Health Service Executive v Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Bryan McMahon
• Judgment Date: 01 October 2008
• Neutral Citation: [2008] IEHC 298
• Date: 01 October 2008
• Court: High Court
• Docket Number: [2007 No. 59 MCA]

Health Service Executive v Information Commissioner

IN THE MATTER OF THE FREEDOM OF INFORMATION ACTS

1997 TO 2003

BETWEEN

THE HEALTH SERVICE EXECUTIVE

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

B. K.

NOTICE PARTY

[2008] IEHC 298

No. 59 MCA/2007

THE HIGH COURT

FREEDOM OF INFORMATION

Information commissioner

Appeal - Meaning of "prepared"- Meaning of "record" - Meaning of "private information" - Coco v AN Clark (Engineering) Ltd [1968] FSR 415 approved - Freedom of Information Act 1997 (No 13), ss 26 and 28 - Freedom of Information (Amendment) Act 2003 (No 9) - Interpretation Act 2005 (No 23) s 5 - Appeal dismissed (2007/59MCA - McMahon J - 1/10/2008) [2008] IEHC 298

Health Service Executive v Information Commissioner

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S33

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S42

FREEDOM OF INFORMATION (AMDT) ACT 2003 S27

RSC O.130

FREEDOM OF INFORMATION ACT 1997 S6

FREEDOM OF INFORMATION (AMDT) ACT 2003 S4

FREEDOM OF INFORMATION ACT 1997 PART III

FREEDOM OF INFORMATION ACT 1997 S26

FREEDOM OF INFORMATION ACT 1997 S28

SHEEDY v INFORMATION CMSR & ORS 2005 2 IR 272

FREEDOM OF INFORMATION ACT 1997 S6(1)

DEELY v INFORMATION CMSR 2001 3 IR 439

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

FREEDOM OF INFORMATION (AMDT) ACT 2003 S21

FREEDOM OF INFORMATION ACT 1997 S26(1)

FREEDOM OF INFORMATION ACT 1997 S26(2)

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

FREEDOM OF INFORMATION ACT 1997 S46(1)(a)(I)

MIN FOR JUSTICE v INFORMATION CMSR 2001 3 IR 43

INTERPRETATION ACT 2005 S5

FREEDOM OF INFORMATION ACT 1997 S2

FINN ESSAYS IN EQUITY 1ED 1985 111

COCO v A N CLARK (ENGINEERS) LTD 1968 FSR 415

SHEEDY v INFORMATION CMSR & ORS 2004 2 IR 533

MCK (N) v INFORMATION CMSR 2006 1 IR 260

FREEDOM OF INFORMATION (AMDT) ACT 2003 S23

FREEDOM OF INFORMATION ACT 1997 S28(1)

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

FREEDOM OF INFORMATION ACT 1997 S28(2)

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S2(1)

1 Mr. Justice Bryan McMahon on the 1st day of October 2008

Introduction

2 This case touches on the dilemma which sometimes faces teachers when they suspect that one of their pupils is being abused at home. If they report their suspicion, they will be putting in train an investigation by the relevant authorities which may be unwarranted and which may cause serious problems for the innocent parents. Moreover, a complaint originating from the school may fracture the relationship of trust and confidence that should ideally exist between teacher and parent in the school context. The risk of ignoring the matter, however, may have very serious consequences for the child.

3 In the present case, the first intimation that the Health Service Executive (HSE) had that there may be a problem in respect of the notice party's daughter, did not come from a teacher, but from an anonymous telephone caller on 20th October, 2002, who reported a suspicion that the young pupil was being physically abused and neglected at home. When the HSE representatives visited the notice party at her home, they indicated that they would have to follow up the matter and the notice party gave her consent to contact being made with her General Practitioner (GP) and with her daughter's school. Four teachers subsequently gave interviews to the social worker involved. In the end, the HSE, having found that there were no grounds for concern, and that the allegations were unfounded, closed the inquiry.

