Decision
Mr C and the Health Service Executive & Our Lady's Hospital for Sick Children
From Office of the Information Commissioner (OIC)
Case number: 090261 and 090262 and 090263
Published on
From Office of the Information Commissioner (OIC)
Case number: 090261 and 090262 and 090263
Published on
Whether under section 28(5)(a) of the FOI Act the public interest in granting the applicant's requests for records relating to himself and his former step-daughter outweighs the public interest in protecting the privacy rights of the individuals (apart from the applicant) to whom the information relates
23 January 2014
The applicant made applications for review to the Information Commissioner in October 2000 in respect of three requests that he had made seeking access under the FOI Act to records relating to himself and his former step-daughter [hereinafter referred to as "Ms. X"]. At the time the applications for review were made, Ms. X was seven years old; she is now aged 20. Two of the requests, dated 25 February 1999 and 15 November 1999, respectively, were made to the former Eastern Health Board, which has since been incorporated into the Health Service Executive (the HSE). The third request, dated 7 October 1999, was made to Our Lady's Hospital for Sick Children ("the Hospital"). The requested records concern allegations of sexual abuse made against the applicant in relation to Ms. X when she was a very small child. The allegations had been brought to the attention of the HSE by Ms. X's mother, who will be referred to as Ms. Y; the HSE, in turn, made a referral to the Hospital for an assessment of Ms. X by its St. Louise's Unit. All three requests were granted in part and refused in part.
In November 2005, the former Commissioner, Ms. Emily O'Reilly, issued two decisions affirming the respective decisions of the HSE and the Hospital to refuse access to the records remaining at issue at the time. The Commissioner found that the records were exempt under section 28(1) of the FOI Act, which protects personal information. Section 28(1) of the FOI Act is subject to a public interest test under section 28(5)(a), which allows for the release of personal information where, on balance, 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. However, the Commissioner found, in essence, that the public interest in granting the requests did not outweigh the public interest served by the protection of the privacy rights of Ms. X in relation to an aspect of her life which the Commissioner considered to be "particularly sensitive".
The Commissioner's decisions were appealed by the applicant to the High Court under section 42 of the FOI Act. In a judgment rendered on 13 July 2009 in P v. Information Commissioner [2009] IEHC 574, available at www.courts.ie, Ms. Justice Clark set out the relevant background to the investigation and assessment of the allegations made against the applicant and held that the Commissioner had misdirected herself as to the application of the public interest test as set out in section 28(5)(a) of the FOI Act. In a preliminary view letter that issued to all of the parties to this review on 14 November 2013, the Investigator summarised the relevant findings of the Court as follows:
I. The Commissioner placed undue emphasis on the position of the HSE (then the Eastern Health Board) and the Hospital in protecting the processes of receiving and investigating possible child sexual abuse in the circumstances in which the allegations were reported in this case.
II. The appellant had presented significant public interest arguments in favour of disclosure in light of the evidence that the allegations were made for malicious purposes.
III. The Commissioner placed undue emphasis on the child's right to privacy in the circumstances.
The Investigator also noted that, in the context of considering section 26 of the FOI Act, which protects information given in confidence, Ms. Justice Clark stated: "[T]he public interest is not served when a request for access to records is refused because the records contain information that was provided in circumstances where the motive for the complaint was highly suspect in the context of recently commenced access proceedings on almost unique facts."
For the sake of clarity, however, and particularly in light of a submission made by the HSE, I consider it helpful to restate in full the Court's formal findings and order as issued on 20 January 2010:
"The Court doth find that the Information Commissioner erred in law in her application of the public interest test as set out in Section 28(5)(a) of the Freedom of Information Act 1997.
And the Court doth declare that the decisions of the Information Commissioner were erroneous on a point of law insofar as:
i. the Commissioner found the third named notice party not to have made any allegation;
ii. the Commissioner found that there was an absence of evidence of malice in the making of the allegation
and consequent to same thereby misapplied herself as to the application of the public interest test as set out in Section 25(5)(a) [sic] of the Freedom of Information Acts;
Accordingly IT IS ORDERED
I. that the Appeal herein be allowed
II. that the decisions of the Information Commissioner dated the 17th and 28th November, 2005 refusing to grant the Appellant access to the records on the basis that it was contrary to Section 28 of the Freedom of Information Acts be set aside
III. that the matter be remitted for fresh consideration."
Again for the sake of clarity, I note that Ms. Y was the third named notice party.
