McK v The Information Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 14 January 2004
• Neutral Citation: [2004] IEHC 4
• Docket Number: [2002 No. 85 MCA]
• Court: High Court
• Date: 14 January 2004

[2004] IEHC 4

THE HIGH COURT

No. 85 MCA/2002

McK. (N.) v. INFORMATION COMMISSIONER

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997 AND IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42 (1) OF THAT ACT

BETWEEN

N McK

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

Citations:

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S41

FREEDOM OF INFORMATION ACT 1997 S34

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S42

FREEDOM OF INFORMATION ACT 1997 S28(1)

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

FREEDOM OF INFORMATION ACT 1997 S28(6)

CONSTITUTION ART 41

CONSTITUTION ART 42

NORTH WESTERN HEALTH BOARD V W (H) 2001 3 IR 622

FREEDOM OF INFORMATION ACT 1997 S28

FREEDOM OF INFORMATION ACT 1997 S28(1)

CONSTITUTION ART 42.5

Synopsis:

FREEDOM OF INFORMATION

Appeal

Point of law - Medical records - Family law - Freedom of Information Act, 1997 (2002/85MCA - Quirke J - 14/1/2004)

McK v The Information Commissioner - [2004] 1 IR 12

Facts: The appellant and his wife, who had two children separated in 1992 due to difficulties in their marriage. During the course of Circuit Court Family Law proceedings in June 1993 an allegation was made that the appellant had sexually abused his daughter at the end of 1991. The appellant denied this allegation and in January 1994 the Gardai, having investigated the matter concluded that there was no evidence to warrant a prosecution. By order of the Circuit Court the appellant was granted supervised access to his children in 1993. However in 1998 the appellant's wife passed away and by agreement the appellant's two children went to live with his late wife's brother and his wife. Subsequently in November 2000 the Circuit Court appointed the appellant's brother in law and his wife as joint guardian of the two children. However the appellant was entitled to supervised access to the children. In January, 2000 the appellant's daughter was admitted to hospital and upon visiting her the appellant was advised that she had been admitted for an unspecified viral infection. Having been unable to obtain further information regarding his daughter's admission to hospital, the appellant, by letter dated 17th January, 2000 made a request pursuant to Section 7 of the Freedom of Information Act, 1997 requesting access to the personal records of his daughter. This request was refused and accordingly the appellant sought a review of this refusal. A decision affirming this refusal was subsequently communicated to the appellant and accordingly on 10th march, 2000 he applied pursuant to Section 34 of the 1997 Act for a review by the respondent of the decision which was deemed to have been made by the hospital. By letter dated 12th August, 2002 a Senior Investigator in the respondent's office wrote to the appellant advising him that his request had again been refused on the grounds that. Consequently by notice of motion dated 10th September, 2002, the appellant initiated this appeal pursuant to the provisions of Section 42 of the 1997 Act.

Held by Mr Justice Quirke in allowing the appeal: 1. That the appellant enjoyed a right to appeal in a point of law only from the decision of the respondent pursuant to Section 42(1) of the 1997 Act.

2. That prima facie the terms of Article 3 (1) of the Freedom of Information Act, 1997 Regulations, 1999 are imperative and positive requiring that access to appropriate records shall be granted where the requestor is a parent or guardian and where the record relates to a minor (as in this case). There is one relevant qualification, that the provision of access to such records be in the interests of the minor. The Regulations imposed an obligation upon the respondent to form an opinion as to whether access to the records would, having regard to all the circumstances, be in the minor's best interests. When considering those circumstances the deciding officers were obliged to have regard to the proximity of the relationship between the parent and child.

3. That the respondents erred in construing Regulation 3 of the 1999 Regulations as imposing an onus on the appellant to prove by way of evidence that the granting of access to the records concerned would result in a tangible benefit to his child.

4. That by enacting Section 28 (6) of the 1997 Act the Legislature was legislating in the interests of vindicating and defending the rights of children. Accordingly, the provisions of that Act fell to be interpreted in the light of the provisions of the Constitution generally and of Articles 41 and 42 in particular.

That the appellant enjoyed the presumption of innocence and the evidence indicated that he was concerned with the welfare of both his children and availed of his right of access to them in a conscientious fashion. Accordingly the appellant, as a parent, joint guardian and joint custodian of the child concerned enjoyed a presumption that he had the welfare of his child at heart in the absence of evidence to the contrary and therefore the appellant was entitled to access to his daughters medical records.

