App No: 356 & 357/2009

IpsofactoJ.com: International Cases [2011] Part 8 Case 10 [SCIre]


SUPREME COURT OF IRELAND

Coram

Governors & Guardians of the

Hospital for the Relief of

Poor Lying-In Women

- vs -

Information Commissioner

MURRAY CJ

DENHAM J

FENNELLY J

HARDIMAN J

MACKEN J

 

19 JULY 2011


Judgment

Denham J

  1. This appeal raises two questions.

    • First, whether the Freedom of Information Acts 1997 and 2003 apply to records created in 1922.

    • Secondly, whether the information sought is exempt from disclosure.

  2. The information sought is contained in records created by the Rotunda Hospital in 1922 and it relates to a patient. The Rotunda Hospital refused a request for information, but the request was allowed by the Information Commissioner. The Rotunda Hospital appealed that decision to the High Court, unsuccessfully, and has now appealed to this Court.

  3. Thus this is an appeal by the Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women, Dublin, the appellant, referred to in this judgment as "the Rotunda", from the decision of the High Court (McCarthy J.) given on the 2nd July, 2009, when the High Court dismissed an appeal against the decision of the Information Commissioner, the respondent, referred to in this judgment as "the Commissioner".

  4. A number of terms are used in this judgment. The Freedom of Information Acts, 1997 and 2003 are referred to collectively as "the Act". The Freedom of Information Act 1997 (section 28(6)) Regulations 1999 (S.I. No 47/1999) are referred to as "the Regulations". The records at issue are referred to as "the records". The information sought is the age of a patient in the Rotunda at the date when she gave birth in 1922 and is referred to as "the information". The request was made by Dawn Walsh for her father Thomas Joseph Walsh who sought to trace the identity of his birth mother, they will be referred to as "the requester".

  5. A notice to vary was filed by the Commissioner, appealing the decision of the High Court on a number of grounds.

  6. The Rotunda seeks an order quashing the decision of the Commissioner dated the 14th day of December, 2007, on the grounds that it is erroneous in law. The decision of the Commissioner followed a review by the Commissioner, under s.34 of the Act, of the Rotunda's decision to refuse to grant the request made by the requester for records relating to a Ms. Bridie or Ms. Brigid Walsh/Welsh (hereinafter referred to as "Bridie Walsh"), Thomas Joseph Walsh's mother. The Commissioner directed the Rotunda to grant access to the information, in the form of a copy of two entries in the Hospital's records stating the age of Bridie Walsh in 1922 on the date upon which she gave birth to Thomas Joseph Walsh.

  7. On the 2nd day of July, 2009, the High Court delivered judgment and dismissed the Rotunda's appeal. At the conclusion of his reserved judgment, the learned High Court Judge summarised his position as follows:-

    (a)

    I am entitled, and do, address a fresh or new issue of law even when not canvassed or dealt with by or before the Commissioner. I am not entitled to receive additional evidence since the appeal is on a point of law only.

    (b)

    The new issue raised by the hospital is that of whether or not the record in question, created, as it was, before the commencement of the Act, falls within the Act’s ambit. This is dependent on whether or not the information contained in the record is personal information which relates to Mr. Walsh.

    (c)

    In as much as such information is personal information which relates to him, the Act is applicable.

    (d)

    The question arises as to whether or not the record contains information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significance size and is available to the general public: it is.

    (e)

    Whether or not it was, in strictness, part of the Commissioner’s decision I consider that Mr. Walsh as next of kin of the late Bridget Walsh has an entitlement to access by virtue of the provisions of s. 28(6)(b); falls within the class of persons entitled to disclosure by virtue of the regulations made by S.I. No. 47/1999.

    (f)

    That the record does not enjoy the necessary quality of confidentiality for the purpose of prima facie prohibiting disclosure, under the provisions of s. 26 of the Act.

    (g)

    No necessity arises to consider the discretionary disclosure of either personal information or confidential information but in as much as the latter was addressed by the Commissioner and at the hearing, I have sought to address certain principles which must be applied by the Commissioner when exercising the latter discretion.

    Appeal

  8. The Rotunda has appealed the judgment and order of the High Court. The grounds relied upon in the notice of appeal are set out below. It was submitted that the learned trial judge erred in law and in fact or on a mixed question of law and fact as follows:-

    1. In finding that the Act applies to the records in issue in circumstances where the creation of the records pre-date the commencement of the Act, and further, where the records do not come within any of the exceptions to section 6 of the Act.

    2. In holding that the information in question, namely the age of a patient of the Rotunda and, in particular, the age of that patient at the date she gave birth, relates to personal information about the individual who made the request, or her father, and generally in finding that the age of any one individual could be said to be personal information or to relate to personal information about another individual on the basis of the relationship between those individuals.

    3. In failing to hold that the information is personal information which is exempt from disclosure pursuant to the provisions of section 28(1) of the Act, in circumstances where the definition of personal information pursuant to section 2(1)(vi) of the Act includes information relating to the age of an individual.

    4. In holding that the records contain information of the same kind in respect of individuals generally, or a class of individuals that is, having regard to all of the circumstances, of significant size, is available to the general public.

    5. In holding that as information of the same kind as that contained in the records in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the public, the provisions of section 28(2)(c) of the Act are applicable and the prohibition on disclosure of personal information contained in section 28(1) of the Act therefore does not apply.

    6. In holding that the information/the records does not possess the necessary quality of confidence for the purpose of prima facie prohibiting disclosure pursuant to the provisions of section 26 of the Act.

    7. In finding that what is advanced by the Rotunda is a claim for confidentiality within the terms of the Act.

    8. In failing to hold that the information was given to the Rotunda in confidence and on the understanding that it would be treated by the Rotunda as confidential.

    9. In failing to hold that disclosure of the information could prejudice the giving to the Rotunda of further similar information from other persons and that it is of importance to the Rotunda that such further similar information should continue to be given to the Rotunda.

    10. In finding that no right to privacy exists in deceased persons.

    11. In finding that the requestor was entitled to establish a right of access pursuant to the provisions of section 28(6)(b) of the Act and pursuant to the provisions of the Regulations.

    12. In holding that the Rotunda was in a position to determine as a matter of fact or probability, whether an individual was deceased for the purpose of considering whether the requestor could establish a right of access pursuant to the provisions of section 28(6) of the Act and the regulations and/or in considering (whether implicitly or otherwise) that the Rotunda was entitled as a matter of law to make that assumption.

    13. The learned trial judge erred in law in his application of section 28(6) of the Act as the requester is unable to establish:

      1. that the individual to whom the records relate is deceased; and

      2. that she is a member of the class of individuals specified in the regulations.

    14. In holding that the standard of proof required in respect of identity and/or in respect of the relationship between two individuals and/or in respect of death is on the balance of probabilities.

    15. In failing to apply or in incorrectly applying the balancing test pursuant to section 26(3) of the Act without any due regard to the highly confidential and sensitive nature of the information.

    16. In all of the circumstances, the learned trial judge erred in law in making a decision that requires the Rotunda to release the records.

    Notice to Vary

  9. The Commissioner filed a notice to vary. The Commissioner advanced the following grounds:-

    1. That the learned trial judge erred in fact and/or in law in failing to award to the Commissioner the entirety of the costs of and incidental to the High Court appeal.

    2. That the learned trial judge erred in fact and/or in law in awarding to the Commissioner one half only of the costs of the High Court appeal.