In her preliminary view letter, the Investigator explained the delay which then ensued in making progress with the current review insofar as the relevant reasons for the delay could be discerned. The reasons, which by no means excuse the delay, need not be repeated here. However, I wish to emphasise that, with the exception of a relatively brief period in which the necessary parental consent to consult directly with Ms. X was lacking, full responsibility for the delay lies with this Office, a matter that I find very regrettable indeed. Moreover, I refer to the period in which parental consent was lacking merely in order to acknowledge that the review could not progress at that time. In its judgment in McK v. The Information Commissioner[2006] 1 I.R. 260, [2006] IESC 2, the Supreme Court confirmed that the views of a minor nearing the age of majority on the question of the release of information affecting her privacy rights are "very relevant". However, the Supreme Court also clarified that the actions of a parent are presumed under the Constitution to be "in accordance with the best interests of the child". Thus, in refusing parental consent, Ms. Y must be presumed to have been acting in her daughter's best interests. Moreover, as noted by the Investigator, in March 2011, this Office, acting on a mistaken impression that Ms. X was due to sit her Leaving Certificate that summer, had itself suggested to Ms. Y that any consultation with Ms. X be deferred until after the exams were over. Thus, any blame for the delay should be directed entirely at this Office.
I have now completed my review, having given the matter fresh consideration as directed by the High Court. I note that, during the course of the review, the applicant made a substantial submission, dated 6 December 2013, in response to the Investigator's preliminary view letter. He also relied on the numerous submissions he had made to the previous Commissioner and the High Court in support of his access requests. I do not consider it necessary for me to summarise these submissions in detail, nor have I necessarily addressed matters in the manner the applicant seems to expect. I consider it to be within my discretion to determine the style and format of my decision, provided that all relevant issues are adequately addressed. However, I confirm that I have had regard to the contents of the applicant's many submissions in reaching my decision. I have also had regard to contents of the submissions made by Ms. X, Ms. Y, the HSE, and the Hospital, both in response to the Investigator's invitation for submissions in October 2013 and subsequently in response to her preliminary view. (I note that the HSE's submission dated 12 November 2013 was received by this Office on the same day that the preliminary view letter issued.)
However, I have not had any regard to the current St. Louise's Unit Practice Guidelines, a copy of which was provided to this Office by the Hospital at the Investigator's request. The Investigator requested a copy of the guidelines for her information only. She was interested in comparing the procedures followed at the time of Ms. X's assessment with the current practice guidelines. However, as discussed below, it is not within my remit to adjudicate on how public bodies perform their functions generally. Therefore, the question of whether the assessment was carried out in a manner consistent with the current practice guidelines is not relevant to this review, which has arisen under section 34(2) of the FOI Act and follows on from the High Court's judgment.
The records at issue in this review are as follows:
File 1: Records 12 (lines 1-19); 13 (lines 24-32) [records 12 & 13 comprise one document]; 16; 17-19; 21-24; 25; 32 (lines 7-14); 33, and 35;
File 2: Record 19;
File 3: Records 42-43 (Copy of File 5, records 198-99); 49-50 (Copy of File 5, records 192-193); 51 and 52-55.Records 42-43 (Copy of File 5, records 198-99); 49-50 (Copy of File 5, records 192-193); and 51;
File 5: Records 1b (Copy of File 2, record 19); 1c; 2 (Copy of File 3, record 51); 4; 5 (lines 24-31); 6-7; 9-10; 12 (lines 20-23); 17; 20; 21 (lines 2-4); 23; 24; 26 (lines 4-8, 12-13, 15, 19-22); 28-29; 30; 31-33; 38; 40-41; 42 (lines 1-17); 43; 43a; 44; 44a; 52 (Copy File 1, record 35); 52a (lines 7-14); 59 (Copy of File 1, record 25); 61-64 (Copy of File 1, records 21 - 24); 82 (Copy of File 1, record 16); 146; 160; 162-163; 173-174; 192-193; 198-199; 208; 210; 211-232 (with the exception of the first six paragraphs on page 221 - note that records 211-232 are copies of File 6, records 24-45) and 233-234;
File 6: Records 1; 2 (Copy of File 1, record 25); 6 (Copy file 1 record 35); 7 (lines 7-14); 15; 19-22 (Copy of File 1, records 21-24); 24-34; 35 (last two paragraphs); 36-44, (Note that 24-45 comprise one record - the St Louise's Unit Report) and 45.
