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Whether the Agency was justified under section 28 and section 22 of the FOI Act in refusing the applicant's request for access to records concerning his family

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

Background

On 28 May 2013 the Agency received a request under the FOI Act from the applicant's solicitor, for access to records relating to himself and his family. On 5 February 2014 the applicant was notified that a decision had been made to grant part of the request and to refuse part of it by reference to section 28 of the FOI Act. On 6 February 2014, the applicant requested an internal review of the decision. On 14 March 2014, the Agency varied the original decision by releasing further records and refusing parts of the request under sections 22(1)(a), 22(1)(b) and section 28. It also refused access to one record under section 46(1)(a). I note that the original decision was made by the HSE and the internal review decision by the Agency and that the records were created in the context of the HSE's engagement with the family. On 12 May 2014, the applicant made an application to this Office for a review of the Agency's decision.

On 18 July 2014, this Office asked the Agency for a more detailed explanation of the reasons for its decisions. The Agency replied to that letter but did not address the issues raised by this Office. However, it stated that, in dealing with a later request from the applicant, it had located a second file ("File 2") which contained some records falling within the scope of the original request and had made a decision on those records. It supplied additional records which it said were within the scope of this review. In all, over 780 records were examined and scheduled by the Agency.

In conducting this review, I have taken account of the decision of the Agency and its communications with this Office, the applicant's communications with this Office and the Agency, the content of the records and the provisions of the FOI Act. I have decided to bring the review 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 and 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

This review is concerned solely with the question of whether the Agency was justified in its decision to refuse access to records and parts of records under the FOI Act. The records at issue are social work records mainly from the Family Support service and include records created in the context of family law proceedings. Several of the numbered records are, in fact, copies of the same records found in other parts of the files. Any records or parts of records which were released by the Agency are not within the scope of the review and I have not considered whether exemptions under the FOI Act were properly applied to those records. I must point out also that any records created after 28 May 2013 - the date of the FOI request- are not within the scope of this review; a number of the records included by the Agency in "File 2" cannot, therefore, be considered.

Preliminary Matters

Firstly, 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 the records at issue and the circumstances of their creation is somewhat limited.

Another matter to note is that, under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

The third point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Findings

Section 22(1)(a)
The Agency applied this exemption to certain records in its schedules. However, on examination of the content, I consider that some of these are more appropriate for consideration under section 22(1)(b) which I discuss below. Section 22(1)(a) of the FOI Act provides for the withholding of a record where it would be exempt from production in proceedings in a court on the ground of legal professional privilege. I accept that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Unlike other provisions of the Act, section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest. The records in question consist of confidential communications between the Agency and its legal advisers and concern the requesting of and the receiving of legal advice. Therefore, I find that records numbers 505, 507, 515 and 516 attract legal professional privilege (advice privilege) and are exempt from release under section 22(1)(a) of the FOI Act.
Section 22(1)(b)
The Agency cited this exemption in respect of a number of records. However, for reasons that will become clear below, I consider that this mandatory exemption should be examined in relation to more of the records than those identified by the Agency.
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 for the Court in the context of proceedings under section 20 of the Child Care Act, 1991. Furthermore, many of the records appear to relate to Court ordered access arrangements for the applicant's children which proceedings, as I understand it, would also be held in camera. I am satisfied that those records, including social work reports prepared for the District Court in respect of the applicant's family, are on the file in the context of proceedings under the Child Care Act and thus are covered by the in camera rule.

In her judgment in LK and the Information Commissioner [2013] IEHC 373 which addressed records created in the context of child care proceedings, 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 find 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."

I am satisfied that the position as set out in LK and the Information Commissioner applies here and as I am not aware of the existence of any prior judicial authority for the release of these records, I consider that release of these records to the applicant on foot of his FOI request would constitute contempt of Court. I find, therefore, that section 22(1)(b) applies to any records on the files emanating or derived from the proceedings involving the applicant and his family.

