Father's FOI right to daughter's medical records upheld; Commissioner's burden of proof reversed.

THE SUPREME COURT

Appeal No: 289/2004

Denham J.

McGuinness J.

Hardiman J.

Geoghegan J.

Fennelly J.

Between/

N. McK.

Appellant/Respondent

and

The Information Commissioner

Respondent/Appellant

Judgment of Denham J. delivered on the 24th day of January 2006.

1. At issue in this case is whether a father, a widower who had been separated from his late wife, who was joint guardian of his

children, is entitled under the Freedom of Information Act, 1997 to information, in the form of hospital notes, about an illness of his

daughter.

2. The Information Commissioner, hereafter referred to as ‘the Commissioner’, has brought this appeal from the judgment (14th

January, 2004) and order (28th January, 2004) of the High Court (Quirke J.).

3. N. McK., the father, the appellant/respondent, hereafter referred to as the requester, had appealed on a point of law to the High

Court from the refusal by the Commissioner (on the 12th August, 2002) of his request for access to medical records of his daughter.

4. This case arises within the parameters of the Freedom of Information Act, 1997, hereinafter referred to as the Act of 1997, and it

raises fundamental issues on the approach to be taken to an application by a father to access information in medical records of his

daughter, a minor, where other guardians object to his accessing such records.

5. The relevant facts were found by the High Court and are not in dispute. I gratefully adopt the findings of the learned High Court

Judge. The requester and his late wife D. were married in 1986, and were the parents of two children, a daughter L, born in 1988, and

a son R, born in 1990. The requester and his late wife separated in 1992. During the course of family law proceedings in the Circuit

Court in 1993 an allegation was made that the requester sexually abused his daughter at the end of 1991. The requester vigorously

denied this allegation and in 1994 the Garda Síochána, having investigated the allegations, concluded that there was ‘no evidence to

warrant a prosecution’ against the requester and so informed the relevant Health Board. 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, on 15th November, 1998, the requester’s wife died. By agreement in January, 1999 the two children of the marriage

went to live with the late Mrs. McK’s brother B.J. and his wife M.J.. By order of the Circuit Court in November, 2000 it was agreed that

the requester together with B.J. and M.J. would be appointed joint guardians of the two children L and R. The High Court found that L

was in a private school and R was in a local National School. Under the arrangements the requester was entitled to supervised access

to the children approximately once a month.

6. In January, 2000 L was admitted to a Dublin hospital. M.J. informed the requester. 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 17 January, 2000, made a request pursuant to s. 7 of the Act of 1997 seeking

access to the personal medical records of his daughter.

7. Upon the expiration of the time limited by statute, pursuant to s. 41 of the Act of 1997, a decision refusing to grant the

requester’s request was deemed to have been made. By an application dated the 18th February, 2000, the requester sought a review

of this refusal. Pursuant to s. 41 of the Act of 1997 a decision affirming the refusal was deemed for the purposes of the Act of 1997

to have been made upon the expiration of the requisite time limit. On the 10th March, 2000, the requester applied, pursuant to s. 34

of the Act of 1997, for a review by the Commissioner of the decision which was deemed to have been made by the hospital. By letter

dated 14th March, 2000, the Commissioner wrote to the requester agreeing to conduct a review.

8. By letter dated 12th August, 2002, F.B., a Senior Investigator in the Office of the Commissioner, wrote to the respondent and

advised him:

“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.”

9. By Notice of Motion dated the 10th September, 2002, the requester initiated his appeal to the High Court pursuant to the

provisions of s. 42 of the Act of 1997.

10. The relevant statute law is as follows. The requester has a right of appeal on a point of law from the 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.”

Section 28(1) precludes personal information in the following terms:

“Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head,

access to the record concerned would involve the disclosure of personal information . . . ”

However, s. 28(6) of the Act of 1997 provides for exceptions:

“Notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request under section 7 where:-

(a) The individual to whom the record concerned relates belongs to a class specified in the regulations and the requester

concerned is the parent or guardian of the individual . . . ”

The Freedom of Information Act, 1997 (Section 28(6) Regulations, 1999 (S.I. 47 of 1999) (hereinafter referred to as the Regulations)

provide at Regulation 3 (1) as follows:

“Notwithstanding s. 28 (1), a request under section 7 in relation to a record access to which involves the disclosure of personal

information . . . shall, subject to other provisions of the Freedom of Information Act, 1997, be granted where:

(a) the requester is a parent or guardian of the individual to whom the record concerned relates and that individual

belongs to one of the following classes of individual:

(i) individuals who, on the date of the request, have not attained full age (within the meaning of the Age of Majority Act,

1985 (No. 2 of 1985)), or

...

being individuals specified in clauses (i) and (ii) access to whose records 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, or . . . ”

11. It was agreed by the parties that a total of 26 of the records to which the requester seeks access comprise “joint personal

information” which is confined to material relating to the requester’s daughter and himself and it is those records which are the

subject of the appeal.

