The National Maternity Hospital v The Information Commissioner

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Quirke
Judgment Date30 March 2007
Neutral Citation[2007] IEHC 113
Docket Number[2005 No. 49 MCA
Date30 March 2007

[2007] IEHC 113

THE HIGH COURT

[No. 49 MCA/2005]
NATIONAL MATERNITY HOSPITAL v INFORMATION COMMISSIONER
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997,
AS AMENDED, AND IN THE MATTER OF AN APPEAL PURSUANT TO
SECTION 42 (1) OF THE FREEDOM OF INFORMATION ACT, 1997

BETWEEN

THE NATIONAL MATERNITY HOSPITAL
APPELLANT

AND

THE INFORMATION COMMISSIONER
RESPONDENT

AND

PARENTS FOR JUSTICE LIMITED
NOTICE PARTY

FREEDOM OF INFORMATION ACT 1997 S42(1)

FREEDOM OF INFORMATION ACT 1997 S7

FREEDOM OF INFORMATION ACT 1997 S26(1)(a)

FREEDOM OF INFORMATION ACT 1997 S26(1)(b)

FREEDOM OF INFORMATION ACT 1997 S14

FREEDOM OF INFORMATION ACT 1997 S34(2)

FREEDOM OF INFORMATION ACT 1997 S6(1)

SHEEDY v INFORMATION COMMISSIONER 2005 2 IR 272 2005 2 ILRM 374 2005 54 11310 DEELY v INFORMATION COMMISSIONER & DPP 2001 3 IR 439 2001 5 1298

FREEDOM OF INFORMATION ACT 1997 S26(2)

FREEDOM OF INFORMATION ACT 1997 S20

FREEDOM OF INFORMATION ACT 1997 S21

FREEDOM OF INFORMATION ACT 1997 S23(1)(a)(iv)

FREEDOM OF INFORMATION ACT 1997 S14(11)

FREEDOM OF INFORMATION ACT 1997 S34(15)

CONSTRUCTION INDUSTRY FEDERATION v DUBLIN CITY COUNCIL 2005 2 IR 496 2005 2 ILRM 256

FREEDOM OF INFORMATION ACT 1997 S22

FREEDOM OF INFORMATION (AMDT) ACT 2003

FREEDOM OF INFORMATION ACT 1997 S22(1)(a)

FREEDOM OF INFORMATION ACT 1997 S22(1)(b)

FREEDOM OF INFORMATION ACT 1997 S34(2)(b)(ii)

KENNEDY & ORS v IRELAND & AG 1987 IR 587 1988 ILRM 472 1988 2 367

COCO v AN CLARKE (ENGINEERS) LTD 1969 FSR 415 1969 RPC 41

HOUSE OF SPRING GARDENS v POINT BLANK LTD 1984 IR 611 1983 FSR 213

FREEDOM OF INFORMATION ACT 1997 S20(1)

FREEDOM OF INFORMATION ACT 1997 S21(1)(a)

FREEDOM OF INFORMATION ACT 1997 S21(1)(b)

FREEDOM OF INFORMATION ACT 1997 S21(1)(c)

FREEDOM OF INFORMATION ACT 1997 S37

Abstract:

Freedom of Information - Information Commissioner - Post Mortem Inquiry - Organ retention - Hospital - Parents for Justice - Refusal of access to documents - Rationality - Fair procedures - Whether information Commissioner erred in law - Freedom of Information Act 1997

Facts: The appellants raised an appeal on a point of law pursuant to the Freedom of Information Act 1997 by the Appellant Hospital against a decision of the Information Commissioner. The Commissioner had varied decisions of the Hospital to refuse access to documents to the Notice Party in respect of a Post Mortem Organ Inquiry. The Hospital contended that the Notice Party lacked locus standi and that the Commissioner had erred in law in reaching her decision

Held by Quirke J. that the Hospital had not established any mistake of law by the Commissioner and there had been no want of fair procedures. The appeal would be dismissed.

Reporter: E.F.

Mr. Justice Quirke
1

This is an appeal on a point of law brought pursuant to the provisions of s. 42(1) of the Freedom of Information Act,1997 by the National Maternity Hospital (hereafter "the Hospital"), against a decision of the Information Commissioner (hereafter "the Commissioner"), made on the 18th April, 2005. By her decision the Commissioner had varied earlier decisions made by the Hospital to refuse to provide the Notice Party (or persons associated with the Notice Party) with access to particular documents. Access had been sought pursuant to the provisions of s. 7 of the Freedom of Information Act, 1997 as amended, (hereafter "the Act").

2

1. On the 4th of April, 2000 the, (then), Minister for Health and Children announced the establishment of a non-statutory "Post Mortem Inquiry", (hereafter "the Inquiry").

3

Pursuant to its Terms of Reference the Inquiry was,inter alia, required "to review the post mortem examination policy, practice and procedure in this State since 1970 and in particular as it relates to organ removal, retention, storage and disposal by reference to prevailing standards both in and outside of the State."

