FP v Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 20 December 2016
• Neutral Citation: [2016] IEHC 771
• Docket Number: [2014 No. 114 MCA]
• Court: High Court
• Date: 20 December 2016

[2016] IEHC 771

THE HIGH COURT

McDermott J.

[2014 No. 114 MCA]

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 LADYS CHILDRENS HOSPITAL CRUMLIN, SP

AND

SF

NOTICE PARTIES

Local government – Freedom of Information Acts 1997 and 2003 – Appeal against decision of Information Commissioner – Refusal to grant access to records – Public interest versus right of privacy

Facts: The appellant had filed an appeal against the decision of the respondent for refusing to provide certain records pertaining to the evaluation/assessment/investigation of sexual abuse allegations made against him by the appellant's wife in relation to the appellant's step-daughter. The respondent contended that since the records sought to be discoverable contained joint personal information, such records could not be released to the appellant by virtue of s. 28 (5) (a) of the Freedom of Information Act 1997. The step-daughter of the appellant who had since attained majority objected to the release of those records as it was invasion to her right of privacy. The appellant contended that designation of alleged abuse as 'unconfirmed' was a matter of concern to him as he desired to take appropriate legal recourse against the complainant/wife for causing distress to him.

Mr. Justice McDermott dismissed the appeal. The Court found that the respondent correctly applied the prevalent principles and held that the appellant's concern did not outweigh the public interest in releasing the relevant records. The Court held that if the appellant wished to raise issues pertaining to malicious prosecution/defamation against the complainant, the appropriate remedy was to approach the civil courts. The Court noted that the records that were released to the appellant were sufficient to meet the criteria of openness and accountability of the administrative bodies in discharge of their duties. The Court opined that it had been 14 years since the allegations of sexual abuse were made against the appellant and it would not be feasible in the interests of the child to release those records as it would contravene the right of privacy and dignity of that child. The Court found that the decision taken by the respondent was not tainted by any procedural lapses and thus, there was no need to interfere with that decision.

JUDGMENT of Mr. Justice McDermott delivered on the 20th day of December, 2016

1 This is an appeal on a point of law pursuant to s. 42(1) of the Freedom of Information Act 1997 as amended from a decision of the Information Commissioner made 23rd January 2014 by notice of motion dated 20th March 2014 on the ground that the respondent erred in law in respect of decisions reached concerning case numbers 090261, 090262 and 090263 refusing requests for records relating to himself and his former step daughter following a review carried out by the respondent in accordance with s. 34(2) of the 1997 Act. In the alternative, the appellant seeks orders granting access to the records sought in these cases or remitting the appellant's requests to the respondent for fresh consideration.

Background

2 The appellant's wife gave birth to a daughter in 1993. At the time he believed the child to be his biological daughter and they lived together as a family unit. It subsequently emerged that the appellant was not the child's natural father. Unknown to him, his wife applied for an amendment of the child's birth certificate and the natural father's name was substituted for his. The appellant's wife also obtained DNA tests confirming the natural father's paternity and obtained court orders providing for a payment of birth expenses and financial support by the natural father in respect of the child which heretofore the applicant had provided.

3 The facts concerning the relationship between the appellant and his wife are set out in the judgment of Clark J. in P. v. the Information Commissioner [2009] IEHC 574:-

'2. 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 12th January, 1998 he commenced proceedings for access under the Guardian of Infants Act 1964. Those proceedings were served on his wife during the following week. On the 19th 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 30th 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 Gardaí 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 appellant and the child.'

4 There was extensive correspondence between the appellant and the Eastern Health Board and St. Louise's Unit concerning the alleged abuse. By letter dated 5th April 1998 the appellant sought details of the allegations and guidelines under which the investigation was being conducted. By reply dated 21st April St. Louisa's Unit noted that he appeared to be unaware that the child's mother had decided not to proceed with the assessment at the unit.

5 Thereafter correspondence continued in relation to the process which had been undertaken in relation to the case and the guidelines which applied to such a review. On 24th November 1998 the appellant was informed that 'in the last couple of months our unit was notified of (the mother's) request that the assessment of (the child) proceed'. The appellant was informed that a planning meeting had been held with a number of community care social workers who agreed that an assessment might be useful. The appellant was notified on 27th November 1998 that the child's mother was now happy that an assessment should take place and it was intended to proceed with it. He declined to partake in an interview on 15th December 1998 because he was not satisfied with the procedures and facilities to be provided to him in respect of same and the assessment of the child. In further correspondence St. Louisa's Unit declined to give the date upon which the child's mother consented to the assessment which she had previously declined. By letter dated 29th March 1999 the applicant was informed that the Unit had completed its assessment of the child and a report had been prepared.

6 On 31st March the Eastern Health Board wrote to the appellant indicating that it had made a re-referral to St. Louisa's Unit in respect of the child on 11th of September 1998. A copy of the Unit's assessment was made available to the Circuit Court in respect of an access application by letter dated 1st April 1999.

7 By letter dated 6th October 1999 the appellant was informed of the outcome of the investigation into the 'concerns' concerning the girl. It 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...