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Irish Information Commissioner's Decisions |
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and the Western Health Board [2001] IEIC 99079 (19 December 2001) URL: http://www.bailii.org/ie/cases/IEIC/2001/99079.html Cite as: [2001] IEIC 99079 |
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Reports of and investigations (now completed) into allegations of sexual abuse against requester - whether release would reveal identity of persons who gave information in confidence in relation to the enforcement of the Child Care Act, 1991- section 23(1)(b) and section 26 - whether personal information of third parties- section 28
The request was for records held by the Health Board relating to the requester's role as a teacher between 1987 and 1997. The requester had been accused of sexual abuse while he was employed as a teacher and the Health Board had conducted investigations into the child protection aspects of the situation. Not all of the records were created in the course of the investigation. The Board released some of the records, having removed some identifying details of the individuals with whom it had communicated. It withheld records containing the personal information of third parties, including the victims of the alleged abuse.
The information in some of the records could not be held to have been given in confidence because of their content and the relationship between the Health Board, the person who communicated with it and the organisation for which he worked in delivering services to the community; therefore section 26 was found not to apply. Nonetheless, section 23(1)(b) applied to certain of these records because their release could lead to the disclosure of information contained in other records which could then result in the revelation of the identity of persons who had given information to the Health Board in confidence in relation to the administration/enforcement of the Child Care Act. The Commissioner did not accept that either section 23(1)(b) or section 26 applied to the names of representatives of the school, where the alleged abuses took place, or to certain other associated individuals who attended meetings or communicated with the Board as part of its investigation.
In finding some of the records exempt under section 28, the Commissioner took the view that, while their release would not add to any significant extent to the requester's understanding of the substance of the allegations or of how his case had been dealt with, it would impinge on the privacy rights of the third parties involved. In the case of records containing joint personal information, he found that the personal information of the requester was inextricably linked with the personal information of others and that granting access to an edited version would be unrealistic and misleading. The Commissioner affirmed the Board's decision to refuse access to some of the records and directed that others be released in full.
Our Reference: 99079
19.12.2001
Dear Mr X
Dear Mr X
I refer to your application to my Office for a review of the decision of the Western Health Board ("the Board") on your request under the Freedom of Information (FOI) Act, 1997 for access to all records held by the Community Care Services of the Board relating to you as [teacher of named School] from 1987 to 1997. Your original request was received by the Board on 17 December, 1998 and your application for review was received by my Office on 4 March, 1999.
At the outset, please accept my apologies for the long delay in bringing this matter to a conclusion. I appreciate that you would have wished to obtain a decision at an earlier date but, unfortunately, due to the large number of cases pending before me, this did not prove possible.
I have now completed my review of the Board's decision. In carrying out this review, I have had regard to the Board's decision, its submissions to my Office, to your application and to your contacts with my Office. I have also examined the records and parts of records that were released to you by the Board as well as those which it withheld. My Office has received submissions from third parties who are mentioned in some of the records at issue and I have taken account of these. In a separate decision, under reference [number], I have addressed your request for access to records about you held by the Department of Education and Science.
In conducting this review, the starting point is that the Board has already released certain records and parts of records. I am conscious that certain aspects of my decision, as set out below, may not appear consistent with the logic of the existing decision of the Board. This is probably inevitable where the decision of the Board to release records is given effect before the issues are considered by my Office.
The Board's original decision of 29 January, 1999 was to release six records in full, thirty in part and to withhold twenty nine individual records together with three files of records identified as "X, Y and Z " containing the psychiatric, medical and social work records of third parties. At internal review, the Board upheld that decision. The Board provided you with a schedule of the individual records covered by your request with the exception of the records in files X, Y and Z, only a small number of which contain any reference to you. Following discussions with my staff and in response to a letter of 13 June, 2001 from Elizabeth Dolan, Investigator, you confirmed that you did not require access to the personal information of pupils of the school and their families except where you are mentioned in such records. You further accepted that you were not entitled under the FOI Act to have access to communications between the Board and its legal advisers seeking and receiving legal advice because such records ( numbers 16, 17, 20, 21, 24, 30, 32, 33, 35, 36, 37, 44 and 56) would be exempt from production in a court on grounds of legal professional privilege and would, therefore, be exempt under section 22(1) of the Act. I consider also one record (64) on the Board's files is not covered by your request in that it does not relate to personal information about you as [teacher of named school]. Accordingly, my review is not concerned with those records.
