Case 050259 - Ms. X and the Health Service Executive. The HSE appealed the decision to the High Court on points of law.  The judgment of Mr. Justice McMahon was delivered on 1 October 2008.

A parent's request for access to the records of a child.

Case Summary

Facts

The requester applied to the Health Service Executive (HSE) for the file associated with receipt of an anonymous reqport relating to her daughter.

Decision

An authorised officer of the Commissioner affirmed the decision of the HSE in relation to certain records and directed that access be granted by the HSE to certain other records.

Date of Decision: 27.03.2007

Our Reference: 050259

27.03.2007

Ms X

Dear Ms X

I refer to your application for review of the decision of the Health Service Executive ("HSE") on your request for "full access to my file" associated with the receipt, by the HSE, of an anonymous report relating to your daughter, Y, in October 2002.

I have been authorised by the Information Commissioner to conduct this review on her behalf.

Background

I have conducted my review of the HSE decision in accordance with section 34(2) of the FOI Act. In doing so, I have had regard to your application for review dated 18 August 2005 and to the submissions made by the HSE. I have also examined copies of the records in question, which were made available to this Office for purposes of the review. Finally, I have had regard to the provisions of the Freedom of Information Acts 1997 and 2003.

Scope of Review

As has been already advised to you in this Office's letter dated 25 October 2005, this review is concerned with whether or not the HSE is correct, by reference to the provisions of the FOI Acts, in its decision regarding records numbered 3, 4, 5, 6, 10, 11, 14, 15, 16, 17, 22, 24, 25, 34 and 36 from the Social Work File and record no. 7 from the Child Care Manager file (as per the schedules which accompanied the HSE decision conveyed to you on 12 August 2005). The exemptions cited by the HSE in support of the refusal to grant you access to all the records in their entirety are sections 23(1)(b), 26(1)(a), 28(1) and 28(5)(b) of the FOI Act, 1997.

Findings

Preliminary Matters

For the avoidance of doubt, I should say that the Commissioner does not have a role in examining how the HSE dealt with any allegations which may have been contained in the records requested; the review is concerned only with access to those parts of the records to which access has been refused. Additionally, the FOI Act at section 8(4), specifically prohibits a decision maker, "[s]ubject to the provisions of this Act", from having regard to any reason you may have for making your request for access to the records.

It is also important to say that section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a request for records shall be presumed not to have been justified unless the head shows to the satisfaction of the Commissioner that the decision was justified.

Finally, before dealing with the HSE decision itself, I should point out that, while the Commissioner is required, by section 34(10) of the FOI Act, 1997, to give reasons for her decisions, this is subject to the requirement of section 43 that she must take all reasonable precautions to prevent disclosure of information contained in an exempt record, or a record claimed to be exempt, during the course of a review. This means that, in the circumstances of your case, the extent of the explanation that I can give with regard to the content of the records may be limited. I should also emphasise to you, lest there be any doubt, that the identity of the person who reported anonymously to the HSE in October 2002 is not known to this Office.

Section 23 (Law Enforcement and Public Safety)

Section 23(1)(b) provides that a request for may be refused if release of the record could reasonably be expected to "reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence,". The HSE has relied on section 23(1)(b) to refuse you access to parts of record nos. 4, 24 and 34 from the Social Work file and to part of record no. 7 from the Child Care Manager file.

I have examined these three records and it is clear that, with one exception (part of record no. 24) which I will deal with separately below, those parts of the records which have been withheld all contain information provided by the anonymous caller who made the initial allegation, relating to your daughter, to the HSE, in October 2002.

Where the section 23(1)(b) exemption is to be applied, and apart from other more general considerations, three specific requirements must be met, i.e.

1. release of the record must reasonably be capable of revealing, whether directly or indirectly, the identity of the person who has given the information;
2. the information in the record must have been given in confidence, and,
3. the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

Therefore, the first question I must address is whether release of this information could reasonably be expected to reveal, or lead to the revelation of, the identity of the person who has given the information. The HSE holds a view that the withheld information could identify, or indeed mis-identify the anonymous source of the referral. In this regard I must accept that it is possible that, although the information was provided anonymously, its nature and construction could be such as to reveal, or lead to the revelation of, the identity of the person concerned. It is also a possibility that the information could point erroneously to some other person.