St. Louise’s Unit Chart: Records 1-3; 6-7; 13-18; 21-22; 25-26; 45; 49; 53; 54; 56-61; 68-85; 88-89; 95-96; 97; 102; 105; 120-139; 149-160; 164-175; 181-200; 203-209; 217 (third paragraph); 219; 221; 229; 230-250; 261-264 and 265.
Other: Two videos; entry on the Database corresponding to records 42-66 from the St. Louise’s Unit Chart
The issue to be decided in this review is whether the decisions to refuse access to the records identified above were justified under the FOI Act.
I note that the applicant considers that he has not been given an adequate description of the records at issue. However, there is no requirement under the FOI Act that a detailed description of the records at issue be provided. On the contrary, as the applicant is aware, section 43(3) requires that all reasonable precautions be taken to prevent disclosure of information contained in an exempt record during the course of a review. He previously was provided with schedules by both the HSE and the Hospital and thus has been given a general description of the records at issue. Although he expressed his dissatisfaction with the schedules in his submission to the previous Commissioner dated 22 August 2003, neither the scope of the previous reviews nor the adequacy of the schedules was an issue in the High Court appeal.
In her preliminary view letter, the Investigator highlighted some preliminary points to help set the context for addressing the issues raised in this case. I note that the applicant has challenged the points made regarding this Office's general approach to section 8(4) (regarding reasons for the request), section 13 (access to parts of records), and even the use of the term "joint personal information" in referring to personal information about two or more individuals, but nothing in his submissions has persuaded me to revise our approach to these matters.
Section 8(4) of the FOI Act states:
"Subject to the provisions of this Act, in deciding whether to grant or refuse to grant a request under section 7 -
(a) any reason that the requester gives for the request, and
(b) any belief or opinion of the head as to what are the reasons of the requester for the request,
shall be disregarded"
Thus, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. Certain provisions of the Act implicitly render the motives for a request of relevance. For instance, motive can be relevant in determining whether a request is frivolous or vexatious under section 10(1)(e) of the Act. Under section 28(5)(b) of the Act, motive may also be of relevance in determining whether the grant of a request for personal information would benefit the individual to whom the information relates. Moreover, as emphasised by the Supreme Court in the McK case, under the Constitution, a parent making a request for access to the personal information of his or her child pursuant to section 28(6) of the Act and the relevant regulations is presumed to be acting in the child's best interests. In relation to the question of the public interest, however, the reasons for a request are only relevant insofar as they reflect or overlap with what may be regarded as a "true" public interest, as will be discussed more fully below.
Section 13(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 13(1) does not apply, however, if the copy provided for thereby would be misleading (section 13(2) refers). Like my predecessors, I take the view that neither the definition of a record under section 2 of the Act 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, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
In any event, it was not in dispute before the High Court and thus is not in dispute in this review that all of the records at issue fall within the ambit of section 28(1) of the FOI Act by virtue of section 28(5B). This means that all of the records are in fact exempt records. Moreover, I find no reason to depart from the practice of describing the information to which section 28(5B) applies as "joint personal information", particularly as this practice has also been followed by the High Court on at least one occasion (South Western Area Health Board v. The Information Commissioner [2005] I.R. 547, [2005] IEHC 177 (describing information relating to the requester and her birth mother as "joint personal information")).
The other preliminary points highlighted by the Investigator need not be repeated here, but they will be referred to below as relevant.
Section 28(1) is a mandatory exemption that applies where the grant of a request 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, but it has been established that the only relevant ground for consideration in this case is section 28(5)(a). Section 28(5)(a) provides that personal information of a party other than the requester may be released where, on balance, "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".
Thus, in the end, despite the applicant's numerous submissions, the High Court appeal and the consequent remittal order, the primary issue presented by this case can be summed up by the single question: Does the public interest in granting the applicant's requests outweigh the public interest in protecting the privacy rights of Ms. X and the other individuals (apart from the applicant) to whom the information relates, including Ms. X's mother, the applicant's former spouse? In the face of the applicant's exhaustive arguments and emphasis on his rights, it is easy to lose sight of the fact that this is the question at issue. In my view, the answer is no.
In the Supreme Court case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"], Mrs. Justice Macken, having regard to section 6(7) of the FOI Act, emphasised that "there is simply no statutory 'right of access' to any records covered by Part III of the Act". More recently, a similar statement was made by Justice White of the High Court in O'Loughlin v. Information Commissioner & Ors [2012] IEHC 117: "Personal information is an exempt record, to which there is no right of access unless where prescribed by the Act."
