BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Irish Information Commissioner's Decisions |
||
|
You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr X and A Health Board [2002] IEIC 99397 (7 August 2002) URL: http://www.bailii.org/ie/cases/IEIC/2002/99397.html Cite as: [2002] IEIC 99397 |
||
[New search] [Help]
Request for records relating to allegations of child abuse - joint personal information - section 28(1) and SI 521 of 1998 - whether release of records would be in the best interests of a child - section 28(6) and SI 47 of 1999 - whether disclosure necessary to avoid a serious and imminent danger to the life or health of an individual - section 28(2)(e) - the public interest - section 28(5)(a)
The requester sought access to the files of a health board relating to allegations made against him that he sexually abused his young daughter. The Board granted access to some of the records and withheld others. The requester applied to the Commissioner for a review of that decision.
The Commissioner found that all of the withheld records were exempt under section 28(1) of the Act. He found that the information in the records at issue constituted personal information about individuals other than the requester or joint personal information about such individuals and the requester. He concluded that the requester's personal information was so inextricably linked to that of his wife and daughter that it was not realistic to contemplate directing that access be provided to edited versions of the records.
The Commissioner was not satisfied in the circumstances of this case that it had been shown that release of the records would be in the best interests of the child to whom the records related - the requester's daughter. The Commissioner took the view that it was not his function to investigate the requester's contention that false and malicious claims had been made about him. The Commissioner observed that if the records were required for access or other family law proceedings, procedures exist within the court system to enable the records to be produced if the court so decides.
In finding that the provision for release of records under section 28(2)(e) (where "disclosure is necessary in order to avoid a serious and imminent danger to the life or health of an individual") did not apply, the Commissioner did not accept that there was any material in the records which, if released, would, of itself, have a direct effect on the health of the requester's daughter. He also found that the requester had not provided any professional opinion or other evidence to support the view that there was a grave risk to the young girl's life or health which could be avoided if the records were released.
Given that the requester had made a very detailed submission as to why the records should be released to him in the public interest, the Commissioner examined, at some length, various factors which might favour the release of records in this case. He pointed out that many of the matters that he had been asked to consider in the context of public interest arguments made by the requester, such as the competence of the Garda Síochána in interviewing children and conducting child protection investigations, the alleged sexual abuse of minors other than the requester's child and the administration of the courts service were outside the scope of the review. However, among the issues he considered were the question of the identity of the requester, the fact that there were allegations of criminal behaviour made, the performance by the Board of its functions and the public interest in individuals being able to defend their good name. The Commissioner found that, on balance, the public interest in protecting the privacy rights of the requester's wife and daughter outweighed any public interest in having the records released.
Our Reference: 99397
07.08.2002
Mr X
Dear Mr X
I refer to your application under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the [name of Health Board] (the Board) to refuse to grant you access to certain records sought in your FOI request of 7 December 1998. Please accept my apologies for the delay in dealing with this case. Unfortunately, due to staff shortages (now resolved) and the volume of reviews on hands, it has not proved possible to complete this review before now.
Your request was for access to the Board's file relating to allegations of sexual abuse made against you in respect of your daughter Y including all statements made to the Board's social workers, all notes made by social workers or anybody else in relation to you, your daughter and your estranged wife, Ms Z. You also specified that you wanted a copy of "the rules of conduct or any other procedural notes or manuals ... governing the conduct of any department of the Health Board and especially the social workers and child-protection departments relating to the manner in which investigations of alleged sexual abuse of a child are conducted ...".
I have now completed my review of the Board's decision. In carrying out this review, I have had regard to the Board's conclusions on the matter, to your submissions to the Board and to this Office and to the provisions of the FOI Act generally. I have also examined the relevant records. I note that Elizabeth Dolan, Investigator, in her letter of 18 January 2002 has drawn your attention to some previous decisions that I have made, particularly in the area of personal information (section 28) in the context of "childcare" and family matters and that, in your letters of 13 May 2002 and 4 June 2002 you have made detailed submissions in response to some of the issues arising.
