The Supreme Court Decision On Confidentiality And FOI

19 July 2011

The five-judge Supreme Court upheld the appeal of the hospital (more commonly known as the Rotunda Hospital) against the Commissioner’s decision by a majority of four to one.

This decision is important because it now clarifies that, in order to be protected by the confidentiality provisions of the Freedom of Information (FOI) Act, the information concerned does not have to be confidential.  In fact, it is the circumstances in which the information was submitted to the public body that will determine whether the information is protected. 

The Court also confirmed the position that new grounds of appeal cannot be raised before the High Court which were not before the Commissioner in her review.  This puts the onus on public bodies to make sure that submissions to the Commissioner during her reviews of their decisions on FOI requests are as full and extensive as possible.

The Court has also made significant, although not binding, comments on how the Commissioner (and public bodies) are to apply the ‘public interest’ test that is found in many of the exemption provisions.

The decision clarifies some of the difficult issues that have affected freedom of information decision-makers for some time, but also raises at least one new issue which may require clarification in future.  Some of these issues are discussed below.

-       New grounds of appeal cannot be raised before the High Court which were not before the Commissioner in her review:

The Court makes it clear that an appeal from a decision of the Commissioner to the High Court is an appeal on a point of law and it must be a point of law involved in the decision under appeal.  The Court states that new points cannot be considered in the High Court either because many other cases raised the same issue or because it was a matter of importance.  This means that public bodies, in making submissions to the Commissioner when carrying out her review, must be careful to raise all points before her during the review process.

-       Definition of “personal information”:

“Personal information” is defined in s. 2 of the FOI Act.  It states that it means

 “information about an identifiable individual that-

 (a)  would, in the ordinary course of events, be known only to the individual or members or the family, or friends, of the individual, or 

 (b)  is held by a public body on the understanding that it would be treated as confidential”.

There then follows a list of twelve matters which are deemed to be included in the term “personal information”.  The Commissioner had found that, in order to be considered personal information, it was necessary for the information to come within either (a) or (b), as well as falling within the twelve matters listed.

The Court held that the Commissioner had erred in imposing any additional requirement and that once the information comes within the list of twelve matters (in this case, age), it is not necessary for the information also to satisfy the requirements of either (a) or (b) of the definition.

-       ‘Publicly available’ information:

One of the exceptions to the prohibition on the release of personal information is where similar information is available to the general public.  The Court’s decision has confirmed the Commissioner’s view that it makes no difference that searches for information in individual cases may be difficult or time consuming; what is relevant is whether the information is there and open to be inspected by any person.

In this regard, the Court noted that the purpose and effect of the statutory system of registration of births, marriages and deaths was to establish a complete, mandatory and public system of registration.  The Court took the view that it was impossible, in the face of the statutory right to inspect and to take copies, to doubt that the information contained in the register was available to the general public.

-       Exemption provisions to be considered independently:

The Court noted that the various exemption provisions are to be considered separately and that, just because a record is available pursuant to an exception in one exemption provision (for example, s. 28(2)(c)), that does not mean that it cannot be protected by another exemption provision (for example, section 26(1)) and that each exemption provision must be considered separately.

-       Interpretation of section 26(1)(a):

The Court has made a very significant finding on the application of s. 26(1)(a).  It held that what is protected under s. 26(1)(a) stems from the circumstances in which the material is given, and not from the nature of the material itself.  The Court noted that the information given under s. 26(1)(a) may, in  fact, be secret or confidential, but the section does not require it to be so.  The protection extends to information provided in confidence, such as, in the present case, upon admission to hospital, but does not require it to be confidential information in the sense in which that is used in, for example, intellectual property cases.

The Court also indicated that the Commissioner’s reliance on Australian material did not constitute a valid basis for the proper interpretation and application of s. 26(1)(a) and that her powers and functions are governed exclusively by, and limited to, the provisions of the statute by which she was appointed.

-       Lack of clarity on section 26(1)(b) decision:

There may be some divergence in the judgments of Fennelly J and Macken J on the interpretation on s. 26(1)(b).  The two remaining judges, who concurred with the majority, being Murray CJ and Hardiman J, agreed with both decisions and did not make any reference to this divergence.  Accordingly, it remains to be seen how the Commissioner will apply s. 26(1)(b) in future.

The divergence in the decisions is as follows:  Fennelly J states that s. 26(1)(b) concerns only cases where the disclosure of information by the giving of access to a record by a public body would “constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment … or otherwise by law.”  He held that s. 26(1)(b) does not apply where disclosure would, otherwise, be a breach of an obligation of confidence imposed by statute on members of boards or employees of various statutory bodies.  He also held that this confirms that para. (b) concerns cases where an obligation of confidence is imposed on the body in question.  He stated that para. (b) applies only to information whose disclosure would involve the person or body disclosing it committing a breach of a contract or statutory provision.

However, Macken J seems to leave open in her judgment that confidential information protected “otherwise by law” may cover matters other than information protected by contract or statute.

It will be interesting to see how the Commissioner will apply this aspect of the Court’s judgment given that, up until now, her interpretation of s. 26(1)(b) was that it also included obligations of confidentiality based in equity and the Commissioner had applied the three requirements of the action for breach of confidence in order to determine whether this arose.

-       Section 26(3) – the public interest test:

Probably one of the most interesting aspects of the decision are the comments of both Fennelly J and Macken J on the public interest test.  It should be noted that all of these comments are obiter, in other words, there are not binding on future cases but may be persuasive.

Fennelly J notes that the request, in this instance, was made by a private individual for a private purpose and that it was not made in the public interest.  He noted that whether people generally should be granted access to information on their origins (which the Commissioner had found as being a public interest factor in favour of the release of the records) was a matter of policy which it would have been possible to include in the legislation.  As it had not been so included, it was not open to the Commissioner to adopt a general policy in the public interest.

Macken J stated that, in order override the application of any exemption provisions, any “public interest” would require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law.

-        Interpretation and application of the exemption provisions:

The Court concluded that there is no statutory “right of access” to any records covered by Part III of the FOI Act.  The Court decided that the ‘right holder’ in the information (in this case, the Hospital), is to have the primary protection in law in those cases covered by Part III.  The Court overruled the earlier decision of McMahon J in HSE v The Information Commissioner, in which he found that the exemption provisions must be given a narrow interpretation.  On the contrary, the Court stated that there is no reason for suggesting an intention on the part of the Oireachtas that Part III records should be treated in such a narrow or restrictive manner.  The Court concluded that a ‘right holder’ in information corresponding to the various exemption provisions is fully entitled to refuse to grant access to the information sought, provided the conditions set out in the particular corresponding section is met.

The Court also looked whether a public body is required to justify its reliance on an exemption provision. The Court took the view that in many cases, justification will be provided where “proof” is made by an appropriate person, which cannot be rejected by the Commissioner, except in the most exceptional circumstances.  In the present case, the Court was satisfied that the legal requirement was complied with by the submissions made on the part of the hospital responding to the criteria mentioned in the section itself, and from the terms of its original refusal.

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