This review is solely concerned with the remaining records or parts of records which can be divided into three groups as follows:
Before dealing with the exemptions claimed by the Board, I wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of some of the records at issue is somewhat limited.
You will be aware from the Schedule prepared by the Board that these records comprise correspondence between the Board and third parties including the [name of particular organisation] during the period 1993 to 1995. In its initial decision and decision on internal review the Board relied only on section 26 of the FOI Act (information obtained in confidence). However, in its most recent submission to my Office, the Board says that section 23 (1)(b) of the Act also applies in that the release of the records could reveal the identity of a person or persons who have given information to the Health Board in confidence in relation to the enforcement or administration of the civil law i.e. the Child Care Act, 1991. In addition, I consider that it is necessary to examine the application of section 6 and section 28 of the FOI Act to some of the records.
I propose first to deal with section 6, having regard to the fact that all of the records covered by this review were created prior to the commencement of the FOI Act for Health Boards on 21 October, 1998. Under section (6)(5) the right of access is conferred in respect of records created before the date of commencement where
"(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or(b) records created before such commencement relate to personal information about the person seeking access to them."
In this case, therefore, unless (a) or (b) applies there is no right of access to the records in question. Paragraph (a) requires that there be another record - created after 21 October, 1998 - which cannot be understood without access to the earlier record. There does not appear to be any such other record, nor has it been suggested to me that any such other record exists in this case at this time. Paragraph (a) does not, therefore, apply.
Paragraph (b) covers records which relate to personal information about the requester. I find that, as records numbered 4, 6, 12 ,41 do not contain any personal information about you, paragraph (b) of section 6(5) does not apply and that you are not entitled to have access to them.
Section 28(1)Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information (excluding personal information relating to the requester). Records 3, 9, 11 and 18 contain personal information relating to you which is inextricably linked with the personal information of others - mainly that of pupils of [name of School] and their families. This is known as "joint personal information". Release of these records to you would inevitably involve the disclosure of personal information relating to third parties and this, on the face of it, is prohibited by section 28(1) of the FOI Act as well as by the relevant regulations (SI 521 of 1998). This bar on release would not apply where the consent of the third parties has been given. The consent of the third parties involved has not been given although they were consulted by the Board.
I have looked at the possibility that personal information relating to third parties might be deleted from the records and that an edited version of some or all of them might be made available to you. My conclusion on this, having examined each of the records in question, is that the personal information relating to you is so inextricably linked to the personal information relating to the third parties that it is not realistic to contemplate providing you with access to edited versions of these records. Any edited version of these records which might be released on the basis of such an approach would, I believe, be misleading and, accordingly, I do not propose to direct the Board to take this course of action. This aspect of my decision is in accordance with section 13(2) of the FOI Act.
The FOI Act does not place an absolute prohibition on the release to a requester of personal information which relates to a third party. Section 28(2) outlines a number of situations in which personal information relating to a third party may be released. One such situation is where - as discussed above - the third party consents to the release. The only provision which I consider requires serious consideration here is subsection (5) which provides that access may be granted where the public interest that it should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I note that Ms Dolan invited you to make submissions on the issue of the public interest but that you indicated that you do not wish to do so.
I consider the following public interest factors in favour of the release of the records arise in this case:
In considering the public interest factors which favour withholding the records I have taken the following into account:
In weighing up the relative strengths of these opposing public interests in this case, one consideration is the extent to which release of the records at issue would actually support the public interests favouring release (as outlined above). Key considerations here are (1) the extent to which you are already aware of allegations made about you, (2) the extent to which relevant records have already been released to you and (3) whether release of the records at issue would actually add significantly to your understanding of the role played by the Board in relation to the investigations of allegations about you. It is a fact that the Board has released a significant number of records containing details of its involvement in your case. I am satisfied that, through release of records on foot of your FOI request and otherwise, you and your representatives have a very full picture of the Board's involvement and of the substance of the allegations made. I consider that the release of the records at issue here would not add in any significant way to that picture. While release of these records would not add to your understanding in any significant respect, it would impinge on the privacy rights of the third parties involved, some of whom have a learning disability or are mildly mentally handicapped. Accordingly, I find in these circumstances that the public interest in preserving the privacy rights of the third parties concerned outweighs the public interest which would be served were the records to be released to you. I find, therefore, that section 28(1) of the FOI Act applies to the records 3, 9, 11 and 18.
