http://www.irlgov.ie/oic/2256_3c2.htm
Ireland
Office of the Information Commissioner -
Case 99011 - Mr ABK and the Eastern Health Board
Note : This decision was appealed to the High Court on a
point of law. On 4 April 2001, the High Court upheld the Commissioner's
decision with regard to records refused under section 22(1)(b). The Court made
no ruling in relation to the refusal of records under section 6(4) and 6(5) of
the Act pending inspection of these records by the Court. The full text of the
High Court decision can be viewed by following this link
Issues
Request for social work records - whether request frivolous and vexatious -
section 10(1)(e) - whether disclosure would constitute contempt of court -
section 22(1)(b) - whether records would qualify for legal professional
privilege - section 22(1)(a) - whether disclosure could reasonably be expected
to prejudice fairness of civil proceedings in a court - section 23(1)(a)(iv) -
access to pre-commencement records - section 6(5).
Facts
The requester sought access to records relating to himself, his former partner
and his daughter. The Eastern Health Board (EHB) refused the request on the
basis that all relevant information had already been made available to the
requester by means of discovery in earlier court proceedings and that therefore
the request was frivolous and vexatious within the meaning of section 10(1)(e).
Some of the records had been made available to the requester subject to
specific conditions imposed by the High Court that he preserve their total
confidentiality. The EHB argued that disclosure of any of these records would
constitute contempt of court. It also argued that disclosure could reasonably
be expected to prejudice the fairness of future proceedings.
Decision
The Commissioner found that the request could not be considered to be
frivolous. He considered that in some circumstances a request for access to
records which a requester already has could be described as frivolous. However,
he found that Mr ABK held some of the disputed records subject to conditions
which operated to his disadvantage and that all he was seeking to do was to
place himself on the same footing as any other requester. The Commissioner
considered that the EHB's view that the request was vexatious was based on its
experiences with the requester over the years. However, he accepted that Mr
ABK's purpose in making the request was to advance his case and, therefore, the
request could not be said to be vexatious.
The Commissioner decided that the operation of section 22(1)(b) was not
confined to situations in which disclosure by the public body would be in
contempt of court. He found that the section applied to the records which had
been made available to Mr ABK on discovery, because any disclosure of these
records would be in contempt of court. The Commissioner found that section
23(1)(a)(iv) did not apply in this case. He found that those records for which
privilege was sought in the High Court proceedings satisfied the legal
professional privilege requirement of section 22(1)(a).
The Commissioner found that the remainder of the records were created
pre-commencement. Some of these contained personal information about the
requester but the records were exempt by virtue of section 22(1)(b). A number
did not contain personal information about the requester and access to them was
not necessary or expedient in order to understand a record created after
commencement. The Commissioner found that a number of records contained
personal information about the requester and found that the requester had a
right of access to them.
Date of Decision: 28 September 1999.
DECISION
Background
Mr ABK applied to the Eastern Health Board (EHB) on 12 November 1998 under the
Freedom of Information (FOI) Act, 1997 for all records held by the EHB relating
to himself, his former partner and his daughter. The EHB refused his request on
the basis that all relevant information had already been made available to him
by means of discovery. Mr ABK sought an internal review of this decision on 11
December 1998. The initial decision was upheld on internal review on the basis
that the reviewer was satisfied that all the relevant documentation had been
furnished to the requester and that in the circumstances there was no
obligation to produce documentation which had been furnished to the requester's
legal representatives and was already in his possession.
Mr ABK requested a review by me of the decision of the EHB on 7 January 1999
and I accepted the case for review.
Process of review
The background to this request is that Mr ABK was the subject of allegations of
sexually abusing his daughter, a charge which he vehemently denies. As a result
of this Mr ABK initiated legal proceedings to which the EHB was a party. In the
course of these proceedings an order of discovery was made against the EHB.
For ease of reference I will categorise the records held by the EHB as
follows:-
Category A- There are 119 records numbered and described in the first part of
the First Schedule to the Affidavit of Discovery by the EHB in the High Court
proceedings between Mr ABK and Ireland, the Attorney General, the Minister for
Health and the EHB. These records were made available to Mr ABK on foot of the
High Court Order.
Category B - There are 17 records listed in the second part of the First
Schedule to the Affidavit of Discovery by the EHB. These records were not made
available to Mr ABK on discovery as privilege was claimed by the EHB.
Category C - There are 28 records in this category consisting of copies of
summonses, motions, High Court Orders and affidavits in connection with the
above mentioned legal proceedings and also certain judicial review proceedings
involving the EHB as applicant and the Fitness to Practise Committee of the
Medical Council as respondent. There was a number of notice parties to these
proceedings, one of whom was Mr ABK. In discussions with officials of my
Office, Mr ABK indicated that he required me to rule on two of these records
only, an affidavit of Dr Moira Woods (another notice party to the judicial
review proceedings) and an affidavit of Mr Henry P. Colley, who acted as
solicitor to the EHB in relation to these proceedings.
