Minister for Health v Information Commissioner

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay
• Judgment Date: 27 May 2019
• Neutral Citation: [2019] IESC 40
• Court: Supreme Court
• Docket Number: [Appeal No: 2014/309],[S.C. No. 309 of 2014]
• Date: 27 May 2019

In the matter of the Freedom of Information Acts 1997 and 2003

Between

The Minister for Health

Appellant / Respondent

and

The Information Commissioner

Respondent / Appellant

and

First Named Notice (By Order Unnamed)

and

The Honourable Thomas C. Smyth

Notice Parties

[2019] IESC 40

Finlay Geoghegan J.

Clarke C.J.

Dunne J.

Finlay Geoghegan J.

[Appeal No: 2014/309]

THE SUPREME COURT

Freedom of information – Public body – Records held by body – Interpretation of s 6(1) Freedom of Information Act 1997

Facts: The Minister had appointed a Judge to review allegations regarding the care of patients at our Lady of Lourdes Hospital in Drogheda. As part of that review the first notice party had met with the Judge, the meeting of which was transcribed and sealed. The first notice party had applied under the Freedom of Information Act 1997 for a copy of that transcript, which was refused. The Commissioner had held that the document should be released, but that decision was overturned by the High Court. The matter now came on appeal to the Supreme Court.

Held by Finlay Geoghegan J, that the appeal would be dismissed. The Court considered the provisions of the 1997 Act, in particular s 6(1), and contrasted the UK parallel legislative framework and agreed with the conclusion of the High Court that the transcript was not a document “held” by the relevant Government body within the meaning of the 1997 Act. Deely v Information Commissioner [2001] 3 IR 439 considered.

Judgment of Ms. Justice Finlay Geoghegan delivered on the 27th day of May, 2019.

1 This appeal raises difficult questions in relation to the proper interpretation of the phrase ‘any record held by a public body’ in s. 6(1) of the Freedom of Information Act 1997 (‘the 1997 Act’).

2 It is an appeal from an order of the High Court (O'Neill J.) made on 30 May 2014, for the reasons set out in a written judgment delivered on 9 May 2014: [2014] IEHC 231, [2014] 2 I.R. 673.

3 The proceedings in the High Court were an appeal brought by the Minister for Health (‘the Minister’), pursuant to s. 42(1) of the 1997 Act, against a decision of the Information Commissioner (‘the Commissioner’) issued on 7 June 2013 which determined that a document sought by the first named notice party from the Department of Health (‘the Department’) was held by the Department within the meaning of s. 6(1) of the 1997 Act. The High Court decided that the document sought was not ‘a record held by’ the Minister and set aside the decision of the Commissioner issued on 7 June 2013. The High Court also ordered that the first named notice party should not be named and there is no appeal against that part of the order.

Background Facts

4 The background facts are fully set out in the judgment of the High Court and may be summarised for the purposes of the issues arising on appeal as follows.

5 The Minister appointed the second notice party, the Honourable Thomas C. Smyth, a former judge of the High Court, whom I will refer to as ‘the Reviewer’ to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda. The terms of reference for the review provided that he was to ‘examine and recommend to the Minister’ whether further investigation into the procedures and practices operating at Our Lady of Lourdes Hospital, Drogheda, during the period 1964 to 1995, to protect patients from sexual abuse while undergoing treatment or care at the hospital and to deal with certain allegations of sexual abuse against a named surgeon would be likely to provide additional information or insights which would be of significant public benefit in helping to improve best practice guidelines and policies which apply to the treatment of patients in hospital for the purpose of protecting such patients from being sexually abused. The terms of reference also provided that the examination and recommendation should have regard to, inter alia, ‘the need to avoid prejudicing ongoing civil or criminal proceedings or investigations’.

