Whether the HSE was justified in refusing the applicant's request for access to records relating to his daughter.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

In a request dated 14 September 2009, the applicant sought access to records held by one of the HSE's Family Centres and of one of its Social Work Departments concerning a complaint made against him in relation to his daughter. The complaint involved allegations of sexual abuse by the applicant of his then four-year-old daughter as well as alleged incidents of domestic violence. Having learned of the complaint, the HSE had conducted a detailed assessment of his daughter. The request included all records held by the HSE's Family Centre and Social Work Department arising from its engagement with the applicant's daughter. On 12 October 2009, the HSE refused the applicant's request under sections 23(1)(a) and 28 of the FOI Act.

On 9 November 2009, the applicant requested an internal review of the HSE's decision. He claimed that the allegations made against him were false and he, in turn, made allegations against his former spouse, who had brought the complaint. He stated that he required access to a copy of the records concerned in order to defend himself and establish his innocence. While he acknowledged that his solicitor had a copy of the Family Centre's assessment report on his daughter, he stated that his solicitor had refused to supply him with a copy on the basis of an undertaking given to the HSE to keep the report confidential. He also said that he was not in a position to continue with the solicitor concerned. Belatedly, on 12 February 2010 and 5 March 2010, respectively, the HSE decided to uphold its original decision to refuse access to the records requested.

On 9 August 2010, the applicant applied to this Office for an external review of the HSE's decision. In support of his application for review, the applicant provided a copy of a letter dated 15 April 2010 from An Garda Síochána reporting that notification had been received from the Director of Public Prosecutions that there should be "No Prosecution" in the case and that the case was no longer under Garda investigation.

During the course of this review the HSE agreed to the release of certain records, either in full or in part, from the Family Centre and Social Work Department files; though it appears no records have actually been released to date. The HSE maintains that the remainder of the records are exempt from release and it justifies this position primarily by reference to sections 21(1)(a) and 28 of the FOI Act. On 23 May 2013, Ms. Melanie Campbell, Investigator, wrote to the applicant to notify him of her preliminary view that, for the most part, the records should not be released to him. The applicant was given an opportunity to make any further comments that he considered relevant to the review.

The applicant made an oral reply on 17 June 2013 followed by a written reply on 28 June 2013 saying that he wished the review to proceed. With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the provisions of the FOI Act and to the submissions made by the HSE and by the applicant. I have also examined the Family Centre and Social Work files which were provided to this Office for the purposes of the review.

Scope of the Review

I am excluding from the scope of this review those records, or parts thereof, which the HSE has agreed in the course of this review may be released to the applicant. I am excluding also some records which, while mentioned on the schedules of records provided by the HSE, are quite clearly not captured in the request as made by the applicant. Those records relevant to the applicant's request that remain at issue are as follows:

Social Work file
in full: records numbered 35-39, 41-44, 57, 60-63, 66-102, 103-104, 106-107, 126
in part: records numbered 40, 45-51 (single document), 56, 58, 105, 111-115 (single document), 116-120 (copy of 111-115), 127-128.

Family Centre file

in full:

• Section 1, record number 2
• Section 2, records numbered 1, 2, 4
• Section 3, record number 4
• Section 5, record number 2
• Section 4, records numbered 2, 4-6
• Section 8
• Section 9, records numbered 1-5
• Section 10, records numbered 1-2
• Inside Back Cover

in part:

• Section 3, records numbered 1-3
• Section 6, record number 1
• Section 9, records numbered 6, 7.

Video Recordings of Child Interviews
These video records have been refused in full.

The applicant has said that he is particularly interested in obtaining access to a full copy of the Family Centre assessment report and interview notes concerning his daughter. Access to these documents has been refused under FOI, but he has been given access to the assessment report outside of FOI, as discussed below. The assessment report and interview notes are found in the Social Work file at records numbered 66-102 and in section 8 of the Family Centre file, respectively. Another copy of the assessment report is located at what is described as the "Inside Back Cover" of the Family Centre file.

This review is concerned solely with the question of whether the HSE's decision to refuse access, in full or in part, to the records identified above was justified under the FOI Act.

Analysis and Findings

Preliminary Matters
Before dealing with the relevant exemptions, there are some preliminary points I wish to make.

The first point to note is that, under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

The second point is that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 34(12)(b) of the Act, which requires the HSE to show to my satisfaction that its decision to refuse to grant the request is justified.