The request in the Rotunda Hospital case was made on behalf of a man called Thomas Walsh and it concerned two records containing the age of his birth mother. The Court accepted that the records also related to the personal information of Mr. Walsh, but nevertheless, it drew a distinction between private interests and public interests. Mr. Justice Fennelly observed: "All of these cases concern intensely private matters." He also stressed that an access request under section 7 of the FOI Act "may be made by anybody". Elsewhere in his judgment, Mr. Justice Fennelly stated: "The requesters, Thomas Walsh and his daughter had as much or as little right to apply as, for example, a journalist." In his opinion, the request on behalf of Mr. Walsh was made "by a private individual for a private purpose" and was not a request "made in the public interest". In the opinion of Mrs. Justice Macken, the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
The records at issue in this case also concern "intensely private matters". Ms. Justice Clark's findings that the former Commissioner erred in her findings on whether Ms. Y did make an allegation and whether there was evidence of malice in the making of the allegation do not change this fact.
In light of Ms. Justice Clark's findings, the Investigator took the view that it is no longer open to this Office to revisit the questions of whether allegations were made and whether there is evidence that the allegations were made for malicious purposes. Although the HSE otherwise accepts the Investigator's preliminary view, it does not accept that "the High Court intended to nor did it make a binding finding of fact that the allegations were malicious". The HSE states in its submission dated 4 December 2013: "The role of the High Court was to consider if the process was fair and if the process wasn’t fair to quash the decision. The role of the High Court is not to make findings of fact or substitute its decision for the decision of the Commissioner. We believe the Commissioner is required to consider again the documents and materials and form his own view of the question of malice. If the Commissioner doesn’t now do this there is a risk of unfairness in the process to [Ms. Y, Ms. X, and the Hospital]."
In her judgment, Ms. Justice Clark considered the circumstances and the evidence before her and concluded that the former Commissioner's findings that "the complaints did not constitute allegations and that they were not made maliciously" should be set aside because "no reasonable decision-making body" could draw the inferences she did. In her order, she expressly declared that the former Commissioner's decisions were "erroneous on a point of law insofar as: i. the Commissioner found the third named notice party not to have made any allegation; ii. the Commissioner found that there was an absence of evidence of malice in the making of that allegation". The judgment was not appealed to the Supreme Court. I therefore do not see how it could be open to me to reconsider the matter and form a different view on the question of malice.
However, with due respect to the former Commissioner, in my view, her true mistake in the previous decisions was to make a finding on the question of malice in the first instance. I favour instead the approach of the first Commissioner, the late Mr. Kevin Murphy, as stated in Case 99001, Ms ACF and the North Eastern Health Board (4 July 2001). In Case 99001, the requester argued that section 28 of the FOI Act should not protect information about allegations of abuse that, in the view of the requester, were not truthful. The Commissioner stated:
"In complex cases of this nature there is frequently conflicting information given by third parties to public bodies. It is neither necessary nor practicable for me as Information Commissioner to decide on the truth or accuracy of such information. Indeed, even if it were established that information provided to a public body was not the 'truth', as the requester puts it, I might still be satisfied that, given the context in which the information was provided to the public body, the information was personal information about the requester's family within the meaning of the Act."
Mr. Murphy also noted that it is not the role of the Information Commissioner to make findings of what is, essentially, criminal behaviour.
In this case, even if the allegations were made for what may be regarded as malicious purposes, the records at issue relate to the deeply troubled family history of the applicant, Ms. Y, his estranged wife at the time, and Ms. X, who was then the four-year-old child at the centre of the marital breakdown. Moreover, whether true or not, descriptions of alleged sexual abuse given by a four-year-old child are disturbing and suggestive of serious dysfunction in a family. The records also include references to the medical and psychological histories of certain family members, as well as other information from which the psychological history of one individual may be inferred.
As referenced above, the Supreme Court confirmed in McK that the views of a minor nearing the age of majority on the question of the release of information affecting her privacy rights are "very relevant". Elsewhere in its judgment, the Court stated in relation to the minor concerned that "her wishes are now most relevant". It therefore follows that the views and wishes of the individual concerned are equally relevant, if not more so, once she reaches majority. As the parties are aware, my review is de novo (apart from matters that I am prevented from revisiting by reason of the High Court's binding judgment); thus, I must have regard to the fact that Ms. X is now a young adult who no longer has any familial relationship with the applicant. Both Ms. X and Ms. Y, the applicant's former spouse, object to the release of their personal information to the applicant. Both have also referred to the professional advice received from the Hospital's Senior Clinical Psychologist at the conclusion of the assessment process that no further references to the alleged abuse should be made to Ms. X. I note especially that Ms. X has stated that she finds the matter distressing and has strongly indicated that she wishes to be "allowed to get on with [her] life" as a university student without having to revisit this matter. Ms. X also argues that the findings of Ms. Justice Clark regarding the malicious nature of the allegations that were made at a time when she was a very young child should have no bearing on her privacy rights as an adult.