The Board's decisions (including that following on internal review) gave you access to the records covered by the part of your request numbered 4 in your request i.e. the rules, procedural notes and manuals. It also released some records in full and some in part on the basis that these records contained personal information relating to yourself. Accordingly, your application for review to my Office relates only to those records and parts of records withheld by the Board and which concern the allegations made against you, the Board's handling of them, and its contact with your family in this regard. I note that in its initial decision on your request, the Board stated that it would neither confirm nor deny the existence of statements made to it about the allegations against you. However, I am not at all sure that this approach was justified given the level and the nature of the contacts between the Board and yourself in the period November - December [year]. In any event, given the passage of time and what has transpired in the meantime, I am of the view that it is not now sustainable for the Board to rely on the approach that it will neither confirm nor deny that certain of the records sought actually exist.
The Board has identified a total of 59 records which it treated as falling within the scope of your request. While I am mindful of the provisions of section 43(3) of the FOI Act, which requires me to take all reasonable precautions to prevent the disclosure of information in an exempt record, I think that the nature of the records held may be described to you without disclosing their contents. Accordingly, I have set out a brief description of these records in the attached schedule which is based on a schedule supplied to my Office by the Board. You will see from the schedule that, of the 59 records identified, a number cannot be deemed to come within the scope of the request, or within the scope of this review, because they were created after 7 December 1998 (the date of your request). It is clear from the records that you were still in correspondence with the Board regarding its involvement with your family at the time that you submitted your FOI request. Notwithstanding the date of their creation, I note that records 33, 34, 35, 36-39, 42-43, 45-46,47 and 49 were among the records released to you by the Board in its initial decision and that, on internal review, parts of 48 were released. Furthermore, records 1-4 and 50-59 relate to your FOI request of 7 December 1998 and to its consideration and determination within the Board. Consequently, those records are not records sought by you and held by the Board at the time of your application. Accordingly, my review is restricted to consideration of records 5-14, 19-22 and parts of 24-29 to which the Board has withheld access.
My review is concerned solely with the question of whether you are entitled, under the FOI Act, to have access to these twenty records or part-records.
Before proceeding to examine the records in the context of the relevant exemptions, there are some initial points which I wish to address. I know from your submissions that you are very dissatisfied with aspects of the Board's involvement with your family and that you are critical of particular individuals involved. Your submissions also criticise the Garda Síochána and the Courts Service in the context of their dealings with your case. At the outset, I should state clearly that it is not part of my functions as Information Commissioner to adjudicate on how public bodies perform their functions generally. I must stress that it is not my role as Information Commissioner to comment on, or to investigate, the handling by the Board of the allegations about you, the methods employed by its social workers or its role in child protection except insofar as these issues may possibly be factors to be taken into account in deciding whether the decision of the public body under the FOI Act was justified. I return to this aspect of your submissions below when I come to consider the public interest arguments in relation to whether or not the records should be released.
You have also argued that the Board failed to properly exercise its decision making role under the FOI Act. In your submission of 13 May 2002, you allege that the Board's decision makers and internal reviewers "are no more than administrators" and that their decisions are flawed and are not in compliance with the FOI Act. However, it seems to me that the Board considered and dealt with your request and applied the Act in good faith in its decisions with regard to these records. I am also mindful that the FOI Act was in its infancy at the time of the Board's decision in this matter. Your submission implies that the Board's decision makers were acting to protect their colleagues who, you contend, failed in their "service delivery" to you and your daughter. It strikes me, in this regard, that the records now at issue in this review are relatively few in number and relate to the early stages of the Board's involvement with your family; they consist for the most part of notes prepared by the Board's staff following contacts with Ms Z and Y and with yourself. While not wishing to understate the importance of these records to yourself and your family, I can say from the experience of my Office in dealing with this type of case that the nature and content of these records is unexceptional in the context of health board records relating to child protection. While I may not agree fully with the line followed by the Board in dealing with your request, neither have I seen anything to suggest that the Board set out to "protect the shortcomings of the social work department" as you allege in your submission to the Board of 6 August 1999.
