Information officer erred in denying father access to records

In a decision addressing important issues under the Freedom of Information legislation, the Supreme Court has ruled the Information Commissioner was wrong to refuse a separated father, who is by court order a joint guardian of his two children, access to his daughter's hospital medical records.

The five-judge court yesterday found the commissioner, Emily O'Reilly, applied the wrong legal test in determining that the release of the records would only be directed where there was "tangible evidence" that such release would actually best serve the interests of the girl.

The commissioner should have approached the request by acknowledging that a parent is presumed to be entitled to access the medical information and that release of the information was in the child's best interests, the court held. However, the commissioner may then proceed to consider any evidence that it would not be in the minor's best interests that the parent should be furnished with such information.

Although the request for the information was made in 2000, when the girl was 11, there was, due to no fault of the father, a "most unfortunate" lapse of time before yesterday's decision and the girl was now almost 18, Mrs Justice Susan Denham said.

In those circumstances, the court would send the matter back to the commissioner for review in accordance with the correct legal test and all the circumstances, including the girl's own attitude to her medical information being released to her father.

It was "unfortunate", she added, that the father's rights as a parent and guardian were viewed so erroneously by the commissioner, she added.

The father had successfully appealed to the High Court against a decision of August 12th, 2002, in which the commissioner affirmed a Dublin hospital's failure to allow the father access to written records relating to his then 11- year-old daughter arising from her admission to the hospital with a viral infection in March 2000.

The mother of the girl is dead and in 1993 the girl and her brother went to live with relatives of her mother who also have guardianship of the girl and who had objected to the father having access to her hospital records.

The High Court ruled that the commissioner had misconstrued the provisions of article 28 (6) of the 1997 Freedom of Information Act in "failing to recognise that the decisions of the parent of minors are presumed to be in the best interests of that minor in the absence of evidence to the contrary".

Although a complaint had been made in the past about the father (of having sexually abused his daughter), that complaint remained unsubstantiated and the father came before the court enjoying the presumption of innocence, the High Court also noted.

The evidence indicated the father was concerned with the welfare of his children, it added.

Delivering the Supreme Court judgment upholding that decision, Mrs Justice Denham said the Freedom of Information Act and the regulations made under it had to be interpreted in accordance with the Constitution, under which the relationship between parent and child had a special status and the family was the primary and fundamental unit group in our society.