The third point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

The fourth preliminary point is to note that a review, such as this, by the Information Commissioner is a de novo review, that is, a review taking account of the facts and circumstances prevailing at the point at which the Commissioner concludes her review. Where the circumstances have changed since the time of the original decision, or where new facts have emerged, the Commissioner must have regard to these new facts and to any change of circumstances. This is the position as set out by the High Court in the judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. I mention this in particular as the HSE, in its submission of 20 October 2011, argued that the Commissioner should not have regard to new information which has come to light since the time of the original decision making.

The final preliminary point has to do with the content of the records at issue in this review. These records fall, very broadly, into two categories: (1) records disclosing substantive material relating to the conduct of the assessment including interviews with the applicant's daughter and/or her mother and also the the final, completed Family Centre assessment report and (2) records of a more procedural or administrative nature including the making of arrangements for meetings and interviews and consent forms relating to the various aspects of the overall assessment. The majority of the withheld records fall into the former category.

Personal Information
Personal information is defined in section 2 of the FOI Act as 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 as confidential. The FOI Act details twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(i) information relating to the educational, medical, psychiatric or psychological history of the individual," and "(vi) information relating to the religion, age, sexual orientation or marital status of the individual".

It is quite clear that the records at issue in this case disclose the personal information of parties other than the applicant and that, given the background to the FOI request, much of this information is of a deeply private and sensitive nature.

Section 28(1) provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information, including personal information relating to a deceased individual. This general protection for personal information may be set aside on a number of grounds provided for elsewhere in section 28. These grounds will be considered a little later below.

A feature of these records is that, in very many instances, they disclose the joint personal information of the applicant's daughter and of her mother; in some instances they disclose the joint personal information of the daughter and her father (the applicant); and in some instances they disclose the joint personal information of all three (daughter, mother and father). In the normal course, a FOI requester will be entitled to access his or her own personal information; but where the requester's personal information is joined with the personal information of one or more third parties, as is the case here, then section 28(5B) of the FOI Act applies.

Section 28(5B) of the FOI Act provides that where a record contains joint personal information, that is, personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected. It is necessary, therefore, to consider the other provisions of section 28 under which personal information of parties other than the requester may be released.

Section 28(2)
Section 28(2) provides a number of grounds on which the release of personal information is allowed. The two grounds of potential relevance here are at subsection (2)(b) and (e). The former deals with a situation in which the individual to whom the information relates consents to the release; and the latter deals with a situation in which "disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual".

In this case, the child's mother has not consented to her personal information being disclosed. The applicant's child is now almost 11 years of age. This Office has made the judgement that, in all the circumstances of this case, it would not be appropriate to seek the views of the child as to whether or not she consents to her father having access to her personal information. There are certainly circumstances in which one might reasonably seek the views of an 11 year old child on a matter affecting her interests. In this case, I have had regard to the content of the records concerned; the potential for further upset to the child in question; the fact that her mother has not consented to the child's records being made available to her father; and that in any case the child's personal information cannot reasonably be separated from the personal information of the mother. In light of all of these circumstances, I have decided not to seek directly to establish the views of the child. I am aware also of the HSE's position that the views of the child on this issue may be inferred from views she is reported to have expressed to an independent clinical psychologist engaged for the purposes of informing the District Court in the course of family law proceedings. I find, as a matter of fact, that neither the child nor her mother has consented to the release of their personal information and that, accordingly, section 28(2)(b) does not apply.

As regards section 28(2)(e), I have no reason to believe that the release of any of the personal information in question here is "necessary in order to avoid a serious and imminent danger to the life or health of an individual". I find, therefore, that section 28(2)(e) does not apply in this case.

Section 28(5)
Section 28(5) provides that personal information of a party other than the requester may be released where, on balance
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

In order to apply the public interest test provided for at section 28(5)(a), it is necessary to identify the public interest which would be served by the release of the records and make a judgement as to whether, on balance, that public interest outweighs the public interest in protecting the privacy rights of the individuals concerned. The FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the right to privacy.

It is clear from his submissions that the applicant is pursuing his FOI request and review application in the context of his rejection of the allegations made against him and with a view to defending his good name. In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request. However, this is not necessarily the case where the public interest becomes a consideration. There is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests overlap, however. In the present context where the applicant has not himself directly addressed the issue of the public interest, it is reasonable to infer that, while he may seek to acquire the records for his own private purposes, that private interest overlaps with the public interest in transparency and in fair procedure.

