EH v Information Commissioner

JurisdictionIreland
CourtHigh Court
JudgeO'Neill J.
Judgment Date04 Apr 2001
Neutral Citation[2001] IEHC 58
Docket Number[1999 No. 107 MCA]

[2001] IEHC 58

THE HIGH COURT

Mr. O'Neill

Record No. 96 M.C.A./1999
H (E) v. INFORMATION COMMISSIONER
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997
E.H.
APPELLANT

AND

THE INFORMATION COMMISSIONER
RESPONDENT

AND

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997
E.P.II
APPELLANT

AND

THE INFORMATION COMMISSIONER
RESPONDENT

Citations:

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S22(1)(a)

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S10(1)(e)

EASTERN HEALTH BOARD V FITNESS TO PRACTICE COMMITTEE OF THE MEDICAL COUNCIL 1998 3 IR 399

FREEDOM OF INFORMATION ACT 1997 S22(1)(b)

ALTMAN V FAMILY COURT OF AUSTRALIA 1992 15 AAR 236

FREEDOM OF INFORMATION ACT 1997 S23(1)(iv)

FREEDOM OF INFORMATION ACT 1997 S8(4)

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S6(4)

FREEDOM OF INFORMATION ACT 1997 S6(5)

FREEDOM OF INFORMATION ACT 1997 S6(1)

FREEDOM OF INFORMATION ACT 1997 S6(4)(a)

KEEGAN, STATE V STARDUST TRIBUNAL 1986 IR 642

AMBIROX V MIN FOR ENVIRONMENT (NO 1) 1992 1 IR 227

GREENCORE GROUP V MURPHY 1993 3 IR 520

HOECHST MARION ROUSSEL V FARCHEPRO 2000 1 ILRM 320

FREEDOM OF INFORMATION ACT 1997 S34(1)

HOME OFFICE V HARMON 1983 AC 280

CONSTITUTION ART 31.1

Synopsis:

Freedom of Information

Freedom of information; discovery; statutory interpretation; appeal pursuant to s.42(1) Freedom of Information Act, 1997; in the course of a negligence proceedings appellant obtained an order for discovery against defendants and undertook to preserve confidentiality of discovered documents; appellant was refused access to records held by defendants on the basis all relevant information had been made available in discovery; appellant appealing two decisions of respondent to refuse access to certain records held by defendants; whether respondent correct in concluding as a matter of law that disclosure of documents sought would be a breach of undertaking given and hence a contempt of court; whether where head of public body or respondent is aware of existence of undertaking, expressed or implied, to a court, disclosure must be refused; whether on the evidence the appellant could have obtained access to records under categories B C and D of records in issue.

ss.6(4) and (5), 22(1)(b) Freedom of Information Act, 1997

Held: Appeal dismissed; respondent's findings that documents in category A should not be disclosed upheld; Court to examine documents in respect of which there is a refusal, in order to be satisfied no grounds of appeal on a point of law.

H (E) v. Information Commissioner - High Court: O'Neill J. - 04/04/2001 - [2001] 2 IR 463

The appellant had sought access to documents under the Freedom of Information Act, 1997. The Information Commissioner had refused access to certain documents and the appellant appealed to the High Court. Mr. Justice O'Neill was satisfied that the decision of the Commissioner regarding refusal to allow disclosure was correct.

1

O'Neill J.delivered the 4th April, 2001.

2

This matter comes before the Court by way of an appeal pursuant to Section 42(1) of the Freedom of Information Act 1997(hereinandafter referred to as "the Act") against two decisions made by the Respondent the Information Commissioner (hereinafter referred to as "the Commissioner") under Section 34(2) of the Act.

BACKGROUND
3

Allegations of sexual abuse were made against the Appellant. As a result of these allegations which were strenuously denied by him the Appellant instituted proceedings in which he claimed damages for negligence against Ireland, The Minister for Health andChildren (hereinafter referred to as "the Minister") and the Eastern Health Board (hereinafter referred to as "theBoard").

4

In the course of these proceedings the Appellant obtained an order for discovery against the Defendants from the Master of the High Court. In order to have obtained this discovery the Appellant gave to the Court an undertaking in the following terms

"To preserve the total confidentiality of all documents hereinafter discovered and to obtain a similar undertaking from each and every person to whom the documents or any of them are submitted in the course and preparation for hearing of this action."

