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Whether the HSE was justified, on the basis of various exemptions under the FOI Act, in its decision to refuse access to records relating to the applicants' social work files including records concerning the making of a Full Care Order in respect of their son under the Child Care Act, 1991

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner, authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Background

The applicants' solicitor made an FOI request to the HSE on 12 January 2012 seeking access to "Mr & Mrs [TR]'s full social work files" and enclosing a letter of authority from her clients in this regard. In its original decision of 19 June 2012, the HSE refused access to the information sought on the basis of sections 21(1)(a), 26(1)(a) and 28 of the FOI Act. The applicants sought an internal review of the HSE's decision on 2 July 2012, and the HSE affirmed its original decision to refuse access to the information sought in its internal review decision of 10 October 2012. On 4 April 2013, the applicants applied to this Office for a review of the HSE's decision.

It appears from the schedule of records provided to this Office that access was granted to a small number of records by the HSE, though this is not clearly referred to in its decisions. During the course of the review, the HSE agreed to release a further six pages of records. By email of 21 November 2014, Ms. Brenda Lynch, Investigator of this Office, informed the HSE of her view that section 22(1)(b) of the FOI Act was relevant. The HSE agreed that section 22(1)(b) was relevant "to the records provided under discovery and records relating to childcare proceedings".

In conducting this review, I have had regard to the submissions of the applicants, to the submissions of the HSE, to the provisions of the FOI Acts and to the content of the records. Following consideration of all the issues relevant to this review, I have decided to bring it to a conclusion by way of a formal, binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

The scope of the review relates solely to whether the decision of the HSE to refuse access to the records sought on the basis that sections 21(1)(a), 22(1)(b), 26(1)(a) and 28 of the FOI Act apply was justified. Any records or parts of records which were released during the course of the review are no longer within the scope.

Preliminary Matters

Section 13
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Section 43(3)
Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records themselves is very limited.

The Records
The HSE provided this Office with six folders of records which it identified as relevant to the request, comprising some 2,500 records in total, as follows:
File 1 Pages 1-579 pages 99, 229, 254-255, 263-264, 291, 327-328, 331-332, 380, 459-460, 516 were released
File 2 Pages 1-358 pages 216-223, 236-242, 246-249, 252-252, 256, 260-261, 267, 274, 279-281, 326, 328, 338, 340, 342-343 were released
File 3 Pages 1-295 pages 138, 169, 178, 181, 186-188, 193-194, 198 and 261-264 were released.
File 4 Pages 1-272 pages 141, 144-145, 147-149, 152, 159-161, 170-172, 174 & 178 were released
File 5 Pages 1-329 pages 7-8, 40-44 and 123 were released. Pages 18-23 released during review
File 6 Pages 1-483 pages 332-334, 336, 338-343, 348-349, 351-355, 358, 373-379, 388, 395, 401, 404 & 409 were released.

The records relate to the HSE engagement with the applicants' family beginning in July 2000 up to the end of 2011. Any later records are not within the scope of this review as the request was made in January 2012. The records which primarily relate to the applicants' son, who is now [X - a teenager] years of age, comprise the following types of records:

- records relating to proceedings before the Courts under the Child Care Act, 1991
- HSE social work records and reports regarding the HSE's engagement with the applicants, their son, their son's foster parents and others in the context of the son being in the care of the HSE until he is 18 years old further to an order of the Court under the Child Care Act, 1991.

Given the nature and content of the records which comprise an entire social work file , I have decided that it is appropriate for the purposes of this decision to deal with them as groups of records, rather than on a record by record basis.

Identification of relevant records
As set out above, the request was for the applicants' "full social work files". The HSE has identified these files, considered them in its decisions and provided copies of them to this Office. I should explain that, in implementing the terms of the FOI Act, the Commissioner is primarily concerned with ensuring public access to extant records in accordance with the provisions of the Act. The Act does not provide for a right of access to records which ought to exist. Therefore, the Commissioner does not have the authority to require a public body to create or acquire records where such records do not exist or are not held by it. It is also outside the remit of the Commissioner to adjudicate on how public bodies perform their functions generally.

The applicants have indicated that they are particularly interested in certain records and have expressed surprise that some of these do not appear on the file. I am satisfied that the HSE has identified the relevant records that it holds and that this is not a case in which it is necessary for me to address the "searches" undertaken for records. I am satisfied that there is no requirement that particular records identified by the applicants be on the file. It is my understanding that the records sought may be available to the applicants through the relevant statutory bodies.