You make the point that, under the FOI Act, the Board should have assisted you in obtaining access to its records because your motivation in seeking the information was the protection of your child. In this regard I would refer you to section 8(4) of the Act which requires decision makers to disregard any reason that the requester gives, and any belief or opinion as to what those reasons are, in deciding whether to grant or refuse a request for access to records. In my review, I will have regard to your reasons or motivation for wishing to have access to the records only insofar as this may be a relevant consideration when it comes to considering whether release of the records would be in the best interests of the child in this case and whether, on balance, there is a public interest in releasing records which would otherwise be exempt
All of the records in question here were created after the date of commencement of the FOI Act which, in the case of health boards, was 21 October 1998. This means that a potential right of access exists to all records covered by the request, provided that they are not exempt under the Act. The records released to you by the Board (numbered 15 - 18, 23, 30-32 and certain paragraphs from 24-29) primarily contain personal information about yourself and your contacts with the Board. Section 28(1) of the FOI Act provides that, subject to the other provisions of section 28, access to records shall be refused where the granting of access would involve the disclosure of personal information about another person. In its decision, the Board relied on section 28(1) as well as on sections 23 and 26 of the Act in refusing access to the records identified above. However since, of their nature, the records at issue contain personal information relating to others as well as to you as requester, I propose firstly to consider the application of section 28 to all of the withheld records.
The records in this case comprise case notes, correspondence and notes of contacts by the Board's social workers with you, your estranged wife, Ms Z, your daughter Y and other records related to the Board's involvement in this case. As you know, they were created between [date] and the date of your FOI request (7 December 1998) in the context of concerns raised about the welfare of Y. They contain information relating to you, to your wife and/or to Y and were created in the context of the Board's performance of its statutory function in relation to child protection. The records include information relating to the situation of your wife and daughter and to their perceptions. I accept for the purposes of this review that, in regard to the contacts recorded in the records at issue here, the identity of the person who contacted the Board concerning Y is no longer in question and that you are aware from subsequent contacts with the Board and with the Garda Síochána that the person who contacted the Board was Ms Z. There is no withheld record which relates solely to you nor is there any relating solely to Ms Z, almost all of these records contain joint personal information involving (a) yourself and Y, (b) Ms Z and Y or (c) all three of you.
You have made the case that the information in the records is unreliable and that the accusations against you were made with malicious intent on the part of your estranged wife. In complex cases of this nature there is frequently conflicting information given by third parties to public bodies. To the extent that the information reflects the views or opinions of another person or persons about the requester, it is personal information within the meaning of the FOI Act. However, it is neither necessary nor practicable for me as Information Commissioner to decide on the truth or accuracy of such information.
I understand that with her letter of 18 January 2002, Ms Dolan provided you with a copy of The Freedom of Information Act, 1997 [Section 28(1) (Amendment)] Regulations, 1998 (SI 521 of 1998) which provide that, subject to the other provisions of section 28, a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve disclosure of personal information relating to another individual. Where the personal information relating to you cannot be separated from the personal information relating to the other individuals, the information comprises joint personal information. Where the personal information relating to you can be separated from the personal information relating to other individuals, section 28(2)(a) applies and the information is not exempt.
Before addressing the question of joint personal information further, I think I should explain my approach to the granting of access to parts of records. Section 2 of the Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the 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, I take the view that neither the definition of a record nor the provisions of section 13 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, and depending on the contents of the records and the substance of the possible extracts, I am not in favour of the cutting or "dissecting" of records to such an extent.
I have looked at the possibility that personal information relating to the main third party (Ms Z) might be deleted from the records and that an edited version of some of the records might be made available to you. My conclusion on this is that the personal information relating to you is so inextricably linked to that of Ms Z and Y, that it is not realistic to contemplate providing access to edited versions of these records. Any edited version of these records which might be released on the basis of such an approach would, I believe, be misleading and accordingly I do not propose to direct the Board to take this course of action. In particular cases, depending on the contents of the records concerned and the facts of the case, it may be reasonable to extract some sentences, paragraphs or parts of paragraphs for the purpose of granting access. However, as a general rule, I do not consider that this is required where the record is otherwise exempt and where the extracting of such information is either impracticable or would render the extract misleading.