With regard to one withheld portion of record no. 24 alone, and mindful that parts of this record have already been released to you, I have no evidence to suggest that the portion of the record deleted in the 'Action Taken' area could reasonably be expected to reveal or lead to the revelation of, the identity of the person who has given the information. Therefore, I cannot reach a conclusion that the exemption contained in 23(1)(b) can be applied to support refusal of access to this particular record. Otherwise, in relation to record nos. 4, 24 and 34, I take a view that the withheld records satisfy the requirements of section 23(1)(b) in this regard.

The second question is whether, or not, this information was given to the HSE in confidence. Given that section 23(1)(b) provides for the protection of the identity of a person who has given information to a public body in confidence, there are obvious constraints on the extent to which there can be a question of an express understanding of confidentiality between a public body and an informant who withholds his or her identity completely. I have no basis on which to find that there is any issue of confidence attaching to a person who has provided information on an anonymous basis. However, I must also take account of the nature of the information which led to the HSE investigation and I must recognise that this was concerned only with child welfare and the best interests of Y. The development of a practice of revealing information relating to approaches to the HSE on child welfare issues could be seen as a barrier to people bringing their genuine concerns for children to the attention of the HSE. That contains a risk that genuine cases of child abuse or neglect might go undetected. It is vital to the HSE that channels of information should remain open and it is possible that disclosure of information could, in certain cases, compromise the supply of information into the future. In many cases, the HSE may find, on initial inquiry, that the circumstances are such as not to warrant any further intervention. In your case, I understand that the investigation which followed receipt of the allegation was closed formally by the HSE on 6 March 2003. The reasons cited for the closure included a clear statement from the HSE that the allegation proved to be unfounded. In these particular circumstances, I find that the need for the HSE to continue to be provided with this type of information means that the second requirement of section 23(1)(b) is also satisfied.

The third requirement under section 23(1)(b) deals with the giving of the information in relation to the enforcement or administration of the civil law. The information relates to the civil law because the Child Care Act, 1991 imposes an obligation on the HSE to investigate all allegations of child abuse or neglect. On this basis, I find that the third requirement of section 23(1)(b) has been met.

Section 23(1)(b) does not constitute a mandatory exemption in the sense that, once the elements necessary for its operation have been found to exist, the exemption must be applied. As with all non-mandatory exemptions in the FOI Act, I take the view that it must be demonstrated that it is necessary to apply the exemption. I accept that the HSE has justified its application of section 23(1)(b). Having considered the refusal of access in light of the totality of section 23(1)(b), I find that the exemption provisions of section 23(1)(b) are applicable to those parts of record nos. 4, 24 (entry under 'Action taken' excluded) and 34 from the Social Work file, and to record no. 7 from the Child Care Manager file which is a copy of record no. 34) to which access has been refused.

Public Interest Test

Section 23(1)(b) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would be better served by the release of the information, rather than by the record being withheld, in the event that one of three conditions is fulfilled.

The first condition is that the record under consideration "discloses that an investigation for the purpose of the enforcement of any law .... is not authorised by law or contravenes any law". I do not consider this to be the case. The second condition is that the record contains information concerning "the performance of the functions of a public body whose functions include functions relating to the enforcement of law"" and the third condition is that it contains information concerning "the merits or otherwise or the success or otherwise of any programme, scheme or policy of a public body for preventing, detecting or investigating contraventions of the law". The records at issue here do not contain any information that satisfies these conditions. Accordingly, I am satisfied that section 23(3) does not apply to these records and that they remain exempt from release under section 23(1)(b).

Section 26 (Information Obtained in Confidence)

The HSE has claimed an exemption under section 26(1)(a) in relation to parts of records numbered 5, 6, 10, 11, 14, 15, 16 and 17.

Section 26(1)(a) prohibits the release of a record which contains "..... information given to a public body concerned 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 ....".

