The Commissioner found that whilst the HSE had relied on other sections of the FOI Act in refusing the request, the records fell to be refused by reference to the mandatory exemption under section 22(1)(b) of the FOI Act on the basis that their content is such that disclosure would constitute contempt of court. She affirmed the decision to refuse the request but varied the basis for this from that set out in the HSE's decision.

Case Summary

Whether the HSE's refusal of an FOI request for access to records concerning the Applicants' children is justified under the FOI Acts.

Date of Decision: 14.06.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner

Background:

In a request received by the HSE on 24 June 2009, the Applicants sought access to a copy of the typed notes and handwritten notes of a HSE social worker who had interviewed their children and submitted a report to [the] District Court.

In its original decision of 21 July 2009, the HSE relied on section 28(1) of the FOI Act to refuse access to the records. In their internal review application of 11 August 2009, the applicants made reference to Regulations made by the Minister for Finance under section 28(6) of the FOI Act making provision in certain circumstances for access by parents or guardians to personal information about their minor children. They also cited the Supreme Court decision in McK v. The Information Commissioner which held that parents are entitled to the rebuttable presumption that their having access to their child's medical information is in the best interests of the child.

In its decision on internal review dated 25 August 2009, the HSE upheld the decision to refuse access under section 28(1) and also found that the section 26(1)(a) exemption applied to information given in confidence. It found that the public interest in refusing access to the records outweighed the public interest in granting the request. HSE said that the "McK" case referred only to a child's medical information and did not apply to this case.

The Applicants applied to my Office for a review. The application was received on 5 March 2010 and appeared to be outside of the statutory period of six months for the making of such application. My Office established that the HSE's internal review decision did not reach the Applicants until 8 September 2009 and accepted the application for review.

In a letter dated 7 May 2010, Ms. Elizabeth Dolan, Senior Investigator, advised the Applicants of her preliminary view on the matter. The Applicants replied to this letter in a submission dated 25 May 2010. I have now completed my review in accordance with section 34(2) of the FOI Act. In conducting this review, I have had regard to the application for review, the submissions made by the Applicants and the content of the records.

Conducted in accordance with section 34(2) of the FOI Act by the Information Commissioner (the Commissioner).

Scope of the Review

My review in this case is concerned solely with the question of whether refusal of the request is justified under the FOI Acts. I should add that a review under section 34 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of the review.

Submissions

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Findings

Section 22(1)(b)

Given that the records at issue were prepared for court proceedings, I agree with Ms Dolan that it is appropriate to consider this exemption. Section 22(1)(b) provides that a request shall be refused if the record concerned "is such that the head knows or ought to have known that its disclosure would constitute contempt of court".

Court proceedings were instituted by the children's grandparents under the Child Care Act 1991. The Applicants sought an Order for a report for the Court under section 20 of the Child Care Act. Court proceedings under that Act are required to be held otherwise than in public. I am satisfied that proceedings were so held.It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The question for me to decide is whether the records sought are covered by the in camera rule; if so, they are exempt from release under the FOI Act in accordance with section 22(1)(b).

The Applicants have argued that release of the records to them would not breach the in camera rule as they were parties to the proceedings in question and the requirements of natural justice, constitutional rights and fair process entitle them to ''full disclosure of all court related documentation associated with the said proceedings". In this context, as the applicants have been informed by my Office, the High Court judgment in the case of EH and EPH -v- the Information Commissioner would appear to have found otherwise. O'Neill J. stated, in reference to section 22(1)(b), " the concept of disclosure is there in the widest sense and I would interpret that as meaning 'any disclosure' be it disclosure by the public body itself or disclosure by the person seeking the record or either of them. ....[I]n permitting disclosure a head of public body and the Commissioner must assume that the disclosure of a record will be to the world at large."

Unlike the situation in relation to some court records, there are no restrictions placed on records released under FOI. I must accept, therefore, that disclosure of the records to the Applicants cannot be distinguished from disclosure to the world at large and consequently disclosure of records to them which are subject to the in camera rule would be in breach of section 22(1)(b) of the FOI Act unless the Court directs otherwise.

The records were created by a HSE social worker appointed to compile the report for the Court. They comprise the notes of the interviews with the children. Apparently, details of what the children disclosed were attached to the report. Both the typed and handwritten notes were created in the course of the proceedings for the purpose of the preparation of the report to the Court and as a direct consequence of the Order under section 20 of the Child Care Act. The notes emanate from or were derived from the proceedings. This indicates that they became court documents subject to the in camera rule. I do not consider the Applicants' argument that the notes were not filed with the Section 20 Report changes this.

I am aware that the Applicants were parties to these proceedings and that some of the content of the records would already be known  to them. They have also claimed that the children have consented to disclosure of the records. However, this does not detract from the fact that to release them now without judicial authority  would be in breach of section 22(1)(b) and of the in camera rule.

This may seem to the Applicants to be unfair or an incorrect interpretation of the FOI Act in view of the fact that it operates to prevent them from obtaining, under the Act, records concerning their children. However, in the High Court decision cited earlier, EH and EPH -v- the Information Commissioner, O'Neill J was clear on this point. He said: 

"In my view the purpose of Section 22(1)(b) is to prevent the Act from operating in such a way as to permit interference in the administration of justice a function which is reserved by the constitution solely to the Courts....If it were the case that one could under the provisions of the Act obtain documents disclosure of which was prohibited by the ruling of the Court or by an undertaking given to a Court, I have no doubt that this would amount to a gross and constitutionally impermissible interference in the administration of justice."

The Applicants made arguments to the effect that openness and transparency favours release of the records. However, section 22(1)(b) is not subject to a public interest override so I have no jurisdiction to set aside the exemption on the basis of a public interest balancing test. 

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the HSE in this case insofar as it refused access to the records. However, I vary the basis for that decision and find that the records are exempt under section 22(1)(b) because their disclosure would constitute contempt of court.

Right of Appeal

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 eight weeks after notice of the decision was given to the person bringing the appeal.

Emily O'Reilly

Information Commissioner

14 June 2010