6 Prior to the formal appointment of the Reviewer, there was correspondence between him and the Department in relation to his prospective appointment and, in particular, the treatment of documents and records of the review or inquiry. A letter of 18 December 2009 from an assistant secretary of the Department to the Reviewer stated:-

‘We sought the advice of the Attorney General as you suggested and his Office has advised that 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.

7 The review, or ‘Enquiry’ as referred to in the above, was not established on a statutory basis. During the course of the review, a number of individuals, including the first named notice party, were interviewed by the Reviewer and written transcripts prepared of such interviews.

8 The document sought by the first named notice party from the Department under the 1997 Act is the transcript of his meeting with the Reviewer.

9 Following the conclusion of the review, referred to as the ‘Drogheda Review’, the Reviewer delivered to the Department a number of boxes of documents and records with an accompanying letter of 23 September 2010. In that letter, the Reviewer set out the basis upon which the boxes were being delivered to the Department placing differing restrictions in respect of certain of the boxes identified in the letter.

10 It is agreed that the document or record sought by the first named notice party is contained in one of a number of boxes stated to be ‘bound in clear masking tape’ and to which the following stipulation was made by the Reviewer:-

‘… may not be disclosed or opened in any circumstances except by court Order for Discovery, of which I wish to be notified. These contain information received by me on the assurance given by me to each participant that their communications with the review would be treated as confidential. In the absence of such assurance I am satisfied that many individuals would not have participated in the Review.’ [Emphasis in original]

11 On 16 May 2012, the first named notice party made a request to the Department under the 1997 Act seeking a copy of the transcript of his meeting with the Reviewer. This request was refused by the Department in a letter dated 15 June 2012 which, inter alia, stated that:-

‘The documents generated in the course of the Review were furnished to the Department by Judge Smyth in the strictest stipulations of confidentiality, and accordingly the Department considers itself bound by these stipulations. The Department is effectively a depository for these documents.’

12 The first named notice party requested an internal review of this decision, which was carried out and which was communicated to the first named notice party by letter dated 2 July 2012. The determination stated:-

‘…The Department can only give access to records which it holds and which are under its control. The records created by the Drogheda Review have been sealed by Judge Smyth who placed them with the Department for safe-keeping. The Department has been advised that the records are not in the control of this Department and cannot be accessed or released by the Department under FOI legislation.

In the circumstances, I must refuse your request on the basis that the records requested are not held by this Department. This decision takes into account the provision in Section 2(5)(a) of the FOI Act which states that “a reference to records held by a public body includes a reference to records under the control of that body”.

The Department has also been advised that the Drogheda Review is not a public body for the purposes of the FOI Act. This means that the Department cannot forward your request to Judge Smith to be considered under Section 7(3) of the FOI procedures, as would be the case with a body that is subject to the terms of the Act….’

13 In response to correspondence from the Department in relation to the first named notice party's request, Mr. Justice Smyth wrote on 5 July 2012 that the purpose of the transcript was to allow for a free flowing dialogue during his interviews, and that in his recollection, he ‘made it perfectly clear to each individual at the outset of our meeting that the transcript was exclusively for [his] use only and would not be made available to them or anyone else’. He went on to state that:-

‘These documents are essentially my documents, not those of anyone else, which are on deposit for safekeeping in the Department. If a Court order for Discovery is made I will comply with it – having first explained to the Court the background and purpose of their existence, not otherwise…’ [Emphasis in original]

14 The first named notice party then referred the matter to the Commissioner. A preliminary review of the application was communicated to the Department in November 2012. This was responded to by the Department in December 2012. Whilst reference was made in those exchanges to the views expressed to the Department by the Reviewer, the Department did not furnish to the Commissioner the correspondence between it and the Reviewer. This was, however, exhibited in the affidavits before the High Court and is the subject of one minor issue on this appeal.

15 The final decision taken on behalf of the Commissioner by a Senior Investigator was issued on 7 June 2013. The public body from which the record was sought is the Department. The review by the Commissioner was pursuant to s. 34(2) of the 1997 Act. The...