The Supreme Court has ruled that the Information Commissioner must pay the legal costs of a separated father's successful challenge to the commissioner's ruling, which supported the refusal by a Dublin hospital to give the man access to his daughter's medical records.
The five-judge court last month found that the commissioner, Emily O'Reilly, applied the wrong legal test in determining that the release of the records would be directed only where there was "tangible evidence" that such release would actually best serve the interests of the girl.
The commissioner should have acknowledged that a parent is presumed to be entitled to 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 given such information, it also stated.
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 prior to the Supreme Court decision and the girl was now almost 18, the court noted.
In those circumstances, the court directed that the matter be returned 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.
The father had successfully appealed to the High Court against a decision of August 12th, 2002, in which the commissioner upheld 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 the commissioner had misconstrued the relevant provisions of the 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".
On January 24th last, the Supreme Court upheld that decision and the matter came before that court again yesterday to decide the costs issue.
Gerard Hogan SC, for the father, sought his costs. Brian Murray SC, for the commissioner, said that while she had lost on the substantial issue, she did prevail on the issue of the entitlement of the daughter to express a view regarding disclosure of her record.
The court should take that into account by making no order for costs regarding the Supreme Court appeal while giving the father the High Court costs.
Mrs Justice Susan Denham presiding, said the usual rule of costs following the event (costs going to the winning party) should apply.