South Western Area Health Board v Information Commissioner

JurisdictionIreland
CourtHigh Court
Docket Number[2002 No. 99 MCA],RECORD NO. 2002/99 MCA.
Date31 May 2005

[2005] IEHC 177

THE HIGH COURT

DUBLIN

RECORD NO. 2002/99 MCA.

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997
THE SOUTH WESTERN AREA HEALTH BOARD
APPLICANT
V
THE INFORMATION COMMISSIONER
RESPONDENT
Abstract:

Freedom of information - Appeal on point of law -Whether the information requested should be disclosed in the public interest - Freedom of Information Act, 1997

Facts: The appellant sought an order by way of appeal on a point of law pursuant to section 42(1) of the Act of 1997, reversing the decision of the respondent to release certain records maintained by the appellant in relation to the adoption of the requester. The appellant argued that the respondent erred in determining that the records could be disclosed by virtue of the provisions of section 6(5) of the Act of 1997 as they related to personal information about the requester. It was also submitted that the respondent erred in failing to inform the requester’s birth mother of the request for information containing joint personal information regarding the requester and her birth mother. Furthermore, the appellant submitted that disclosure of the information would constitute a breach of confidence between it and the requester’s birth mother.

Held by Smyth J. in allowing the appeal:

1. That the respondent erred in considering the requester’s motivation for seeking disclosure when determining that the requester had a potential right of access to the information pursuant to s. 6(5) of the 1997 Act.

2. That the respondent acted in breach of the provisions of natural and constitutional justice and did not follow fair procedures in determining that certain documentation which contained joint personal information ought to be disclosed in circumstances where the requester’s birth mother was not afforded an opportunity to make representations regarding that disclosure.

3. That the records created by the appellant following a promise of confidentiality to the requester’s birth mother should not be disclosed in the public interest.

Reporter: L.O’S.

APPROVED JUDGMENT DELIVERED BY
MR. JUSTICE T.C. SMYTH
ON TUESDAY, 31ST MAY 2005
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MR. JUSTICE T.C. SMYTH DELIVERED JUDGEMENT AS FOLLOWS:

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This is an appeal on a point of law pursuant to Section 42(1) of the Freedom of Information Act, 1997 (the Act of 1997) against a decision of the Information Commissioner (the Commissioner) made under Section 34(2) of the Act of 1997 on 24th October 2002 for:

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1. An order reversing the decision of the Commissioner for the release in whole or part of the records numbered 2, 19, 20 and 21 of the Social Welfare File maintained by Appellant pertaining to the adoption of the requester.

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2. An order reversing the decision of the Commissioner for the release of the whole of record no. 28 of the Adoption File maintained by the Appellant (the Health Board) pertaining to the adoption of the requester.

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The history behind the litigation can be briefly stated. About 40 years ago the birth mother of the requester gave birth out of wedlock to the requester. The requester became an adopted child, both mother and child have made new and more structured lives for each other since. The requester has spent much time

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and effort in seeking to establish who her birth mother is, the latter who is long since married with a family of her own has a husband and family and does not wish the structured trust and security built up over the years to be shattered by a disclosure that might be brought about by the requester contacting the birth mother.

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The Health Board, years ago had given the birth mother an assurance of confidentiality and feels itself honour bound to keep faith with the birth mother, to adhere to the basis of the Board’s contract with the mother. The grounds of appeal are stated in paragraph 4 of the contract with the mother. The terms of the decision of the Commissioner are set out in a letter of 24th October 2002 addressed to the requester and other than identifying the name of the same the letter is set out as an appendix to this judgment.

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The grounds of appeal are stated in paragraph 4 of the principal affidavit of Lorraine McGrattan sworn on 22nd November 2002 and filed on behalf of the board and they are as follows:

  1. “(a) The Commissioner misdirected himself and erred in law in finding that all records created before the commencement of the Act contained in the said files relate to personal information about the requester.

  2. (b) The Commissioner misdirected himself and erred in law in finding that the requester had a potential right under Section 6(5)(b) of the Act

    to access to all such records, subject to any exemptions which might apply.

