McK v The Information Commissioner

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 24 January 2006
• Neutral Citation: [2006] IESC 2
• Court: Supreme Court
• Docket Number: [S.C. No. 289 of 2004]
• Date: 24 January 2006

MCK (N) v INFORMATION COMMISSIONER

Between/

N. McK.

Appellant/Respondent

and

The Information Commissioner

Respondent/Appellant

[2006] IESC 2

Appeal No: 289/2004

THE SUPREME COURT

FREEDOM OF INFORMATION

Personal information

Minor - Right of access to information by parent or guardian - Presumption of access in best interests of child - Whether onus on appellant to prove best interests - Constitution - Family - Personal rights - Welfare of child - Right of parent - Whether parent seeking access to child's personal information presumed to be acting in child's best interests - Freedom of Information Act, 1997 (Section 28(6)) Regulations 1999 (SI 47/1999), reg 3(1) - Freedom of Information Act 1997 (No 13), ss 7 and 28(1) and (6) - Constitution of Ireland 1937, Article 41 - Matter remitted to respondent for review (289/2004 - SC - 24/1/2006) [2006] IESC 2 - [2006] 1 ILRM 504 - [2006] 1 IR 260- McK (N) v Information Commissioner

Facts: At issue in this case was whether a father, a widower who had been separated from his late wife, who was joint guardian of his children, was entitled under the Freedom of Information Act 1997 to information, in the form of hospital notes, about an illness of his daughter.

Held by the Supreme Court (Denham, McGuinness, Hardiman, Geoghegan and Fennelly JJ) in dismissing the appeal and affirming the decision of the High Court and remitting the matter to the Commissioner for review in accordance with the correct test that the approach of the Commissioner was in error when he required "tangible evidence" that the release of such information would serve the best interests of the minor.

Reporter: R.W.

MCK (N) v INFORMATION COMMISSIONER 2004 1 IR 12

MCK (N) v INFORMATION COMMISSIONER UNREP QUIRKE 28.1.2004 (HIGH COURT ORDER)FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S41

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S28(1)

FREEDOM OF INFORMATION ACT 1997 S28(6)

FREEDOM OF INFORMATION ACT 1997 S28(6) REGS 1999 SI 47/1999 ART 3(1)INFORMATION COMMISSIONER MR X & THE ADELAIDE & MEATH HOSPITAL DECISION NO 000128 12.8.2002

CONSTITUTION ART 41.1

CONSTITUTION ART 42.5

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

CONSTITUTION ART 41.1.2

1 1. At issue in this case is whether a father, a widower who had been separated from his late wife, who was joint guardian of his children, is entitled under the Freedom of Information Act, 1997 to information, in the form of hospital notes, about an illness of his daughter.

2 2. The Information Commissioner, hereafter referred to as "the Commissioner", has brought this appeal from the judgment (14th January, 2004) and order (28th January, 2004) of the High Court (Quirke J.).

3 3. N. McK., the father, the appellant/respondent, hereafter referred to as the requester, had appealed on a point of law to the High Court from the refusal by the Commissioner (on the 12th August, 2002) of his request for access to medical records of his daughter.

4 4. This case arises within the parameters of the Freedom of Information Act, 1997, hereinafter referred to as the Act of 1997, and it raises fundamental issues on the approach to be taken to an application by a father to access information in medical records of his daughter, a minor, where other guardians object to his accessing such records.

5 5. The relevant facts were found by the High Court and are not in dispute. I gratefully adopt the findings of the learned High Court Judge. The requester and his late wife D. were married in 1986, and were the parents of two children, a daughter L, born in 1988, and a son R, born in 1990. The requester and his late wife separated in 1992. During the course of family law proceedings in the Circuit Court in 1993 an allegation was made that the requester sexually abused his daughter at the end of 1991. The requester vigorously denied this allegation and in 1994 the Garda Síochána, having investigated the allegations, concluded that there was "no evidence to warrant a prosecution" against the requester and so informed the relevant Health Board. By order of the Circuit Court in 1993 the requester was granted supervised access to his children. In 1996 the requester and his late wife entered into a separation agreement where both parties undertook to strive towards bringing about unsupervised access by the requester to his children at some future date. However, on 15th November, 1998, the requester's wife died. By agreement in January, 1999 the two children of the marriage went to live with the late Mrs. McK's brother B.J. and his wife M.J.. By order of the Circuit Court in November, 2000 it was agreed that the requester together with B.J. and M.J. would be appointed joint guardians of the two children L and R. The High Court found that L was in a private school and R was in a local National School. Under the arrangements the requester was entitled to supervised access to the children approximately once a month.

6 6. In January, 2000 L was admitted to a Dublin hospital. M.J. informed the requester. When the requester went to visit his daughter he was advised that she had been admitted for an unspecified viral infection. Being unable to obtain any further information about his daughter's admission, the requester, by letter dated 17 January, 2000, made a request pursuant to s. 7 of the Act of 1997 seeking access to the personal medical records of his daughter.

7 7. Upon the expiration of the time limited by statute, pursuant to s. 41 of the Act of 1997, a decision refusing to grant the requester's request was deemed to have been made. By an application dated the 18th February, 2000, the requester sought a review of this refusal. Pursuant to s. 41 of the Act of 1997 a decision affirming the refusal was deemed for the purposes of the Act of 1997 to have been made upon the expiration of the requisite time limit. On the 10th March, 2000, the requester applied, pursuant to s. 34 of the Act of 1997, for a review by the Commissioner of the decision which was deemed to have been made by the hospital. By letter dated 14th March, 2000, the Commissioner wrote to the requester agreeing to conduct a review.

8 8. By letter dated 12th August, 2002, F.B., a Senior Investigator in the Office of the Commissioner, wrote to the respondent and advised him:

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

9 9. By Notice of Motion dated the 10th September, 2002, the requester initiated his appeal to the High Court pursuant to the provisions of s. 42 of the Act of 1997.

10 10. The relevant statute law is as follows. The requester has a right of appeal on a point of law from the decision of the Commissioner, pursuant to s. 42 (1) of the Act of 1997, which provides:

"A party to a review under section 34 or any other person affected by the decision of the Commissioner forming such a review may appeal to the High Court on a point of law from the decisions."

Section 28(1) precludes personal information in the following terms:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information ... "

However, s. 28(6) of the Act of 1997 provides for exceptions:

"Notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request under section 7 where:-

(a) The individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual ... "

The Freedom of Information Act, 1997 (Section 28(6) Regulations, 1999 (S.I. 47 of 1999) (hereinafter referred to as the Regulations) provide at Regulation 3 (1) as follows:

"Notwithstanding s. 28 (1), a request under section 7 in relation to a record access to which involves the disclosure of personal information . . . shall, subject to other provisions of the Freedom of Information Act, 1997, be granted where:"

(a) the requester is a parent or guardian of the individual to whom the record concerned relates and that individual belongs to one of the following classes of individual:

(i) individuals who, on the date of the request, have not attained full age (within the meaning of the Age of Majority Act, 1985 (No. 2 of 1985)), or

...

being individuals specified in clauses (i) and (ii) access to whose records would, in the opinion of the head having regard to all the circumstances and to any...