dealing with your application and I appreciate that this has been frustrating for you and for your father. 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 my staff explained to you, difficult legal issues arise in this and other cases before me where the records of deceased persons 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". However, at this stage, I consider that I am obliged to give you the formal, binding, decision on your application to which you are entitled.

Background

On 21 September 2004 you made an FOI request, on behalf of your father, for information about your grandmother, Ms XX, who gave birth to your father, Mr X, in the Hospital on 10 May 1922. You stated that you wished to have an address, date of birth and age for your grandmother.

On 21 October 2004, the Hospital informed you that a search of its records had confirmed an entry in the Labour Ward Book for 1922 showing a "Ms X (alternative spelling)" having been admitted on 10 May 1922, having given birth to a male child on the same day and having been discharged from the Hospital on 18 May 1922. In addition, the Hospital told you that its Labour Ward books do not record the patient's home address or date of birth and that access to this information was being refused on the basis that the record did not exist [section 10(1)(a) of the FOI Act]. While the Hospital record did contain Ms. X's age, access to her age was refused on the basis that such information was personal to her [section 28(1) of the FOI Act].

You applied for an internal review of the Hospital's decision. On 13 April 2005, you were notified that the internal reviewer (Dr Michael Geary, Master of the Hospital) had upheld the original decision. Your application for review to my Office was received on 11 May 2005.

In the course of this review, the Hospital notified my Office that it had located an entry in the "Porter's Lodge Book" (held in the National Archive) which also appeared to relate to Ms X's admission in 1922. It says that the address on that record matched that on your father's birth certificate and this was confirmed to you by letter dated 6 July 2005. The Hospital says that information in the records regarding the birth of Mr X was given to your father in response to a separate request. Ms X's marital status, as recorded, was also disclosed to you by the Hospital. As part of your submissions in this review, you provided copies of your father's birth and baptismal certificates. You state that your father had been "boarded out" or placed "at nurse" at various addresses in the Dublin area from 1922 and you provided copies of various enquiries you had made in this regard.

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 my Office
• your communications with my Office and with the Hospital
• the provisions of the FOI Acts.

Scope of Review

It is important to note that Ms XX's age in 1922 (and not her date of birth) is the only "new" information which you and your father 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 1922) of Ms XX. As my staff have clarified for you, the records provided to my Office contain limited information about Ms XX 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 father's birth. Accordingly, this review will focus on the two records identified.

Findings

Preliminary Matters

I feel obliged to comment on the fact that it has proven necessary to undertake a detailed and lengthy review, involving complex legal arguments, in order to determine whether your now 85 year old father should be told the age of his mother when she gave birth to him in 1922. One might have expected that common sense would prevail and that this information could have been conveyed to your father, if necessary outside of the complexities of the FOI Acts, when the request was first made in 2004. Regrettably, this did not happen and it is now necessary to finalise the review through the issue of this formal, binding decision.

At the outset, also, 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.

The Hospital has pointed out that at various times, you and other members of your family contacted its Social Work Department with other names which you associated with your father's mother. However, for the purposes of this review, I am taking it that the christian name on your father's birth certificate and on your FOI request - Y....... or Y..... - is the one at issue. As regards the surname, I note that the names "X" and "X (alternative spelling)" are both used in the correspondence and I am taking it that this has no particular significance.

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". While it is included in the list of examples within the definition, I take it that these examples must also satisfy one or other of the overarching prior requirements:

"... information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as confidential,"

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. From enquiries made by my staff with the GRO, it is clear that 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. It is clear that the information contained in the GRO's certificates is part of a public record which is accessible to all. The level of effort required to trace any individual's birth details, including date of birth, will vary depending on the level of information already held by the searcher; but where the searcher has a name, in principle it will be possible to trace that individual's date of birth through one or other of the GRO's registration certificates. Clearly, where the searcher has information in addition to the name, such as county or region of birth or the probable age range of the individual, the search process will be easier.

When my Office put this point to the Hospital, it commented in response that in many of the "tracing" cases, individuals who have names and other details do not have enough information to identify the "correct information" from the General Register Office. I accept that this may well be the case. However, any difficulty in accessing the information 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. It seems to me that such availability satisfies the requirement of section 28(2)(c). The Hospital suggests that individuals might be advised to use the GRO service as an alternative to seeking the "the confidential records of a Hospital" under FOI. Given your entitlement under the FOI Act to seek access to records held by the Hospital; and given that, following your application to me, I am required under the FOI Act to review the Hospital's decision and affirm, vary or annul it, the option of finalising the review by referring you to the GRO or other source is not available to me.