I find that section 28(1) and the provisions of SI 521 of 1998 apply to all of the records and that these records are, subject to the other provisions of section 28, exempt. I consider that the other provisions of section 28 which are relevant are sections 28(2) and 28(5)(a) of the Act and the Regulations which were made pursuant to section 28(6) of the Act. I will first consider the application of the Regulations made pursuant to section 28(6) of the Act.
The Freedom of Information Act, 1997 (Section 28(6)) Regulations, 1999 (SI 47 of 1999) provide that access to a record containing personal information about a child may be granted to a parent or guardian of the child where the granting of access would be in the best interests of the child. My Office has already drawn your attention to these regulations and Ms Dolan has sent you a copy of Guidance Notes drawn up in this area by the Department of Finance pursuant to section 28(6). These Regulations have the potential, therefore, to authorise the release to you of material containing personal information relating solely to Y or relating jointly to Y and to you as her father. The Regulations do not authorise the release of records containing joint personal information relating to a minor and a person other than the requester. According, I will examine whether the regulations apply solely in the context of those parts of the withheld material which contain no personal information relating to a third party i.e. to Ms Z.
As the child's father, it is clear that you satisfy the first of the two requirements set out above. Accordingly, the question to be addressed is whether release to you of material containing personal information relating solely to Y or relating jointly to Y and to yourself serves the best interests of Y.
As I understand it, the position of the Board is that release of the records will not serve the best interests of Y. The Board says that the Child Care Act, 1991 places legal responsibility on it to ensure that the welfare of children is paramount. Furthermore, it is the Board's position that Y spoke to its social workers in confidence about extremely intimate personal matters and to breach this confidence could be detrimental. I note your contention that the concept of confidentiality would be "quite beyond [Y's] understanding at the age of - years and - months". Whatever the capacity of a child of that age to understand the concept of confidentiality, I find I must agree with the Board that maintaining a relationship of trust with young children is very important in its child protection work. I consider that the possibility exists that release of this type of sensitive information would undermine the relationship of trust which is so necessary to the Board's performance of its child protection functions; release of these records could make it less likely in the future that Y would be open to discussing her experiences and perceptions with professionals who were attempting to help her. Such a consequence would not, I believe, be in Y's best interests.
In cases, such as this, where there is disharmony between parents or a potential for conflict of interest between the child and his/her parent, great caution must be exercised in considering whether access should be granted pursuant to these Regulations. In such cases, the child in question may well be in a vulnerable position. Accordingly, the interests of the child must be regarded as separate from the interests of the parent or parents. In particular, the right to privacy of the child even vis à vis a parent or guardian must be considered as strong. I take the view in such cases that access will be granted only where it can be shown that such access will serve positively the best interests of the child in question. I have considered the arguments that you have made in several of your submissions that the grant of access to you to these records would, in fact, serve the best interests of Y. In essence, you appear to be of the view that access to the records at issue would enable you to take steps "to protect Y from her mother's conduct towards her". From your submission of 13 May 2002, it seems to me that you may be under the impression that the records contain allegations concerning (detail of allegations) and that Y's best interests would be served by the exposure of what you say are false and malicious accusations. Firstly, I must point out that the records do not contain any references to [nature of allegations] that you describe in your submissions. Even if they did contain allegations of the nature described, it is not my function to investigate or judge whether or not Y was induced to make such claims to the Board's social workers. Where the views of children are sought or given regarding their situation, children can find themselves in a difficult position indeed. I understand that proceedings in relation to access to your daughter have been, or are, before the courts. Family courts, in exercising their jurisdiction in cases of guardianship, custody and access matters, are the appropriate authorities to make decisions regarding the welfare of children and what is in the children's best interests. If the records are required for the purpose of those proceedings, procedures exist within the court system to enable the records to be produced in full if the court decides that this is appropriate. In my view, in cases of this nature where there is a potential for conflict between the interests of a child and its parent, there is a relatively high test to be met in order to establish that it is in the best interests of the child to grant access to records to either parent pursuant to SI 47 of 1999. I am not satisfied that the requirements of SI 47 of 1999 are met in this case and I therefore find that a right of access to the records containing personal information does not arise by virtue of SI 47 of 1999.
