McK. (respondent) v The Information Commissioner (appellant).
Freedom of Information - Appeal - Access to records - Parent/ guardian - Access denied to parent of medical information about minor daughter - Best interests of minor - Test to be appliedPresumption that release of records in best interests of minor - Whether Information Commissioner erred - Freedom of Information Act 1997 - Freedom of Information Act 1997 s 28(6),34, 41, 42 Regulations 1999 (SI 47/1999) Regulations 3 (1) - Bunreacht na Eireann, Articles 41 & 42
The Supreme Court (before Mrs Justice Denham; Mrs Justice McGuinness, Mr Justice Hardiman, Mr Justice Geoghegan and Mr Justice Fennelly); judgment delivered on January 24th, 2006.
There was a presumption that the release of medical information about a minor to a parent would be in the best interests of the minor. The presumption was not absolute and could be rebutted by evidence. Consequently, the approach of the Information Commissioner was in error when she required "tangible evidence" of the parent that the release of information to the parent would serve the best interests of the child. The obverse was the correct approach. The Information Commissioner should have approached the request by acknowledging that a parent was presumed to be entitled to access the information. She could then proceed to consider any evidence which existed addressing the issue that it would not be in the minor's best interests that the parent be furnished with such information.
The Supreme Court so held in affirming the decision of the High Court and dismissing the Information Commissioner's appeal and remitting the matter to the Information Commissioner to review in accordance with the correct test and in light of all the circumstances.
Gerard Hogan, SC and Andrew Kelly, BL for the respondent; Brian Murray, SC and Luan Ó Braonáin, BL for the appellant.
Mrs Justice Denham stated that at issue in the case was whether a father, who was joint guardian of his children, was entitled under the Freedom of Information Act 1997 to information, in the form of hospital notes, about an illness of his daughter. The case arose within the parameters of the Freedom of Information Act 1997 and raised fundamental issues on the approach to be taken on an application by a father to access information in medical records of his daughter, a minor, where other guardians objected to his accessing such records. N. McK., the father, ("the Requester") had appealed on a point of law to the High Court from the refusal by the Information Commissioner ("the Commissioner") of his request for access to the medical records of his daughter and the Commissioner had brought this appeal from the judgment and order of the High Court (Quirke J.).
Mrs Justice Denham said that the relevant facts were found by the High Court and were not in issue. The Requester and his late wife were married in 1986 and were the parents of two children, a daughter and a son. They separated in 1992 and during the course of family law proceedings in the Circuit Court in 1993 an allegation was made that the Requester had sexually abused his daughter. The Requester vigorously denied the allegation and in 1994 the Gardaí, having investigated the allegations, concluded that there was no evidence to warrant a prosecution. By order of the Circuit Court in 1993, the Requester was granted supervised access to his children. In 1996 the Requester and his late wife entered into a separation agreement where both parties undertook to strive towards bringing about unsupervised access by the Requester to his children at some future date. However, in 1998, the Requester's wife died. By agreement, in 1999 the two children of the marriage went to live with the late Mrs McK.'s brother and his wife and by order of the Circuit Court in 2000 it was agreed that the Requester, together with the late Mrs. McK.'s brother and wife, would be appointed joint guardians of the children. Under the arrangements the Requester was entitled to supervised access to the children approximately once a month.
In January, 2000, the Requester's daughter was admitted to hospital. When the Requester went to visit his daughter he was advised that she had been admitted for an unspecified viral infection. Being unable to obtain any further information about his daughter's admission, the Requester, by letter dated January 17th, 2000, made a request pursuant to s. 7 of the Act of 1997 seeking access to the personal medical records of his daughter.
Upon the expiration of the time limited by statute, pursuant to s. 41 of the Act of 1997, a decision refusing to grant access was deemed to have been made. The Requester sought a review of the decision and upon the expiration of the requisite time limit, a decision affirming the refusal was deemed for the purposes of Act of 1997 to have been made. On March 10th, 2000, the Requester applied pursuant to s. 34 of the Act of 1997 for a review by the Commissioner of the refusal. By letter dated August 12th, 2002, a Senior Investigator in the Office of the Commissioner advised that the decision of the hospital to refuse access to the records sought had been affirmed stating:
"Having carried out a review under s. 34(2) of the Act of 1997, I hereby affirm the decision of the hospital to refuse access to the records sought in your request of the 17th January, 2000."
The Requester had a right of appeal on a point of law from a decision of the Commissioner pursuant to s. 42(1) of the Act of 1997 which provides:
"A party to a review under section 34 or any other person affected by the decision of the Commissioner forming such a review may appeal to the High Court on a point of law from the decisions".
So by notice of motion dated September 10th, 2002, the Requester appealed to the High Court pursuant to the provisions of the s. 42 of the Act of 1997.
Mrs Justice Denham described the relevant statute law governing a request by a parent or guardian for records relating to personal information about a minor and in particular the Freedom of Information Act 1997 (Section 28(6)) Regulations 1999 made under s. 28(6) of the Act of 1997 which provided for access by a parent or guardian to personal information of a minor where it "would, in the opinion of the head having regard to all the circumstances and to any guidelines drawn up and published by the Minister, be in their best interests".