  3. (c) the Commissioner misdirected himself and erred in law in holding that non identifying information about the birth mother of the requester contained in the record created before the commencement of the Act may be released under the provisions of the Act.

  4. (d) The Commissioner misdirected himself and erred in law in holding that records created before the commencement of the Act containing medical information about the health of the requester’s birth mother should be released to the requester under the provisions of the Act.

  5. (e) The Commissioner misdirected himself and erred in law in holding that the foregoing enumerated records are records to which the provisions of Section 28 of the Act apply.

  6. (f) In the alternative, if the provisions of the said Section 28 apply to the above enumerated records, the Commissioner misdirected himself and erred in law in holding that the exemption thereto contained in Section 28(5) of the Act that the said records be released outweighs the public interest to the right of privacy of the requester’s birth mother should be upheld.

  7. (g) In the further alternative, if the said provisions of Section 28 of the Act apply to the above enumerated records and the exemption contained in Section 28(5) of the Act falls to be considered in relation thereto, the Commissioner misdirected himself and erred in law in failing to invoke and apply the mandatory provisions of Section 29 of the Act.

  8. (h) The Commissioner misdirected himself and erred in law in failing to hold that the disclosure of the information contained in the above enumerated records should constitute a breach of duty of confidence owed by the Appellant to the requester’s birth mother and is therefore prohibited from release by the provisions of Section 26(1)(b) of the Act.

    (i) The Commissioner misdirected himself and erred in law in holding that the information contained in the above enumerated records is “non

    identifying” information.

  9. (j) The Commissioner misdirected himself and erred in law in holding that the release by the Appellant to the requester of certain information in relation to her birth mother meant or indicated that the remaining information, identifying or non identifying, had lost the quality of confidence about it which would be necessary to sustain a claim that Section 26(1)(a) or section 26(1)(b) applies thereto.

  10. (k) The Commissioner misdirected himself and erred in law by taking matters into consideration in his interpretation and construction of the provision of the Act which are irrelevant thereto, in particular proposals by the Department and Health and Children to give adopted persons statutory rights to information about their adoption as well as to provide for the setting up of a voluntary connect register for persons seeking contact with their birth parents.

  11. (l) The Commissioner misdirected himself and erred in law in holding that the absence of an indication by the requester’s birth mother of an objection to the release of non identifying, background information was a consideration to be taken into account when weighting the public interest in the release of the information against the right to privacy of the requester’s birth mother”.

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The plea of the Board is for a variation of the order of the Commissioner so as to provide for the release of those parts of the enumerated records as do not contain personal information or medical or health history of the requester’s birth mother or record that encompass confidential exchanges between the parties.

To enable the court to have an appreciation of the
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full factual background, documents other than those exhibited were made available to the court under the headings

  1. (a) Social work file (in full).

  2. (b) Adoption society file (in full).

  3. (c) Disputed documents.

    1. Document A - unredacted.

    2. Document B - unredacted.

    3. Document A - redacted.

    4. Document B - redacted.

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There was also before the court a “booklet of records” which consisted of:

  1. “(A) Records subject to appeal

    “Draft letter from GG to the requester dated 23rd December 1995, together with handwritten note dated 18th October 1996 (records 19 - 21). [I note that the Commissioner did not direct the release of all of record 20].

    Certificate of fitness for adoption(record 28).

  2. (B) Records given to requester by Health Board outside of the Act of 1997.

    1. (3) Letter from team leader of adoption society to requester, dated 23rd October 1996 (records 23 -24).

    2. (4) Letter from birth mother to requester dated 9th February 1997 (record 30).

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It appears from undisputed documentation that when the requester initiated her inquiries by letter of 26th January 1995 she specifically informed the Health Board that she did not wish her parents (i.e.

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her adopters) to know of her inquiry. In late May 1995 the requester wrote to the Health Board seeking:

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“Information, such as place of birth, weight, mother’s Christian name etc., then the process of tracing would being.”

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When the Health Board attempted to contact the birth mother they gave her an assurance on each attempted contact that all...

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