As the Investigator observed in her preliminary view letter, 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. It is also noteworthy that, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 28(5)(a), which is a further indication of the very strong public interest in the right to privacy. The right to privacy has also been recognised as an unenumerated right under the Constitution. Moreover, I note that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights, which provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
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. In contrast, in the case of a court order for discovery, records are released subject to an undertaking that they are to be utilised solely for the purposes of the legal proceedings in question; no further use or passing-on is allowed. Normally, therefore, privacy rights will be set aside under FOI 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.
The applicant does not agree that granting his FOI requests should be regarded as release of the information to the "world at large". He describes himself as "one of the very few people who could properly apply for the release of this joint personal information under the FOI Act". He accepts that the personal information of another individual requires protection, and he indicates that he would be willing to make a declaration of his willingness to protect and uphold the privacy rights of the third parties concerned in the event that his requests are granted. He states:
"Personal information in respect of another party has to be closely guarded by the individual receiving it through any lawful means. Any contemplated use of it, or of parts of it, would necessarily require the closest scrutiny and care. Any such dissemination, even in limited form, would have to be rightly justified to the person so affected (i.e., whose personal information is at issue). The privacy rights of any person in such circumstances are well defined and protected by the Irish Constitution, Bunreacht na hÉireann, though unenumerated therein, and they are further enhanced and protected by Article 8 of the European Convention on Human Rights. The case-law on this is unequivocal.
If it would be of further assistance to the Commissioner in his evaluation of this matter, I am prepared to offer a declaration in appropriate terms as to my willingness to protect and uphold the privacy rights of any party concerned in the event that any such records are released to myself in due course as a result of the final Decision of the Information Commissioner, and further, to have such a declaration duly witnessed by a Commissioner for Oaths or a solicitor. I understand that this is not a requirement of the Act nor is there any provision for same therein, but it might well be of comfort to any affected party whose private information is to be released within the ambit of joint personal information, etc, under the provisions of the FOI Act."
The applicant acknowledges that the FOI Act does not make any provision for restricting the use of information released pursuant to an FOI request. Thus, I do not see the value of his offer, as this Office would not have the means to enforce any such declaration. Moreover, given the stated objections of Ms. X and Ms Y to any further release of their personal information to the applicant, it is difficult to see how any declaration by him could provide any "comfort" to either of them.
In any event, as the Short Title of the Act indicates, FOI is meant to provide for the "Freedom of Information" (emphasis added). The Long Title further clarifies that the Act is intended "TO ENABLE MEMBERS OF THE PUBLIC TO OBTAIN ACCESS, TO THE GREATEST EXTENT POSSIBLE CONSISTENT WITH THE PUBLIC INTEREST AND THE RIGHT TO PRIVACY, TO INFORMATION IN THE POSSESSION OF PUBLIC BODIES". With certain limited exceptions provided for under the Act, such as under sections 28(2)(a) and 28(6), FOI is not about granting access to information to particular individuals only. As noted above, an applicant's reasons for making a request are generally not of relevance (section 8(4) refers); thus, records are not released under FOI for any limited or restricted purpose. In Barney Sheedy v. The Information Commissioner[2005] IESC 35, Mr. Justice Fennelly observed: "[The FOI Act] is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen." Thus, as he observed in the Rotunda Hospital case, an access request under section 7 of the FOI Act "may be made by anybody". In this case, access to the requested records is being sought in "the public interest" under section 28(5)(a) of the FOI Act; therefore, any decision to grant access would be on the basis that there is an overriding public interest in the information that outweighs the privacy rights of the third party individuals concerned. In the circumstances, I consider it appropriate to regard any release of the records concerned as being effectively, or at least potentially, to the world at large.
The applicant originally identified the following six public interest considerations in support of his access requests:
In his submissions to the High Court, the applicant emphasised his constitutional right to defend and vindicate his good name and reputation. He argued that fair procedures would have entitled him to access to the records from the earliest stages of the investigation into the allegations by the HSE and the Hospital. He summarised the the competing constitutional and public interest considerations as follows:
"- the constitutional right to privacy
- the public interest in confidentiality afforded a third party.