    3. That the learned trial judge erred in fact and/or in law in holding that the Rotunda was entitled to address a new issue of law before the High Court to impugn the correctness in law of the decision of the Commissioner the subject matter of the High Court appeal, in circumstances when same was not canvassed before the Commissioner at first instance in the course of the Commissioner's review under section 34 of the Freedom of Information Acts 1997 and 2003.

    4. That, in permitting the Rotunda to raise an issue of law not canvassed before the Commissioner at first instance in the course of the Commissioner's review under section 34 of the Act the learned High Court Judge erred in law in failing to have any, or any adequate, regard to the burden of proof placed on public bodies such as the Rotunda to show to the satisfaction of the Commissioner that a decision to refuse to grant a request for access is justified, and in failing to have any, or any adequate, regard to the presumption of non-justification of a refusal to grant access required by that section to be observed by the Commissioner.

    5. That the learned trial judge erred in fact and/or in law in holding that personal information coming within the non-exhaustive list set out at sub-paragraphs (i) and (xii) in the definition of "personal information" at section 2(1) of the Act was not also required to satisfy the requirements of paragraphs (a) and (b) of that definition in order to come within the said statutory definition.

    Decision of Commissioner

  10. On the 14th day of December, 2007, the Commissioner made the decision which is in issue on this appeal. The background was set out, which included the following. On the 21st September 2004, Dawn Walsh made a Freedom of Information request on behalf of her father to the Rotunda for information about his mother, Dawn Walsh's grandmother, Bridie Walsh, who gave birth to Thomas Joseph Walsh on the 10th May, 1922, in the Rotunda. The requester sought an address, date of birth and age of Bridie Walsh. On the 21st October, 2004, the Rotunda informed the requester that a search of its records had confirmed an entry in the Labour Ward Book for 1922 showing that a "Bridie Walsh" had been admitted on the 10th May, 1922, had given birth to a male child on the same day and had been discharged from the hospital on the 18th May, 1922. The requester was told that the Labour Ward books do not record the patients' home address or date of birth and that access to this information was being refused on the basis that the record did not exist (s.10(1)(a) of the Act). While the Rotunda record did contain Bridie Walsh's age, access to her age was refused on the basis that such information was personal to her (s.28(1) of the Act). There was an application for an internal review of this decision. This review was undertaken by the Master of the Rotunda, who upheld the refusal to give the information. On the 11th of May, 2005, the requester applied to the Commissioner to review the matter. During the review by the Commissioner the Rotunda stated that it had located in the "Porter's Lodge Book", which is held in the National Archives, an entry which appeared to relate to Bridie Walsh's admission in 1922. It was stated that the address on that record matched that on Thomas Joseph Walsh's birth certificate and this was confirmed to the requester by letter dated the 6th July, 2005. The Rotunda informed the Commissioner's office that that information regarding the birth of Thomas Joseph Walsh was given to Thomas Joseph Walsh in response to a separate request. Bridie Walsh's marital status, as recorded, was also disclosed by the Rotunda. The requester provided copies of Thomas Joseph Walsh's birth and baptismal certificates. The requester stated that he had been "boarded out" or placed "at nurse" at various addresses in the Dublin area from 1922.

  11. The scope of the review by the Commissioner was limited. It was pointed out that Bridie Walsh's age in 1922 when she gave birth (and not her date of birth) was the only new information which the requester would receive if the records involved were to be released. The Commissioner stated:-

    This review is concerned solely with the question of whether the [Rotunda] is justified under the FOI Act, in its decision to refuse access to the two records (from the Labour Ward Book and the Porter's Lodge Book) which contain an entry for the age (in 1922) of Bridie Walsh. As my staff have clarified for you, the records provided to my Office contain limited information about Ms Walsh and do not include her date of birth. You appear to have accepted the [Rotunda's] position that no additional records can be found concerning your grandmother and your father's birth. Accordingly, this review will focus on the two records identified.

    The Commissioner pointed out that the complex process has been undertaken in order to determine whether the then 85 year old John Joseph Walsh should be told the age of his mother as stated on the records when she gave birth to him in 1922. The Commissioner stated:-

    One would have expected that commonsense would prevail and that this information could have been conveyed to your father, if necessary outside of the complexities of the FOI Acts, when the request was first made in 2004. Regrettably, this did not happen and it is now necessary to finalise the review through the issue of this formal binding decision.

  12. Before the Commissioner, the Rotunda relied on exemptions under the Act. The Rotunda's argument was that those records should be refused on the basis that their release would involve the disclosure of personal information of an individual other than the requester (s.28(1) of the Act). Also, in the course of the review, the Rotunda argued that the information contained in the records had been obtained in confidence and that the records were exempt from release on this basis also (s.26(1)(a) and (b) of the Act.

  13. As to the issue of the age of Bridie Walsh, the Commissioner reviewed the position of the General Register Office on births, deaths and marriages and the availability of information as to a person's age from that source. It was found that s.28(2)(c) of the Act applied in relation to the age of Bridie Walsh, this had the effect of overturning the exemption of s.28(1), and so it was not therefore necessary to make findings on other exemptions.

  14. The Commissioner pointed out, regarding s.28(6)(b) of the Act, that where a next of kin seeks records relating to a deceased person, he or she will generally have an entitlement to gain access to such records within the terms of s.28(6)(b) of the Act and article 3(1)(b)(iii) of the Regulations, subject to there not being any other statutory exemption which prohibited release of the records. In this case the Commissioner found that s.28(1) did not apply, by virtue of s.28(2)(c), and so it was unnecessary to address the issue in this case. But was stated:-

    However, I think it is relevant to note that, even if the section 28(1) exemption were found to apply, it is likely that the records relating to your late grandmother would fall to be released under the FOI Act to you and your father in accordance with the section 28(6)(b) provisions.

  15. The Commissioner considered also the issue of information obtained in confidence. The issue for the Commissioner was the age of Bridie Walsh in 1922. The Commissioner referred to the terms of s.26 of the Act. The Rotunda had submitted that the records (which disclose the age of Bridie Walsh when she gave birth in 1922) were exempt by virtue of s.26(1)(a) and (b) of the Act. The Commissioner held that in light of the other information which the requester has of Bridie Walsh, that the information about her age could not be treated as having the necessary quality of confidence. Thus the Commissioner did not accept that either of the provisions of s.26(1) applied and found accordingly. However, it was stated:-

    Even if one were to find that s.26(1)(a) applies, this is one of the exemptions which is subject to a public interest override, s.26(3). I am satisfied that if the public interest had to be considered, I would find that on balance the public interest would be better served by releasing the records than by their being withheld. The fact that one of the requesters in this case is the son of Ms. Walsh is a circumstance to which it is legitimate to have regard in applying the public interest test. Were it the case that the requester has no close personal tie to the person whose information is at issue (Ms. Walsh), then the public interest conclusion might be otherwise. However, the public interest in persons generally having the fullest possible information on their origins is a very strong one. In the circumstances of this case, I take the view that the public interest, on balance, would favour disclosure of the information to your father and yourself.

  16. The decision of the Commissioner, having reviewed s.34(2) of the Act, was to annul the decision of the Rotunda and to direct the Rotunda to grant access in the form of a copy of the two entries in the records identified showing the age of Bridie Walsh in 1922.

  17. The Rotunda appealed that decision on a point of law to the High Court, and has now appealed the dismissal of the appeal by the High Court to this Court on a further appeal.