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the HSE carried out its functions in relation to the applicant's child. There is also a public interest in promoting procedural fairness where a public body engages with a member of the public in a context which may carry adverse consequences for that individual. However, the circumstances of this particular case suggest that the requirements of openness, accountability and of fair procedure have been met in the manner in which the HSE engaged with the applicant in its assessment of his daughter. The HSE's Family Centre engaged with the applicant both prior to, and in the course of, the assessment process. The Family Centre met with the applicant following the conclusion of the assessment of his daughter and briefed him on the conduct of the assessment and on its outcome. During the meeting, the final assessment report was read to the applicant, though he was not allowed to take a copy away with him. Furthermore, the Family Centre has recently agreed to meet again with the applicant, should he so wish, to brief him on the assessment. In addition, the HSE has provided the applicant's solicitor in the family law proceedings with a copy of the detailed assessment report and the applicant is free to inspect the report (but not to take a copy of it) in his solicitor's offices. I understand the applicant has inspected the assessment report in his solicitor's offices and that the option to do so again remains open. I acknowledge the applicant's contention that access to the assessment report by way of inspection is not sufficient; amongst his arguments is that, because of language difficulties, access by way of inspection is not sufficient.

I am satisfied that the public interests in this case in openness, accountability and fair procedure have been met already to a considerable extent. I am not satisfied that the significant invasion of the privacy rights of the applicant's child and former spouse, which would be the consequence of releasing the records at issue here, is warranted. Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.

The question posed in section 28(5)(b) is whether the release of the records would be to the benefit of the persons to whom the information relates, that is, to the benefit of the applicant's daughter and/or his former spouse. As regards the latter, there is no reason to believe that release of her personal information to the applicant would be to her benefit. In the case of a child, one would accept as a general proposition that it is to the benefit of a child that her parents should be given access to all relevant information which bears on the child's health, welfare and general well-being. In the circumstances of this case, relating to the applicant's child, the issue raised in section 28(5)(b) has many similarities with the issue raised under section 28(6) which will be considered below. Because of the nature of the information contained in the withheld records, because of the context in which the records were created, and because the applicant has already been given access to the overall assessment report outside of FOI, my view is that, on balance, release of the child's personal information under the FOI Act would not be to her benefit. In any event, because of the extent to which the child's personal information is joined to that of her mother, it is not feasible to release the child's information without also releasing that of her mother.

I find therefore that section 28(5)(b) does not apply in this case.

Section 28(6) and the 2009 Regulations
Section 28(6)(a) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. The regulations of relevance here are contained in S.I. No. 387 of 2009 and deal in particular with the personal information of minors. The regulations provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances. The regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any relevant guidelines published by the Minister, access to the records by the parent/guardian would be in the minor's best interests. I note that I have had regard to the relevant Guidance Notes published by the Minister. One of the Guidance suggestions is that, where appropriate, there should be a consultation with the minor concerned to establish his or her views on the release of his or her personal information to a parent. In the circumstances of this case, and for reasons set out earlier in this decision, I do not consider that it is appropriate to consult with the child concerned.

The issue to be decided, therefore, is whether the best interests of the applicant's child will be served by the release to the applicant of those records disclosing his child's personal information.

The Supreme Court held in the case of McK v. The Information Commissioner[2006] IESC 2, available on our website at www.oic.gov.ie, that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. In reaching its judgment, the Supreme Court had regard to the Constitution and observed that the "relationship between parent and child has special status in Ireland". The Court noted that the family unit has rights, but so does each member of the unit. The Court stated:
"A parent's rights and duties include the care of a child who is ill. As a consequence a parent is entitled to information about the medical care a child is receiving so that he or she may make appropriate decisions for the child, as his or her guardian. The presumption is that a parent is entitled to access such information. That position is not absolute. The circumstances may be such that the presumption may be rebutted. But the primary position is that the presumption exists."

The Supreme Court further explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount." This presumption applies where the family in question, of which the parent is a member, is a family of the kind recognised by the Constitution, that is, the family based on marriage. In the present case, I understand that the parents are married and I take it that the Constitutional presumption applies in respect of the parents or any one of them.