Category D - There are 43 records in this category which consist in the main of
correspondence between Mr ABK or public representatives acting on his behalf,
internal memoranda between EHB officials and/or their legal advisors and
correspondence from the Department of Health and replies to same. There is also
a small number of records which are copies of those listed in category A. In
discussion with officials of my Office, Mr ABK indicated that he sought a
ruling from me on 19 of these records. I have detailed these in Schedule 1
attached.
The information in some of the records relates to the requester's daughter and
former partner as well as to himself. Some of the records detail the assessment
and treatment of his daughter as a result of enquiries that the EHB carried
out. These records include medical reports, social workers' reports, and notes
from interviews with the family and with other people involved in the case.
There are also letters from the requester on the file. There are also records
relating to the preparation by the EHB for legal proceedings.
I invited the EHB and Mr ABK to make submissions to me in relation to this
case. As the EHB had not indicated in its decisions the basis under the FOI Act
for refusing Mr ABK's request, I asked that this matter be addressed
specifically in its submission to me. I also contacted Mr ABK's daughter, and
former partner as relevant parties to the review and invited them to make
submissions to me if they wished.
Mr ABK's former partner contacted my Office and spoke to the Investigator
dealing with the case. She indicated that she consented to Mr ABK's request for
these records. Following some discussion, she undertook to speak to her
daughter also regarding consent. The main points of the discussion in relation
to consent were outlined to Mr ABK's former partner in a letter dated 28 May
1999. It was pointed out that there is no provision under the FOI for a public
body or the Office of the Information Commissioner to attach conditions as to the
future use by the requester of information. It was made clear that the Office
of the Information Commissioner has no responsibility for enforcing any
agreement as to the possible future use of information which is released with
consent. She was also advised that, in the event of disclosure of information
to a requester on the basis of consent, it will not be assumed that the person
giving consent is agreeing to its release to any other person.
My Office received a signed consent from both Mr ABK's former partner and
daughter on 31 May 1999.
Both Mr ABK and the EHB made submissions to me in response to my invitation.
However, my Office sought further clarification of the EHB's position and also
put further points to Mr ABK for his comment. Officials from my Office also met
the EHB on 6 July 1999 to clarify the arguments put forward in the submissions.
Submissions
A number of submissions were made by both parties, both orally and in writing.
I summarise the main arguments made by each of the relevant parties below.
EHB
In its submission dated 15 February 1999, the EHB clarified that its decision
to refuse access to these records was made on the basis that the documentation
which was the subject of the request had previously been furnished to the requester
in the course of a number of legal proceedings and that, therefore, for a
number of reasons detailed below, the request was frivolous or vexatious within
the meaning of section 10(1)(e) of the FOI Act.
The EHB argued that, as all documentation in relation to the High Court
proceedings entitled Mr ABK and Ireland, the Attorney General, the Minister for
Health and the EHB, had been the subject of an order of discovery and as the
relevant documentation had been delivered to the solicitors of record for Mr
ABK in 1998, the further request for this information was frivolous.
In support of its arguments that this request was vexatious, the EHB stated
that it understood that Mr ABK had, in breach of the confidentiality conditions
within the order of discovery, transmitted copies of the documents discovered
to him to certain persons in the media, to members of the Oireachtas and
disclosed others in the course of other litigation. In the course of that other
litigation, the EHB stated that Mr ABK had made applications to join the EHB
and named officials as notice parties to the proceedings and also sought a
further discovery. In the EHB's view, these actions were undertaken for
vexatious purposes only.
The EHB argued that in determining whether a request is frivolous or vexatious
it is necessary to take account of all the relevant matters, particularly the
circumstances in which documents of the type requested by Mr ABK had been
supplied to him, the fact that Mr ABK, in a number of different forms, had commenced
legal proceedings against the EHB and Mr ABK's alleged disregard of orders of
confidentiality in relation to these records.
My Office raised a number of issues with the EHB arising out of the submission
in relation to the applicability of section 10(1)(e) to this request and the
possibility that in reaching the decision the decision maker may have taken
account of Mr ABK's motivation in making the request contrary to section 8(4).
A further submission from the EHB was made dated 23 March 1999.
In this submission, the EHB detailed the records relevant to the case and
addressed the points raised by my Office. The EHB stated that the refusal of
access was not based on a consideration of Mr ABK's motivation in this matter.
The EHB stated that the detail provided in its earlier submission was in
support of the argument that the request was frivolous or vexatious. The EHB
addressed the point made by my Office that it was unlikely that I, as
Commissioner, would accept the argument that a request is frivolous or
vexatious on the first occasion on which a requester exercises his rights under
the FOI Act. The EHB expressed the view that this is too narrow an
interpretation of the grounds upon which a request can be frivolous or
vexatious. It stated that the requester had access to the requested
documentation before his application under the FOI Act and no new documentation
of any relevance to the specific issues raised in the request is held by the
EHB.
