Thursday, June 13, 2019
The Supreme Court has clarified when a public body “holds” a record for the purposes of the Freedom of Information Acts. Partner Rachel Minch discusses the recent decision in Minister for Health v The Information Commissioner.
The case related to a request made to the Department of Health under the Freedom of Information Acts 1997 to 2003 (the 1997 Act) to access a transcript of an interview conducted in the course of a statutory review by former judge of the High Court, the Honourable Thomas C Smyth (“the Reviewer”).
The purpose of the review was to determine whether further investigation into the practices and procedures operating in Our Lady of Lourdes Hospital Drogheda between 1964 and 1995 to protect patients from sexual abuse was warranted, it was referred to as the Drogheda Rewiew. In particular, the review looked into certain allegations made against a named surgeon.
The Reviewer left a sealed box containing the transcript with the Department of Health for safe keeping. He noted that “the documents are essentially my documents” and should only be opened following an application to Court for access, which application should be on notice to him. The Minister for Health argued that the Department did not ‘hold’ the records within the meaning of the 1997 Act as it had no right to lawfully access them whereas the Commissioner found that the records were ‘held’ by the Department (but that exemptions may apply).
By judgment dated 27 May 2019, the Supreme Court upheld the Department’s position.
Decision of the Information Commissioner
In May 2012, an individual who had been interviewed as part of the review, sought a copy of the transcript of his meeting from the Department under the 1997 Act. The Department refused on the basis that the documents were furnished to them under strict instructions from the Reviewer and that it did not hold the records for the purposes of the Act. It submitted that it was effectively “a depository” for these documents and could only give access to records which it holds and which were under its control. Following an internal departmental review, the request was refused under similar terms. It was also noted that the Drogheda Review was not a public body for the purposes of the FOI Act, and as such, the request could not be forwarded to the Reviewer.
This decision was appealed to the Information Commissioner, who annulled the Department’s decision and directed the Department to deal with the request subject to the provisions of the 1997 Act. The Commissioner reached this conclusion having regard to the ordinary dictionary definition of the word “hold”, i.e. “physical possession”. This term is not defined in the 1997 Act although Section 2(5) provided that “a reference to held by a public body includes a reference to records under the control of that body”.
Having regard to this provision and Section 6(9) of the 1997 Act, which deems records “in the possession of a person who is or was providing a service for a public body under a contract for services… to be held by the body”, the Commissioner found that any issue around whether records are under the control of a public body arguably “should only arise where records are not physically held by the body”. However, the Commissioner’s decision went on to conclude that the Department also controlled the documents in the circumstances of the case where the review was commissioned by the Department, the review had concluded and the final report and related records had been furnished to it.
The Minister appealed the decision to the High Court which found that the Department did not hold the records and the Commissioner appealed this decision to the Supreme Court.
Definition of ‘held’
The Supreme Court concluded that the term ‘held’ cannot simply mean lawful, physical possession of a record. In order for a record to be ‘held’ within the meaning of section 6(1) of the 1997 Act, the public body must not only be in lawful possession of the record in connection with or for the purpose of its business or functions but also must be entitled to access the information contained in the record.
The Court appears to have introduced a split between a record and the information contained in a record. At paragraph 59, the Court states:
As the purpose of giving a right of access to a record is to access information held by a public body, it does not appear to me that a record can be considered to be held by a public body for the purposes of s.6(1) unless the information in the record is also held by the public body. As already determined, this means that the public body is in lawful possession of the information in connection with or for the purpose of its business or functions. To be in possession of information in connection with or for the purpose of its business or functions requires, at a minimum, that the public body has access to the information in question.
The Supreme Court also clarified that the focus is whether the public body itself has ‘access to the information/record’ and not whether the record/information is subject to legal prohibition affecting its disclosure to, for example, third parties. Such considerations form part of the separate and distinct questions of whether the record is or is not an exempt record, as defined, or whether there is a lawful basis for the Department to otherwise refuse access to the document under the FOI Act.
The communication exhibited in the High Court clearly showed that the Department did not have a right of access to the information in the records and therefore, the Supreme Court upheld the High Court’s decision that the record sought was not held by them under Section 6(1) of the 1997 Act.
The position under the Freedom of Information Act 2014 in this respect should remain the same.