5

On the 12th of November, 1998 under the provisions of the Freedom of Information Act 1997, the Appellant applied to the Board for all records held by the Board relating to himself, his former partner and his daughter. The Board refused his request on the basis that all relevant information had already been made available to him by means of discovery.

6

The Appellant sought an internal review of this decision on the 11th of December, 1998. The initial decision was upheld on the basis that the reviewer was satisfied that all the relevant documentation had been furnished to the Appellant and that in those circumstances there was no obligation to produce documentation which had been furnished to the Appellant's legal representatives and was already in hispossession.

7

On the 7th of January, 1999 the Appellant requested from the Commissioner a review of the decision of the Board and the Commissioner accepted a case for such review.

8

On the 22nd of January, 1999 the Appellant applied to the Minister again under the Freedom of Information Act for all records in the possession or power of the Minister relating to the Appellant, the Department of Health, the Eastern Health Board, theRegistered Medical Practitioner Dr. W. and the Sexual Assault Treatment Unit of the Rotunda Hospital and the Office of the Ombudsman and specifically the following records

9

1. All records, reports, reviews in relation to the setting up of the Sexual Treatment Unit of the Rotunda including terms of reference, protocols and procedures.

10

2. All records relating to the Appellant and R.K. of the Eastern Health Board.

11

3. All records relating to the Minister for Health, the Appellant, the Eastern Health Board and Dr. W.

12

4. All records notes or memoranda relating to the meeting of the 8th of September, 1992 or thereabouts between the Minister for Health, and in relation to the Appellant, Dr. W. and his former partner anddaughter.

13

5. All records relating to Minister for Health, the Appellant, his former partner and his daughter.

14

6. Records relating to an application for funding by the Appellant to the Department of Health.

15

7. Files number C10.03.07 and C20.02.06 in relation to Dr. W.

16

8. All records containing legal advice in relation to the Appellant, his former partner and daughter.

17

The Minister refused access to the records detailed at 1 above on the basis that they were created pre the 21st of April, 1998 and did not contain personal information about the Appellant. Access was refused to one record at 2 above on the basis that it contained personal information about parties other than the Appellant. There were 12 records at category 3 above and 10 of these were released to the Appellant. Two records withheld were withheld on the basis that they related to personal information about parties other than the Appellant. The records described at 4 and 5 above are encompassed by the decision on category 3 above. Access to the records described at 6 and 7 above were refused as theserecords were pre commencement and did not relate to personal information about the Appellant. The Minister claims that Section 22(1)(a) of the Act applied to the records at 8 above as they attracted legal professional privilege. This decision was upheld on internalreview.

18

The Applicant applied to the Commissioner for a review of this decision on the 14th of April, 1999 and the Commissioner accepted the application for review.

THE DECISION OF THE COMMISSIONER ON REVIEW OF APPELLANT'SAPPLICATION TO THE BOARD (CASE NO 99011)
19

The Commissioner divided the records in issue in this review into four categories as follows:-

CATEGORY A
20

This category comprised of 119 records numbered and described in the first part of the first schedule to the Affidavit of Discovery sworn by P. H. in the High Court proceedings between the Appellant and Ireland, the Attorney General and the Minister for Health and the Board. These records were made available to the Appellant on foot of the High CourtOrder.

CATEGORY B
21

These were 17 documents listed in the second part of the first schedule to the Affidavit of Discovery of P.H.. These records were not made available to the Appellant on Discovery as privilege was claimed in respect of them by the Board.

CATEGORY C
22

These are 28 documents consisting of copies of Summonses, Motions, High Court Orders and Affidavits in connection with the above mentioned legal proceedings and also certain Judicial Review Proceedings involving the Board as Applicant and the Fitness to Practice Committee of the Medical Council as Respondent. The Appellant required the Commissioner to rule on only two of these, namely an Affidavit of Dr. W. (a Notice Party to the Judicial Review proceedings), and an Affidavit of Mr. H.C., who acted as Solicitor to the Board in relation to these proceedings.

CATEGORY D
23

There were 43 documents in this category which consisted in the main of correspondence between the Appellant or public representatives acting on his behalf, internal memoranda between Board officials and/or their legal advisors and correspondence from the Department of Health in reply to same. There was also a small number of documents in this category which are copies of those listed in category A. The Appellant indicated to the Commissioner that he required a ruling only in respect of 19 of these documents which are listed in the schedule attached to the decision of the Commissioner appealed against herein.

24

In the portion of decision heading "Findings" the Commissioner in summary made the following findings:-

25

1. That the Appellant's request was...

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