At a meeting with my officials on 6 July 1999, the EHB queried the validity of
the consents which had been given in this case. It agreed to consider again the
argument that the request in this case was frivolous or vexatious. It was
agreed that it was still open to the EHB to rely on other exemptions and the EHB
undertook to revert to my Office on this matter.
The EHB wrote to my Office on 28 July 1999 about the issues discussed at the
meeting on 6 July 1999. I summarise the arguments which have been put to me by
the EHB below.
The EHB continued to maintain that the request was frivolous and vexatious in
accordance with the provisions of section 10(1)(e) of the FOI Act. The EHB
argued that the request should be considered in its totality and this
consideration must take into account the requester's rights under the FOI Act,
the restrictions imposed by High Court orders and the fact that the requester
is already in possession of copies of all the documentation to which he is
entitled on foot of discovery orders.
The EHB argued that it is bound by the High Court order for discovery (made in
the course of proceedings commenced by the requester against Ireland and the
Attorney General, the Minister for Health and the EHB) to preserve the total
confidentiality of all documents discovered and to obtain an undertaking from
each and every person to whom the documents or any of them are submitted in the
course of and preparation for the hearing of the proceedings. It also argued
that the requester and every other party to the proceedings is also bound by
the terms of that order.
The EHB also referred to a High Court judgement delivered by Mr Justice Barr in
April 1998, in proceedings related to a proposed hearing before the Fitness to
Practise Committee of the Medical Council. It argued that the orders made by
the Court in that instance continue the obligation of confidentiality to the
extent that, while Mr ABK is a party to the proceedings before the committee,
he is not being given copies of the records discovered by the EHB to the
Committee but is being shown documents relevant to his complaint.
The EHB claimed that the order of discovery in the proceedings taken by Mr ABK
and the judgement of Mr Justice Barr, taken together, cover all the
documentation in relation to Mr ABK's case with the exception of the ordinary
Summons issued in the District Court against officers of the EHB, copies of
other proceedings commenced by the requester and documents for which legal
professional privilege is claimed.
In addition, the EHB argued that section 22(1)(b) of the FOI Act applies to
these records because, it said, disclosure to the requester under the FOI Act
would constitute contempt of court. It also sought to rely on section
23(1)(a)(iv) of the Act which provides for refusal if disclosure could
reasonably be expected to prejudice or impair the fairness of criminal
proceedings in a court or civil proceedings in a court or other tribunal.
The EHB also raised the matter of the consents received from the third parties
to this review. It has pointed out that there are circumstances in which a
consent ostensibly completed by a named third party who would be affected by
disclosures, following a request under the Freedom of Information Act, needs to
be examined in its totality to ensure that an appropriate and lawful consent has
been obtained. The EHB did not argue specifically that the consents in
this case are invalid.
In a final submission dated 12 August 1999, the EHB stated in support of its
reliance on the terms of section 23(1)(a)(iv) that the prior publication or
other usage of this documentation, contrary to the High Court order, could
clearly prejudice the conduct of the civil proceedings in the High Court and by
the Medical Council. It also confirmed that it did not contend that the
consents in this case are invalid or given under duress but that it is its
professional view that a "blanket" acceptance of every written
consent would not be wholly safe and steps should be taken to satisfy oneself
of the status of the consents.
The Requester
Mr ABK made a submission to me on 20 January 1999. In this submission Mr ABK
detailed the origins of his difficulties with the EHB, the basis of which was
an accusation which was made against him and never proven. As a result of this,
Mr ABK has been attempting over the years to clear his name and he detailed the
history of his efforts to achieve this in his submission. As part of this
process, Mr ABK has tried to get access to the documentation relating to his
case from the EHB, the Department of Health and other parties. He argued that
he has two legitimate reasons for seeking records in relation to himself, his
former partner and his daughter. The first reason is to enable him to prove his
innocence of the offences of which he has been accused. The second reason is in
order to submit evidence to an enquiry by the Fitness to Practise Committee of
the Medical Council on foot of a complaint made by him. He argues that he is
entitled to this information under the FOI Act, 1997.
Following the hearing of an appeal in the High Court in relation to a decision
of the Office of the Ombudsman under the FOI Act, 1997, Mr ABK made a further
submission dated 27 January 1999. He argued that the judge in that hearing was
of the view that he was entitled to these records. On 26 May 1999 Mr ABK provided
me with an academic paper by Gerard Durcan, S.C. which he claimed supports his
arguments that he has a constitutional right to this information.
Mr ABK made a further submission to me on 14 July 1999, having been advised
that a meeting had taken place between my Office and officials of the EHB. Mr
ABK supplied me with additional documentation in relation to the issue of the
discovery. He stated that, because of the conditions laid down by the High
Court, he was not in a position to submit to the Fitness to Practise Committee
any documents which he received on discovery from the EHB and confirmed that
this was why he sought the information under FOI.