Section 23(1)(b) Section 23(1)(b) of the FOI Act provides that a request for access to a record may be refused if release of the record could "reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence". In order for this exemption to apply to a record, three separate requirements must be met.
The first requirement is that release of the records could lead to the "revelation of the identity of the person" who has given the information. Having examined records 15 and 29, I accept this to be the case. The second requirement is that the information in question was given to the Board in confidence. I accept the Board's argument that the contacts, the subject of these particular records, were made with it on the understanding that they were confidential.
With regard to the third requirement, the Child Care Act, 1991 imposes an obligation on the Board to investigate all allegations of child abuse or neglect. It must "take such steps as it considers requisite to identify children who are not receiving adequate care and protection and co-ordinate information from all relevant sources relating to children in its area". In view of this, I accept that the information given does relate to the "enforcement or administration of the civil law". Accordingly, the third requirement is met in this case. Whether or not the Board subsequently found that the concerns of the person who had given the information were justified is not something that I can take account of in the context of section 23(1)(b).
Section 23(3) provides for certain limited public interest tests. I am satisfied that the records at issue do not fall into any of the categories which would allow for the release of records otherwise exempt under section 23(1)(b). Accordingly, I find that the provisions of section 23(1)(b) apply to records 15 and 29.
I referred above to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. I must also refrain from disclosing information which a public body contends is contained in an exempt record so as to preserve that party's right of further appeal. I consider that the release of records 39, 40, 48 (with the exception of paragraphs 2- 5 and 9-10), 59 and 60 could lead to the disclosure of information contained in other records which, in my review of the Board's decision, I find to be exempt. In particular, I am of the opinion that release of these records could lead to the revelation of the identity of persons who have given information to a public body in confidence in relation to the enforcement or administration of the civil law. This means that the exemption provided for in section 23(1)(b) applies to these records also even though I have not found that the information contained in them was given to the Board in confidence. Accordingly, I do not propose to direct the release of records 39, 40, 48 (with the exception of paragraphs 2-5 and 9-10), 59 and 60. The other parts of record 48 are dealt with separately below.
There is one record (number 19) in respect of which, having regard to its content, I do not consider that either section 23(1)(b) or section 28 (1) can be applied. This is a record that reveals neither the identity of persons who have given information to a public body about the administration or enforcement of the civil law nor contains personal information about third parties. The primary purpose of record number 19 appears to be the seeking of advice from the Health Board; however, it does contain personal information about you. Given my findings in relation to the other exemptions which apply to the records in Group 1 as set out above, I did not find it necessary to examine them in the context of section 26. However, I must consider the application of section 26 to record 19 and have regard to the Board's argument that this record is exempt in that it contains information given in confidence.
The relevant part of section 26 relied upon by the Board is section 26(1)(a) which provides
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if
(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, "
For section 26(1)(a) to apply, it is necessary for the Board to show four things, viz.
In the case of record number 19, it is the Board's position and that of the creator of the record that the information in the letter was provided in confidence. I am of the view that there is nothing in the nature of the relationship between a public body and an individual or body involved in delivering services to the community that would suggest that all communications between them are, or are intended to be, confidential. I have some reservations about accepting that the letter which sets out the facts of a situation and seeks the advice of the Board could meet the first two requirements of section 26(1)(a) as set out above. I should say here that the letter in question does not make any allegations about you. The third requirement of section 26(1)(a) in this case is that the disclosure of record 19 would be likely to prejudice the giving to the Board of further similar information from the creator of the record or other persons in the future. I find it difficult to accept that either an individual or an organisation would, as a result of the release of the record in this case, refuse in future to give to the Board the facts about a situation and ask it for advice or request it to take action. Such correspondence would, it seems to me, be seen as an aspect of the normal working relationship between a health board and persons in the community.