Reporter: L. O'S.

1 JUDGMENT of Mr. Justice Quirke delivered the 14th day of January, 2004.

2 This is an appeal by the appellant N McK pursuant to s. 42 (1) of the Freedom of Information Act, 1997on a point of law from the decision of the respondent delivered by letter dated the 12 ^th August, 2002, whereby the respondent affirmed the decision of a Dublin hospital to refuse the appellant access to certain written records relating to his daughter, L McK, arising out of her admission to that hospital in January, 2000.

RELEVANT FACTS

3 1. The applicant and his late wife D were married in 1986, and were the parents of two children, a daughter L who was born in 1988, and a son R who was born in 1990.

4 2. Differences between the appellant and his wife resulted in a separation in 1992 and Circuit Court Family Law proceedings in June, 1993 during the course of which an allegation was made that the appellant had sexually abused his daughter at the end of 1991. The appellant vigorously denied and still denies this allegation and in January, 1994 the Gardaí, having investigated the allegations concluded that there was "no evidence to wan-ant a prosecution" against the appellant and so informed the North Eastern Health Board.

5 3. By Order of the Circuit Court made some time in 1993 the appellant was granted supervised access to his children and in 1996 the appellant and his late wife entered into a separation agreement whereby both parties undertook to strive towards bringing about unsupervised access by the appellant to his children at some future date.

6 4. Sadly, on the 15 ^th November, 1998, the appellant's wife died and by agreement, in January, 1999, the two children of the marriage went to live with the late Mrs. McK's brother, B J who lived with his wife MJ in Dublin. By Order of the Circuit Court made in November, 2000, it was agreed, inter alia that the appellant, together with B J and M J, would be appointed as joint guardian of the two children L McK and R McK and L now attends a private school, whilst R attends the local national school.

7 The appellant is entitled to supervised access to the children, approximately once each month.

8 5. In January, 2000, L McK was admitted to a Dublin hospital and M J (with whom the appellant has a somewhat strained relationship) advised the appellant of her admission.

9 When the appellant went to visit his daughter he was advised that she had been admitted for an unspecified viral infection.

10 Having been unable to obtain further information about his daughter's admission, the appellant, by letter dated the 17 ^th January, 2000, made a request pursuant to s. 7 of the Freedom of Information Act, 1997(hereafter called the 1997 Act) requesting access to the personal records inter alia of his daughter L.

11 6. Pursuant to the provisions of s. 41 of the Act of 1997 a decision refusing to grant the appellant's request was deemed to have been made upon the expiration of the time limited by the statute and by an application dated the 18 ^th February, 2000, the appellant sought a review of this refusal. Pursuant to the provisions of s. 41 of the Act, a decision affirming the refusal was deemed for the purposes of the Act to have been made upon the expiration of the requisite time limit and on the 10 ^thMarch, 2000, the appellant applied pursuant to s. 34 of the 1997 Act for a review by the respondent of the decision which was deemed to have been made by the hospital. By letter dated the 14 ^th March, 2000, the respondent wrote to the appellant and agreed to conduct a review pursuant to s. 34 of the Act.

12 7. On the 15 ^th April, 2002, Ms. A T, an investigator from the respondent's office spoke with the appellant by telephone and apparently advised him that a key consideration in the review which was then underway on behalf of the respondent was the issue of whether access by the appellant to his daughter's records would be in her best interests, including

"... a consideration of whether or not the appellant had demonstrated this to the satisfaction of the respondent...".

13 8. By letter dated the 12 ^th August, 2002, Mr. F B, who was a Senior Investigator in the respondent's office, wrote to the appellant and advised him in the following terms:

"Having carried out a review under s. 34 (2) of the Freedom of Information Act, 1997,I hereby affirm the decision of the Hospital to refuse access to the records sought in your request of the 17 ^th January, 2000."

14 9. By Notice of Motion dated the 10 ^thSeptember, 2002, the appellant initiated this appeal pursuant to the provisions of s. 42 of the 1997 Act.

THE APPELLANT'S CASE

15 The appellant enjoys a statutory right to appeal on a point of law (but not...