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Annual Report 2008 - Text
High Court Judgments
There were two judgments by the High Court in 2008 on appeals taken against decisions of my Office.
1. The Minister for Education and Science -v- The Information Commissioner [2008] IEHC 279 - Judgment of Mr Justice Brian McGovern, 31st July 2008.
2. The Health Service Executive - v- the Information Commissioner [2008] IEHC 279. Judgment of Mr Justice Bryan McMahon, 1st October 2008.
The full text of these judgments can also be found on the website of the Courts Service . Neither have been appealed to the Supreme Court.
1. The Minister for Education and Science -v- The Information Commissioner [2008] IEHC 279
Judgment of Mr Justice Brian McGovern delivered 31st July 2008
Background: The Sunday Tribune newspaper and four other requesters all sought access to records concerning negotiations between the Government and religious institutions on the matter of a scheme of compensation for former residents of industrial schools and reformatories. Among the records that my Office directed the Department of Education and Science to release was a draft memorandum prepared by department officials for the Minister for Education and Science. This memo was not actually submitted by the Minister, but another memo taking a different approach to the same subject was later submitted to Cabinet.
Issue: The Minister appealed my decision. The case centred around interpretation of section 19(1)(a) [a record that "has been or is proposed to be submitted to the Government .... and was created for that purpose"]. My Office's view was that the record (the draft memorandum) was neither submitted to Government nor had it been "proposed to be submitted to the Government". I took account of the fact that the earlier memo could not have been regarded as a draft of the later one having regard to its content. Therefore, my decision was that no part of 19(1)(a) applied to the record in question. The Minister's position was that it had been proposed to submit the record to Government; the fact that it had not actually been submitted did not alter its proposed use and the purpose of its creation.
Court's Finding: Mr Justice McGovern found that the evidence had established that the Memorandum for Government was, at the time of its preparation, prepared and created for the purpose of submitting it to Government and, therefore, section 19(1)(a) of the Act applied to exempt it from release. He said that the intention of section 19(1)(a) was to protect the entitlement of a Minister "to commit his views and recommendations to a document intended to be submitted to Government, without those views subsequently getting into the public domain" .
The Minister had, at the appeal stage, introduced an argument that section 19(1)(c) of the FOI Act also applied to exempt the record. The section 19(1)(c) exemption covers records containing information, including advice, for a member of the Government for use for the transaction of business at a meeting of the Government. This 'new' argument had not been made while my review was being conducted . The Judge said that he found it difficult to see why the making of such an argument should be permitted unless it could be shown that there was some public policy or constitutional issue to be protected. He confined his consideration to section 19(1)(a) of the FOI Act and found that the Commissioner had erred in law in interpreting and applying that section in this case.
2. The Health Service Executive - v- the Information Commissioner [2008] IEHC 298
Judgment of Mr Justice Bryan McMahon delivered 1st October 2008.
Background: A mother sought access to records relating to an anonymous complaint to the HSE that her daughter (a minor) was being physically abused. My decision found that the HSE was justified in withholding some records but I directed the HSE to release certain other records including social worker notes of interviews with the child's teachers.
Issue: The HSE appealed my decision to the High Court. My position was that, under section 26(2) of the FOI Act, the confidentiality exemption at section 26(1)(a) cannot apply to a record prepared by a member of the staff of a public body, or by a person providing a service for a public body under a contract for services, in the course of the performance of his or her functions, unless disclosure of the information concerned would be a breach of a duty of confidence owed to someone other than a staff member or service provider to a public body. Effectively, section 26(2) limits the use of this exemption when the records are internal records of a public body. This meant that since the records in this case were created by the staff of the HSE in the performance of their functions, the decision makers could not rely on the exemption claimed. I also concluded that information on the names, job titles, fixed phone number of the school (excluding the mobile phone numbers of the teachers) and employment addresses of the teachers involved was not personal information and was not exempt under section 28 of the FOI Act.
The HSE argued that the content of the records was exempt under section 26 of the FOI Act as they contained information given in confidence. It further said that the records were exempt under section 28 as they contained the personal information of the teachers involved. The teachers supported the HSE's position.
Court's Finding: Mr Justice McMahon found that my decision was correct in law. He rejected the HSE's argument that the records of the interviews with the teachers were not 'prepared by' the social workers but instead involved transcribing the words of the teachers. He decided that the records at issue were not made or prepared by the teachers. He held that there was no breach of confidence provided for by agreement or by statute or otherwise. He said it was difficult to argue that any agreement as to confidentiality existed between teachers and social workers in this case. The nature of the functions performed by the HSE and the information gathered, must, he said, have caused both the school and the HSE to realise that the information may have to be disclosed ''in the best interest, and to satisfy the constitutional rights, of the parent." On the question of detriment, he said that the suggestion that the relationship between the parent and the teachers might be affected was not to the teachers' detriment but would affect the child's education.
Mr Justice McMahon said "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. 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 from those who pursue non-professional careers ."
In dealing with section 28 of the FOI Act and personal information, the Judge said that the logical sequence in this case would have been to look at the exception in section 28(2)(c) - information available to the general public - first before considering section 28(1) which provides for the refusal of access to personal information. In my decision, I had focused instead on whether the records came within the definition of personal information in section 2 of the FOI Act. However, he found that the result may not have been different even if the correct approach had been adopted and that the issue related to the form rather than the substance of the decision. Therefore, if there was an error, it was in the reasoning process and was not an error of law.
