F.P. v Information Commissioner

• Jurisdiction: Ireland
• Judge: MS. JUSTICE MAUREEN H. CLARK,
• Judgment Date: 13 July 2009
• Neutral Citation: [2009] IEHC 574
• Court: High Court
• Date: 13 July 2009

P (F) v Information Commissioner

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS 1997 AND 2003

BETWEEN

F.P.

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

THE HEALTH SERVICE EXECUTIVE (FORMERLY THE EASTERN HEALTH BOARD), OUR LADY'S HOSPITAL FOR SICK CHILDREN AND S. P.

NOTICE PARTIES

[2009] IEHC 574

[No. 4 M.C.A./2006]

THE HIGH COURT

FREEDOM OF INFORMATION

Access to records

Appeal on point of law - Decisions of commissioner - Refusal of request to records relating to allegations of child sexual abuse - Whether misdirection as to application of legislation - Allegations of abuse made against non-biological father during acrimonious relationship breakdown - Assessment by health board - Conclusion that allegations âÇÿunconfirmed' - Refusal of request for records relating to applicant and child - Review by commissioner - Confidential information - Personal information relating to child - Submission that public interest outweighed child's right to privacy - Constitutional right to reputation - Inability to assess whether to pursue civil claim for malicious allegations - Whether error in law in finding that report made by wife not malicious allegation - Failure to give adequate consideration to circumstances surrounding allegations - Emphasis on right to privacy of child - Information relating to applicant allegedly coming from child - Intention of Oireachtas that exemptions to be interpreted restrictively - Deely v The Information Commissioner [2001] 3 IR 439; Minister for Information and Science v The Information Commissioner [2008] IEHC 279 (Unrep, McGovern J, 31/7/2008) and Sheedy v The Information Commissioner [2005] IESC 35; [2005] 2 IR 272 considered - Freedom of Information Act 1997 (No 13), ss 7, 22, 26, 28 and 42 - Decision set aside; matter remitted for fresh consideration (2006/4MCA - Clark J - 13/7/2009) [2009] IEHC 574

P(F) v The Information Commissioner

Facts: An appeal on a point of law was taken from two decisions of the Information Commissioner from 2005. The decisions affirmed earlier decisions to refuse the appellant's request for access to certain records. The records to which the appellant sought access were generated in 1998 and related to allegations of child sexual abuse made against him and an assessment which concluded that the allegations were unconfirmed. The appellant had been involved in an acrimonious relationship, whereby he had split acrimoniously with his wife and the child that he had thought they had had together was the result of an extramarital affair. He had sought access to hospital records when the child was hospitalised and was refused several records sought. The Commissioner concluded that the right to privacy of the child was a matter to be considered as to the public interest, having regard to s. 28(5) of the Freedom of Information Acts 1997 and 2003. The appellant, a lay litigant, contended that the Commissioner had misdirected herself in law.

Held by Clark J. that the public interest was not served by a request for access to documents being refused because the records contained information provided in circumstances where the motive of the complaint was highly suspect. The laudable protection to providers of information of child abuse was never intended to guarantee a blanket embargo on the release of the information. The appeal would be allowed and a declaration granted that the decision of the Commission was erroneous on a point of law insofar as the Commissioner found the third named notice party not to have made an allegation and in so far as the Commissioner found that there was an absence of evidence of malice in the making of the allegation, that she had misdirected herself as to the application of the public interest tests as set out in s. 25(5A) of the Acts.

Reporter: E.F.

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S28

FREEDOM OF INFORMATION ACT 1997 S28(5)(A)

GUARDIANSHIP OF INFANTS ACT 1964

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S26(1)

FREEDOM OF INFORMATION ACT 1997 S28(1)

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

FREEDOM OF INFORMATION ACT 1997 S28(5)

FREEDOM OF INFORMATION ACT 1997 S28(5B)

FREEDOM OF INFORMATION ACT 1997 S28(2)(B)

FREEDOM OF INFORMATION ACT 1997 S28(2)(C)

FREEDOM OF INFORMATION ACT 1997 S28(2)(D)

FREEDOM OF INFORMATION ACT 1997 S28(2)(E)

FREEDOM OF INFORMATION ACT 1997 S28(5)(B)

FREEDOM OF INFORMATION ACT 1997 S28(6)

FREEDOM OF INFORMATION ACT 1997 S42

DEELY v INFORMATION CMSR 2001 3 IR 439 2001/5/1298

FREEDOM OF INFORMATION ACT 1997 S29(2)(A)

