F.P. v The Information Commissioner

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 30 January 2019
• Neutral Citation: [2019] IECA 19
• Docket Number: Record Number: 2017/71
• Court: Court of Appeal (Ireland)
• Date: 30 January 2019

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

BETWEEN:

F.P.

APPELLANT

- AND -

THE INFORMATION COMMISSIONER

RESPONDENT

- AND -

THE CHILD AND FAMILY AGENCY, OUR LADY'S CHILDREN'S HOSPITAL, CRUMLIN, SP

AND

SF

NOTICE PARTIES

[2019] IECA 19

Peart J.

Peart J.

McGovern J.

McCarthy J.

Record Number: 2017/71

THE COURT OF APPEAL

Data Protection and Freedom of Information – Freedom of Information Acts 1997 and 2003 – Right to Privacy – Appellant appealing a decision of the High Court upholding Commissioner’s decision not to release information regarding claims of sexual abuse made against the appellant – Whether the public interest test in S.28(5) of the act had been met

Facts: The appellant sought records from the Eastern Health Board in relation to allegations of sexual abuse made against him by a child which were investigated by the Board and determined to be unfounded. The Commissioner and the High Court refused the appellant’s request finding that the child’s right to privacy outweighed the public interest in releasing the documents. The appellate appealed this decision.

Held by Peart J that the public interest in granting the request and releasing the documents was outweighed by the public interest in protecting the privacy rights of the mother and child. As the requested material contained private information, it was exempt under S.28 of the Freedom of Information Acts 1997-2003 and this case did not give rise to such exceptional circumstances as would satisfy the public interest test in S.28(5)(a).

Appeal dismissed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 30TH DAY OF JANUARY 2019

1 This is an appeal from the order of the High Court (McDermott J.) made on the 20th December 2016 refusing the appellant's appeal on a point of law pursuant to s. 42 of the Freedom of Information Acts 1997-2003 (‘the Act’) for the reasons stated in a written judgment delivered on that date ( [2016] IEHC 771).

2 The appellant had sought certain records from the Eastern Health Board (‘the Board’) which related to himself and S whom he had always believed to be his biological daughter until he later found out that this was not so. The records he sought emanate from certain complaints of sexual abuse made by his wife which were alleged to have been committed by him in 1997 against S when she was aged about four years. The details of the allegations have never been disclosed to him other than that the child had stated that ‘he had touched her back bottom and her front bottom’.

3 The appellant was notified of the allegations by the Board and was invited to a meeting as part of the Board's investigation. He declined to participate. He was also invited by the second named notice party (‘the hospital’) to attend the hospital for interview in relation to an assessment of S by the hospital. He declined that invitation also, because assurances which he had sought as to fair procedures were not forthcoming.

4 In December 1998 further allegations of sexual abuse were made against the appellant by his wife in respect of S. The hospital commenced an investigation. The appellant again refused to submit to interview as he was still not satisfied that appropriate procedures and facilities would be in place.

5 Further correspondence ensued whereby the appellant sought certain information in relation to the process, including as to who had been notified in relation to the conclusions, including his superior at the school where he worked as a teacher. Some information was forthcoming in that regard, as noted by the trial judge in his judgment, but this was insufficient to satisfy the appellant's concerns.

6 On the 25th February 1999 the appellant made a request under s. 7 of the Act to both the Board and to the hospital. He sought from both all records held relating to himself, and to S, and in relation to himself and S jointly. On the 28th June 1999 some records which related to him were released but, on the basis of s. 28 of the Act, those which related to S either individually or jointly were refused.

7 On the 6th October 1999 the appellant was notified by the Board of the outcome of its investigation into the allegations. That letter stated:

‘Taking into account all information available to this department, including the information contained in the assessment in St. Louisa's Unit, the concerns or allegations are unconfirmed.

As the gardaí were notified of the allegation, they will be notified of the outcome.’ [Emphasis provided]

8 In November 1999 the appellant sought further records created by the Board subsequent to his first request, to which the Board responded on the 25th November 1999 by providing him with one such record – any others comprising only correspondence between him and the Board. It appears that there were four records relating to S which had been created since his first request, and these too were withheld by the Board on the basis of s. 28 of the Act.

9 As noted by the trial judge, the appellant sought an internal review of the decisions of both the Board and the hospital dated 25th November 1999. Those reviews resulted in the original decisions being upheld.

10 On the 25th October 2000 the appellant sought a review of these decisions by the respondent Information Commissioner pursuant to s. 34 of the Act. Considerable, indeed inordinate, delay in the Commissioner's office ensued. However, in April and June 2003 the appellant was eventually informed by the Commissioner that her preliminary view was that the decisions of both the Board and the hospital should be upheld on the basis that the records contained joint personal information relating to him and S, and as such were exempt under s. 28 of the Act. However, the appellant was invited to demonstrate that on balance the public interest in granting access to the joint records outweighed the child's right to privacy within the meaning of s. 28(5) of the Act. He made submissions, but nevertheless on the 25th November 2005 the Commissioner affirmed the decisions of the Board and of the hospital on the basis that the joint records in question were exempt under s. 28 of the Act.

11 The appellant then brought an appeal to the High Court on a point of law pursuant to s. 42(1) of the Act in respect of these decisions. That appeal was successful. In her judgment in P. v. Information Commissioner [2009] IEHC 574, Clark J. concluded that the Commissioner had misdirected herself as to the application of the public interest test set out in s. 28(5)(a) of the Act. The decisions were set aside, and the matter was remitted to the Commissioner for a further consideration and decision.

12 There was a good deal of correspondence back and forth between the appellant and personnel in the Commissioner's office before that fresh review was undertaken. It is unnecessary to describe that correspondence in any detail. In due course by letter dated 14th November 2013 the investigator, Ms. Campbell, wrote to the appellant enclosing a copy of her preliminary view. She considered various matters including the delay that had occurred. But ultimately she expressed the view that the right to privacy outweighed the public interest in granting access to any documents other than what were referred to as ‘form documents’ to which, in her view, s. 26 of the Act (i.e. information obtained in confidence) did not apply. It was proposed that such form documents would be released but with appropriate redactions.

13 The appellant was given the opportunity to make submissions upon this preliminary view, and he did so extensively by letter dated 6th December 2013. In his affidavit in the High Court sworn on the 19th March 2014 he set out a lengthy summary of the submissions that he made in support of his view, inter alia, that the public interest should outweigh the right to privacy of S and other third parties to whom the information sought may relate, such as S's mother. He relied also on the many previous submissions that he had made over previous years.

14 The Information Commissioner (by this time, Mr Peter Tyndall) issued a decision on the 23rd January 2014 in respect of the requests made to the Board and the hospital. Once again the request for records was refused.

15 This decision is lengthy. Having given some background, and having described some of the legal issues arising, and referred to relevant case law dealing with those issues, the Commissioner set out in detail the applicant's submissions in relation to the public interest considerations identified by him in his written submissions. The Commissioner stated in that regard:

‘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”.’

16 The Commissioner referred to s. 8(4) of the Act which provides that when deciding whether to grant or refuse a request under s. 7 of the Act the reasons given for making the request and any belief or opinion of the “head” as to what are those reasons ‘shall be disregarded’.

17 Having considered further the balancing of private rights against the public interest, the Commissioner stated:

‘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...