In the light of the above, I find that section 28(2)(c) applies in relation to the age of Ms XX. 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 points made 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.

At the time of your FOI request, the decision makers must have known from the date of the records that it was unlikely that your grandmother would have been alive in 2004. In the course of this review, the Hospital accepted that the records at issue are those of a deceased person. There are specific provisions within the FOI Act for dealing with records of deceased people. However, neither the original decision maker, nor the decision maker at internal review stage, dealt with these specific provisions which are contained at section 28(6)(b) of the FOI Act. After my staff had raised the issue with the Hospital, it accepted that your grandmother is dead. Its position is that a next of kin does not have an automatic right of access to the personal records of a deceased person. The Hospital then appeared to argue that release under section 28(6)(b) is possible only where such release is found to be in the public interest following the application of the section 28(5)(a) public interest test. It appeared to argue that the public interest test can somehow be employed to prevent the release of records which would otherwise be releasable. In fact the opposite is the case. The relevance of section 28(5)(a) is that it provides the potential to release, in the public interest, a record disclosing personal information which is otherwise exempt by virtue of section 28(1). Accordingly, I consider that section 28(5)(a) does not fall to be considered in this case and I do not intend to deal further with the public interest arguments advanced by the Hospital in favour of withholding the records.

Section 28(6)(b)

In the course of the review, my staff brought to your attention and to that of the Hospital my views on the provisions of the FOI Act and regulations (SI No 47 of 1999) in relation to access to records of deceased persons. I have since made a number of decisions (eg. Case 040149) directing the release to next of kin of records containing personal information relating to a deceased person; this decision sets out the construction of the legislation which formed the basis of my decisions in those cases. My conclusion was 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 the 1999 Regulations and subject to there not being any other statutory exemption which prohibits release of the records. Given my finding above that section 28(1) does not apply in this particular case [dis-applied by virtue of section 28(2)(c)], it is unnecessary to address this issue here in any detail. However I think it is relevant to note that, even if the section 28(1) exemption were found to apply, it is likely that the records relating to your late grandmother would fall to be released under the FOI Act to you and your father in accordance with the section 28(6)(b) provisions.

Section 26 - Information Obtained in Confidence

In the Hospital's submissions, the confidential nature of the records is referred to throughout. I believe it is appropriate to consider whether the information at issue i.e. the age of your grandmother in 1922, 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. XX when she gave birth to your father in 1922 - 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 my Office 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.

The Hospital refers to the obligations on "health providers" derived from the Hippocratic Oath and to "medical information " held in confidence. The Hospital contends that, in the context of maternity care, age is a clinical factor which determines outcomes for mother and baby. While I note that the entry recording the age of the mother discloses nothing about her treatment, I accept that information arising in a professional relationship between a health professional and patient would normally fall within the category of confidential relationships traditionally recognised by law. I note also that that the type of information imparted by your grandmother and recorded in the records of your father's birth (e.g. her age, marital status) was most likely given to a hospital employee other than a treating physician. For example, the details of Ms. XX's age are contained in the Porter's Lodge Book.

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. XX'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 knows 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.

Even if one were to find that section 26(1)(a) applies, this is one of the exemptions which is subject to a public interest override [section 26(3)]. I am satisfied that if the public interest had to be considered, I would find that on balance the public interest would be better served by releasing the records than by their being withheld. The fact that one of the requesters in this case is the son of Ms. XX is a circumstance to which it is legitimate to have regard in applying the public interest test. Were it the case that the requester had no close personal tie to the person whose information is at issue (Ms XX), then the public interest conclusion might be otherwise. However, the public interest in persons generally having the fullest possible information on their origins is a very strong one. In the circumstances of this case, I take the view that the public interest, on balance, would favour disclosure of the information to your father and yourself.

In relation to section 26(1)(b), if one had to further consider its possible application, I am satisfied that it would not be found to apply. For section 26(1)(b) to apply, it would be necessary to find that disclosure of Ms. XX's age to her own son and grand-daughter would constitute a breach of a duty of confidence owed to Ms. XX. Any duty of confidence arising would be based in equity. While section 26(1)(b) is not subject to an explicit public interest override, it is generally accepted that an obligation of confidence will not be enforced to restrain the disclosure of information which is justified in the public interest. In my recent decision in Case 060030 I dealt with this issue in considerable detail. Were it necessary to deal further with section 26(1)(b), I am satisfied that I would find it not to be applicable in the circumstances of this case.

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 XX in 1922. 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 Mr X and the granddaughter of Ms XX. The medical information in the last column of the Labour Ward Book should be redacted from the copy to be released - this is on the basis that you excluded such information from your request.

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

Emily O'Reilly
Information Commissioner