Rotunda Hospital wins challenge on birth mother data

THE SUPREME Court has upheld, by a majority of four to one, a challenge by the Rotunda Hospital to the Information Commissioner’s decision requiring it to give an elderly man, who has since died, the age of his birth mother.

All five judges, however, agreed the Freedom of Information Acts 1997 and 2003 apply to the information sought, despite it dating to 1922, before the Acts commenced, as the Acts provide for a right of access to records containing “personal” information about the person seeking access.

Thomas Walsh, who died in 2008 aged 86, had, through his daughter Dawn, sought information from 1989 about his birth mother, Bridie Welsh, also called Bridget Walsh, from the hospital under the Acts.

Mr Walsh was “boarded out” at various addresses in the Dublin area immediately after his birth on May 10th, 1922, to Ms Welsh. His father was not named on his birth and baptismal certificates. He knew his date of birth, his mother’s name, her date of discharge from the hospital and that she had lived at College Road, Galway.

The hospital later indicated that the only additional information it had was her age but refused to disclose that on grounds it was personal information provided in confidence for the purpose of receiving medical care.

It added it had information about Ms Welsh’s wishes to the effect Mr Walsh was turned away in the 1930s from a house in the area where she had an address.

Dawn Walsh sought a review of the hospital’s refusal by taking the matter to the Ombudsman, who is also the Information Commissioner, Emily O’Reilly.

The commissioner ruled Mr Walsh was entitled to the information on grounds that the age of his mother, while personal, was not confidential because it was in the public domain; his mother was most probably deceased and there was evidence he was her son.

The hospital appealed on points of law to the High Court, arguing age was a factor of high clinical relevance in maternity care and it was essential it could assure patients it would not be disclosed without their consent to a third party.

In 2009, Mr Justice Patrick McCarthy rejected some of the commissioner’s findings but agreed with her conclusion that the age should be considered information in the public domain as it was generally available in the public register of births and deaths. He directed its disclosure.

The hospital and commissioner appealed aspects of his decision.

Yesterday, a four-to-one majority of the Supreme Court – outgoing Chief Justice Mr Justice John Murray, Mr Justice Adrian Hardiman, Mr Justice Nial Fennelly and Ms Justice Fidelma Macken – allowed the hospital’s appeal.