Section 28
In respect of those records to which section 22(1)(a) or section 22(1)(b) do not apply, I consider that section 28, which is also a mandatory exemption, is the most appropriate exemption to examine 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 "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 applicant. It may well be the case that a considerable amount of the withheld information is generally known to the applicant. 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 sentences or parts of sentences from the records and argue that they comprise personal information relating solely to the applicant. As noted above, however, the records on the files relate primarily to the applicant's family and their interactions with the Agency and the HSE. 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 applicant. Much of the content is the personal information of the applicant's wife. I note also that two of the children have reached their majority. In addition, the applicant's minor children are third parties and individuals in their own right for the purposes of the review subject to the provisions in regard to access by parents and guardians to the records of minors which I examine later in this decision. Given the context of the information, most of it it is correctly described as joint personal information. 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 applicant 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 considered whether, in all the circumstances of this case, it would be appropriate to seek the views or consent to release of the third parties, including the applicant's children, whose personal information is contained in the records. There are circumstances in which one might reasonably seek the views of children on a matter affecting their interests and I refer to this matter further below in my comments on section 28(6). This Office has made the judgement that, in the all the circumstances of this case, it would not be appropriate for the Commissioner to seek the views of the children as to whether they consent to their father having access to their personal information. I have had regard to the content of the records concerned; the potential for further upset to the children in question; the fact that there is no indication that their mother would consent to the children's personal information being made available to their father; and that, in any case, the children's personal information cannot reasonably be separated from the personal information of their mother and adult siblings. In light of all of these circumstances, I have decided not to seek directly to establish the views of the children. I find, as a matter of fact, that neither the children nor their mother 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's legal advisers have 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". The FOI Act 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.

In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request. However, this is not necessarily the case where the public interest becomes a consideration. There is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests overlap, however. In the present context where the applicant has not himself directly addressed the issue of the public interest, it is reasonable to infer that, while he may seek to acquire the records for his own private purposes, that private interest overlaps with the public interest in transparency and in fair procedure.

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Agency and the HSE carried out their functions in relation to the applicant's family. There is also a public interest in promoting procedural fairness where a public body engages with a member of the public in a context which may carry adverse consequences for that individual. However, the circumstances of this particular case suggest that the requirements of openness, accountability and of fair procedure have been met in the manner in which the Agency engaged with the applicant and with the Court as required in its assessment of his family. I note also the considerable extent to which it released records and other information to him. I am satisfied that the public interests in this case in openness, accountability and fair procedure have been met to a considerable extent. I am not satisfied that the significant invasion of the privacy rights of the applicant's children and their mother, which would be the consequence of releasing the records at issue here, is warranted. Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.

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 and guardians 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 applicant's minor children 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 remaining information in the records about the younger children is so intertwined with the personal information of the applicant's wife and their now adult children 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 difficulties that could arise in this case in contacting the applicant's children, explaining to them the kind of information that is being sought and seeking their views. Even if it was necessary to consider whether the views of the children 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 applicant's minor children. 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) exemptions set out above.

Other exemptions claimed

Section 28(3)(b)
Record numbers 199, 326, 464-466 (inclusive) and 539
Section 28(3)(b) provides that where a request relates to "a record kept for the purposes of, or obtained in the course of the carrying out of, social work in relation to the requester, and, in the opinion of the head concerned, disclosure of the information concerned to the requester might be prejudicial to his or her physical or mental health, well-being or emotional condition, the head may decide to refuse to grant the request."

A public body that relies on section 28(3) is, however, required by section 28(4) of the FOI Act to offer access to the records concerned to such health professional having expertise in the subject-matter of the records as the requester may specify. In its internal review decision, the Agency offered the requester an opportunity to choose a health professional who is employed by the HSE or the Agency. I do not consider that I can elaborate on the Agency's reasons for applying this section of the Act or describe in any detail the contents of the records to which section 28(3) has been applied. Nonetheless, I have examined these records which include correspondence with third parties, correspondence from the HSE to a firm of solicitors about certain arrangements and extracts from various accounts of engagements between the HSE and others with the family. It is not entirely clear as to whether some parts of this material would be covered by the in camera rule and therefore be exempt under section 22(1)(b). In any case, I am satisfied that the application of section 28(3)(b) is not appropriate in respect of the records identified above. I consider that all of them contain joint personal information and I have included them in my consideration above under section 28 of the FOI Act; I find that they are exempt under section 28(5B) and do not fall to be released to the applicant under any of the exceptions in section 28 of the FOI Act.

Section 46(1)(a)(i)
Record number 498
Section 46(1)(a)(i) provides that the FOI Act does not apply to a record held by the courts. I have examined this record and note that it is a copy of a Witness Summons served in respect of a District Court hearing of the "Family Law matter". It is clear that this copy is a record held by the Agency rather than one held by the courts. Given that it includes personal information relating to the applicant's family, I have considered it above under section 28 and find that it is exempt under section 28(5B).

Decision

Having carried out a review under section 34(2) of the FOI Act I hereby affirm the decision of the Agency on the basis that section 22(1)(a), section 22(1)(b) or section 28 apply to exempt the withheld records.

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