One of the situations in which personal information relating to a third party may be released is where the individual, to whom the information relates, consents to its disclosure to the requester. I do not believe that this is the type of case in which such a consent should have been sought by the Board from Ms Z. Accordingly, I find that this is not a situation where the prohibition, in section 28(1), on release of personal information of a third party may be lifted under the provisions of section 28(2). In any event, even had Ms Z given consent to the release of personal information concerning herself, she could not have given consent for the release of personal information concerning Y.
Section 28(2)(e) of the Act allows for release of personal information where "disclosure is necessary in order to avoid a serious and imminent danger to the life or health of an individual". In your submission of 6 August 1999 to the Board, which you copied to my Office, you referred to section 28(2)(e) stating that you believed that your daughter was at serious risk due to the alleged behaviour of her mother. It is clear that you feel that there might be something in the records the release of which would impact on whether Y would continue to live with her mother. You have provided information about your recent Circuit court application for enforcement of an order regarding your access to Y together with your views on the difficulties encountered about access. I have a great deal of sympathy for the predicament of you and of your family; however, the test to be met in section 28(2)(e) is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes. I do not accept that there is any material in the records, the release of which would, in itself, have any direct effect on the health of Y. I am of the view that the requirements of this provision are not met where disclosure would merely be of assistance to a requester by giving him or her a greater understanding or knowledge of an issue which is of great concern to them. As I say elsewhere in my decision, if it is found necessary to have access to the records for the purposes of Court proceedings, there are mechanisms for seeking discovery of such records. Apart from your allegations against Ms Z and your expressed fears about your daughter's well being, you have not provided any professional opinion or other evidence to support the view that there is a grave risk to your daughter's life or health which could be avoided if the records at issue were released. Accordingly I am not satisfied, on the information available, that disclosure of the information in these records is necessary to order to avoid serious or imminent danger to the life or health of Y or of any other individual.
Section 28(5)(a) of the FOI Act provides that, notwithstanding section 28(1), access may be granted to records where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. In your submissions, you have put forward detailed public interest arguments in favour of release. The Board, in its decision and in its submissions to my Office, has also identified several factors for and against the release of these records in the public interest. At this point I must say that many of the public interest arguments which you set out in your letter of 13 May 2002 and ask me to consider are based on matters that are outside the scope of my review. For the avoidance of doubt, neither the records at issue nor, as I understand it, the progress of the Board's handling of the case during the period [date] to [date] when these records came into existence, cover such matters as the competence of the Garda Síochána in interviewing children and conducting child protection investigations, the alleged sexual abuse of minors other than your daughter or the administration of the Courts service. In summary, those factors which favour the release of the records in this case include:
The public interest factors which favour refusal of the request for these records include:
As I found in my published decision in case number 99001 Ms ACF and the North Eastern Health Board, a copy of which my Office has provided to you, the provision in section 8(4) of the Act [whereby any motive which the requester may have in seeking the information must be disregarded] does not necessarily mean that in certain particular cases the identity of the requester may not be relevant to a decision regarding the public interest in the release of information. In that decision, however, I also drew attention to the situation where, in contrast to cases of sexual abuse or sexual assault or to childcare cases heard by the courts, there is no restriction or qualification on the dissemination of information released under FOI. While in your submission of 4 June 2002 you are extremely critical of the operation of the in camera rule, the fact is that statutory provisions governing the conduct of such cases allow for the proceedings to be held otherwise than in public or for the exclusion from court of all persons except those directly concerned with the case. Documents furnished in the course of such proceedings may be similarly restricted. These provisions reflect a public interest in protecting the privacy of the persons involved.