As section 26(1)(a) applies only where each of the four separate requirements is met, it is not necessary for me to examine the fourth requirement and I find that the provision does not apply in the case of record 19.
Therefore, my finding is that the Board was not entitled to refuse access to record 19 and that it should be released.
You confirmed to my staff that you did not require this decision to consider records of legal advice given to the Board. However, the content of legal advice obtained by another party is paraphrased in parts of record 48. Therefore, I consider it appropriate to examine it in the context of section 22(1) of the FOI Act which provides that "A head shall refuse to grant a request under section 7 if the record concerned �(a) would be exempt from production in proceedings in a court onthe ground of legal professional privilege,"
In considering whether the parts of the record in question would be exempt from production in a court on the ground of legal professional privilege, I have to ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client. The question comes down simply to whether the client would succeed in withholding the documents on the ground of legal professional privilege in court proceedings.
Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
I am satisfied that this record discloses the actual content of confidential communications of legal advice which would attract privilege in a Court of Law. Section 22(1)(a) is a mandatory exemption and provides that access "shall" be refused where the record would be exempt from production in court on the grounds of legal professional privilege. Accordingly, I must hold that paragraphs 2, 3, 4, 5, 9 and 10 of record 48 are exempt. As I have found earlier in my decision that an exemption also applies to the remaining parts of record 48 (paragraphs 1, 6, 7 and 8), the entire record should be withheld.
In the case of each of the Group 2 records the Board has provided you with the substantive record subject only to deletion of names and, in some instances, a very small amount of other information about persons other than yourself.
I explained above when dealing with the Group 1 records that you have no right of access to records created before the commencement of the Act which do not contain personal information about you. In Group 2, records numbered 7, 8, 61, 62 (copy of 61) fall within this category and I find that you are not entitled to have access to the parts of these records which were deleted by the Board.
I consider that the names deleted from this record are, in the context of other information in the document, the personal information of individuals other than yourself. I find that disclosure of record 13 in full is prohibited by section 28(1), the provisions of which I have explained earlier in this decision. I find that, on balance, there is no public interest in releasing these names to you.
In relation to these records, the information deleted comprises the identities of persons who attended meetings or had other contacts with the Board in its consideration of your case. In some instances, particulars of an individual's title or profession are included in the parts of the records which have been released. In deleting the names, the Board appears to be relying on sections 26 and 28 of the Act. I have explained the provisions of the relevant sections earlier in my decision.
In the circumstances of this case, I do not agree that the names of the persons involved are personal information about those who attended meetings or were otherwise in contact with the Board about your case. The text of the released records clearly indicates that these persons were acting in a representative capacity for the bodies or organisations in which they worked or held office and not in a personal capacity. The fact that someone was in contact with a health board in a professional capacity is not, in my view, personal information within the meaning of section 2 of the FOI Act as it is not information that "(a)would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential,".
Furthermore, the following is specifically excluded from the definition of personal information at section 2 of the Act:
" (I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,".
This means that where the records contain the names of members of staff of a public body and they were acting in that capacity, as in the case of several of those listed in this category, the exemption provided in section 28(1) would not apply since disclosure of their personal information is not at issue.
As the Board has already given you access to the content of the records, I can restrict my consideration of section 26(1) here to whether the requirements of the section are met in relation to the identity of the persons mentioned. There is nothing to suggest to me that the attendance at meetings or the making of other contacts by these persons with the Board during the period in question were intended to be kept confidential. I think it is fair to assume that when a member of the staff of a school is under investigation and where there is concern about the welfare of the pupils, representatives of the school and associated services would have contact with a health board in the course of co-operating with any investigation or consideration of how to proceed. In the case of Mr Michael Grange and the Department of Enterprise, Trade and Employment, Case No. 98179 ((at page 208 - Decisions under Section 34 of the Freedom of Information Act, 1997 - Volume 2) I adopted the following definition of "confidence" taken from F. Gurry "Breach of Confidence" in Essays in Equity; P. Finn (Ed.); Law Book Company, 1985, (p.111):
"A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose."
I do not consider that the names as they appear in the thirteen records listed above have, in themselves or in conjunction with the information already released in these records, the necessary quality of confidence required for the exemption in section 26(1) to apply.