Versus
- the constitutional right to fair procedures for a person accused of serious wrongdoing
- the constitutionally protected right to defend and vindicate one's good name
- the public interest in defeating wrongdoing."
In his submission dated 6 December 2013, the applicant has increased the number of public interest considerations to 18, but it seems to me that, with one exception, the "new" considerations merely expand on the factors previously identified. (The exception is the fourteenth consideration identified, which relates to speculation regarding the actions that Ms. X may take in future in the event of the applicant's death and is of no relevance in this review except insofar as it relates to his constitutional rights.) In essence, however, his public interest considerations amount to an argument that the public interest in openness and accountability is entitled to great weight in the circumstances of this case given the rights involved and the seriousness of the functions being performed by the HSE and the Hospital in investigating the allegations against him. He also argues that "full details and the related documentation" should be provided to an "accused person in early course" as a means of deterring false allegations of child sexual abuse, particularly in cases involving parental separation or divorce.
As noted above, the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act. In the context of determining whether to grant a request in the public interest under section 28(5)(a) of the FOI Act, this means that the reasons given for the request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. For instance, a requester may seek access to information relating to payments made by a public body to another individual out of concern that his or her tax money is being misused or otherwise wasted. Such concerns, or reasons for the request, reflect the very strong public interest in ensuring maximum openness and accountability in relation to public expenditure. Notwithstanding this strong public interest, access is unlikely to be granted if the payment relates to an intrinsically private aspect of the recipient's life, such as family circumstances or inadequacy of means. Where, on the other hand, a potential invasion of privacy is regarded as minimal, the public interest in disclosure is likely to prevail. (See, e.g., Case Number 99168, Mr. Richard Oakley, The Sunday Tribune Newspaper and the Office of the Houses of the Oireachtas(1999) (distinguishing payments made to Members of the Oireachtas from a payment made to a claimant under the Social Welfare Acts).) In any event, however, both section 8(4) of the FOI Act and the Rotunda Hospital case stand for the principle that a requester's private interest in certain records cannot be construed into a public interest based on the requester's own motives for seeking access to the records. Thus, I consider that an objective rather than subjective standard applies in determining the public interest in granting access to the records concerned.
The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy. Moreover, I agree with the applicant insofar as he argues that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions in dealing with allegations of child sexual abuse. As the Investigator noted in her preliminary view letter, historically this Office has recognised, having regard to the Constitution and the principles of natural justice, that there is 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, having regard to the Rotunda Hospital case, section 8(4) of the FOI Act, and the limits of my remit, I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances. As applied in this case, it means that there is a strong public interest in revealing information that would shed light on whether the HSE and the Hospital carried out their functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. The public interest in openness and accountability also extends to the related public interest considerations identified by the applicant (e.g., the public interest in fair and equal treatment by public bodies and in promoting the rights of individuals under the European Convention on Human Rights).
I wish to emphasise that the public interest test does not give me the authority to investigate complaints against public bodies or to act as an alternative dispute mechanism with respect to actions taken by public bodies. I also do not believe that the "public interest" under FOI is concerned with the actions of private individuals such as Ms. Y. As noted in Case 030010, Mr. X and the Department of Social Welfare (2003), involving a request for the address of a social welfare recipient who had allegedly committed fraud: "It is also of some significance that the information sought by you relates to a private individual and does not, for example, relate to the business of government or the performance by a public body of its functions. The public interest considerations relating to openness, transparency and accountability in government do not arise in this case."
Thus, while I accept that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions in dealing with allegations of child sexual abuse, this does not mean that it is within my remit as Information Commissioner to determine or to make value judgments as to whether the applicant should have been provided with further personal information in the course of the assessment process or the investigation, whether as a matter of fair procedures, "equality of arms", or simply good administrative practice. It also does not permit me to review the question of whether the outcome of the investigation was correct or not. In other words, it is not open to me as Information Commissioner to determine that further personal information should be provided to the applicant now, in the public interest under section 28(5)(a) of the FOI Act, as a means of remedying any actual or suspected wrongdoing by the HSE, the Hospital, or any third party individuals such as Ms. Y. The question of whether the applicant should have access to further information in order to pursue a remedy or some other form of redress is a matter for the Courts, which have been given exclusive power under the Constitution for the administration of justice. It would be in the context of relevant court proceedings, such as an action for judicial review or defamation, that the applicant's identity as the person against whom allegations of child sexual abuse were made and his personal reasons for seeking disclosure of sensitive personal information relating to others in addition to himself would be of relevance.