    Decision

    New issue of law

  18. The first matter is whether the High Court was entitled to consider whether the Act applied to records made in 1922, although that issue had not been raised before the Commissioner. I am satisfied that once an issue as to the jurisdiction of the Court arose the learned trial judge was correct to consider the matter and to make a determination. The record in issue was created in 1922, long before the passing of the Act. Thus the Court was entitled, and indeed had a duty, to consider whether it had jurisdiction. Jurisdiction may not be conferred by consent of parties to litigation, even if it is given. It is thus a matter for the court, when such an issue is raised, to decide whether or not it has jurisdiction. Further, the issue was not an isolated issue, but is one which affects other cases. Also, it is an issue fundamental to the analysis of the Act, and to the question as to whether the Act applies in this case. Consequently, I am satisfied that the learned trial judge was entitled to address the question as to whether the records, created in 1922, before the commencement of the Act, fall within the ambit of the Act. I would dismiss this ground of appeal.

    The temporal issue

  19. The next issue on this appeal is whether the Act applies to records created in 1922, in other words whether the Act applies to information recorded long before the commencement of the Act. This was referred to as "the temporal issue".

  20. The long title of the Act of 1997 describes it as:-

    An Act to enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, to provide for the independent review both of decisions of such bodies relating to that right and of the operation of this Act generally (including the proceeding of such bodies pursuant to this Act) and, for those purposes, to provide for the establishment of the Office of Information Commissioner and to define its functions, to provide for the publication by such bodies of certain information about them relevant to the purposes of this Act, to amend the Official Secrets Act, 1963, and to provide for related matters.

    Thus the expressed purpose of the Act is to enable the public to have access to information held by public bodies, to the greatest extent possible consistent with the public interest and the right to privacy.

  21. Subject to the provisions of the Act, a person has a right, on request, to be offered access to any record held by a public body, this is called the right of access. A public body has a duty to give reasonable assistance to a person seeking a record under the Act.

  22. The records to which this Act applies are described in s.6(4), as:-

    (4)

    The records referred to in subsection (1) are records created after the commencement of this Act and—

    (a)

    records created during such period (if any), or after such time (if any), before the commencement of this Act, and

    (b)

    records created before such commencement and relating to such particular matters (if any), and

    (c)

    records created during such period (if any) and relating to such particular matters (if any),

    as may be prescribed, after consultation with such Ministers of the Government as the Minister considers appropriate.

    (5)

    Notwithstanding subsections (1) and (4) but subject to subsection (6), 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,

    subsection (1) shall be construed as conferring the right of access in respect of those records.

    (7)

    Nothing in this section shall be construed as applying the right of access to an exempt record.

    [emphasis added]

  23. Section 6 was amended by s.4 of the Freedom of Information (Amendment) Act, 2003. However, it does not appear to have any relevance to this case

  24. Thus s.6 of the Act applies to records created after the commencement of the Act and to certain records created before the commencement of the Act. Section 6(5)(b) states that there is a right of access to records created before the commencement of the Act which "relate to personal information about the person seeking access to them". The Minister is given power to prescribe records.

  25. Therefore, on the temporal issue, the Act may apply to information recorded before the commencement of the Act. However, this is limited as described in the Act. There is a right of access to records created prior to the commencement of the Act which relates to personal information about the person seeking access. Thus there is a right of access by the requester to records created prior to the commencement of the Act which relates to personal information about him.

    Personal Information

  26. The next question is whether the information requested is personal information about the person seeking access to the records.

  27. Section 28(1) related to personal information and prohibits access 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 (including personal information relating to a deceased individual).

  28. "Personal information" is a term defined in s.2 as:-

    "personal information” means information about an identifiable individual that—

    (a)

    would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

    (b)

    is held by a public body on the understanding that it would be treated by it as confidential,

    and, without prejudice to the generality of the foregoing, includes—

     

    (i)

    information relating to the educational, medical, psychiatric or psychological history of the individual,

    (ii)

    information relating to the financial affairs of the individual,

    (iii)

    information relating to the employment or employment history of the individual,

    (iv)

    information relating to the individual in a record falling within section 6(6)(a),

    (v)

    information relating to the criminal history of the individual,

    (vi)

    information relating to the religion, age, sexual orientation or marital status of the individual, ....

    [emphasis added]

  29. Thus, in general, personal information means information about a specific person. In this case the information is about Bridie Walsh. The information is held by a public body, the Rotunda, on the understanding that it would be treated as confidential.

  30. The definition of "personal information" in the Act moves from the general to the particular. Included in the definition of "personal information" in s.2 of the Act are a number of specifics, including information relating to the age of the individual. As the only information sought is the age of Bridie Walsh at the date of the birth of Thomas Joseph Walsh, this information is prima facie personal information to Bridie Walsh.

  31. However, there is an additional matter in issue. While the age of Bridie Walsh is personal information to her, the question is whether it is personal information to Thomas Joseph Walsh, her son? The request for the information was made by Dawn Walsh, but it was in essence on behalf of her father Thomas Joseph Walsh – son of Bridie Walsh.

  32. Subject to s.28(1) of the Act, a request for information will be refused if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information, which includes that relating to age, and this includes personal information relating to a deceased individual.

  33. We do not have specific information as to whether Bridie Walsh is deceased. She gave birth in 1922. In these civil proceedings I consider that the appropriate onus of proof to apply in assessing this issue is the probability test. Applying that test the probability is that she is deceased. Section 28(1) of the Act expressly includes personal information relating to a deceased individual. Thus it appears that this is personal information about Bridie Walsh, who is probably deceased, and so should be refused to a requester under s.28(1) of the Act. Therefore, it is necessary to see if any of the exemptions apply, including a request by a next of kin in relation to a deceased person.

    Exemptions

  34. Section 28(2) of the Act provides exemptions to the rule in s.28(1). Section 28(2) states that subsection (1) does not apply, subject to subsection (3), (which does not arise in this case), if, amongst other exemptions, it is:-

    information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public.

    The Commissioner applied s.28(2)(i) in relation to the age of Bridie Walsh on the basis of the information in the Register of Births, Marriages and Deaths, and decided that s.28(1) did not apply. Consequently no further findings on the exemptions were made by the Commissioner.

  35. I respectfully disagree with this analysis. It is of course true that the Register of Births, Marriages and Deaths provides information on the births, and hence the age, of individuals. However, while the Register is open to the public it does not mean that the information "is available to the general public". If there was a person with an unusual name then perhaps it might be possible to find the age of such a person from this public register. But with a name such as Bridie Walsh, I expect that there were many persons born who were given that name in the first decade or so of the nineteenth century. I am satisfied that the information as to the age of Bridie Walsh in 1922 is not "available to the general public". Specific information is necessary to avail of the information. The concept behind the exemption is that the information "is available to the general public" and therefore there is no need for an exemption.

  36. Indeed, if it were possible to access the information in this way it is reasonable to assume that the requester would have already obtained the information years ago. For, while the register of births is open to the public, the information may not be available to the general public. Thus I do not consider that s.28(2)(i) applies to this case.

    Deceased Person

  37. There are specific provisions in relation to requests by next of kin. The next issue is whether the information would be released to the requester under s.28(6)(b). Section 28(6) of the Act provides that the Minister may make regulations for the grant of a request where:-

    (b)

    the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.

  38. Under the Regulations, by 3(1), it is provided that:-

    Notwithstanding section 28(1), a request under section 7 in relation to a record access to which involves the disclosure of personal information (including personal information relating to a deceased individual) shall, subject to the other provisions of the Freedom of Information Act, 1997, be granted where: ....

    (b)

    the individual to whom the record concerned relates is dead ("the individual") and

    the requester concerned belongs to one of the following classes of requester: ....

     

    (iii)

    the spouse or a next of kin of the individual or such other person or persons ....