4

2. After its establishment the Inquiry sought and received the co-operation of a number of hospitals and other public bodies and private persons in order to enable it to discharge its obligations.

5

The Inquiry wrote to the Hospital on the 27th February, 2001 advising that it had commenced its work and enclosing its Terms of Reference. The Hospital readily agreed to co-operate with the Inquiry

6

The Hospital provides obstetric and gynaecological services to a large population on the east coast. It was founded in 1894 and is the largest Maternity Hospital in the State.

7

3."Parents for Justice" (hereafter called "PFJ"), is an unincorporated body comprised principally of parents of deceased children whose bodily organs may have been retained by hospitals within the State after the conclusion of post mortem procedures some years ago. Those same persons now appear to comprise the Notice Party's members. The Notice Party is a company limited by guarantee. It was incorporated on the 2nd January, 2003.

8

Mr. Raymond Bradley of Messrs Malcomson and Law is the solicitor for the Notice Party. He has averred that PFJ cooperated with the Inquiry until October 2002 when it announced that it was formally withdrawing its cooperation by reason of the uncertain nature of the Inquiry's powers and procedures.

9

4. On the 11th May, 2001 the Hospital received a draft memorandum on procedures from the Inquiry which provided (at para 7.6) that:

"Documents received by the Inquiry shall be treated as confidential and will only be released or disclosed to other persons pursuant to these procedures and/or by operation of law."

10

On the 3rd August, 2001 a "final memorandum on procedures" was issued by the Inquiry. That memorandum provided (at para 4) as follows:

11

2 "4.1 The Inquiry will require each person who contributes to its work to undertake in writing to treat as strictly private and confidential and not to disclose to any person, any information which the person contributing to the work of the Inquiry gives or receives relating to the work of the Inquiry either written or oral.

12

3 4.2 The Inquiry will require each person who receives documents or copies thereof, from the Inquiry to enter into a Confidentiality Agreement with the Inquiry. A draft Confidentiality Agreement is attached to this Memorandum on Procedures as appendix "A".

13

4 4.3 Where it is, in the view of the Inquiry, necessary in order to ensure fair procedures to furnish either documents or the contents of evidence to a third party and that third party declines to be bound by the Confidentiality Agreement the Inquiry will not furnish either the evidence or documents to that third party. The Inquiry will then further consider the matter."

14

On the 24th May, 2002 the Hospital signed a Confidentiality Agreement with the Inquiry. Its terms providedinter alia that in the document provided by the Inquiry to bodies such as the Hospital would remain confidential as between the Inquiry and the body receiving the documents and would not be given or disclosed to any other person or body and would be returned to the Inquiry when required.

15

On the 4th November, 2002 the Hospital sent a written submission to the Inquiry.

16

In an affidavit sworn in these proceedings Ms Claire Callanan solicitor on behalf of the Hospital averred that when, on the 4th November, 2002 the Hospital sent its written submission to the Inquiry, it did so"in reliance on" the existence of the Confidentiality Agreement.

17

She continued"The submissions contains highly confidential and sensitive information. It provides information on post mortem practices and procedures, the reasons for the carrying out of post mortems, and (it) explained the Hospital's approach to its patients (at what is a very difficult time) in relation to consent, what happens at an autopsy and how burial is addressed."

18

5. Section 7 of the Act provides inter alia as follows:

"A person who wishes to exercise....the right of access shall make a request, in writing or in such other form as may be determined, addressed to the head of the public body concerned for access to the record concerned".

19

On the 9th of December, 2002 an initial application pursuant to s 7 of the Act was made by PFJ to the Hospital for access to the following categories of documents:

20

1. "Copies of any formal submissions delivered or intended to be delivered by your Hospital to the Post Mortem Inquiry, otherwise know as the Dunne Inquiry.

21

2. Copies of all correspondence between your Hospital and the said Inquiry.

22

3. Copies of all correspondence between your Hospital and the Department of Health pertaining to the said Inquiry.

23

4. Copies of all correspondence between your Hospital and other relevant parties pertaining to the said Dunne Inquiry".

24

The request, was refused by the Hospital by letter dated the 23rd December, 2002. The grounds for refusal relied upon by the Hospital included the contention that all of the documents sought were documents which related to the Inquiry including documents which were prepared and provided to the Inquiry in confidence on the understanding that they would be treated as confidential within the meaning ascribed to that term by the provisions of s. 26(1)(a) and 26(1)(b) of the Act of 1997.

25

6. Decisions made pursuant to the provisions of s. 7 of the Act may be reviewed in accordance with the provisions of s. 14 of the Act which provides inter alia that:

"(2), Subject to the provisions of this section, the head of the public body concerned, on application to him or her in that behalf, in writing or in such other form as may be determined, by a relevant person-

(a) may review a decision to which this section applies, and

(b) following the review, may, as he or she considers appropriate-

(i) affirm or vary the decision, or

(ii) annul the decision and, if appropriate, make such decision...

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