Section 26(2) is aimed at limiting the use of the exemption contained in section 26(1) to restrict disclosure of records prepared by staff members or contractors of public bodies in the course of the performance of their duties. Such records will only be subject to the confidentiality exemption in section 26(1) where their disclosure would constitute a breach of a duty of confidence and that duty is owed to someone other than a public body or head or a director, or member of staff of a public body or a person who is providing a service for a public body under a contract for services. As my finding that these records are not exempt under section 26(1) does not depend on whether the records were prepared by a member of staff of a public body, I do not consider it necessary to examine the implications of section 26(2) in any detail in this decision.
I should point out here that I do not find that section 23 (1)(b) applies to this information either because the names in these records would not reveal or lead to the revelation of the identity of persons who have given information to a public body in confidence in relation to the enforcement or administration of the civil law. I come to this conclusion on the basis that the information exchanged between the third parties and the Health Board in meetings and other contacts which are recorded in this particular group of records is in relation to matters which had already been disclosed to you and does not include allegations.
Accordingly, it is my finding that the deleted information in records numbered 1, 2, 5, 14, 23, 25, 31, unnumbered record between 46 and 47, 47, 49, 50, 53 and 54 is not exempted under the Act and should be released.
I note that records 57 and 58 are copies of record 55 with notation on the copies. Certain parts of these eleven records were deleted by the Board from the copies released to you.
As in the case of records 59 and 60 which I have discussed under the Group 1 heading above, the release of the deleted information in this group of records could, I believe, lead to the disclosure of information contained in other records which, in my review of the Board's decision, I find to be exempt. In particular, I am of the opinion that the exemption provided for in section 23(1)(b) applies here. Although the deleted information might not, in itself, have been given in confidence, the fact that its release could lead to the revelation of the identity of persons who have given information to a public body in confidence in relation to the enforcement or administration of the civil law. Accordingly, I do not propose to direct the release of the parts of these records withheld by the Board.
The Board relies on section 26(1)(a) and on section 28(1) of the Act in refusing access to the records in files X, Y and Z. As outlined above in the "Scope" section, these records relate to the involvement of the Board with individual pupils of [name of School], with their families and their carers in relation to what may be described as child care issues. A small number of the records include personal information about you and you have indicated that you require only the information about and references to yourself that are contained in these records. It is possible to extract occasional sentences or parts of sentences from the records and argue that they comprise personal information relating solely to you. However, this information arose in the context of consultations that the Board and others had with pupils of the school and, in my view, this is joint personal information. My findings under the heading of Section 28 and in relation to the public interest as set out above apply also to the Group 3 Records. In exceptional circumstances the public interest may require disclosure of sensitive personal information held jointly with the information of the requester. However, it has not been argued in this case that such exceptional circumstances arise and I am satisfied that they do not. As I said above, I consider that you have already been made aware of the substance of the information in the records.
There is one record in file X - number 162 - which relates primarily to you and, indeed, is addressed to you; it contains no personal information about other persons. I do not consider that the Health Board is justified in withholding record 162 and I direct that it be released to you.
Accordingly, I find that with the exception of record 162 in file X, the Group 3 Records are exempt under section 28 and I affirm the decision of the Board to refuse access. The Board also claimed that section 26(1)(a) - which protects information obtained in confidence - applied to some of these records. In view of my finding that section 28 applies to all but one of the records in Group 3 covered by this review, and that these records are thus exempt from release, it is not necessary for me to decide whether some or all of these records are also exempt from release on the basis of section 26(1)(a) of the FOI Act.
Before dealing with the exemptions claimed by the Board, I wish to make the point that, while I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of some of the records at issue is somewhat limited.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby vary the decision of the Western Health Board as follows:
- In relation to records 3, 4, 6, 7 - 9, 11 - 13, 15, 18, 26, 29, 38 - 43, 45, 46, 48, 51, 55, 57- 63, all of files Y and Z and File X with the exception of record 162, I affirm the decision to refuse access.
- I annul the Board's decision in relation to the remaining records covered by this review - 1, 2, 5, 14, 19, 23, 25, 31, unnumbered record between 46 and 47, 47, 49, 50, 53, 54 and record 162 on File X - and direct the Board to release these in full.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.
Yours sincerely
Information Commissioner