Where a public body relies on section 26(1)(a) to exempt information from disclosure, four tests must be satisfied in relation to the information in question. These are:

• the information must have been given in confidence,
• the information must have been given on the understanding that it would be treated by it as confidential, and
• disclosure of the information must be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
• it must be important to the public body that it would continue to receive further similar information.

For these purposes, the Commissioner interprets the term "confidence" (and, as a consequence "confidential") by reference to a definition which is derived from the law relating to a breach of a 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." [taken from F. Gurry "Breach of Confidence" in Essays in Equity; P. Finn (Ed.); Law Book Company, 1985, p.111].

Section 26(1)(a) exists for the purpose of protecting information which has been given to public bodies in confidence. It is "the head" of the public body, and not the person who has supplied the information, who must form the opinion that its disclosure would be likely to prejudice the giving of further similar information from the same person or other persons. In circumstances where the health and education authorities who interact with children are composed of professional employees, with ensuing professional responsibilities, in a context where the child's best interests are always to the fore, the concept that disclosure of information in this instance could prejudice the giving of further similar information is not sustainable in my view. I am supported in my view by a decision of the former Information Commissioner in comparable circumstances in Case No. 99146 where he found that contacts between Gardaí and health officials in a child protection context were predicated on their respective roles as professionals, with a duty to share information, and that such contacts could not constitute a situation where release of records might cause an informant to be reluctant to come forward in the future.

Section 26(2) of the FOI Act provides that section 26(1)(a) does not apply to a record which is prepared by a member of the staff of a public body, or by a person who is providing a service for a public body under a contract for services, in the course of the performance of his or her functions, unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to someone other than a public body, its staff or a person providing a service for the public body under a contract for services. All of the records in this case were created by the staff of the HSE in the performance of official functions and, as such, cannot be exempted from disclosure by section 26(1)(a). Although not cited by the HSE in this regard, section 26(1)(b), which deals with an exemption based on the existence of a duty of confidence, is equally inapplicable in these circumstances.

To summarise, taking the records to which access has been refused under section 26(1)(a) of the FOI Act - record nos. 5, 6, 10, 11, 14, 15, 16, 17 - I find that these records, by virtue of the fact that they are records prepared by a member of the staff of the HSE in the course of the performance of the functions of that person's role, are not exempt from disclosure in accordance with that section 26(1)(a). Accordingly, I find that the stated basis for refusal of access to these records is not justified.

Section 28 (Personal Information)

The HSE has claimed an exemption under section 28(1) of the FOI Act in relation to record numbers 3, 10, 22, 25 and 36 of the Social Work File on the basis that it has considered them to contain "personal information" relating to third parties (parties other than you, yourself, or your daughter). Personal information is defined in section 2 of the FOI Act as being information about an identifiable individual that would in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated by it as confidential.

Having examined the withheld parts of these five records, I note that

• record no. 3 contains information which, being the names and employment addresses of three employees of a national school within the state education sector, is already in the public domain,
• record no. 10 contains a telephone number which, because it is a mobile telephone number, may be regarded as personal information in a way that a fixed line telephone number at a place of employment cannot be,
• record no. 22 does contain information relating to a party other than the requester,
• record number 25 contains names and job titles of employees of a national school within the state education sector,
• record no. 36 contains both a mobile telephone number and a fixed line telephone number of a national school.

I find therefore that the withheld parts of record numbers 3, 10, 25 and 36 (with the exception of the mobile telephone numbers on record nos. 10 and 36) are not the personal information of third parties for purposes of the FOI Act and, consequently, are not protected by the exemptions of section 28(1).

I find that the withheld part of record no. 22 is personal information relating to a person other than you, the requester and, therefore, that the exemption at section 28(1) applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of the HSE on your FOI request on records numbered 4, 22, 24 (part) and 34. I hereby vary the decision on the remaining records and direct as follows:

• that access be granted to the 'Action Taken' section of record no. 24,
• that full access be granted to records numbered 3, 5, 6, 11, 14, 15, 16, 17 and 25 from the Social Work file,
• that, with the exception of the mobile telephone numbers listed on line 2, full access be granted to record no. 10,
• that, with the exception of the mobile telephone number listed on line 3, full access be granted to record no. 36.

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. Any such appeal must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Seán Garvey
Senior Investigator