  39. As found earlier, in all the circumstances of this case, it is probable that the individual, Bridie Walsh, is dead and that Thomas Joseph Walsh is her son, and next of kin. There was no contest on these facts. Thus this is a request for access which involves the disclosure of personal information of the deceased Bridie Walsh to her next of kin, the requester.

  40. I would apply this provision accordingly and disclose the personal information of Bridie Walsh to her next of kin Thomas Joseph Walsh, by way of his daughter (granddaughter of Bridie Walsh), Dawn Walsh. This decision is sufficient to determine the appeal. However, two further important issues were raised and determined in the High Court upon which I express an opinion.

    Confidentiality

  41. The Rotunda submitted that these records were confidential. Section 26(1) provides that a request shall be refused if the record concerned contained information given in confidence and on the understanding that it would be treated as confidential. Further, that in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from persons and that it is important to the body that further similar information should continue to be given to the body.

  42. I am satisfied that the information in issue was given in confidence, on the understanding that it would be treated as confidential. It is of understandable importance to the Rotunda that further similar information should continue to be given to the hospital. I am satisfied that this information is confidential. However, that is not the end of the matter. The Act provides that a discretion may be exercised.

    Public interest balance

  43. Section 26(3) provides for a discretion, stating:-

    Subject to section 29 , subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

    Opinion

  44. The "public interest" issue was not fully argued before the Court. I await another case to hear detailed submissions on this matter. However, my opinion on the issue at this time is as follows. There is discretion to be exercised under the statute. A balance has to be struck between the confidentiality of the document and the public interest. There is no doubt that the confidentiality of medical records is important for an individual, an institution, and the public. Such information requires protection. It is a matter of importance also that a hospital receives all the necessary information, from a medical aspect, and this would include the age of a patient. It is appropriate that a strong emphasis be placed on medical confidentiality.

  45. However, the circumstances of each case require to be considered. Each case should be determined on its own facts. Consequently, it is necessary to consider the facts of this case. The facts of the case are clear. The information requested is the age of Bridie Walsh in 1922 when she gave birth to her son Thomas Joseph Walsh. The probability is that Bridie Walsh is dead and so I am addressing this issue as personal information of a deceased person. Thomas Joseph Walsh is Bridie Walsh's son, and next of kin, he is in his eighties. He has already received information from the Rotunda. He knows her address, it matches that on his birth certificate, he knows her marital status. The information he seeks is the age of his mother at his birth in 1922. He seeks this information in his search for further information about his mother. While the information is confidential, and thus inherently protected, there are no significant countervailing factors.

  46. The public interest is a factor which may be raised by an individual as well as by an institution. Balancing all the circumstances I am satisfied that the public interest favours the requester. On balance I would release the records in this case. The requester is the son and next of kin of the deceased. This is a factor which carries significant weight. It is an entirely different situation to a request from a person who has not got such kinship connections. In this case the requester seeks information of his mother and on balance, in all the circumstances, I am satisfied that the public interest would be better served by granting him the request.

    Conclusion

  47. Consequently, I would dismiss the appeal and for the reasons given would order that the information be disclosed by the Rotunda to the requester.

    Justice Fennelly

  48. In 1922, a young woman gave birth to a male baby at the Rotunda Hospital. That child would now be eighty nine years of age, but sadly he died in December 2008 before he had obtained the information he had been pursuing regarding his mother.

  49. This small matter has been the subject of two decisions by the Hospital, a decision on review by the Information Commissioner and a decision on appeal on a point of law by the High Court.

  50. All of these procedures took place under the Freedom of Information Acts 1997 to 2003. It is difficult to resist the instinct that a practical solution could have been found and that it would all have been much simpler if the FOI had not invoked.

    The facts

  51. On 21st September 2004, Ms Dawn Walsh, who lives in Wales, wrote to the Hospital for information pursuant to the Freedom of Information Acts 1997 and 2003. Her father was Thomas Joseph Walsh, who was the child born in the Hospital on 10th May 1922. She made the request on his behalf. The information she sought was “an admission or discharge address of Bridie Welsh,” the mother of Thomas Joseph Walsh. She said that Bridie was discharged on 18th May 1922. In a P.S., the letter mentioned “date of birth, age etc.” Bridie was also called Bridget and Walsh was also spelled Welsh.

  52. The request was part of a search by Ms Walsh and her father for information about the family history. They knew, apparently, that Thomas Walsh had been “boarded out” as a baby by his mother and that she had lived at College Road, Galway.

  53. The Hospital replied on 21st October as follows:

    The only hospital record from 1922 which contains information regarding Bridie Welsh is the 1922 Labour Ward Book, which records Bridie Welsh being admitted to the Labour Ward on 10th May 1922 and giving birth to a liveborn male child on the 10th May 1922; the discharge date is recorded as the 18th May 1922.

    The Labour Ward Books record all births by date order and by the mother’s name; they do not record the patient’s home address nor the patient’s date of birth. Therefore, we are unable to provide you with the specific information requested ....

  54. A decision was, therefore, made refusing the request pursuant to section 10(1)(a) of the Act of 1997 on the ground that the record relating to the date of birth did not exist. The letter went on, however:

    Whilst the hospital’s Labour Ward Book does not record an individual’s date of birth, the age of the patient at time of delivery is recorded. However, when a patient presents to the hospital, they do so on the understanding that the personal information they provide is to be held in confidence and for the purpose of receiving medical care. It is important that this confidentiality is maintained in order to ensure that each patient feels confident that the information they are giving is protected and to protect the future collection of this information.

  55. The Hospital informed Ms Walsh (“the requester”) that “Bridie Welsh’s age as recorded in the 1922 Labour Ward Book cannot be released to you.”

  56. A few days later the Hospital wrote to the requester enclosing a “Family Tracing — Points of Contact Sheet” and suggesting that she contact the Rotunda Girls’ Aid Society.

  57. The requester sought a review of the Hospital’s decision to refuse access to the record. The Hospital on 13th April 2005 reaffirmed its decision not to release information about the age of Bridie Welsh on the ground that this was “personal information,” and could not be released pursuant to section 28(1) of the Act of 1997.

  58. The requester applied to the Information Commissioner (“the Commissioner”) for a review of the decision of the Hospital pursuant to section 34 of the Act. In the intervening period, the Hospital discovered that a further record existed in the “Porter’s Lodge Book.” While this recorded the name as Bridie Walsh, the dates and other details corresponded and it was clear that it related to the same person.

  59. The Commissioner, by her decision dated 14th December 2007, annulled the decision of the Hospital to refuse access to the records in question. She explained that the review was concerned solely with the two records containing an entry for the age of Bridie Welsh and directed the Hospital to grant access, in the form of provision of a copy, to those two records.

  60. She ruled on the two grounds of exemption pursuant to sections 26 and 28 of the Act of 1997 which had been relied upon by the Hospital.

  61. Firstly, she considered whether the information was “personal information,” as defined in section 2(1) and exempted by section 28. She ruled that the age of an individual may come within section 2(1) but held that, in addition, it must also satisfy one or other of what she called the “overarching prior requirements” in the general definition of “personal information.” She held, moreover, that the exemption conferred in respect of the disclosure of personal information by section 28(1) of the Act did not apply. Section 28(2)(c) provides that the foregoing provision does not apply where “information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public, ....” The General Register Office maintains a system of registration of deaths, births and marriages, including information about the age of any individual. Thus, information about the ages of individuals is available to the general public and the exemption did not, in her view, apply.

