On 27 May 2019, Ms Justice Mary Finlay Geoghegan delivered the judgment of the Supreme Court dismissing the appeal of the order of the High Court made on 30 May 2014, in The Minister for Health v the Information Commissioner. This appeal raised questions in relation to the interpretation of the phrase “any record held by a public body” as outlined in section 6(1) of the Freedom of Information Act 1997 (“the 1997 Act”).
On 18 December 2009, the Minister for Health appointed Mr Justice Thomas C. Smyth, a former High Court Judge (“the Reviewer”) to carry out a review to examine and recommend to the Minister whether further investigation into the procedures and practices operating at Our Lady of Lourdes Hospital, Drogheda, during the period between the periods of 1964 – 1995 regarding the protection of patients from sexual abuse while undergoing treatment or care at the hospital and to deal with certain allegations of sexual abuse against a named surgeon, was required.
On 16 May 2012, the first named Notice party, who by order of the High Court is to remain anonymous, made a request under the Freedom of Information Act 1997 (“the 1997 Act”) to the Department of Health (“the Department”) to obtain the transcript of his meeting with the Reviewer. This transcript, which was contained within a number of boxes was subject to a stipulation by the Reviewer that the boxes “may not be disclosed or opened in any circumstances except by court Order for discovery, of which I wish to be notified”.
The request to obtain the transcript was refused by the Department on the basis that “the records requested are not held by this Department” and noted that the records were not under the control of the Department. The Department’s refusal to release the transcript was subsequently referred to the Information Commissioner for a further review pursuant to section 34(2) of the 1997 Act. On 07 June 2013, the Information Commissioner made a decision to annul the Department’s refusal to action this request and directed it to comply.
High Court 09 May 2014
The Minister for Health appealed the decision of the Information Commissioner issued on 07 June 2013 to the High Court.
Central to the dispute between the Department and the Information Commissioner was their differing interpretation of the word “held” contained in section 6(1) of the 1997 Act, and whether this requires the record is to be in the lawful possession of the Department in connection with or for the purpose of its business functions.
“Subject to the provisions of this Act, every person has a right to and shall, on request therefore, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access”.
On the issue of the interpretation of the term “held” in section 6(1) of the 1997 Act, the High Court concluded that; “for a document to be “held” within the meaning of section 6(1) of the 1997 Act, it must be either lawfully created by the public body in question or lawfully provided to that public body or lawfully obtained by the public body”. The High Court held that the document sought was not a “record held by” the Minister as found by the Information Commissioner and ultimately set aside the decision of the Information Commissioner issued on 07 June 2013.
Supreme Court Appeal 27 May 2019
The Information Commissioner appealed the decision of the High Court to the Supreme Court. The Supreme Court acknowledged that the primary issue on appeal was the interpretation to be afforded to a “record held by a public body” for the purposes of section 6(1) of the 1997 Act. The Supreme Court accepted that section 6(1) gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is requested; first, whether it is a record “held” by the public body and secondly, whether the applicant has a right of access to it.
The Supreme Court upheld the decision of the High Court that “held” for the purposes of section 6(1) cannot simply mean lawful physical possession of a record in connection with or for the purpose of its business or functions. It also found that the public body in possession of the records must also be entitled to access the information of the Information Commissioner contained within the records. Accordingly, the Supreme Court was of the view that the appeal be dismissed.
The Supreme Court’s decision brings clarity to the interpretation of the phrase “any record held by a public body” in section 6(1) of the Freedom of Information Act 1997.
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