FREEDOM OF INFORMATION ACT 1997 S28(2)

FREEDOM OF INFORMATION ACT 1997 S28(3)

FREEDOM OF INFORMATION ACT 1997 S28(4)

FREEDOM OF INFORMATION ACT 1997 S28(5A)

FREEDOM OF INFORMATION ACT 1997 S28(7)

FREEDOM OF INFORMATION ACT 1997 S28(2)(A)

FREEDOM OF INFORMATION (AMDT) ACT 2003 S23

FREEDOM OF INFORMATION ACT 1997 S29

PROTECTIONS FOR PERSONS REPORTING CHILD ABUSE ACT 1998 S5

MIN FOR EDUCATION v INFORMATION CMSR 2009 1 IR 279 2008/40/8659 2008 IEHC 279

SHEEDY v INFORMATION CMSR 2005 2 IR 272 2005 2 ILRM 374 2005/54/11310 2005 IESC 35

FREEDOM OF INFORMATION ACT 1997 PART III

FREEDOM OF INFORMATION ACT 1997 S26(3)

1 This is an appeal on a point of law pursuant to s. 42(1) of the Freedom of Information Act 1997 from two decisions of the Information Commissioner delivered on the 17 ^th and 28 ^th November, 2005. Those decisions affirmed the earlier decisions of the former Eastern Health Board and St. Louise's Unit of Our Lady's Hospital for Sick Children, Crumlin to refuse the appellant's request for access to certain records, finding them to be exempt under ss. 26 and 28 of the Act of 1997. The records to which the appellant sought access were generated between January and October, 1998 and related to allegations of child sexual abuse made against him and an assessment which concluded that the allegations were "unconfirmed". The essential question in this case is whether the Commissioner misdirected herself as to the application of s. 28(5) (a) of the Act of 1997.

Background

2 The appellant's requests for access to records in the present case were made following a series of disturbing events. The appellant's wife gave birth to a daughter in 1993. The appellant believed the child to be his biological daughter and he formed a strong parental bond with her. They lived together as a family unit. It emerged however that the child was the result of his wife's extra-marital relationship with another man. Unknown to the appellant, his wife applied for the child's birth certificate to be amended so that the biological father's name was substituted for the appellant's name. She also secretly obtained DNA tests confirming the other man's paternity of the child and obtained Court orders providing for birth expenses and support for the child from the biological father which were expenses already provided for by the appellant.

3 Not unsurprisingly, the appellant and his wife split acrimoniously in 1997 and their relationship was thereafter very strained. His wife moved out of the family home, taking the child with her. It is fair to say that the appellant had great difficulty in accepting that the child who he had raised as his daughter and who he deeply loved was not his. On the 12 ^th January, 1998 he commenced proceedings for access under the Guardianship of Infants Act 1964. Those proceedings were served on his wife during the following week. On the 19 ^th January, 1998 his estranged wife reported to the Eastern Health Board that the child had told her that she had been touched inappropriately by the appellant.

4 By letter dated the 30 ^th January, 1998 the Health Board notified the appellant that his wife (referred to by her maiden name) had attended at its clinic and indicated that she had "concerns" for her daughter who had indicated to her that the appellant allegedly touched her on her "front" and "back bottom" and also that he allegedly "put [his] tongue on her tongue", and that the child had demonstrated to his wife an action which he allegedly did in her company. He was informed that the Health Board had an obligation to investigate such allegations. A fortnight later he was informed that the child had been referred for assessment to St. Louise's Unit of Our Lady's Hospital, Crumlin, and that the Gardai had been notified.

5 The appellant was invited to take part in the Unit's assessment but, following correspondence in which he sought assurances that fair procedures would be accorded to him, he declined to do so. The Unit could not ensure that any interviews with the appellant would be recorded or that he would be furnished in advance with guidelines under which the Unit operated. It subsequently appeared that no such written guidelines were in existence. He had no further access to the child. The nature of the allegations was not disclosed to him apart from being told that the child had said "he had touched her back bottom and her front bottom."

6 This Court cannot help but feel that the events which occurred thereafter could have been avoided if the social workers had agreed to meet the appellant's concerns by furnishing him with a full account of the allegations which were reported to have been made by the child to her mother concerning him. If, in addition, he had been permitted to have a transcript or a record of his interviews with the social workers to protect his interests, much expense and grief could have been avoided. I also use the word "allegation" to describe what the notice parties in this case have been careful to refer to as "concerns" expressed by the mother of what the child is alleged to have told her concerning the appellant's behaviour which if established would have profound effects on both the...