  62. The Commissioner also referred to section 28(6)(b) of the Act, which empowers the Minister to make regulations for the grant of requests in certain cases. S.I. No. 47 of 1999 in relation to access to the records of deceased persons. The Commissioner expressed the opinion, without finding it necessary to decide, that it was likely that the records would fall to be released under those provisions.

  63. Finally, the Commissioner considered whether the information should be protected from release on the basis of confidentiality pursuant to section 26 and held the information at issue “must have the necessary quality of confidence,” in order to benefit from that section. She accepted that information arising in a professional relationship would normally fall within the category of confidential relationships recognised by the law. She then referred to some Australian legal authority regarding the law on breach of a duty of confidence suggesting that only “private and secret matters” were covered and reached the conclusion that the information, being available to the general public through the General Register Office, could not be concerned with private or secret matters. Thus, it did not have the necessary quality of confidence and section 26(1) did not apply.

  64. Furthermore, she expressed the view that, even if section 26(1)(a) were to apply, this exemption was subject to a “public-interest override” by virtue of section 26(3) and that the balance of the public interest would be served by releasing the information. She referred in particular to the fact that one of the requesters (meaning Mr Thomas Walsh) was the son of Bridie Welsh. If there had been no such personal tie, the public interest might have been otherwise. There was a strong public interest in “persons generally having the fullest possible information on their origins.” She considered that section 26(1(b), which deals with information whose disclosure would constitute a breach of an agreement or an enactment, did not apply.

    The High Court

  65. The Hospital appealed on points of law to the High Court pursuant to section 42 of the Act against the decision of the Commissioner to annul its decision. The High Court (McCarthy J), by its judgment delivered on the 2nd July 2009, dismissed the appeal.

  66. The Hospital claimed that the decision of the Commissioner was erroneous in point of law in respects which may be summarised as follows:

    1. in incorrectly treating the Freedom of Information Act as applying to records which were created in 1922, prior to the commencement of the Act;

    2. in failing to hold the information in question to be personal information and exempt from disclosure pursuant to section 28 of the Act;

    3. in a ruling that information regarding age must satisfy "one or other of the overarching prior requirements" in section 2 (1) of the Act;

    4. in holding that the exception set out in section 28(2)(c) (the General register) applied;

    5. in holding that the age of the patient does not have the necessary quality of confidence for the purposes of section 26(1) of the Act;

    6. in incorrectly applying a balancing test pursuant to section 26(3) of the Act;

    7. in applying the public-interest test;

    8. in making the release of the records conditional upon proof of a relationship between the requester and Bridie Welsh;

  67. The learned trial judge had to decide, in the first instance, whether he should entertain the first ground of appeal over the objection of the Commissioner. Having considered extensive authority, he decided to consider the issue for the following reasons: a determination by the Commissioner as to whether the Act was applicable to the information potentially raised an issue of jurisdiction; there were a number of other cases pending in respect of substantially the same issue; it was desirable as a matter of public policy that such a fundamental issue should be considered; more generally, a court should not refuse to entertain a good point of law merely because it had not been raised previously.

  68. McCarthy J held that the records in question were not excluded from the scope of the act. Although section 6(4) referred to "records created after the commencement of this Act," subsection 5(b) made an exception for “ records created before such commencement relate to personal information about the person seeking access to them.” He held that the records, though created before the commencement of the Act, contained information which related to Mr Thomas Walsh.

  69. Although it will not do justice to the lengthy and careful consideration given by the learned High Court judge to each of the legal issues, it will suffice for my purposes to summarise his conclusions which are as follows.

  70. The Commissioner, he held, was in error in deciding that information, in order to fall within the definition of "personal information" must also satisfy one or other of what she called the “overarching prior requirements” in the general definition of “personal information.” That was to ignore the words, “without prejudice to the generality of the foregoing” which introduced the list of items including number (vi) which explicitly covers the age of an individual. The Commissioner, nonetheless, was correct in her interpretation of section 28(2)(c). Information as to age was generally available in the public register. Consequently, the exemption did not apply.

  71. With regard to section 26, the learned judge agreed with the Commissioner in her conclusion that the age of Bridie Walsh should be considered to be information in the public domain in, that he did not concern “private secret matters.” Even if the late Bridie Walsh had imparted information in anticipation of the fact that it would not be disclosed by the hospital, that subjective belief cannot apply where, objectively speaking, the information does not have the necessary quality of confidence. Finally, the learned judge considered the combined application of section 28(6)(b) of the Act and the regulations adopted by the Minister which provided that disclosure requests must be granted where they are made by the smiles or next of kin of the individual in question.

    The Appeal

  72. The Court has before it a notice of appeal from the Hospital and a notice to vary from the Commissioner.

  73. The Hospital submits that the High Court was in error in the following respects:

    • in holding that the Act applies to records created before its commencement: although the learned trial judge was correct in holding that, once the information came within paragraph (vi) of the specified categories of personal information, it was unnecessary for it also to comply with what the Commissioner called one of the “overarching” requirements; the link between the age of Bridie Welsh and Thomas Walsh was not personal information concerning the latter, because the link between him and the age of his mother was at best tenuous;

    • in holding that the personal information concerning Bridie Walsh was not exempt from disclosure pursuant to section 28(1): information relating to the age of an individual is defined as personal information; the Hospital fundamentally disagrees with the conclusion that the Hospital records contained information of the same kind as that available in the General register of Births Marriages and Deaths; that information was available only if a person searching the records had sufficient information to refine the search; the implication of the interpretation of section 28(2)(c) by the learned trial judge is that any member of the public can use the Act to obtain information about any other member of the public;

    • the Hospital did not advance a claim that the information was confidential in the sense of section 26(1)(b); the learned trial judge was mistaken in considering whether it had the necessary quality of confidence;

    • in failing to hold that the information had been given to the Hospital on the understanding that it would be treated as confidential and in holding that no right to privacy exists in deceased persons; this is at the heart of the Hospital’s objection to the release of the information; age is a factor of high clinical relevance in maternity care; it is essential that it must be able to give an assurance of absolute confidentiality that details of this kind will not be disclosed by it to a third party without the consent of the patient;

    • in applying the provisions of the Freedom of Information Act, 1997 (section 28(6)) Regulations, 1999. (S.I. No. 47 of 1999) and section 28(6)(b) of the Act so as to hold that Bridie Walsh should be treated as a deceased person and that the requester had a right of access to the information; the Commissioner had, in fact, made no decision on this point; in any event, it is not established the Bridie Welsh is deceased and the requester has not established that he or she one of the categories of persons identified in the regulations;

    • The High Court erred in its application of section 26(3) and the notion of public interest.

  74. The Commissioner filed a notice to vary. She submits that the High Court was wrong in law in permitting a new issue of law to be considered, which had not been considered at the stage of review pursuant to section 34 of the Act and in failing to apply the correct burden of proof pursuant to section 34(12) of the Act. She also appeals against the decision of the learned trial judge to hold that it was not necessary for information to meet the requirements of section 2(1)(a) or (b) of the Act to fall within the definition of personal information.

    Some comments

  75. This entire case concerns an apparently innocuous, and now, after a lapse of many years, even trivial piece of information about the age of a single woman who gave birth to a child in the hospital in 1922. Her son was looking for this information in the course of perfectly normal research into his family history. It is difficult to avoid the feeling that none of this great litigation would have taken place if it had not been for the Freedom Information Acts and that the information would have been released.

  76. Nonetheless, once the machinery is set in motion, all concerned are constrained to apply it. The Hospital has been notably conscientious in doing so and in seeking to balance its duties to respect its obligations under the Act with what it rightly sees as its general duties to respect the confidence of its patients. The Commissioner conducted a careful examination of the legal and factual issues and received representations from the requester and from the Hospital. She was rightly conscious that difficult legal issues were involved.