12. The Commissioner published a written decision, dated 12th August 2002, which stated:-

“The Regulation provides that a request for records relating to personal information about a minor may be granted where the

requester is the minor’s parent or guardian and where, having regard to all the circumstances, to release the records to the

parent/guardian would be in the minor’s best interests.”

It continued:

“. . . As you are the father and joint guardian of L, it is clear that you satisfy the first of the two requirements set out above.

Accordingly, the question to be addressed is whether release to you of material containing personal information relating solely to

L, or relating jointly to L and to yourself, would be in L’s best interests.

In the ordinary course of events, and in general terms, one might accept that it is likely to be in the best interests of a minor

that a parent/guardian will have access to the minor’s medical records. However, in the ordinary course of events, the

parents/guardians are likely to be in agreement on the matter. As you know, both in contacts with this office and with the

hospital, Mr. and Mrs. J (joint guardians and custodians of L) have opposed the release of these records. Following the recent

and regrettable death of her husband, I understand that Mrs. J remains firmly opposed to these records being released to you.

Furthermore, it is the view of the hospital that the records should not be released to you. In any situation in which there is

disagreement between parents/guardians regarding the release of records relating to a minor, the Commissioner has taken the

view that release would only be directed where there is tangible evidence that such release would actually serve the best

interests of the minor.

I note you make the case that, as the father of L and as a person holding joint guardianship and custody in relation to her, you

hold certain rights in relation to decision-making regarding her health and general welfare. You maintain that release of the

records to you may assist in the making of such decisions regarding L and would therefore be in her best interests. I accept

that in certain instances access by parents or guardians to medical records in relation to children may offer substantial

assistance to them in making decisions in relation to the seeking of medical treatment of their children or consenting to such

treatment. Having regard to the contents of the records in this case, I consider that their release would not offer substantial

assistance to you in relation to the making of decisions to seek medical treatment or to consent to medical treatment, for L in

the future. Further I note that, where appropriate such records could be made available to medical personnel treating L in the

future. On balance, I find that you have not presented evidence that release of L’s medical records to you would actually serve

her best interests.

In the absence of evidence showing that disclosure would actually be in L’s best interests, the requirement to protect her

privacy remains strong. While it has not been proven that release of the records would be to the detriment of your daughter,

neither am I satisfied that release of the information would be to her benefit or serve her best interests. I do not see any

significant benefit accruing, or likely to accrue, to your daughter by granting you access to these records. I am not satisfied

that the requirements of S.I. 47 of 1999 are met in this case and I find, therefore, that you do not have the right of access to

these records pursuant to its provisions.”

13. On appeal by the requester the High Court found in his favour, stating:

“In the instant case I am satisfied that by enacting s. 28(6) of the 1997 Act the Legislature was, inter alia, legislating in the

interests of vindicating and defending the rights of children. Accordingly, the provisions of the Act fall to be interpreted in the

light of the provisions of the Constitution generally and of Articles 41 and 42 in particular.

Although a complaint has in the past been made about the [requester], it remains unsubstantiated and the [requester] comes

before this Court enjoying the presumption of innocence which is enjoyed by every citizen of the State. The evidence indicates

that he is concerned with the welfare of both of his children and avails of his rights of access to them in a conscientious

fashion.

No suggestion has 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 [requester], as a parent, joint guardian and joint custodian of the child concerned enjoys the parental primacy

identified by Hardiman J. in North Western Health Board v. H.W. [2001] 3 I.R. 622 and the presumption that he has the welfare

of his child at heart in the absence of evidence to the contrary.

The presumption is of course rebuttable, but there is no suggestion of rebuttal in this case.

Reluctance by another family member to agree to access does not, in the absence of any supporting evidence, amount to

rebuttal sufficient to displace the presumption referred to.

t follows from the foregoing that I am satisfied that in reaching the decision made in this case the [Commissioner] has

misconstrued the provisions of s. 28 (6) of the Act of 1997 and Regulation 3 (1) of the 1999 Regulations by 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. The [requester] should not have been required to discharge an onus of the type identified by the [Commissioner]

and the test applied by the [Commissioner] in so doing was incorrect in the circumstances.

It follows from all of the foregoing that the [requester’s] appeal is allowed and that he is entitled to the relief which he seeks.”

14. The Commissioner has appealed against that finding, filing twenty one grounds of appeal. In essence, on behalf of the Commissioner,

it was submitted that the essential issues revolve around the proper approach to be adopted under the Act of 1997 and the

Regulations where one parent of a minor seeks access to medical records of that minor in circumstances where other guardians object

to such access. The Commissioner reached his decision on foot of a test stipulated in regulations made under the Act of 1997, it was

submitted, regarding such access being in the minor’s ‘best interests’. It was interpreted as requiring that the parent should establish

that his access to the records was indeed in the minor’s best interests. The High Court held that this was an incorrect approach, and

that where a parent in these circumstances sought access to such records there was a presumption that access was in the child’s

best interests and the High Court directed that the requester be given access to the minor’s records. The Commissioner submitted

that both in relation to the test applied by the High Court and the decision that the records should be provided to the requester

(rather than remitting the matter to the Commissioner for reconsideration), the High Court erred.

