Minister for Health v Information Commissioner

• Jurisdiction: Ireland
• Judge: O’Neill
• Judgment Date: 09 May 2014
• Neutral Citation: [2014] IEHC 231
• Date: 09 May 2014
• Docket Number: [2013 No. 265 MCA]
• Court: High Court

[2014] IEHC 231

THE HIGH COURT

[2013 No. 265 MCA]

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

BETWEEN

THE MINISTER FOR HEALTH

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

FIRST NAMED NOTICE PARTY

AND

THE HONOURABLE THOMAS C. SMYTH

NOTICE PARTIES

Appeal – Freedom of Information – Legal Possession – Error of Law – Discovery – Procedures

Facts: This appeal arose from a Freedom of Information request made by the first named notice party on 16th May 2012, in relation to records relating to an inquiry carried out by the second named notice party into certain practices at Our Lady of Lourdes Hospital, Drogheda. By decision of 7th June 2013, the respondent determined that the appellant held or controlled certain records for the purposes of the Freedom of Information Act 1997 (‘the 1997 Act’). The appellant contended that the Department of Health (‘the Department’) was in physical possession of the relevant records for safe-keeping purposes only, and that that did not amount to legal possession under the 1997 Act. The appeal was taken pursuant to s. 42(1) of the 1997 Act, on the grounds that the respondent made a number of errors of law in arriving at its decision. The primary submission of the appellant was that the respondent erred in law by finding that the records were ‘held’ by the Department under the FOI Act 1997. The appellant contended that in reaching that conclusion, the respondent laboured under a fundamental misapprehension that the letter of 18th December 2009, indicated that the Department, at the outset of the review, sought to create an entitlement to access the records. It was submitted that that letter was clear on its face and created no entitlement in the Department to access the relevant record. The Minister had never exercised or assumed control of the documents and was not even aware of the contents of the boxes, which were kept at the Department merely for safekeeping. It was submitted that the relevant records were not records of the review and should be given the same status as would be given to Mr. Justice Smyth’s own personal notes. Counsel for the appellant argued that the respondent erred by finding that physical possession alone equated to holding the records under the Act. It was argued that the Department must have had some interest in the documents that extended beyond mere physical possession, as to extend the meaning of the word ‘held’ to render physical possession sufficient for the purposes of the Act would bring a wide range of unintended situations within the meaning of the Act . While it was not denied that the appellant had physical possession of the records, it was submitted that a right to exercise power or control over the records was required. It was further submitted that the Department had no enforceable legal right to the relevant records and that Mr. Justice Smyth performed his function in an entirely independent manner. Counsel for the appellant contended that to extend the meaning of ‘held’ to include mere physical possession ignored the context in which documents were held. It was submitted that a similar consideration of the circumstances in which the relevant document was created and the purpose of its creation was required in that case. Counsel for the appellant stated that the respondent had adopted a holistic view in previous decisions, whereby it considered the relationship between the parties and the relevance of ‘control’ of the documents. The appellant also contended that the respondent erred by finding that no separate entity existed which could be said to control the relevant records. It was submitted that the fact that no statutory body exists was irrelevant. Counsel for the respondent submitted that the 1997 Act had been interpreted by the courts in a broad and purposive manner. In relation to the appellant’s specific grounds of appeal, counsel for the respondent submitted that the primary finding of the Commissioner was that the Department had physical possession of the records and that they were therefore held by it within the meaning of s. 6(1). It was submitted that records, which were lawfully and legitimately held by a public body, come within the ambit of the Act. Counsel for the respondent contended that the respondent had determined that the records were held by the Department and therefore many of the appellant’s arguments were premature or irrelevant. Counsel for the respondent also submitted that there was no evidence before the respondent which established that the reviewer had an absolute legal entitlement to deny access to the records. Counsel for the respondent contended that the Commissioner’s finding that Mr. Justice Smyth was providing a service within the meaning of s. 6(9) was a secondary finding. It was submitted that even if the respondent erred in that regard that did not impugn the primary determination that the relevant records were ‘held’ under section 6(1).