While the records at issue in the McK case related to medical treatment, the Commissioner takes the view that the judgment is likely to apply to any personal information of a minor that is relevant to his or her welfare. This view is supported by the following comments by McMahon J in HSE v. Information Commissioner [2009] 1 IR 700:
"The Supreme Court in  N. McK. v. Information Commissioner  [2006] IESC 2, [2006] 1 IR 260 held that there is a presumption, though rebuttable, that a parent is entitled to access information about the medical care their child is receiving and that the release of such information is in the interest of the child. While this case concerned a parent's right of access to the child's medical records, the Supreme Court did not place undue emphasis on the nature or content of the records in question and I adopt the court's reasoning as being applicable also to the records involved in this case which were concerned with allegations of physical abuse of the child."

Nevertheless, it is apparent from the Supreme Court's repeated references to medical information or medical care that, while the nature or content of the records in question may not be determinative, it is a relevant factor. Moreover, under the Constitution, both parents in a marital family are presumed to be acting in the best interests of their child; this presents especial difficulties where, as here, the parents are not acting in accord. The McK case indicates that reluctance by one parent or guardian to agree to access is not, in and of itself, sufficient to rebut the presumption to which a parent is entitled. However, in McK, the mother of the child concerned was deceased and the father, who was the requester, had been granted supervised access to his children by order of the Circuit Court. The father's request arose from a visit with his daughter during which he learned that she had been admitted to a hospital for an unspecified viral infection. The circumstances of the McK case are therefore distinguishable from those presented in this case.

In this case, the records remaining at issue contain highly sensitive information relating to the allegations of child sexual abuse made against the applicant. While certain isolated portions of records might theoretically be released (for example, parts of the the interview notes), I believe that this would give a misleading picture of the assessment process. It is self-evident that information of this nature must be treated with the utmost caution to protect the privacy interests of the child and also to avoid any risk of prurient interest in the matter by a third party. This is not to suggest that the applicant has any intention of disseminating the information he seeks; he is entitled to the presumption that he will act in the best interests of his child. Indeed, during the assessment process, the applicant himself signed a form specifying the assurance of confidentiality as a special condition [Family Centre file, section 9, record 7(c)]. Nevertheless, I must have regard to the fact that, unlike family law proceedings, for instance, no conditions are attached when records are made available to a requester under the FOI Act.

It is very relevant also that the applicant has been given briefings by the Family Centre on the conduct and outcome of the assessment and, furthermore, has been given (and continues to have) access to the overall assessment report by way of inspection. The applicant is aware of the nature of the allegations and thus is aware of what his daughter allegedly endured or what she may think she endured. The fact is that the applicant already has the information contained in the records at issue; what he is seeking is that he be given this information in a particular form, by way of copies of the records which he can take away with him. To that extent, I take the view that the applicant has already acquired a sufficient knowledge of the information regarding his daughter to enable him to exercise his parental role in making "appropriate decisions for the child". Provision of that same information to him, in the form of copies of records released under the FOI Act, would not in my view enhance the applicant's capacity to make "appropriate decisions for the child". On the other hand, the provision of copies of those records to the applicant carries some potential to impact negatively on the best interests of the child.

Having considered the matter carefully, I find in the circumstances of this case that the best interests of the applicant's child will not be served by the release to the applicant of those records disclosing his child's personal information. I find therefore that section 28(6)(a) does not apply in this case.

Overall Finding
The records at issue in this review constitute the personal information of the applicant's child and of her mother. On the face of it, but subject to the other provision of the section, they are exempt from release under the FOI Act by virtue of section 28(1). The other relevant provisions of section 28 are those at subsections (2), (5) and (6) and I have found that none of these provisions applies.

In so far as the records also disclose some personal information of the applicant, that information is joint information with the applicant's child and/or her mother. Section 28(5B) applies in this situation and, in effect, it requires that the joint personal information is exempt from release except one of the other overriding provisions of section 28 applies. I have found that none of the overriding provisions of section 28 applies.

The situation then is that all of the records at issue are exempt by virtue of section 28(1) and that this exemption is not displaced by any of the overriding provisions within section 28. Having found that section 28 applies to all of the records, it is not necessary for me to consider the other exemptions relied upon by the Health Service Executive.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE in this case.

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.

Fintan Butler
Senior Investigator
16 August 2013