HSE must disclose information on complaints

HSE -v- Information Commissioner: High Court Judgment was given on October 1st, 2008, by Mr Justice Bryan McMahon

HSE -v- Information Commissioner: High Court Judgment was given on October 1st, 2008, by Mr Justice Bryan McMahon

Judgment

The Information Commissioner was correct in her interpretation of the law in ordering the release of certain files held by the Health Service Executive (HSE) relating to allegations of abuse of a child subsequently found to be without foundation.

Background

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"The case touches on the dilemma which sometimes faces teachers when they suspect that one of their pupils is being abused at home," Mr Justice McMahon said in introducing his judgment.

In this case, the first intimation the HSE had that there may be a problem in relation to the child at the centre of the case was an anonymous telephone call stating the suspicion that the girl was being physically abused and neglected at home. The child's mother gave permission for the HSE to contact her GP and the child's school and four teachers subsequently gave interviews. The HSE eventually found that there were no grounds for concern and closed the inquiry.

The mother then attempted to discover the identity of the anonymous caller in order to institute proceedings and sought her personal records from the HSE.

She was granted some of these records, but denied others. She appealed the denial of access to these records to the Information Commissioner, who directed disclosure of some of the restricted records by the HSE.

The HSE appealed this to the High Court on a point of law.

The HSE argued that the commissioner erred in law in interpreting the Act, in particular section 26, which exempts information obtained in confidence, and section 28, which exempts "personal information" from disclosure. The teachers referred to in the case supported the HSE's interpretation of both sections.

The commissioner favoured greater access to information in accordance with the general underlying philosophy of the Act.

Decision

Mr Justice McMahon outlined the background to the Freedom of Information Act 1997 and the case law to date. In addition to the general context they outlined, he commented that given the policy and object of the Act to give wide and generous access to the documents held by public bodies, any exemptions or restrictions should be given a narrow interpretation.

Where the commissioner was reviewing a decision of a public body, there was a statutory presumption in favour of disclosure, and any decision not to disclose must be shown to be justified.

Section 26 (1) provides for an exemption for disclosure for information received in confidence when several conditions are fulfilled. Section 26 (2) limits the use of this exemption when the records are internal records of the public body.

Mr Justice McMahon therefore examined the facts of the case in the context of section 26 (2) first.

The HSE claimed that the records of the social worker, in which the interviews with the teachers were recorded, were not records "prepared by" a relevant person as defined in the Act. Instead, it claimed, the social worker "transcribed" the words of the teachers.

Mr Justice McMahon said he could not accept this argument. This was a record and it was not made or prepared by the teacher. Once information is stored or held, it becomes a "record" within the definition of the word in section two of the Act.

The subsection states that such records do not have to be disclosed if to do so would constitute a breach of confidence "that is provided for by an agreement or statute or otherwise by law" to a third party. This did not arise in relation to the teachers, as they had no legal duty to report on students in their care.

It was also difficult to argue that an agreement of confidentiality existed between the teacher and the social worker in this case. There was nothing in the documents to suggest that there was such an agreement.

There was a suggestion that this would threaten the relationship between the parent and the teacher, but Mr Justice McMahon said this was not to the teacher's detriment but would affect the education of the child.

"Teachers and other professionals are frequently confronted with difficult decisions of this nature as they discharge their duties in what they hope will be an atmosphere of trust and respect," he said.

"Professional life is full of such dilemmas and the law cannot guarantee that difficult decisions will never have to be made by professionals in these situations. It is this responsibility which distinguishes professional people those who pursue non-professional careers."

It was also argued under section 28 that the information sought contained "personal information" relating to third parties as defined in the Act, which is exempt from disclosure. This was information on the names, job titles and employment addresses of three individuals who were employees of a national school and which, according to the Information Commissioner, was already in the public domain.

The information also included the fixed phone number of the school and the mobile phone numbers of the teachers.

The Information Commissioner had found that the mobile phone numbers should not be disclosed, but that the other information was already in the public domain.

The HSE had argued that the commissioner had failed to consider all the relevant parts of the definition of the term "personal information", focusing exclusively on her assertion that the information was in the public domain and therefore would not be known only to the individual and his or her friends and family members.

While as a general proposition the commissioner should consider all the elements in the definition, Mr Justice McMahon said this went to the form rather than the substance of the commissioner's decision. If the decision were remitted back, she would only reformulate her conclusions in terms of section 28 (2) and this would be of no benefit to the appellant. He therefore said there was no error in law in the determinations of the commissioner, and if there was an error it was only in the reasoning process and would not have affected the outcome.

He dismissed the appeal.

The full judgment is on www.courts.ie

Gerard Hogan SC and Cathy Maguire BL, instructed by Farrell and Partners, Tullamore, for the HSE; Emily Egan BL, instructed Mason Hayes + Curran, for the Information Commissioner