Governors & Guardians of the Hospital for the Relief of Poor Lying-in Women, Dublin v Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Denham J.
• Judgment Date: 19 July 2011
• Neutral Citation: [2011] IESC 26
• Date: 19 July 2011
• Court: Supreme Court
• Docket Number: [S.C. Nos. 356 & 357 of 2009]

[2011] IESC 26

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Fennelly J.

Macken J.

[Appeal No: 356 & 357/2009]

Appeals Nos. 356 and 356 2009

[S.C. No. 356 & 357 of 2009]

Governors & Guardians of the Hospital for the Relief of Poor Lying-In Women, Dublin v Information Commissioner

Between/

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

The Governors and Guardians of the Hospital for the Relief of Poor Lying-in Women, Dublin

Appellant

and

The Information Commissioner

Respondent

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S6

FREEDOM OF INFORMATION ACT 1997 S28(1)

FREEDOM OF INFORMATION ACT 1997 S2(1)(vi)

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

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S28(6)(B)

FREEDOM OF INFORMATION ACT 1997 S28(6)

FREEDOM OF INFORMATION ACT 1997 S26(3)

FREEDOM OF INFORMATION ACT 1997 S2(1)

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

FREEDOM OF INFORMATION ACT 1997 S26(1)(A)

FREEDOM OF INFORMATION ACT 1997 S26(1)(B)

FREEDOM OF INFORMATION ACT 1997 (SECTION 28(6)) REGS 1999 SI 47/1999 REG 3(1)(B)(iii)

FREEDOM OF INFORMATION ACT 1997 S26(1)

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S6(4)

FREEDOM OF INFORMATION (AMDT) ACT 2003 S4

FREEDOM OF INFORMATION ACT 1997 S6(5)(B)

FREEDOM OF INFORMATION ACT 1997 S2

FREEDOM OF INFORMATION ACT 1997 S28(2)

FREEDOM OF INFORMATION ACT 1997 S28(3)

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

FREEDOM OF INFORMATION ACT 1997 S3(1)

FREEDOM OF INFORMATION ACT 1997 S28

FREEDOM OF INFORMATION ACT 1997 S42

FREEDOM OF INFORMATION ACT 1997 S34(12)

FREEDOM OF INFORMATION ACT 1997 S2(1)(A)

FREEDOM OF INFORMATION ACT 1997 S2(1)(B)

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S6(5)

C (C) & G (P) v IRELAND & ORS 2006 4 IR 1 2005/7/1439 2005 IESC 48

FREEDOM OF INFORMATION ACT 1997 S6(1)

FREEDOM OF INFORMATION ACT 1997 S34(12)(B)

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S12

FREEDOM OF INFORMATION ACT 1997 PART III

FREEDOM OF INFORMATION ACT 1997 S27

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

REGISTRATION OF BIRTHS & DEATHS (IRL) ACT 1863 S50

REGISTRATION OF BIRTHS & DEATHS (IRL) ACT 1863 S51

CIVIL REGISTRATION ACT 2004 S61

FREEDOM OF INFORMATION ACT 1997 S28(5)

COCO v AN CLARK (ENGINEERS) LTD 1968 FSR 4151969 RPC 41

SALTMAN ENGINEERING CO v CAMPBELL ENGINEERING CO (1948) 1963 3 AER 413 (NOTE) 1948 65 RPC 203

HOUSE OF SPRING GARDENS LTD & ORS v POINT BLANK LTD & ORS 1984 IR 611

FREEDOM OF INFORMATION ACT 1997 S29

O'T (I) v B 1998 2 IR 321 1998/29/11797

SOUTH WESTERN AREA HEALTH BOARD v INFORMATION CMSR 2005 2 IR 547 2005/55/11626 2005 IEHC 177

ODIEVRE v FRANCE 2003 1 FCR 621 2004 38 EHRR 43 14 BHRC 526

B v BRISBANE NORTH REGIONAL HEALTH AUTHORITY 1994 1 QAR 279

FREEDOM OF INFORMATION ACT 1997 S28(1)(C)

SHEEDY v INFORMATION CMSR 2005 2 IR 2722005 2 ILRM 374 2005/54/11310 2005 IESC 35

FREEDOM OF INFORMATION ACT 1997 S33

FREEDOM OF INFORMATION ACT 1997 S31

FREEDOM OF INFORMATION ACT 1997 S30

FREEDOM OF INFORMATION ACT 1997 S32

FREEDOM OF INFORMATION ACT 1997 S27(2)

FREEDOM OF INFORMATION ACT 1997 S6(7)

FREEDOM OF INFORMATION ACT 1997 S19

FREEDOM OF INFORMATION ACT 1997 S27(1)(B)

HEALTH SERVICE EXECUTIVE (HSE) v INFORMATION CMSR 2009 1 IR 7002009 1 ILRM 440 2008/28/6216 2008 IEHC 298

FREEDOM OF INFORMATION ACT 1997 S27(1)

HOWARD & ORS v CMRS OF PUBLIC WORKS IN IRELAND 1994 1 IR 101

FINN ESSAYS IN EQUITY 1985

FREEDOM OF INFORMATION ACT 1992 S46(1) (QUEENSLAND, AUSTRALIA)

FREEDOM OF INFORMATION ACT 1992 S46(1)(A) (QUEENSLAND, AUSTRALIA)

FREEDOM OF INFORMATION ACT 1992 S46(1)(B) (QUEENSLAND, AUSTRALIA)

AUSTRALIAN BROADCASTING CORP v LENAH GAME MEATS PTY LTD 208 CLR 199185 ALR 12001 HCA 63

HELLEWELL v CHIEF CONSTABLE OF DERBYSHIRE 1995 1 WLR 804 1995 4 AER 473

FREEDOM OF INFORMATION ACT 1997 S28(1)(A)

CLARK & NI SHUILLEABHAIN INTELLECTUAL PROPERTY LAW IN IRELAND 3ED 2010

FREEDOM OF INFORMATION ACT 1997 S19(1)(A)

FREEDOM OF INFORMATION

Access to records

"Personal information" - Exemption from disclosure - Hospital records - Statutory interpretation- Whether Act of 1997 applying to information regarding age recorded in 1922 - Whether information regarding age "personal information" - Whether information regarding age exempt from disclosure - Whether Act applying to records created before commencement - Appeal - Whether court should consider issue not raised before Commissioner -Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63; CC v Ireland [2005] IESC 48 and [2006] IESC 33, [2006] 4 IR 1; Coco v AN Clark (Engineers) Ltd [1968] FSR 415; Health Service Executive v Information Commissioner [2008] IEHC 298, [2009] 1 IR 700; Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473, [1995] 1 WLR 804; House of Spring Gardens Ltd v Point Blank Ltd [1984] IR 611; Howard v Commissioner of Public Works [1994] 1 IR 101; I O' v B [1998] 2 IR 321; Odievre v France (App No 42326/98) (2004) 38 EHRR 43; Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203; Sheedy v Information Commissioner [2005] IESC 35, [2005] 2 IR 272 and South Western Area Health Board v Information Commissioner [2005] IEHC 177, [2005] 2 IR 547 considered - Freedom of Information Act 1997 (Section 28(6)) Regulations 1999 (SI 47/1999), reg 3 - Freedom of Information Act 1997 (No 13), ss 2, 6, 26, 28, 34 and 42 - Appeal allowed (357 & 357/2009 - SC - 19/7/2011) [2011] IESC 26

Rotunda Hospital v The Information Commissioner

Facts: The High Court had found that a request for information about the age of a woman who had given birth to a child in the Rotunda Hospital in 1922 was a request within the meaning of the Freedom of Information Acts 1997-2003 and that the hospital was obliged to give the information. The High Court upheld the respondent Commissioner's substantive decision on her earlier review of the hospital's refusal to furnish the information. The requester sought to know the age of his mother to his birth in 1922. It was alleged that the Commissioner was an in error in treating the Act as applicable to facts relating to prior to its commencement. It was contended that the Commissioner was in error in failing to hold that age was personal information and that the Commissioner had erroneously held that the exception to the prohibition on disclosure of the records applied on the basis that they were in the public domain. The question arose as to the interpretation of s. 26 of the Act of 1997 and the disclosure exemption therein in addition to the application of the Act to events prior to its commencement.

Held by the Supreme Court per Macken J. (Murray CJ, Hardiman J concurring; Denham J. dissenting): in allowing the appeal and setting aside the decision of the Commissioner and rejecting the grounds of appeal in the Commissioners notice to vary. The records were not ones which were excluded by the Act. The High Court should not have considered the grounds outlined in the decision but the Court would make a ruling on them to avoid uncertainty. S. 6(5)(b) covered a record as to age. The High Court was incorrect in the interpretation of s. 26. The hospital was not wrong in law to refuse disclosure and was entitled to do so. No established public interest had been properly identified.

Fennelly J.: The request was not made in the public interest. It was not open to the Commissioner to adopt a general policy in the public interest. The Commissioner was in error in the factual reasons she gave for applying s. 26(3). S. 26(3) did not apply in a case where the reason for seeking access to the record was exclusively private. The Commissioner was in error in considering that the grant of access was in the public interest. The appeal would be allowed and the decision of the Commissioner would be set aside.

Denham J. dissenting: that the personal information should be disclosed. There was no need for an exemption. The information in issue was given in confidence on the understanding that it would be treated confidential. The public interest favoured the requester. The public interest would be better served by granting him the access. The appeal would be dismissed and the information disclosed to the requester.

Reporter: E.F.

1 Judgment delivered the 19th day of July, 2011by Denham J.

2 Judgements delivered by Denham J., Fennelly J., Macken J.

3 1. This appeal raises two questions. First, whether the Freedom of Information Acts 1997 and 2003 apply to records created in 1922. Secondly, whether the information sought is exempt from disclosure.

4 2. The information sought is contained in records created by the Rotunda Hospital in 1922 and it relates to a patient. The Rotunda Hospital refused a request for information, but the request was allowed by the Information Commissioner. The Rotunda Hospital appealed that decision to the High Court, unsuccessfully, and has now appealed to this Court.

5 3. Thus this is an appeal by the Governors and Guardians of the Hospital for the Relief of Poor Lying-in Women, Dublin, the appellant, referred to in this judgment as "the Rotunda", from the decision of the High Court (McCarthy J.) given on the 2 ^nd July, 2009, when the High Court dismissed an appeal against the decision of the Information Commissioner, the respondent, referred to in this judgment as "the Commissioner".

6 4. A number of terms are used in this judgment. The Freedom of Information Acts, 1997 and 2003 are referred to collectively as "the Act". The Freedom of Information Act 1997 (section 28(6)) Regulations 1999 (S.I. No 47/1999) are referred to as "the Regulations". The records at issue are referred to as "the records". The information sought is the age of a patient in the Rotunda at the date when she gave...