In a letter dated 5 August 1999, my Office outlined the position of the EHB as
put forward in the letter of 28 July 1999 and invited Mr ABK's views. Mr ABK
made the following points in reply:-
He argued that the subject of his request and the outcome of the allegations
are not frivolous or vexatious and therefore his request under the FOI Act is
not frivolous or vexatious.
Mr ABK stated that the EHB did not comply strictly with the terms of the
discovery orders and is of the view that this places the material which was
made available to him in the public domain.
Mr ABK claimed that the EHB did not comply fully with the terms of the High
Court Order but that he has observed the confidentiality of the documents.
Mr ABK claimed that the EHB did not make full discovery to the Medical Council
as required by the judgement of Mr Justice Barr. He pointed out that any
information which he receives under FOI will be used for the purpose of the
hearing of the Fitness to Practise Committee of the Medical Council and
accordingly confidentiality will be preserved.
Mr ABK claimed that if he is denied access to these record he will be denied
his constitutional right to his good name and natural justice.
Mr ABK claimed that the consents he secured from his daughter and his former
partner were freely given in both cases.
Following receipt of this submission, my Office asked Mr ABK to explain the
basis for his allegation that the EHB did not comply fully with the terms of
the discovery orders and asked him to point to any evidence of this charge.
Mr ABK made a further submission dated 17 August 1999 in which he pointed to
evidence which indicated that the EHB did not disclose on discovery all the
documentation it held relating to the proceedings. However, Mr ABK agreed that
any discrepancies could be pursued by my Office separately with the EHB and
that he was happy to accept that the review should concentrate on those records
currently before me.
Findings
Section 10(1)(e)
Before dealing with the four categories of record identified above, in respect
of which particular arguments apply, I wish to deal with the argument that the
request in this case is frivolous or vexatious.
The EHB contends that the request is frivolous because Mr ABK has already been
given access to some of the requested documents through the discovery process.
This ignores the fact that he has not been given access to certain other
records which are held by the EHB. Even in relation to the documents which he
has obtained through discovery, I would be reluctant to accept that his request
is frivolous. Mr ABK appears to believe that, if he obtains access to documents
as a result of his FOI request, this will release him from the undertakings
which he gave to the High Court in relation to the confidentiality of the
documents already discovered to him. As I will explain in my findings relating to
category A records below, this view seems to me to be misconceived but it does
not follow that Mr ABK's request is frivolous.
In some circumstances, a request for access to records which a requester
already has could be described as frivolous. One of the purposes of the FOI to
provide requesters with access to records held by public bodies. If a requester
already has copies of the records sought then one might well enquire as to why
a request under the FOI Act is necessary or what such a request, if successful,
would achieve.
However, Mr ABK holds the records in category A subject to conditions which he
finds operate to his disadvantage. This contrasts with the position of persons
who obtain records held by a public body as a result of requests under the FOI
Act. Such persons are free to make whatever use they wish of the records,
within the law. Essentially, Mr ABK seeks simply to put himself on the same
footing as any other requester. Given that his request is made on this basis, I
find that it is not frivolous within the meaning of section 10(1)(e) of the FOI
Act.
The EHB's view that the request is vexatious seems to be based on its
experience of dealing with Mr ABK over the years, and the tactics adopted by
him in a variety of litigations involving the EHB and others. All I can say on
this point is that Mr ABK has given a full explanation as to why he has made
the request. I accept that his purpose is not to harass or annoy the EHB but to
advance his case. The EHB may not particularly like this but it seems to me
that there is no misuse of the FOI Act of the kind which the word 'vexatious'
might suggest. I find that the request is not vexatious within the meaning of
section 10(1)(e) of the Act.
I will deal now with the different categories of record as described earlier.
Category A
Section 22(1)(b)
The EHB argues that the records already discovered to Mr ABK are exempt by
virtue of section 22(1)(b).
This section provides that
(1) "A head shall refuse to grant a request under section 7 if the record
concerned-
(b) is such that its disclosure would constitute contempt of court,
......".
By way of background I should record that, when discovery was ordered to be
made to Mr ABK, the High Court obtained an undertaking from his solicitor
"to preserve the total confidentiality of all documents hereinafter
discovered" and "a similar undertaking from each and every person to
whom the documents or any of them are submitted in the course and preparation
for this hearing". I am advised that this undertaking goes beyond the
normal undertaking which is given to the Court either implicitly or explicitly
in relation to documents which are furnished to a party on foot of a discovery
order, namely, that no use of such documents may be made otherwise than in
connection with the relevant proceedings. Although the order is not explicit on
the point, it seems clear that the purpose of imposing this confidentiality
undertaking was to protect the interests of Mr ABK's daughter. This point is
made explicitly in the subsequent judgement of Mr Justice Barr. He referred to
the obligation of the court to protect the children who were the subject-matter
of certain "in-camera" proceedings as far as practicable from any
harm to them which might result from the production and use of the documents
which were at issue before him. He ordered certain documents to be discovered
but imposed the condition that " all persons who learn of the contents of
the documents in question (or any of them) in the course of the Inquiry into
the complaints made against Dr Woods or in any subsequent proceedings or in any
other way are bound by the 'in-camera' rule as to confidentiality which is
waived by the court only to the limited extent specified herein and subject to
the foregoing conditions."