  77. The Court has not been asked to address any larger issues such as constitutional rights to privacy or the protection of access to personal data. The present appeal must be considered solely in the context of the Freedom of Information Acts. I propose to examine each of the questions in the sequence in which they arise.

  78. Broadly speaking there are three groups of issues:

    1. whether the acts applies to old records;

    2. whether the documents concern personal information (section 28);

    3. whether they concern information imparted in confidence to the Hospital.

  79. A preliminary objection was raised in the High Court regarding point number (i), which had not been raised before the Commissioner and on which she had not ruled.

    Should the High Court have entertained a point not raised before the Commissioner?

  80. Section 42(1) of the Freedom of Information Act, 1997 provides:

    A party to a review under section 34 or any other person affected by the decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision.

  81. It is important to bear in mind that the appeal to the High Court is taken from a review by the Commissioner pursuant to section 34 of the Act. Section 34(12) of the Act provides:

    In a review under this section—

    (a)

    a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified, and

    (b)

    a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

  82. The Commissioner relies, in particular, in paragraph (b), which places a burden on the body refusing a request to justify its decision. I agree that it is, thereby necessarily implied that the body will raise before the Commissioner any point of law which supports its position. Although section 42(1) does not expressly say so, I think it is an integral part of any appeal process, other than possibly an appeal by complete re-hearing, that any point of law advanced on appeal shall have been advanced, argued and determined at first instance.

  83. Among the various reasons given by the learned trial judge for considering whether the Act covered the records in this case, though they were created prior to the commencement of the Act, the only one which, in my view, could possibly give rise to an exception is that it concerned the jurisdiction of the Commissioner. However, as will appear when the matter is considered, section 6(4) does not establish an absolute rule excluding prior records. Subsection 5 makes a number of exceptions, one of which is where “records created before such commencement relate to personal information about the person seeking access to them ....” Whether a particular record relates to the person requesting it is a matter of fact to be determined, in the case of a review, by the Commissioner. That decision was a matter within her jurisdiction.

  84. I do not accept that the new point should have been considered either because many other cases raised the same issue or because it was a matter of importance. The Act is clear: an appeal to the High Court lies only in respect of a point of law. It must be a point of law involved in the decision under appeal. Thus, I do not think the High Court should have entertained the point.

  85. However, the High Court has, in fact, entertained the point and has decided it. If the decision of the High Court were to remain unreviewed, it would stand as a binding precedent, at least so far as the Commissioner is concerned. In these circumstances, it is both desirable and necessary that this Court, in the special circumstances of this case, consider it. A similar situation arose in the case of C.C. v Ireland [2005] IESC 48. There the High Court had entertained argument in advance of a criminal trial concerning the interpretation of the Act under which the applicants were charged and were to be tried. I took the view that:

    By pursuing the route of Judicial Review, the Appellant has sought to have rulings made in advance of his trial as to the interpretation of the applicable statutory provisions. This is not a procedure which the Court should approve. The forum for ruling on the law applicable in criminal cases is the court of trial.

  86. Nonetheless, I believed, since the High Court had, in fact, determined the interpretation of the statute on a point of great importance, “that, exceptionally, in view of the course events have taken, this Court must consider the correctness of the substantive rulings which have, in fact, been made by the learned High Court judge.” A similar view was expressed by Geoghegan J.

  87. It is necessary to consider whether the record held in the Hospital concerning the age of Bridie Welsh, though created prior to the commencement of the Act, nonetheless comes within its ambit. Otherwise, the law would be left in a state of doubt and uncertainty.

    The Act

  88. The general purpose of the Freedom of Information Acts appears from the introductory words in the long title to the Act of 1997, which is described as “an Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information into possession of public bodies ....”

  89. To that end, section 6(1) lays down the governing principle that:

    Subject to the provisions of this Act, every person has a right to and shall, on request therefor, 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.

  90. While the act seeks to reconcile the principal objective of open access to the records held by public bodies with other interests and, in particular, the rights of individuals to privacy in respect of their personal affairs, it proceeds on a presumption of disclosure. This is best exemplified by section 34(12)(b) which provides that, where a decision by the public body to refuse access is being reviewed by the Commissioner, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

  91. The system and the procedure under the Act of 1997, which remains the principal Act, are, in the first instance, established and expressed in terms of "records," held by public bodies. Exceptions and exemptions are concerned with the contents of those records, for example, where they contain personal information.

  92. Section 6, as already explained, confers a right of access to a “record.” Under section 7, any person, (a “requester”) who wishes to exercise that right of access, may make a request in writing “for access to the record concerned ....” Section 12 provides for the methods by which a head may "give access .... to a record.” Section 2 defines an “exempt record" as meaning, inter-alia, “a record in relation to which the grant of a request under section 7 would be refused pursuant to Part III ....”

  93. Part III provides for three separate and distinct situations, sections 26, 27 and 28, in which “a head shall refuse to grant a request under section 7....” Sections 26 and 28, but not section 27, have been raised in this case. If either section 26 or 28 applies, i.e. if the head is required, after consideration of any exceptions or qualifications within the respective sections, to refuse, that refusal prevails regardless of whether the other section applies. The sections are not made subject to each other. They are independent provisions for refusal. If one section provides for refusal, access is refused.

  94. The provisions of the Act are complex. In this case, a number of sections need to be considered. I will try to express the issues in terms of questions.

    Are the Hospital records excluded from the Act because they were created before the commencement of the Act?

  95. Section 6(1) of the Act lays down the basic principle that, subject to the provisions of the Act, “every person has a right to .... be offered access to any record held by a public body ....” The Act contains procedures for the making of requests, decisions by the public bodies receiving them and review, where necessary by the Commissioner. It is a central feature of the legislation that a person seeking information is does not have to establish any particular or personal interest in the records being sought. Anyone can apply. The requesters, Thomas Walsh and his daughter had as much or as little right to apply as, for example, a journalist.

  96. Generally speaking, the Freedom of Information Acts were intended to apply prospectively, i.e., only to records created after it entered into force. To that end, section 6(4) provides:

    The records referred to in subsection (1) are records created after the commencement of this Act and—

    (a)

    records created during such period (if any), or after such time (if any), before the commencement of this Act, and

    (b)

    records created before such commencement and relating to such particular matters (if any), and

    (c)

    records created during such period (if any) and relating to such particular matters (if any),

    as may be prescribed, after consultation with such Ministers of the Government as the Minister considers appropriate.

  97. Subsection 5 creates exceptions:

    Notwithstanding subsections (1) and (4) but subject to subsection (6), 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,

    subsection (1) shall be construed as conferring the right of access in respect of those records.

    [emphasis added]

  98. Section 2(1) defines personal information as “information about an identifiable individual --- that would, in the ordinary course of events, be known only to the individual or members of his family, or friends, of the individual ....”

  99. Thus, in order to come within the definition of personal information, the information must be “about” an individual. The age of Bridie Welsh was clearly information about her. It would stretch the meaning of the word, “about” to say that her age was “about” her son. To that extent, I would accept the submission made on behalf of the Hospital that the link between the information concerning the age of Bridie Welsh is tenuous. However, section 6 is primarily concerned with access to records. If the record held by the relevant public body “relates to personal information about the person seeking access to” it, it is not excluded. It makes sense not to exclude a record containing information, even personal information, about the person seeking access to it.