Analysis and Findings

The HSE, in its original and internal review decisions, refused access to records on the basis of Sections 21(1)(a), 26 and 28 of the FOI Act. I agree with the Investigator that Section 22(1)(b) - a mandatory exemption - is most relevant and I will deal with that exemption first.

Section 22(1)(b)
Section 22(1)(b) of the FOI Act (as amended) provides that:-

A head shall refuse to grant a request under section 7 if the record concerned -

.....(b) is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court,..."

The In Camera Rule
The in camera rule (i.e. that proceedings be held otherwise than in public) applies to Court proceedings in accordance with Section 29 of the Child Care Act. It is a contempt of Court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. It is clear from my examination of the records that many of them were prepared in the context of proceedings under the Child Care Act, 1991. There is a full care order in place for the applicants' son until he is 18 years of age. I am satisfied that those records which were created and are on the file in the context of proceedings under the Child Care Act are covered by the in camera rule.

Ms. Lynch communicated her view to the applicants' solicitor that many of the records are exempt from release on the basis that Section 22(1)(b) applies and drew her attention to the judgment of O'Malley J. in LK and the Information Commissioner [2013] IEHC 373 which addressed records created in the context of child care proceedings. In her judgment, O'Malley J stated , referring to the judgment of O'Neill J in EH v. Information Commissioner [2001] 2 IR 463 that

" The Freedom of Information Act is not, as O'Neill J. makes clear, intended to be used in a manner that bypasses the Constitutionally established structures for the administration of justice."

O'Malley J went on to state that

"The Information Commissioner has no authority to disregard either the statutory provisions relating to the in camera nature of child care proceedings ...... Neither the status of the appellant as a party to District Court proceedings not[r] the purpose for which she wishes to use the report are relevant to his powers in this respect."

In her response to Ms. Lynch, the applicants' solicitor submitted that a balancing of rights is required and that the applicants' rights must not be disproportionately limited by the application of the in camera rule. She referred to the judgment of Birmingham J. in Health Service Executive v. McAnaspie [2011] IEHC 477 in this regard. I have reviewed this judgment and also considered a section of the "Seventh Report of the Special Rapporteur on Child Protection - A Report Submitted to the Oireachtas by Dr. Geoffrey Shannon - 2014" dealing with the right to privacy and the judgments in HSE and B&R [2013] IEDC 13 and EHB v. Fitness to Practice Committee [1998] 3 IR 399.

Having considered all of the above, I am satisfied that the position as set out in LK and the Information Commissioner applies here, that it is definitely a matter for the relevant Court to deal with the application of the in camera rule and that any application for an exception to be made to the rule must be to the relevant Court. Accordingly, as I am not aware of the existence of any prior judicial authority for the release of these records, I am satisfied that release of these records to the applicants on foot of their FOI request would constitute contempt of Court. I find, therefore, that section 22(1)(b) applies to any records on the files relating to proceedings before the Court under the Child Care Act.

I realise that the applicants' solicitor does not accept this Office's position and takes the view that the matter is not absolute; I accept, of course, that this is so in relation to any lifting of the rule by the Court itself. However, I am convinced that the Commissioner would be acting ultra vires if he was to consider the release of any of the records described above as emanating or derived from the proceedings in the Children's Court.

Section 28
~In respect of those records to which section 22(1)(b) does not apply, I am satisfied that section 28, which is also a mandatory exemption, is the most appropriate of the exemptions claimed by the HSE to apply in this case given the extent of personal information that appears in the records.

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. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 28(5B) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. In light of that definition and having examined the records, I am satisfied that the records in this case contain personal information or joint personal information relating to third parties, as well as the personal information of the applicants. It may well be the case that a considerable amount of the withheld information is generally known to the applicants. Nevertheless, I must consider that, when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put.

It may be possible to extract occasional pages or parts of pages from the records within the scope of this review and argue that they comprise personal information relating solely to the applicants. As noted above, the records on the files relate primarily to the applicants' son in the care of the HSE. The applicants' son is a third party and an individual in his own right for the purposes of the review. It is clear to me that although the information relates to the applicants, it also relates to their son and I have no information as to whether some or all of it is known to him. In my view, given the context of the information, it is more correctly described as joint personal information. It seems to me that, having regard to the context of their creation, none of the records within the scope of this review contain information which is personal information relating solely to the applicants. I note that the personal information of other individuals (e.g. foster carers), in addition to that of the applicants and their son, appears in the records. In considering this aspect, I have taken account of section 13 of the FOI Act as referred to earlier in this decision. I am satisfied that these records contain information which constitutes either (a) personal information relating to other persons solely or (b) joint personal information relating both to the applicants and those other persons. Therefore, I conclude that, subject to the provisions of section 28(2) and section 28(5) which I examine below, the records are exempt from release on the basis of section 28 of the FOI Act and I find accordingly.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) and/or section 28(5B) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of that information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

