Judgment reserved on father's rights to records

The Supreme Court has reserved judgment on an appeal by the information commissioner against a decision that the commissioner was wrong to refuse a separated father, who is by court order a joint guardian of his two children, access to his daughter's hospital medical records.

The appeal raises important issues under the Freedom of Information legislation and was attended yesterday by the commissioner, Emily O'Reilly. The five-judge court, presided over by Ms Justice Susan Denham, said it would give its decision at a later date.

The father had appealed to the High Court against a decision of the commissioner of August 12th, 2002, in which the commissioner affirmed a Dublin hospital's failure to allow the father access to certain written records relating to his then 11-year-old daughter arising from her admission to the hospital with a viral infection in March 2000. The mother of the girl is dead and in 1993 the girl and her brother went to live with relatives of her mother, who also have guardianship of the girl and who had objected to the father having access to her hospital records.

In the High Court in January 2004, Mr Justice John Quirke said he was satisfied the commissioner had misconstrued the provisions of Article 28 (6) of the 1997 Freedom of Information Act in "failing to recognise that the decisions of the parent of minors are presumed to be in the best interests of that minor in the absence of evidence to the contrary".

The judge said the commissioner had found access must invariably be denied unless and until "tangible" evidence had been furnished by the father showing that access would result in a benefit to the child. He held that construction of the legislation was incorrect.

Although a complaint had been made in the past about the father (of having sexually abused his daughter), that complaint remained unsubstantiated and the father came before the court enjoying the presumption of innocence, the judge said.

In submissions for the commissioner yesterday against that High Court decision, Brian Murray SC contended there was an onus on the father to produce tangible evidence to counter the objection of the child's other guardians.

Mr Murray said the commissioner had to operate in a situation where there were no legislative guidelines regarding the disclosure of such information. The commissioner's difficulty was that she had to decide what was in the child's best interests in circumstances where the guardians of the child had diametrically opposing views on that issue.

Gerard Hogan SC, for the father, argued the commissioner had applied the wrong test in considering whether access should be granted.