Whether the HSE was justified in refusing to grant access under FOI to a social work report.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003

Background

On 10 August 2011, the applicant made a request under the FOI Act for access to a social work report prepared by the HSE. A decision issued to the applicant on 7 September 2011, in which the HSE refused the request under section 22(1)(b) of the FOI Act, on the grounds that the record related to court proceedings which were held 'in camera'. On 11 November 2011 the HSE received from the applicant a request for an internal review. On 24 November 2011, the internal reviewer affirmed the original decision. On 4 January 2012, this Office received a request from the applicant for a review of the decision of the HSE.

I note that on 17 August 2012, Mr Edmund McDaid, of this Office, issued a letter to the applicant to notify her of the scope of the review in this case and of his preliminary view that the HSE's decision to refuse access to the record was justified. Mr McDaid offered the applicant an opportunity to reply in respect of his preliminary views. However, no reply was received from the applicant. Accordingly, I have decided to conclude the matter by way of a formal, binding decision. In carrying out my review, I have taken account of the correspondence which passed between the applicant and the HSE, the HSE's conclusions on the matter, submissions to this Office from the HSE and the applicant and the provisions of the FOI Act generally.

Scope of the Review

This review is concerned solely with the question of whether the HSE was justified in its decision to refuse access to the social worker's report on the basis of section 22(1)(b) of the FOI Act.

Analysis and Findings

Section 22(1)(b)
Section 22(1)(b) of the FOI Act (as amended) provides that:-

A head shall refuse to grant a request under section 7 if the record concerned -

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

The HSE explained in its original decision that "The Social Work Report prepared for the court .......[arose] out of the HSE's investigation under Section 20 of the Child Care Act..." and that "Court proceedings under the Guardianship of Infants Act and Child Care Act are held in camera and thus, the in camera rule applies".

The In Camera Rule
The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings under the Child Care Act 1991. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. In this case, the report at issue was prepared for child care proceedings under the Child Care Act 1991. For this reason, I accept that the record at issue is covered by the in camera rule. Accordingly, as I am not aware of the existence of any prior judicial authority for the release of the record, I am satisfied that its release to the applicant on foot of her FOI request would constitute contempt of Court and I find, therefore, that section 22(1)(b) applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I find that the HSE's decision to refuse to grant the applicant's request was justified under section 22(1)(b) of the FOI Act.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
25 September 2012