  100. The Labour Ward Book and the Porter’s Lodge Book contained personal information relating to both Bridie Welsh and Thomas Walsh. In his case the information concerned his birth. Therefore, it related to his age, one of the matters mentioned in paragraph (vi) of the provision of section 2(1) defining personal information.

  101. Therefore, I am satisfied that the relevant records come within the scope of section 6(1) of the Act and are not excluded by section 6(4). Thus the Act applies.

    Would access to the Hospital records involve the disclosure of personal information (including personal information relating to a deceased individual)?

  102. Section 28 (1) of the Act provides:

    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 (including personal information relating to a deceased individual).

  103. Thus section 28 provides that records are exempt from disclosure provided that access would “involve disclosure of personal information ....” That exemption applies even in the case of personal information related to deceased persons. For the purpose of the definition, it does not matter, therefore, whether Bridie Welsh was still living at the date of the decision of the Hospital. In reality, it is highly likely that she is no longer living.

  104. The Commissioner decided that the information contained in the Hospital records related to the “religion, age, sexual orientation or marital status” of Bridie Welsh and thus satisfied paragraph (vi). Clearly, the records, at the least disclosed her age. However, the Commissioner ruled that this was not enough. She relied on the general definition of personal information. Section 2(1) provides:

    (1)

    In this Act, save where the context otherwise requires—

    "personal information" means information about an identifiable individual that—

    (a)

    would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

    (b)

    is held by a public body on the understanding that it would be treated by it as confidential ....

  105. It then proceeds to provide that “without prejudice to the generality of the foregoing, [personal information] includes .... There follows a list of twelve matters which are deemed to be included, including paragraph (vi). The Commissioner was of the view that it was also necessary for the information to come within one or other of what she described as the “overarching prior requirements in paragraphs (a) and (b).” Since, in her view, it did not pass either of these tests, it was not personal information and section 28 did not apply.

  106. In reaching that conclusion the Commissioner failed to have regard to the expression “without prejudice to the generality of the foregoing ....” That expression, which occurs routinely in statutes, means that what goes before is a general statement, but that, as in this case, in any event, it will suffice for whatever is the relevant statutory purpose to comply with what follows. It would be strange and would probably defeat the statutory purpose if information relating a person’s entitlement under the Social Welfare Acts (paragraph (viii)) or for the purpose of a tax assessment (paragraph (ix) was not to be treated as personal information unless the Commissioner were also to be satisfied that paragraph (a) or (b) applied.

  107. Thus, the Commissioner erred in imposing any additional requirement. The record in the present case contained personal information if any of it, such as the age of the patient, came within the terms of paragraph (vi). Thus, for the purposes of section 28 of the Act, the records contain personal information. The provision of access would involve the disclosure of personal information relating to Bridie Welsh. Therefore, the records are prima facie exempt from disclosure, unless they come within one of the exceptions.

    Was the information relating to the age of Bridie Welsh of the same kind as that contained in the General Register of Births, Marriages and Deaths and was it available to the general public?

  108. Section 28(2((b) of the Act makes an exception to the exemption from disclosure provided by section 28(1) where:

    .... information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public, ....

  109. There seems to be no question but that information of “the same kind as” the age of Bridie Welsh is contained in the General Register. The Hospital has disputed the applicability of section 28(2)(b) essentially on the basis that the information is not generally available, i.e., it is not “available to the general public.” The Commissioner dealt with that issue in her decision as follows:

    The General Register Office (GRO) operates the regime of registration of deaths, births and marriages in this country. From inquiries made by my staff with the GRO, it is clear that information on the age of any individual is available through that individual’s birth certificate, and if that individual has died, through the death certificate. It is clear that the information contained in the GRO’s certificates is part of a public record which is accessible to all. The pubdate [sic] of birth, will vary depending on the level of information already held by the searcher; but where the searcher has a name, in principle it will be possible to trace the individual’s date of birth through one or other of the GRO’s registration certificates. Clearly where the searcher has information in addition to the name, such as county or region of birth or the probable age range of the individual, the search process will be easier.

  110. She accepted that in many tracing cases, individuals who had names and some other details did not have enough information to identify the correct information. Nonetheless, she expressed the view that any difficulty in tracing did not take away from the fact that the ages of individuals whose births, marriages and deaths are registered are available to the general public.

  111. The learned trial judge was of the view that whether a given piece of information is available to the general public must be determined according to an objective test. He distinguished between public availability and the capacity of a given individual to find the information.

  112. The Hospital submitted, on the appeal, that, while the legislation establishing the register of births, marriages and deaths requires that anyone be allowed to inspect the index and obtain a copy of any entry in the register books, and the records as a whole are available to anyone, it did not follow that that information relating to any given individual is available to anyone. Information is only available if the searcher has enough information to refine his or her search. Thus, it is submitted, the reality is that the information is not available to the public as such, but rather only to those persons with sufficient prior information to carry out the search effectively.

  113. Counsel on behalf of the Hospital has explored in detail the difficulties in tracing names and identifying the correct and relevant entry in the register. For example, the age of the patient in the Hospital would only enable a person to identify the year in which the person was born. Depending on the number of persons of that age, it would still not be possible to identify the correct person with any certainty.

  114. The Hospital also submitted that the decision of the High Court had implications for the privacy and security of members of the public: the practical effect of the judgment is that any member of the public could rely upon section 28(2)(b) in order to obtain information about another member of the public so long as that information could be said to be “publicly available”. By reference to the findings of the High Court, information such as the age, date of birth, address, marital status and occupation of any member of the public is “publicly available” as this information is all contained in various public registers.

  115. As I have already stated, there can be no doubt that information “of the same kind as” as the age of Bridie Walsh, or indeed of any person is contained in the General Register of births, marriages and deaths.

  116. The Hospital argues that this information is not available to the general public. It seeks to make a distinction between availability to the public as a whole and availability to an individual searcher, who may have difficulty in identifying the target of the search, because of the limited information at his disposal. That, in my view, is to miss the point. Section 28(2)(b) is concerned with “information of the same kind,” not with information corresponding to the particular individual whose records are the subject of a request under section 7 of the Act. It is possible for members of the public to learn the ages of people whose vital information is registered. That is information of the same kind as is contained in any other body of information.

  117. The object of the establishment of the General Register was to provide a general and publicly available record of all births, marriages and deaths. The Registration of Births (Ireland) Act, 1863 recited that it was “expedient that a complete System of Registration of Births and Deaths should be established in Ireland ....” The registration of marriages had been made obligatory by the Marriages (Ireland) Act, 1844. Sections 50 and 51 of the Act of 1863 provided that “every person” should be entitled to search the indexes of the register between specified hours “and to have a certified Copy of any Entry in the said Indexes ....” The purpose and effect of the statutory system of registration of births, marriages and deaths was to establish a complete, mandatory and public system of registration. It is impossible, in the face of the statutory right to inspect and to take copies, to doubt that the information contained in the register is available to the general public.

  118. It makes no difference that searches in individual cases may be difficult or time consuming. The fact is that the information is there and open to be inspected “by any person.”

  119. The Civil Registration Act, 2004 now governs the system of registration. It provides for its reorganisation and modernisation and repeals the acts of 1844 and 1863. Section 61 of that Act provides for searches, in effect for provision of certificates of registration on payment of a prescribed fee.

  120. I have noted the submission of the Hospital to the effect that the exclusion of the exemption by reference to section 28(2)(b) has implications for privacy of persons such as patients. I do not believe that point can defeat the simple and objective test laid down by paragraph (b). If there is a danger of abuse by infringement of confidentiality, I believe the relevant provision is section 26.