Mrs Justice Denham then considered the written decision of the Commissioner. The Commissioner's decision stated that the joint guardians with the Requester had opposed the release of the records and continued that in any situation in which there was disagreement between parents/guardians regarding the release of records relating to a minor, the Commissioner had taken the view that release would only be directed where there was tangible evidence that such release would actually serve the best interests of the minor. The decision concluded that while it had not been proven that release of records would be to the detriment of the daughter, the Commissioner was not satisfied that release of the information would be of benefit or serve her best interests. No significant benefit was likely to accrue to the daughter by granting the father access to the records and therefore the requirements of the Regulations had not been met. Consequently, the father did not have a right of access to the records pursuant to its provisions.
Ms Justice Denham explained that on appeal the High Court (Quirke J.) found in the Requester's favour on the grounds that in reaching its decision, the Commissioner had misconstrued the provisions of s. 28(6) of the Act of 1997 and the Regulations by requiring the Requester to discharge an onus of the type identified. Mr Justice Quirke stated that the provisions of the Act of 1997 fell to be considered in light of the provisions of the Constitution generally and of Articles 41 and 42 in particular. Although a complaint had been made against the Requester in the past it remained unsubstantiated and he came before the court enjoying the presumption of innocence and the presumption that he had the welfare of his child at heart in the absence of evidence to the contrary. No suggestion had been made of any failure of duty on the part of the Requester of the kind contemplated by Article 42.5 of the Constitution. Accordingly, the decisions of the Requester were presumed to be in the best interests of that minor in the absence of evidence to the contrary. The presumption was of course rebuttable but there was no suggestion of rebuttal in this case. Reluctance by another family member to agree access did not, in the absence of supporting evidence, amount to rebuttal sufficient to displace the presumption. Consequently, the Commissioner erred in requiring the Requester to discharge an onus of the type identified and the test applied by the Commissioner was incorrect. The Commissioner appealed against this finding to the Supreme Court.
Having considered the submissions on behalf of the Commissioner and the Requester, Mrs Justice Denham stated that she would affirm the decision of the High Court. The Commissioner erred in determining that release of the medical records would only be directed where there was tangible evidence that such release would actually serve the best interests of the minor.
Mrs Justice Denham stated that as a matter of constitutional and family law, a parent had rights and duties. In general a parent would expect to be given and would be given medical information about his or her child. It would only be in exceptional circumstances that medical information about a child would not be given to a parent/ guardian. As it was so quintessentially a matter arising in family law it could be that it was a matter more appropriately considered in a Family Law Court. However, the matter proceeded under the Act of 1997 procedures.
Mrs Justice Denham explained that the Act of 1997 and the Regulations fell to be interpreted in accordance with the Constitution. The relationship between parent and child had a special status in Ireland. Under the Constitution the family was the primary and fundamental unit group in our society: Article 41.1. The State had guaranteed to protect the family in its constitution and authority: Article 41.2. The State encompassed the judicial branch of government which had a consequent duty to protect the family and its authority. While the family unit had rights, so too each member of the unit had rights. Thus while the parents had duties and rights in relation to a child, and a child had rights to parental care, the child also had personal rights which the State was required to vindicate if the parent failed in his or her duty.
A parent's rights and duties included the care of a child who was ill. As a consequence, a parent was entitled to information about the medical care a child was receiving so that he or she could make appropriate decisions for the child, as his or her guardian. The presumption was that a parent was entitled to access such information. It was presumed that his or her actions were in accordance with the best interests of the child. This presumption while not absolute was fundamental. The Commissioner took an incorrect approach in requiring tangible evidence of the parent rather than applying the presumption that a parent was acting in the child's interests. The "tangible evidence" test of the Commissioner reversed the onus of proof. The obverse was the correct approach. The Commissioner should have approached the request by acknowledging that a parent was presumed to be entitled to access the information. The Commissioner could then proceed to consider any evidence which existed addressing the issue that it would not be in the minor's best interests that parent should be furnished with such information. That issue did not arise in this case because of the erroneous approach of the Commissioner.
Mrs Justice Denham stated that it was a regrettable factor in the case that there had been a considerable lapse of time since the Requester sought the information. The hospital stay was in January, 2000. At that time, the daughter was still a minor. Six years later she was in her 18th year. This altered the circumstances, as her wishes were now most relevant. The delay was not the fault of the Requester but the effects of the delay could not be ignored.
Mrs Justice Denham concluded that in view of the time which had elapsed and the circumstances of the case, especially the age of the minor whose views were now very relevant, the matter should be remitted to the Commissioner to enable the matter to be reconsidered in accordance with the correct test and in light of all of the circumstances of the case.
Mrs Justice McGuinness; Mr Justice Hardiman; Mr Justice Geoghegan and Mr Justice Fennelly concurred with the judgment of Mrs Justice Denham.
Solicitors: Anthony Murphy (Dublin) for the respondent; Mason Hayes & Curran (Dublin) for the appellant Rory White, barrister