I also note that, while section 5 of the Protections For Persons Reporting Child Abuse Act 1998 recognises a public interest in deterring false allegations of child abuse, it does so through the criminal law by making it an offence to make a false statement of child abuse "to an appropriate person" knowing the statement to be false. I do not believe that it was intended by the Oireachtas that the FOI Act should be used as a means of deterring false allegations of child abuse in the manner suggested by the applicant. Finding that all relevant information relating to an allegation of child abuse should be made available to an accused person or a certain class of accused person as a general rule under FOI notwithstanding the privacy rights of the alleged victim and any other third party individuals involved would require a change in policy to be adopted by the Oireachtas.
As matters stand, there is no right of access to a record which is exempt under section 28 of the FOI Act. Personal information remains exempt information (notwithstanding section 28(2)(a)) where section 28(5B) applies. With certain limited exceptions not applicable in this case, the Oireachtas has determined that personal information should be given strong protection in response to an FOI request. Even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 28(5)(a). Moreover, the applicant's private interest in determining whether he may have a cause of action whether under the civil or criminal law does not establish a public interest in disclosure of the information concerned. As Mrs. Justice Macken stated in relation to Thomas Walsh's request in the Rotunda Hospital case: "I recognise of course, the desire of persons to have as much information as possible about circumstances of birth. A policy, however, giving rise to a public interest, is not easily adopted without legislative guidance, because of course, such a policy must be debated and its limits, if any, fixed by reference to any competing interests (the mother's, a new family's, privacy and such matters)." It seems to me that a change in policy such as that proposed by the applicant with respect to access to personal information under section 28 would require consideration of the constitutional right to privacy, the principle of proportionality that is reflected in Article 8 of the European Convention of Human Rights, as well as the need to safeguard the flow of relevant information to public bodies regarding suspected cases of child abuse.
I note that in Case 99001, Mr. Murphy suggested that "exceptional circumstances" may warrant the disclosure of sensitive personal information in the public interest where serious questions are raised about the performance by a public body of its functions. He stated:
"In exceptional circumstances the public interest may require disclosure of sensitive personal information where serious questions are raised about the performance by a public body of its functions. The requester has argued that she has serious questions about the performance of the Board in her case and she argues that she suffered serious harm as a result of its failure to act. As I said above, I am satisfied that the substance of all relevant information has in fact been released to the requester. In my view, the circumstances must be very exceptional indeed before disclosure of sensitive family information would be required. Even in such grave situations where, for example, an inquiry may be called, steps are generally taken to protect the identity of the families involved. [This was the case, for example, with the 1993 Kilkenny Incest Investigation]. I am satisfied that exceptional circumstances do not arise in this case and that the release of the records is not required because of such a public interest."
Given the limits of the remit of the Office of the Information Commissioner, however, I do not believe that Mr. Murphy meant to imply that it was open to him or his successors to determine unilaterally that there are "serious questions" about the performance by a public body of its functions that would warrant the disclosure of sensitive personal information without the consent of the third parties concerned. In my view, such a determination would need to be made by a competent authority such as a court or otherwise not reasonably be in dispute. Having regard to the constitutional right to privacy, Article 8 of the European Convention on Human Rights, and the judgment of the Supreme Court in the Rotunda Hospital case, it seems to me that, even in exceptional circumstances, the amount of sensitive personal information about a third party individual that could properly be released under FOI without consent may be quite limited.
In her judgment, Ms. Justice Clark referred to the "almost unique facts" surrounding the allegations made against the applicant in this case. However, it is apparent that her comments were largely directed at the actions of Ms. Y in the context of the access proceedings that the applicant had commenced in relation to Ms. X under the Guardianship of Infants Act 1964. I agree that the personal circumstances involved in this case are certainly out of the ordinary, but this does not, of itself, give rise to "serious questions" about the performance of the HSE and the Hospital of their functions in this case. I note that, in his submission dated 6 December 2013, the applicant refers to the finding of malfeasance in public office that was made against certain staff members of the HSE in the case of PDP v. HSE [2012] IEHC 591, which related to an investigation of a subsequent complaint of child sexual abuse. However, in my view, this judgment illustrates that the Courts provide the appropriate forum for determining whether an individual's constitutional rights have been violated in the course of a child abuse investigation or whether the investigation was otherwise mishandled. To my knowledge, no finding of malfeasance has been made by the Courts in relation to the investigation concerning Ms. X. Moreover, malfeasance on the part of public officials would not necessarily undermine the protection afforded by section 28 of the FOI Act to the sensitive personal information of Ms. X and the other third parties concerned.