You draw my attention in your submissions to the Long Title to the FOI Act in the context of your arguments that access to the records is in the public interest. However, the stated purpose of the Act is "to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies . . . " (my emphasis). I consider that it would contravene the purposes of the Act to allow sensitive records to be released in a manner which would be inconsistent with the public interest and/or the right to privacy. It is my view that the public interest in protecting the right to privacy is a strong one. In the context of FOI, the protection of an individual's privacy is also a public interest and not a matter of protecting private rights.
You argue that to deny access to the records would amount to colluding with, and the condoning of, a criminal offence which would not be in the public interest. [Information deleted as not relevant to decision]... false accusations of sexual abuse against you and against others. I am not satisfied that, in this context, the public interest lies solely in protecting you and others as the alleged victims of such false reports. Where the matters at issue are in the nature of allegations, there is also the public interest in protecting the privacy of those involved in making such complaints. As I have said already, it seems to me that it is neither necessary nor practicable for me as Information Commissioner to decide on the truth or accuracy of information provided in this case. It is certainly not my role as Information Commissioner to make findings of what is essentially criminal behaviour. For these reasons, I do not accept the argument that, by reason of the alleged behaviour of your estranged wife in regard to your daughter, their right to privacy has been removed or that their right to privacy should not be upheld. You also say that it cannot be in the public interest for Y to be left in the care of her mother. However, as I have said above, I do not see how release of records containing accounts of the Board's contacts with your daughter and her mother in [year] would bring about a change in existing custody arrangements.
You make the case that there is a strong public interest in the disclosure of what you see as defective management and procedures on the part of the Board and in the disclosure of the harm that this has caused to you and to your daughter. The issue here is whether information relevant to the performance by the Board of its functions should be released. This is a different matter, in my view, to the issue of whether the full details of what Ms Z and Y said to representatives of the Board should be released. As I noted earlier in this decision, the records at issue here are relatively few and relate to the early stages of the Board's involvement with your family. In my view, these records do not provide a sufficient basis to form a view as to the manner in which the Board manages the child protection service either generally or in relation to Y's case.
In regard to the public interest in public bodies which deal with children being enabled to perform their functions, I note in particular that health boards have a responsibility under the Child Care Act, 1991 to promote the welfare of children. Where records are created by health boards in the context of the performance of their child protection functions, such records relate primarily to the child or children concerned. I accept that the records at issue also relate to you and the allegations against you. While in cases of this nature the issues can be finely balanced, I take the view that the interests of the child must take priority. In this context, the discussion above as to whether the release of the records would serve the best interests of Y is relevant. My conclusion was that release of the records would not best serve her interests. There is a public interest in health boards being able to continue to perform their functions in relation to children and I accept the argument of the Board that there is some likelihood that release of information, of the type contained in these records, may make this more difficult. The Board has expressed concerns that release of records of information given by and about children considered to be at risk might have an adverse effect on reporting of child abuse generally.
In weighing up the relative strengths of the opposing public interests, an attempt must also be made to measure the actual benefit to you which would result from release of the records. You argue that your constitutional rights, civil rights and rights to natural justice have been infringed by the Board's social workers. I have considered the extent to which relevant records have already been released to you and whether release of the records at issue would actually add significantly to your understanding of the Board's acts or decisions. The Board has already released to you records concerning its role in the case including its records of meetings at which you were present and how it recorded your contacts with it during the period in question. You know from correspondence with the Board (e.g. record 23 released to you) that Y was referred to the Family Centre in [date] for assessment. It is clear that you have been made aware of the outcome of the investigation. As your account of events that took place subsequent to the creation of the records at issue shows, you are also aware that the matter was referred by the Board to the Garda Síochána and that a prosecution did not take place. The fact that you are obviously deeply unhappy with the procedures followed does not take away from the fact that you are aware of when and how the Board acted following the referral made to it. I also note from your submissions that the nature of the allegation is generally known to you. In my view, the fact that you know the nature of the complaints as well as the progress and outcome of the investigation, weakens the public interest in your having access to the detail of the records in this instance. Having examined the records, I do not consider that their release would add to your understanding of the Board's role in the case to any significant extent. I cannot see how the grave concerns that you have expressed about, for instance, the qualifications and experience of the social workers involved, would be greatly clarified or advanced by your having access to the records relating to the personal information of third parties; but I am satisfied that release of these records would impinge on the privacy rights of the third parties. I come to this conclusion based on the contents of the records which, for the most part, contain accounts of what was said to the social workers as opposed to records of the Board's internal procedures in its social work department.