In relation to the documents which were the subject of Mr Justice Barr's
ruling, I am advised that disclosure by any person of their contents would be
contempt of court. I am also advised that the fact that a person learns the
contents of the documents in another way, for example, as a result of a request
under the FOI Act does not change matters. This is stated explicitly by Mr
Justice Barr when he refers to a person learning of the contents of the
documents in question (or any of them) "in any other way". I am
advised that the confidentiality undertaking in the order of discovery should
be similarly interpreted and, therefore, that any disclosure by Mr ABK of the
contents of the 119 documents in this category would constitute contempt of
court.
Turning now to the wording of section 22(1)(b), it will be noted that a record
is exempt if its disclosure would constitute contempt of court. It will be
noted also that the section does not refer to disclosure by the public body. In
my view, "disclosure" here means publication in the broad sense. The
head must consider whether the record is of a class, or its contents of such a
nature, as to cause a contempt of court to arise if the record were to be
disclosed to anyone outside the circle of persons to whom it ought properly to
be restricted. Clearly, this does not require a head to refuse to grant a
request where he is not possessed of information which would give him to
understand that a contempt of court might arise. It may be that there will be
occasions on which heads are unaware that disclosure of records held by them
will lead to a contempt of court, but these should be comparatively rare.
Where, however, a head is actually aware that disclosure of a certain record by
the public body would cause it to be in contempt or that any disclosure by the
requester would cause the requester to be in contempt, it seems to me that the
head must refuse to grant the request.
This interpretation seems to accord with the decision of the Australian
Administrative Appeals Tribunal (AAT) in Marjorie Cecil Altman v. Family
Court of Australia (1992) 15 AAR 236, where the Tribunal had to consider
the similarly worded section 46 of the Australian Freedom of Information Act,
1982.
That provision reads as follows:
"A document is an exempt document if public disclosure of the document
would, apart from this Act … be in contempt of court…"
Judge O’Connor of the AAT said (at paragraph 38),
“Section 46 will only make a document an exempt document where public
disclosure will be a contempt of court; the fact that the document may
subsequently be used in a way which is in contempt of court is not relevant. It
may be noted that it is public disclosure that would constitute a contempt of
court; where disclosure to the applicant would not constitute contempt of court
(for instance where there is a confidentiality order to which an applicant is
not subject) but wider disclosure would, the document is an exempt document
under the section.”
What the AAT appears to be saying here is that the fact that a document may
subsequently be used in a way which is in contempt of court other than by
reason of public disclosure thereof, is irrelevant. The enquiry to be engaged
in by the public body is whether any public disclosure of the document
would be a contempt. In asking itself this question it can ignore the fact that
disclosure to the applicant would not constitute contempt, if wider disclosure
would.
There is, of course, a distinction between the Australian and Irish provisions
in that the former uses the words “public disclosure” rather than “disclosure”
simpliciter. However, on balance I take the view that the distinction is not
significant. The word “disclosure” is capable of meaning publication to third
parties as well as granting access to the requester and, it seems to me, it is
the former interpretation which is intended in section 22(1)(b).
The arguments of the EHB seem to suggest that release of the records to Mr ABK
under the FOI Act would cause the EHB to be in contempt of court. It is not
clear to me that this would be the case but it is not necessary for me to take
a view on this because, as I have said, the section does not refer to
disclosure by a public body and, in my view, its operation is not
confined to situations in which the very act of release by the public body
would give rise to contempt of court.
If the Oireachtas had intended to confine this mandatory exemption to contempt
of court arising from the very act of release by the public body of particular
records, it could quite easily have used different language. In this
connection, it is to be noted that other exemptions are couched in the type of
language that might have been used here. For example, the section immediately
preceding section 22 provides that “[a] head may refuse to grant a request
under section 7 if access to the record concerned could, in the opinion of the
head, reasonably be expected to…”. Section 22(1)(b) could have been similarly
worded to say, for example, “A head shall refuse to grant a request under
section 7 if the granting of access to the record concerned would constitute
contempt of court”. Indeed, similar such wording was used in the New Zealand
Official Information Act, 1982, section 18 of which provides as follows:
“A request made in accordance with section 12 of this Act may be refused
only for one or more of the following reasons, namely:
(c) That the making available of the information requested would -
…
(ii) Constitute contempt of Court.”