In relation to 28(2)(b) and consent, this Office has decided that, in all the circumstances of this case, it would not be appropriate to seek the views or consent to release of the third parties, including the applicants' son. whose personal information is contained in the records. There are circumstances in which one might reasonably seek the views of a [X] year old child on a matter affecting his interests and I refer to this matter further below in my comments on section 28(6). In its submissions to this Office, the HSE stated that it believes that it would not be in the best interests of the applicants' son to be consulted regarding the release of his information to his parents. The HSE has also informed this Office that there is currently no contact between the applicants and their son. I consider it reasonable and prudent that this Office have regard to the opinion of the social care professionals dealing with the applicants' son. I have also had regard to the content of the records and the fact that it is not clear to this Office as to what information, if any, has been given to the son about the circumstances of his being in the care of the HSE. It would be vitally important that this sensitive information be conveyed to him in an appropriate manner and it would be inappropriate for this Office to become involved in an area in which it has not sufficient expertise. No argument that consent is available has been made by the applicants. I find, as a matter of fact, that neither the son nor any of the other third parties have consented to the release of their personal information and that, accordingly, section 28(2)(b) does not apply.

In relation to 28(2)(e), I have no reason to believe that the release of any of the personal information in question here is "necessary in order to avoid a serious and imminent danger to the life or health of an individual". I find, therefore, that section 28(2)(e) does not apply in this case.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I do not believe that the grant of the information would be to the benefit of the third parties concerned and the applicant has not argued that this would be the case.

In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". I accept that there is a public interest in openness and accountability with respect to the performance by the HSE of its functions. The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. I consider that, in the circumstances of this case, the rights to privacy of the various third parties whose information is at issue outweighs the public interest in granting the applicants' request. I find accordingly.

Section 28(6) - Access by parents or guardians to the personal information of minors
I address this subsection of section 28 of the FOI Act given that it is a specific provision whereby parents can, in certain circumstances, gain access to their children's personal information. Section 28(6) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where "the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual". The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009), in turn, make provision for access by parents or guardians to personal information in relation to minors in certain circumstances.

The Regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any guidelines drawn up and published by the Minister, access to the records would be in the minor's best interests. Guidance Notes published by the Minister specify certain factors to be taken into consideration in determining:

whether the minor would consent to release of the material,
whether release of the material would damage the minor in some way and
whether the records are held in the minor's own right.

Furthermore, in its judgment in the case of McK v. The Information Commissioner[2006] 1 IR 260, the Supreme Court commented that the views of a minor nearing the age of majority on the question of the release of information affecting his privacy rights are "very relevant". In that case, the Supreme Court held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child. The Supreme Court explained: "The presumption is that the release of such medical information would best serve the interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the circumstances, her welfare is paramount."

In the particular circumstances of this case, I have considered whether there is any remaining information in the records, not otherwise found to be exempt from release, to which the provisions of section 28(6) would apply i.e. is there any personal information of the applicants' son which could possibly be considered for release under this provision. Taking into consideration the position as regards sections 13 and 28(5) as set out above, I am satisfied that any information in the records is so intertwined with personal information of parties other than the applicants and their son that it would be impractical to isolate it for release in any manner which would not make the information misleading. I have referred above in my consideration of section 28(2) to the practical and other difficulties that could arise in this case in contacting the applicants' son, explaining to him the kind of information that is being sought and seeking his views. Even if it was necessary to consider whether the views of the [X] year old son should be sought, I stress that section 28(6) would not displace the in camera rule (section 22(1)(b)) or the other provisions of section 28 insofar as the joint personal information involves persons other than the applicants' son. This being the case, I am satisfied that it is not necessary for me to give detailed consideration to the application of section 28(6).

In summary, I find that section 28(1) and/or 28(5B) apply and that none of the exceptions under section 28 apply to those records which have not been found to qualify for the Section 22(1)(b) exemption.

Other exemptions claimed by the HSE
Having found that all the relevant records are exempt from release under either section 22(1)(b) or section 28, it is not necessary for me to consider the application of the other exemptions claimed by the HSE.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the HSE and find that the Section 22(1)(b) exemption applies to those records which relate to proceedings in the Court under the Child Care Act 1991. I further find that Section 28(1) and 28(5B) apply to exempt the remaining information and that none of the exceptions to Section 28 apply. In summary, no further records fall to be released on foot of this decision.

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 from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator