E.H. v Information Commissioner (No. 2)

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 21 December 2001
• Neutral Citation: [2001] IEHC 182
• Docket Number: [1999
• Court: High Court
• Date: 21 December 2001

[2001] IEHC 182

THE HIGH COURT

No. 96 M.C.A./1999

No. 107 M.C.A./1999

H (E) v. INFORMATION COMMISSIONER

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 1997

BETWEEN

E H

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

Citations:

FREEDOM OF INFORMATION ACT 1997 S6(4)

FREEDOM OF INFORMATION ACT 1997 S6(5)

FREEDOM OF INFORMATION ACT 1997 S42(1)

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

FREEDOM OF INFORMATION ACT 1997 S2

FREEDOM OF INFORMATION ACT 1997 S28

FREEDOM OF INFORMATION ACT 1997 S42

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

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

Synopsis:

FREEDOM OF INFORMATION

Access to records

Statutory interpretation - Disclosure - Whether disclosure of documents should be ordered - Freedom of Information Act, 1997 (1999/96 & 107MCA - O'Neill J - 21/12/01)

H(E) v Information Commissioner - [2002] 3 IR 600

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 had already issued a judgment on 04/04/2001 in which it was stated that the court would examine the documents in question. The decision whether or not to disclose the documents centred around the interpretation of the phrase "relate to personal information". The appellant submitted that this phrase must include all documentation which directly or indirectly referred to the requester and his personal circumstances.

Held by Mr. Justice O'Neill in making the following order. A requester had a right of access to records. Where a doubt or ambiguity existed, as to the connection of the record to the requester, a consideration of factors such as the circumstances in which the record was created, the purpose for which the record was created and whether it was created with the affairs of a particular individual in mind, might inter alia, assist in determining "whether there is a sufficiently substantial link between the requesters personal information (as defined in the Act) and the record in question". The decision by the Information Commissioner to refuse access to certain files as they related to other parties and in another instance were subject to the in camera rule would be upheld. In relation to a decision not to disclose an affidavit due to the in camera rule the court did not agree with the decision of the Commissioner and the court would order its disclosure.

1 O'Neill J.delivered the 21st day of December 2001.

2 In this case I delivered judgment on the 4th April, 2001. Interalia I concluded that so far as the documents listed in categories B, C and D of the Boards case and Category B of the Ministers case in respect of which access was refused by the Commissioner on the basis of Section 6(4) and (5) of the Act, that for the reasons stated in that judgment, that it was necessary for the Court to examine those documents to determine whether or not there existed grounds for appeal on a point of law, pursuant to Section 42(1) of the Act.

3 In due course I was furnished with the documents in question, but before proceeding to a determination on those documents, I invited submissions on the proper construction of various aspects of Section 6(5) of theAct.

4 On the question of the interpretation of the phrase "relate to personal information" as contained in Section 6(5)(b) the Appellant submitted that this phrase must include all documentation which directly or indirectly refers to the requester and his personal circumstances. He submitted that it was the intention of the Oireachtas that all citizens should have access to all personal information irrespective of when it was created, that while it was impossible to anticipate the wide variety of documents which might "relateto personal information about the person seeking access tothem", he submitted it was clear that, judged against that policy background and those statutory objectives, that every document which concerns or mentions, expressly or by implication, directly or indirectly, the requester may be said to "relate to personal information about the person...", making thatrequest.

5 For the Commissioner, Mr. O'Donnell submitted on this topic, that "records (which) relate to personal information" is not restricted to records which contain personal information within the meaning of that expression as defined in Section 2 of the Act. He further submitted that it appeared to be wider than Section 28 of the Act which refers to "access to (a particular record involving) the disclosure of personal information". He submitted that Section 28 is thus limited to allow access to a record which is "capable of disclosing personal information",whereas under Section 6(5)(b) records are included within the ambit of the act if they simply relate to personal information (and even if they do not contain or involve disclosure of the personal information inquestion).

6 Mr. O'Donnell points out that the act creates a statutory right of access to records and not to information per se. He submitted that Section 6(5)(b) was inserted to ensure that records which would normally fall outside the ambit of the act by reason of their creation prior to its commencement, ought nevertheless to be accessible if a requester candemonstrate a sufficient personal link with them. He then posed the problem of ascertaining, when a record was to be considered to have a sufficiently proximate relationship to personal information about the requester to be brought within the terms of the provision.

7 Having cited two illustrations to demonstrate examples of situations which fell inside and outside the scope of the act, he then submitted that in reaching a decision on this topic, that the Commissioner should not adhere to any kind of...