It would not be unreasonable to suggest that the purpose of section 22(1)(b) is
to prevent, to the greatest practicable extent, any interference by public
bodies in the administration of justice which might result from the granting of
access to records under the 1997 Act. As McDonagh notes in her book, Freedom of
Information Law in Ireland, “[t]he rationale behind the inclusion of [a
contempt of court] exemption in the original Australian Freedom of Information
Bill was explained by the Senate Standing Committee on Constitutional and Legal
Affairs in the following terms:
'Parliament and the courts have unique functions, and have traditionally had
powers to regulate their own proceedings that have been regarded as a necessary
incident to their functions. The Bill, which is designed to open up to public
scrutiny the operations of the Executive, should not unnecessarily interfere
with the other organs of the State with consequences that cannot at the outset
be entirely foreseen' ”.
In my view, therefore, the provisions of section 22(1)(b) require the EHB to
refuse Mr ABK's request for access under the FOI Act to the records in category
A.
Before dealing with the other arguments which the parties made in relation to
the records in category A, I wish to make two further brief comments, for the
guidance of public bodies.
The first comment relates to the interpretation of section 8(4) of the Act.
This provides that, in deciding whether to grant or refuse to grant a request
under section 7, a head shall disregard any reason the requester gives for the
request and any belief or opinion of the head as to what these reasons are.
Lest it be thought that this provision is in conflict with the interpretation
of section 22(1)(b) which I have just given, I should explain that, in my view,
section 8(4) does not permit the head to avoid the question: “would disclosure
of this particular record constitute contempt of court?” Section 22(1)(b)
requires the head to consider the record and to ask whether, if it was ever
disclosed, would such disclosure amount to contempt of court. If, therefore, a
record indicates, on its face, that its disclosure would lead to a contempt of
court or if a head is aware that disclosure by the public body concerned would
lead to the same or if a head is aware or on notice that disclosure by the
requester would be in contempt, he must refuse to grant access. In the present
case, the EHB is actually aware that disclosure of the contents of the records
concerned would amount to contempt of court as the High Court has, on two
occasions, let it be known that these documents are to be kept confidential.
My second comment relates to the applicability of section 22(1)(b) to
situations in which a public body makes discovery of documents to another party
but without any special undertakings of confidentiality being given by that
party over and above the normal undertaking mentioned earlier, and these
documents are the subject of a subsequent FOI request. Clearly, the normal
discovery rules are designed to protect the interests of the party making the
discovery, i.e. the interests of the public body. In my view, this situation
must be distinguished from that in the present case where the High Court has
indicated a clear intention to protect the position of third parties. I do not
wish at this stage to express a definitive view as to the position which would
obtain where the usual implied undertaking is given by the person obtaining
discovery. However, it seems to me that the disclosure by a public body, under
the FOI Act, of records which have previously been discovered by it in legal
proceedings and which have been the subject only of the usual undertaking by
the other party to those proceedings, is not a contempt of court. This is
because the court has not expressed a desire to preserve the confidentiality of
the records generally, but has merely obtained an undertaking which was for the
benefit of the public body. It follows that a public body will by no means
automatically be entitled to refuse access by virtue of section 22(1)(b), by
reason of the fact that the records have already been made available to the
requester or to someone else through the discovery process.
Other arguments
In the course of his arguments, Mr ABK suggested that the EHB had not complied
fully with the terms of the High Court order of discovery. I am advised that
even if this is the case it is not a relevant consideration in determining
whether the provisions of section 22(1)(b) apply.
Mr ABK also argued that he wanted access to these records only for the purpose
of submission to the inquiry being conducted by the Fitness to Practise
Committee of the Medical Council. Since that inquiry is being conducted in
private, Mr ABK claims that such use of the records would, in fact, preserve
their confidentiality. It may very well be that Mr ABK is correct in what he
says. However, it should be apparent from what I have already said that the
proper application of section 22(1)(b) does not require me to have regard to
whatever use Mr ABK might make of the records. It is sufficient for the section
to apply that disclosure of these records would cause a contempt of court.
Mr ABK also argued that he had a constitutional right to the records which he
seeks. His claim is based on the citizen's right to basic fairness of
procedures. This requires that in proceedings before any tribunal where a party
is at risk of having his good name jeopardised, he should be furnished with a
copy of the evidence which reflected on his good name. As a general point this
may be correct. Mr Justice Barr in his judgement acknowledged that the full
investigation by the Fitness to Practise Committee of the complaints before it
"necessarily entails discovery for use at the Inquiry of all records in
the possession of the EHB relating to the children who are the subject matter
of the complaints". He went on to say that the documentation obtained by
the Committee from the EHB shall not be divulged to anyone other than the
parties to the Inquiry, those associated with it and the Medical Council.
It may very well be that proper compliance with Mr Justice Barr's order, as
well as the need to observe Mr ABK's constitutional rights, requires that the
documents which Mr ABK now seeks from the EHB should be made available both to
the Fitness to Practise Committee and to Mr ABK. However, this is a matter in
the first place for the Committee to determine. For my own part, I can only
have regard to the specific terms of the FOI Act. Having done so, I am
satisfied that the provisions of section 22(1)(b) require the EHB to refuse Mr
ABK's request under the FOI Act as it applies to the records in category A.
The EHB argued that section 23(1)(a)(iv) applies in this case. In the ordinary
course of events, it is not clear to me how granting a requester access under
the FOI Act to records which he already has would prejudice the fairness of
future civil proceedings. However, it seems to me that the concern which the
EHB expresses about the prior publication of records contrary to a High Court
order (and which caused it to rely on section 23(1)(a)(iv)) is dealt with by
the provisions of section 22(1)(b) of the Act. Therefore, I find that section
23(1)(a)(iv) does not apply in this case.
The EHB also queried the validity of the consents given by the relevant parties
in this case. The actions taken by my Office to ensure that the consents in
this case were fully informed are described above. In the event, it was
unnecessary for me to rely on the consents given in this case. However, I
should record that no evidence was put before me which would justify my holding
that the consents in this case were other than fully informed and freely given.
Category B
The records in this category are, without exception, copies of correspondence
between the EHB and its legal advisers or documents prepared in contemplation
of litigation apprehended or threatened and where the dominant purpose of the
communication was use for the purpose of litigation.
As I have stated in previous decisions, the question of whether section
22(1)(a) applies comes down simply to whether or not the EHB would succeed in
withholding the documents on the ground of legal professional privilege in
court proceedings. Having regard to the nature of the records as described
above, I am satisfied that it would succeed.
There are some situations in which legal professional privilege may not attach
to communications between lawyer and client such as non-confidential
communications or legal assistance other than the giving of advice or
communications in furtherance of a criminal offence. I am satisfied that these
exceptions do not apply here. Accordingly, I must hold that the EHB is entitled
to claim exemption in respect of these records. Indeed, this conclusion would
appear to be supported by the earlier decision of the High Court that the
documents in question were privileged.
Category C
The two documents in this category are affidavits sworn for the purposes of
judicial review proceedings in which the EHB sought relief from orders made by
the Fitness to Practise Committee of the Medical Council which directed the EHB
to produce certain documents. I note that Mr ABK was a notice party to these
proceedings, but he says that he was not furnished with copies of these
affidavits. Mr ABK says that the fact that he may be entitled to copies of
these records on application to the Central Office of the High Court is
irrelevant. He insists that I determine the question of his right of access
under the FOI Act to the copies held by the EHB.
The affidavits were sworn by Dr Woods, who was a notice party to the judicial
proceedings, and by Mr Colley, as solicitor to the EHB.
It is clear that both documents were created prior to 21 October 1998 (the date
of commencement of the Act for health boards) and, indeed, prior to 21 April
1998. Under section 6(4) of the FOI Act a right of access only exists to
records created after the commencement of the Act and under section 6(5) of the
Act the right of access also arises where:
"(a) access to records created before the commencement of this Act is
necessary or expedient in order to understand records created after such
commencement, or
(b) records created before such commencement relate to personal information
about the person seeking access to them."
Mr ABK has not made any case that access in this case to these two records is
necessary or expedient in order to understand records created after the
commencement of the Act. Indeed, having examined the records and having regard
to the material available to Mr ABK on foot of various discovery orders, I
cannot see how access to these two records could be either necessary or
expedient in order to understand records created after the commencement of the
Act.
It also seems to me that the affidavit of Dr Woods does not contain personal
information about Mr ABK. It simply contains arguments as to why the inquiry to
be conducted by the Fitness to Practise Committee should be held in private. I
have no hesitation in disclosing this fact because Mr Justice Barr said as much
in his judgement to which I have referred earlier in this decision.
Mr Colley's affidavit does contain some references to Mr ABK. Again, I have no
hesitation in describing the contents of this affidavit as it relates to Mr ABK
in general terms, given that he was a notice party to the proceedings to which
the affidavit relates. The references are a brief description of proceedings
issued by Mr ABK and the outcome of these proceedings. It seems to me these
references are personal information about Mr ABK. They are also personal
information about the other parties to the proceedings but it seems to me that
this, of itself, would not prevent release to Mr ABK since granting access
would not, in fact, involve disclosure of personal information about
these parties. This is because the information is clearly already known to Mr
ABK.
However, the fact that the record contains personal information about Mr ABK is
not sufficient of itself to entitle him to access. I also have to have regard
to the other provisions of the Act. In this case I have concluded that the
personal information about Mr ABK contained in this document is a synopsis of
matters which are set out in the documents which have been made available to Mr
ABK on discovery. I note that the terms of the order made by the High Court was
extremely strict, requiring Mr ABK to preserve the total confidentiality
of all the documents made available to him on discovery. In the
circumstances, I find that the part of the document containing personal information
about Mr ABK is exempt by virtue of section 22(1)(b). I find that Mr ABK is not
entitled to access to the remainder of the record because the record was
created prior to the commencement of the Act , it does not contain personal
information about him and access to it is neither necessary nor expedient in
order to understand a record created after the commencement of the Act. I find
that Mr ABK is not entitled to access to the affidavit of Dr Woods for the same
reasons.
Category D
For the purposes of this decision I can subdivide the 19 records into two
further categories. The first, consisting of records numbered 1, 2, 9, 14 and
15, is concerned with the EHB's response to legal action which was, at the time
of the creation of the records, apprehended or threatened. In the light of my
interpretation of section 22(1)(a), as outlined earlier, I have decided that
the EHB is entitled to refuse access to these documents.
The remainder of the documents arose out of representations which Mr ABK made
to the board members of the EHB and to the Minister for Health, protesting his
innocence. No case has been made to me by the EHB in relation to these records,
other than the general arguments made earlier. However, I note that all of
these documents were created before the commencement of the Act. It follows
that Mr ABK is entitled to access to them only if they relate to personal
information about him or if access is necessary or expedient in order to
understand a record created after the commencement of the Act.
Records numbered 3 and 8 are handwritten notes which are very disjointed. They
appear to relate to Mr ABK's complaints to the Department of Health. However,
it does not seem to me that they can be said to relate to personal information
about Mr ABK. Records numbered 12,13,16,17,18 and 19 are simply reminder
letters. Again, they do not relate to personal information about Mr ABK. In my
view, access to records numbered 3,8,12,13,16,17,18 and 19 is not necessary or
expedient in order to understand a record created after the commencement of the
Act. I find, therefore, that Mr ABK is not entitled to access to them.
Record number 4 contains details of Mr ABK's complaints to the Minister for
Health. It clearly relates to personal information about him. It does not seem
to me that the disclosure of a synopsis of Mr ABK's own complaints is forbidden
by the terms of the order of discovery or the judgement of Mr Justice Barr to
which I referred earlier. I find that Mr ABK is entitled to access to this record.
Records numbered 5 and 6 also contain personal information about Mr ABK. It is
clear from their contents that disclosure would not be in breach of the terms
of the order of discovery or the judgement of Mr Justice Barr. I find that Mr
ABK is entitled to access to them.
Record number 7 is an undated, handwritten note which appears to have been
created in the course of dealing with the representations made on Mr ABK's
behalf to which I referred previously. The note appears to refer, at least in
part, to the matters contained in the documents which were the subject of the
order of discovery. It is clear that the note relates to personal information
about Mr ABK. It could also be said to relate to personal information about
other parties. However, I am satisfied that Mr ABK already knows this
information and that granting him access would not, in fact, involve disclosure
of personal information about these other parties. The note is brief,
disjointed and contains many abbreviations. It is clear that it is incapable of
being understood without access to the documents which were obtained by Mr ABK
on discovery. I am not satisfied that disclosure of this record by itself would
be in contempt of court. In my view, section 22(1)(b) does not apply to it. I
find that Mr ABK is entitled to be given access to this record under the FOI
Act.
Record number 10 is an internal memorandum of the EHB, created in the course of
dealing with the representations referred to above. Record number 11 is the
EHB's reply to the Department of Health's queries raised on foot of these
representations. For practical purposes the two records can be considered
together, because the latter does little more than repeat verbatim the contents
of the former.
I note that record number 11 has already been discovered to Mr ABK by the
Department of Health. It is subject to the same undertaking of confidentiality
which I described earlier. Therefore, I find that the record is exempt by
virtue of section 22 (1)(b). While record number 10 does not seem to have been
made available to Mr ABK on discovery its contents are, for practical purposes,
the same as those of record number 11. Therefore, I find that section 22(1)(b)
also applies to this record.
Decision
I have decided to vary the decision of the EHB in this case in the following
manner. Access should be granted in full to records numbered 4,5,6 and 7 in the
attached schedule.
I affirm the decision of the EHB to refuse access to the remainder of the
records in category D and to the records in categories A, B and C above.
_________________________
KEVIN MURPHY
INFORMATION COMMISSIONER
28 SEPTEMBER 1999
SCHEDULE 1 - DOCUMENTS IN CATEGORY D.
Letter from Mr Harry Colley, Roger Greene & Sons to EHB enclosing letter
from Mr ABK .
Fax. memo. from Mr Harry Colley, Roger Greene & Sons to EHB enclosing a
copy of a letter to Mr ABK from Roger Greene & Sons dated 18/4/94 and a
copy of a letter from Mr ABK dated 5/4/94.
Handwritten note for file.
Letter from Department of Health to EHB
Internal memorandum of EHB.
Copy memorandum detailed at 5. with notations.
Handwritten file note, undated.
Handwritten file note, undated.
Fax. memo. from EHB to Mr H Colley, Roger Greene & Co. enclosing copy
letter from Mr ABK to a member of EHB.
Internal memorandum of EHB.
Letter from EHB to the Department of Health.
Letter from Department of Health to EHB.
Letter from Department of Health to EHB.
Internal EHB correspondence.
Handwritten note dated 26/4/90.
Internal EHB correspondence.
Letter from Department of Health to EHB.
Internal EHB correspondence.
Letter from Department of Health to EHB.