In your submissions you quote from the Annual Report of the Information Commissioner for 1998 in which I commented that the real test for the FOI Act would come when information is requested the release of which may have adverse or embarrassing implications for the public body. You appear to be alleging that the Board has set out to withhold records on the basis that they might disclose flawed procedures and that it would be in the public interest for such flawed procedures to be disclosed. In exceptional circumstances, the public interest may require disclosure of sensitive personal information where serious questions are raised about the performance by a public body of its functions. It is my view that in this case the records at issue are unlikely to disclose substantial material, not already in the public domain, about the Board's procedures (as opposed to specific information obtained from third parties) in dealing with childcare cases where referrals are made based on concerns that a child may have suffered abuse. In any case, I have already found that the Board acted in good faith and was entitled in accordance with the FOI Act to make a decision that access to records containing the personal information of third parties should be refused under section 28 of the Act.
I note your argument that you feel that you have been treated as though you were guilty as a result of the accusations made against you and that this is a factor which should weigh in favour of the public interest in release of the records. I agree that there is a public interest in individuals being able to defend and vindicate their good name. You imply in your submissions that your intention is to defend yourself in court against the allegations which you believe to be unfounded. There is, of course, a clear distinction to be made between, on the one hand, allegations which are known to be false and are made maliciously and, on the other hand, allegations made or information given in good faith which are ultimately discovered to be unfounded. The records do not indicate that the Board considered the allegations to have been made maliciously at the time of the creation of the records under review. Nor do I find any indication in the records that the Board's staff had made up their minds that you were guilty; of course it is not their function to make such judgements. I have taken account of the fact that procedures exist within the court system which enable the records to be produced if the court decides that this is appropriate. The grant or refusal of your FOI request should not affect your position in that regard. I am also conscious that you have informed me of wider and more serious allegations made against you and that these are not mentioned in the records which I have examined. In the circumstances, I find that the public interest in protecting the privacy rights of your daughter, and of your estranged wife, outweighs whatever public interest there may be in having the records at issue released to you.
Therefore, in the absence of a positive public interest which would outweigh the degree of invasion of privacy of the other individuals concerned, I find that section 28(5)(a) does not provide a basis for releasing these records which I have found to be otherwise exempt under section 28(1).
Given my finding that all of the records are exempt under section 28(1) of the FOI Act, I do not find it necessary to examine them in the context of section 23(1)(a)(iii) or section 26 which are the other provisions relied upon by the Board in refusing access to the records. I should add that, apart from the exemptions in the Board's decision, Ms Dolan of my Office drew your attention in her letter of 18 January 2002 to the provisions of section 22(1)(b) - that access to a record shall be refused if its disclosure "would constitute contempt of court". She asked you to indicate whether, to your knowledge, any of the records were used in or emanate from in camera proceedings or whether some of the records at issue might have been the subject of a discovery order or whether any undertaking given to a court or court imposed condition might attach to the records which might prohibit their release. Although you did not address this issue in your submission, the Board in response to a similar request from my Office, provided information about the inclusion of a number of the records in an Affidavit of Discovery furnished by it in response to a Third Party Order for Discovery made against the Board. The Board appears to take the view that those records included in the affidavit would also be exempt by virtue of section 22. Having regard to my findings that the records are exempt under section 28, it is not necessary for me to make a finding in relation to the application of section 22(1)(b) in this particular case.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby affirm the decision of the [name of Health Board] to refuse access to the records identified in the Scope section above and described in the Schedule attached to this letter.
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 four weeks from the date of this letter.
Yours sincerely
Information Commissioner