4 The notice party then sought to establish the identity of the anonymous caller, with a view to instigating legal proceedings, and requested, in May 2005, under s. 7 of the Freedom of Information Act 1997, access to her personal records held by the Social Work department of the Midland area of the HSE. The HSE, by letter of 12th August, 2003, granted partial access to the records but exempted certain records and parts of certain other records. The dissatisfied notice party applied to the Information Commissioner (established by s. 33 of the Freedom of Information Act 1997, hereafter "the Commissioner") for a review of the HSE's decision under section 34 of the Act of 1997. On 27th March, 2007, the Commissioner declined disclosure of some information but directed disclosure by the HSE of some other information additional to the HSE's original determination. The HSE now, in these proceedings, appeals to this Court on a point of law as it is entitled to do under s. 42 of the Act of 1997, as amended by section.27 of the Act of 2003. (Order 130 of the Rules of the Superior Courts, as amended, sets out the procedure governing appeals of this type which provides, inter alia, that the proceedings are to be brought by way of originating notice of motion grounded on an affidavit, and are to be heard and determined on affidavit, unless the court otherwise directs).

5 The Freedom of Information Act 1997, is a radical measure which is designed to give members of the public liberal access to records held by public bodies. To promote greater transparency in public administration, the general rule granting access is very widely drawn, as provided for by s.6 of the Act of 1997, as amended by section 4 of the Act of 2003. Part III of the Act (ss. 19 to 32 inclusive) identifies exempt records where access will be denied. In the present case, the HSE argues that the Commissioner erred in law in his interpretation of two sections of the Act, in particular, i.e. s. 26 which exempts information obtained in confidence from disclosure, and s. 28 which exempts "personal information" from disclosure. Most of the focus of this judgment will therefore be trained on the wording and phraseology used in these two sections and their application to the facts of the case before the Court. The teachers favoured the restrictive approach adopted by the HSE which purported to respect the teachers' entitlement to confidentiality in s. 26, over the Commissioner's interpretation which favoured greater access in accordance with the general underlying philosophy of the Act. The teachers also favoured the HSE's wider interpretation of "personal information" under section 28.

The legislative context of the Freedom of Information Acts 1997 and 2003 and the nature of the appeal

6 In the case of Sheedy v. The Information Commissioner [2005] 2 I.R. 272, Fennelly J. helpfully sets out the background to the Freedom of Information Act 1997, at p. 275 which I am happy to quote at this juncture:

"The passing of the Freedom of Information Act 1997 constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen. It lets light in to the offices and filing cabinets of our rulers. The principle of free access to publicly held information is part of a world-wide trend. The general assumption is that it originates in the Scandinavian countries. The Treaty of Amsterdam adopted a new Article 255 of the EC Treaty providing that every citizen of the European Union should have access to the documents of the European Parliament, Council and Commission. The long title to the Act of 1997 did something which has regrettably become uncommon. It proclaimed its purposes in a long title. This is deserving of full citation. The 1997 Act is stated to be:- "

7 'An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, to provide for the independent review both of decisions of such bodies relating to that right and of the operation of this Act generally (including the proceedings of such bodies pursuant to this Act) and, for those purposes, to provide for the establishment of the office of Information Commissioner and to define its functions, to provide for the publication by such bodies of certain information about them relevant to the purposes of this act, to amend the Official Secrets Act 1963, and to provide for related matters. '

8 Section 6(1) of the Act of 1997, gives effect to the general principle, thus proclaimed, of public access to documents "to the greatest extent possible consistent with the public interest and the right to privacy" as follows:-

9 2 '(1) Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access.

10 (2) It shall be the duty of a public body to give reasonable assistance to a person who is seeking a record under this Act-

11 (a) in relation to the making of the request under section 7 for access to the record, and

12 (b) if the person has a disability, so as to facilitate the exercise by the person of his or her rights under this Act.'"

13 Adverting to the earlier decision of the High Court in Deely v. Information Commissioner [2001] 3 I.R. 439, Fennelly J. goes on to quote at p. 276 a number of statements of McKechnie J. of general importance in that case with which he fully agrees:

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