In his submission dated 6 December 2013, the applicant concedes that the personal information of another party must be protected. He acknowledges that privacy rights are protected under both the Irish Constitution and Article 8 of the European Convention on Human Rights. His offer of a declaration to protect and uphold the privacy rights of the third party individuals concerned in this case would even appear to be an implicit admission that there is no overriding public interest in releasing the information at issue to any member of the public other than himself. The applicant clearly has a very strong private interest in the matter, but his private interest does not itself represent a public interest. Moreover, he seems to overlook the fact that the duty to protect and uphold the privacy rights of Ms. X and her mother, Ms. Y, rests with the HSE and the Hospital, the bodies which hold the records at issue in this case.
Nevertheless, the applicant has previously been granted access to a large number of records relevant to his requests. I recognise that the vast majority consists of his own correspondence with the public bodies. As the Investigator noted in her preliminary view, Ms. Y would have necessarily ceded any right to privacy viz. the applicant that she and Ms. X may have had in relation to the allegations insofar as disclosure would have been considered necessary by the competent authorities for the purposes of procedural fairness at the time of the investigation. Accordingly, the applicant was given a certain amount of information during the investigative process and at its conclusion, and copies of his correspondence and a small number of additional records have been released to him in response to his FOI requests. The records released include:
I find that the released records have served the public interest in openness and accountability to some degree. They may not provide the level of detail that the applicant seeks, but they provide a good outline of how the HSE and the Hospital dealt with the allegations made against him. In other words, they shed some light on the "working of government and administration" in relation to the investigation of allegations of child sexual abuse at the time. The applicant has suggested that the outcome of "unconfirmed", as opposed to "unfounded", was itself prejudicial to him. However, it seems to me that, having been made aware of the outcome, he should have been in a position to challenge it through the appropriate channels without recourse to FOI if he believed that it was somehow erroneous. In any event, I do not accept that the applicant's dissatisfaction with the investigative process and its outcome provides a basis for undermining the privacy rights of the third party individuals concerned under section 28 of the FOI Act in relation to the remaining information at issue. I conclude that, on balance, the public interest in granting the applicant's requests for access to the remaining records at issue is not sufficiently strong to outweigh the public interest in upholding the privacy rights of the third parties concerned.
In reaching my conclusion, I have had regard to the Investigator's preliminary view with respect to what she described as "form documents", which are the following.
The Investigator took the view that, in light of the information which has already been made available to the applicant, both within and outside of FOI, release of these documents, subject to the redaction of the names and other identifying details of the third parties concerned, would involve only a minimal invasion of privacy while serving the public interest in openness and accountability. In response to the Investigator's preliminary view letter, Ms. X and Ms. Y have indicated that they do not wish for there to be any further reopening of the matter given the passage of time and the professional advice received from the Hospital's Senior Clinical Psychologist at the conclusion of the assessment process. The HSE has accepted the Investigator's preliminary view, as has the Hospital with respect to the copy of the HSE record on its file (record 265), but the Hospital argues that any release of Ms. X's "medical records" would be contrary to the findings of the Supreme Court in the Rotunda Hospital case. The applicant, for his part, suggests that the release of pro forma documents following the redaction proposed by the Investigator would be meaningless.
I agree with the Hospital that the Rotunda Hospital case supports the position that records created in a confidential medical context are entitled to strong protection under FOI even if their contents may appear innocuous. In any event, even assuming that release of the records would involve only a minimal invasion of privacy, I consider that the public interest to be served by the release of these records, given their contents, is also minimal in the circumstances. Over 14 years have now passed since the records were created. In the time which has passed since the investigation into the child abuse allegations concluded, Ms. X has been allowed "to get on with [her] life". I do not agree that any further invasion of her privacy, or that of her mother's, through the release of their personal information under FOI is now warranted in the public interest.
In sum, I have carried out a fresh review on foot of the remittal order of the High Court in P v. Information Commissioner [2009] IEHC 574. I am satisfied that all of the records at issue are exempt under section 28(1) and that granting the applicant's requests is not warranted under section 28(5)(a) by virtue of any overriding public interest in the matter.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decisions of the HSE and the Hospital with respect to the records at issue.
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.
Peter Tyndall
Information Commissioner