Held by Justice O’Neill in light of the available evidence and legislation that he was satisfied that to hold that mere lawful possession of a document was sufficient to make that document amenable to disclosure under the 1997Act, on the basis that the document was “ held” by the public body within the meaning of s. 6(1) would give rise to absurd and wholly unintended consequences, albeit in rare circumstances. It was reasoned that, for a document to be “ held” within the meaning of s. 6(1) of the 1997 Act, it must be either lawfully created by the public body in question or lawfully provided to that public body or lawfully obtained by the public body, in connection with the functions or business of that public body and the document must not be subject to any prior legal prohibition affecting it’s disclosure. Thus, the Court reasoned that documents which came into the possession of a public body by way of discovery in legal proceedings, could not subsequently be released by the public body in response to a request under the 1997 Act, unless the party in the legal proceedings, who had discovered the document consented to the disclosure under the 1997Act. The Court was further satisfied that Mr. Justice Smyth was providing a service in consideration of the payment of an agreed fee, the provision of that service could not be considered as falling within the terms of s. 6(9) because the application of s. 6(9) in the circumstances would be wholly inconsistent with the independent nature of the function discharged by Mr. Justice Smyth. In respects of the records/documents which had been generated in the course of the review, Justice O’Neill was satisfied that the Minister or the Department was not the legal owner of the records, nor was there any basis upon which it could legitimately assert any form of control over these documents or records so that it could, against any other party, assert a legal entitlement to them, resulting in these documents being “held” by the Department for the purposes of the Act of 1997. Moreover, because of his independent status, as the reviewer, and because the document in question in question was brought into existence by Mr. Justice Smyth for the purpose of the review, the only party who could assert any proprietorial interest or any other form of legal control over the document in question was deemed to be Mr. Justice Smyth. Thus, as the Department had no control over those documents within the meaning of s. 2(5) of the Act of 1997, and as they were in their possession, subject to a legally enforceable prohibition on disclosure, notwithstanding the fact that they have physical possession of the document in question, it could not be deemed to be “held” by the Department within the meaning of s. 6(1) of the 1997 Act. Accordingly, Justice O’Neill respectfully disagreed with the determination of the respondent in this matter and made the order sought at paragraph 1 of the notice of motion, namely, an order pursuant to s. 42(1) of the 1997 Act, setting aside the decision of the respondent dated 7th June 2013, and he substituted for that decision his decision that the record sought was not a record “held” by the appellant.

O’Neill

JUDGMENT of O’Neill delivered on the 9th day of May 2014

1 This appeal arises from a Freedom of Information request made by the first named notice party on 16th May 2012, in relation to records relating to an inquiry carried out by the second named notice party into certain practices at Our Lady of Lourdes Hospital, Drogheda. By decision of 7th June 2013, the respondent determined that the appellant held or controlled certain records for the purposes of the Freedom of Information Act 1997 (‘the 1997 Act’). The appellant contends that the Department of Health (‘the Department’) is in physical possession of the relevant records for safe-keeping purposes only, and that this does not amount to legal possession under the 1997 Act. The appeal is taken pursuant to s. 42(1) of the 1997 Act, on the grounds that the respondent made a number of errors of law in arriving at its decision.

Background

2 On 18th December 2009, Mr. Fergal Lynch, Assistant Secretary in the Department, wrote to Mr. Justice Smyth in relation to his prospective appointment to conduct the review and stated the following in relation to the records of the review:

“. . . it would be possible for the Enquiry to agree with persons or bodies to the terms in which documents would be supplied and if documents are given on a confidential basis and on condition that they will be returned or destroyed that is acceptable in my view but there should be a form of written agreement. The records of the Enquiry itself should be preserved in any event and could be used by any subsequent statutory tribunal which will have its own powers in relation to witnesses and documents.”

3 The terms of...