On behalf of the requester it was submitted that the provisions of s. 28 (6) of the Act of 1997 and the Regulations of 1999 fall to be

construed in light of Article 41 and Article 42 of the Constitution. The requester had sought the information so as to assist him to look

after his daughter’s welfare and to make decisions in her interest. It was submitted that this is precisely the kind of parental decision-

making which is protected by Article 41 and that it is presumed that the parent is in the best position to make a judgment. It was

submitted that the ‘tangible evidence’ test applied by the Commissioner effectively reverses the onus of proof and that any such

interpretation of section 28 (6) would be at variance with this Constitutional presumption. It was submitted that the Commissioner

had erred in law.

15. Decision

15.1 As a matter of Constitutional and family law a parent has 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 is so quintessentially a matter arising in family law it may be that it is a

matter more appropriately considered in a Family Law Court. However, this matter proceeded under the Act of 1997 procedures.

15.2 Unfortunately there has been a considerable delay since the request of the requester. In January, 2000 the requester sought

the information. The review by a Senior Investigator was communicated to the requester by letter dated 12th August, 2002. The High

Court gave its decision in January, 2004. This decision is given in January, 2006.

The elapse of time has a special relevance where a minor child is involved.

L was born in 1988. The hospital stay in issue was in January, 2000. At that time she was still a minor. Six years later she is in her

18th year, she was born on the 30th May 1988. This alters the circumstances, as her wishes are now most relevant.

The delay is not the fault of the requester, and it is most unfortunate. However, the effects of the delay cannot be ignored in view of

the necessity to balance the changed circumstances, including the attitude of L.

15.3 I would affirm the decision of the High Court as to the approach taken by the Commissioner. The Commissioner erred in

determining that release of the medical information would only be directed where there is tangible evidence that such release would

actually serve the best interests of the minor.

The Act of 1997 and the Regulations fall to be interpreted in accordance with the Constitution. A parent, the requester, has rights

and duties in relation to a child. It is presumed that his or her actions are in accordance with the best interests of the child. This

presumption while not absolute is 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 relationship between parent and child has a special status in Ireland. Under the Constitution the family is the primary and

fundamental unit group in our society: Article 41.1°. The State has guaranteed to protect the family in its constitution and authority:

Article 41.1.2°. The State encompasses the judicial branch of government which has a consequent duty to protect the family and its

authority. While the family unit has its rights, so too each member of the unit has rights. Thus while the parents have duties and

rights in relation to a child, and a child has rights to parental care, the child also has personal rights which the State is required to

vindicate if the parent fails in his or her duty.

A parent’s rights and duties include the care of a child who is ill. As a consequence a parent is entitled to information about the

medical care a child is receiving so that he or she may make appropriate decisions for the child, as his or her guardian. The

presumption is that a parent is entitled to access such information. That position is not absolute. The circumstances may be such

that the presumption may be rebutted. But the primary position is that the presumption exists. Consequently, the approach of the

Commissioner was in error when he required ‘tangible evidence’ that the release of such information would serve the best interests of

the minor. The obverse is the correct approach. The presumption is that the release of such medical information would best serve the

interests of the minor. However, evidence may be produced that it would not serve her interests, and, in considering the

circumstances, her welfare is paramount. That issue did not arise in this case because of the erroneous approach of the

Commissioner.

The Commissioner should have approached the request by acknowledging that a parent is presumed to be entitled to access the

information. However, the Commissioner may then proceed to consider any evidence which exists addressing the issue that it would

not be in the minor’s best interests that the parent should be furnished with such information.

It is a regrettable factor of this case that there has been a considerable elapse of time since the requester sought this information in

2000. In view of the time which has elapsed in this matter, and the circumstances of the case, especially the age of the minor [nearly

18 years of age], whose views now are very relevant, I would remit this matter to the Commissioner to enable the matter to be

reconsidered in accordance with the correct test and the circumstances of the case.

However, I would stress that it is unfortunate that the incorrect test was applied to the requester’s application and that his rights as

a parent and guardian were viewed so erroneously by the Commissioner, with the consequent effect which has occurred.

16. Conclusions

I would affirm the decision of the High Court, and dismiss the appeal of the Commissioner, as to the interpretation of the Act of 1997.

However, in view of the age of the minor [who will achieve her majority in a few months], I would remit the matter to the

Commissioner for review in accordance with the correct test and in light of all of the circumstances.