  121. I am satisfied, for these reasons, that the exemption provided by section 28(1) does not apply. For that reason, it is unnecessary to consider section 28(5) or Freedom of Information Act, 1997 (section 28(6)) Regulations, 1999. (S.I. No. 47 of 1999). I would add that, if it were necessary to do so, I would agree with the judgment of Denham J.

    Did the record contain information given to the Hospital in confidence on the understanding that it would be treated in confidence?

  122. Section 26 provides a ground of exemption from disclosure distinct from section 28. It stands on its own. It provides as follows:

    (1)

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

    (a)

    the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

    (b)

    disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

    (2)

    [not applicable in this case]

    (3)

    Subject to section 29, subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

  123. At the outset it must be noted that section 26(1) contains two distinct provisions. I draw special attention to this fact, because it seems that both the High Court and the Commissioner treated them indistinctly. In effect, paragraph (b) has been treated as the governing provision to the exclusion of paragraph (a).

  124. Paragraph (a) deals with information given to a public body in confidence where disclosure would be likely to prejudice the body in receiving similar information in the future. Paragraph (b) deals with information communicated in accordance with a contract or a statute which contains a provision imposing a duty of confidence.

  125. The High Court judgment dealt with the issue of confidentiality in extenso.

  126. Firstly, the learned trial judge drew attention to the duty of the Hospital to register the birth of the child (Thomas Walsh the son of Bridget Welsh) in 1922. He held that no question of confidentiality could arise in respect of material which fell to be disclosed as a matter of law. This conclusion was not related, at least not expressly, to either paragraph (a) or (b) of subsection (1). He pronounced as general proposition that information provided for registration by the public registry was no longer confidential. Hence, section 26 could not apply.

  127. Secondly, the learned judge went on to deal in some detail with cases concerning the law of confidentiality. He discussed Coco v AN Clarke (Engineers) Ltd [1968] F.S.R. 415; Saltman Engineering Co. Ltd v Campbell Engineering Company Ltd (1948) 65 RPC 203; and House of Spring Gardens Ltd v Point Blank Ltd [1984] I.R. 611. In seeking to adapt this case law to information confided by Bridie Welsh to the Hospital, the learned judge approved the decision of the Commissioner that, “as a matter of law, information in the public domain could not concern “private and secret matters” (being necessary elements in the test of confidentiality.” He adverted to the possibility that Bridie Welsh could have imparted the information to the Hospital in anticipation of its not being disclosed, but held the view that her subjective belief could not prevail where, objectively speaking, the material was not of a confidential nature. Thus, the exemption from disclosure did not apply in the absence of the quality of confidentiality.

  128. Having reached this conclusion, the learned judge did not need to consider whether the Commissioner had been correct in balancing the public interest in disclosure with the right to keep it confidential in accordance with section 26(3). Nonetheless, the learned judge expressed his opinions on this latter issue, though as obiter dicta. He examined a number of cases concerning the right, including the constitutional right, of an individual to be informed as to his or her parentage. He also considered whether the Hospital had constitutional rights but did not reach any conclusion on the point.

  129. The Hospital, in its submissions, disputes the relevance and applicability of the case law relating to breach of confidence in relation to commercial secrets and points out that section 26(1)(b) deals with a duty of confidence provided for by an agreement or by a statute. The Hospital invokes the duty of confidence imposed by law and by the Ethical Conduct Guidelines of the Medical Council and says it could never be a defence for a doctor to an allegation of breach of his duty of confidence to his patient to say that the matter was in the public domain. It says that the learned trial judge did not appear to have given any consideration to provisions of section 26(1)(a) relating to “prejudice to the future supply of further similar information ...."

  130. The first question to consider is whether the learned trial judge was right when he held that there could be no question of confidentiality in respect of material which fell to be disclosed by the Hospital in performing its duty to register the birth of the child. In so holding, he appears, without saying so, to have applied an exception to section 26(1) of the same kind as is contained in section 28(2)(b), although no such provision is contained in this section. The trial judge’s reason for his refusal to apply section 26 was that the information was "in the public domain." Thus, it was not the communication of the information by the Hospital to the Registrar of Births that made the difference. It was the appearance of the information in the public register. Section 26 contains no exception corresponding to section 28(2)(c). The fact that the information is in the public register does not prevail over the obligation of the head to refuse in accordance with section 26(1). As I have already stated, sections 26 and 28 provide for independent grounds of refusal of access.

  131. Accordingly, I am satisfied that the High Court was in error in excluding the application of section 26 on the ground that the Hospital had registered the birth of Thomas Walsh.

  132. The learned trial judge also upheld the decision of the Commissioner in her application of the law of confidence. The Commissioner expressed some additional views concerning the application of section 26 to the facts.

  133. It is fundamental to further consideration of this exemption, to note the distinction between paragraphs (a) and (b) of section 26(1).

  134. Section 26(1)(b) has no relevance to the present case. It concerns, as is clear from its terms, only cases where the disclosure of information by the giving of access to a record by a head of a public body would, in the words of the section, “constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment .... or otherwise by law." It is of interest to note that paragraph (b) does not apply where disclosure would, otherwise, be a breach of an obligation of confidence imposed by statute on members of boards or employees of various statutory bodies. That confirms that paragraph (b) concerns cases where an obligation of confidence is imposed on the body in question. Paragraph (b) applies only to information whose disclosure would involve the person or body disclosing it committing a breach of a contract or a statutory provision. Thus, only paragraph (a) could be relevant in this case.

  135. Paragraph (a) has three components, namely that;

    1. the record contains information given to the body in confidence and on the understanding that it would be treated by it as confidential;

    2. in the opinion of the head, it's disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons;

    3. it is of importance to the body that such further similar information should continue to be given to the body.

  136. The Commissioner accepted that information arising in a professional relationship between a health professional and patient would normally fall within the category of confidential relationships traditionally recognised by the law. She thought, however, that the information relating to Bridie Welsh had most likely been given to a hospital employee rather than a treating physician.

  137. The Commissioner’s reason for excluding the application of section 26 was that the information contained in the record was not "concerned with private or secret matters." She took a definition of the term, "confidence," from the law relating to breach of a duty of confidence. She said that she could not "see how information that is available to the public through the GRO, as outlined above, can be concerned with private or secret matters.” The matter "outlined above" was, of course, the application of section 28(2)(b). Thus she treated that provision as creating an exception to section 26 which, as I have said, it does not. She added, as a further reason, that, because Mr Thomas Walsh knew the name of his mother and some other details about his birth, the information about his mother's age could not be treated as having the necessary quality of confidence.

  138. I cannot agree with the Commissioner that the availability of the information in the GRO was relevant to the application of section 26(1). The section, unlike section 28, contains no provision to that effect.

  139. I also think she was mistaken in two further respects. Firstly, it cannot be correct to say that it is relevant to a whether a hospital is bound by an obligation of confidentiality whether patient information is given to a hospital employee rather than a treating physician. Clearly, the obligation to respect the confidence of patients rests on the Hospital generally regardless of the function of the Hospital employee who receives and records the information. The final point that the Commissioner made was based on the state of knowledge of the late Mr Thomas Walsh. The question of whether or not the head is bound to refuse access in accordance with the provisions of section 26(1) is to be determined objectively by reference to the three components of paragraph (a). The requester can be any member of the public. The state of knowledge of the requester is not relevant to that question.

  140. Therefore, I am of opinion that the Commissioner and the High Court were respectively in error in their interpretation and application of section 26(1). This was due to the importation of a test based on a different area of the law. In the result, it has not been determined whether those conditions apply.

  141. Nonetheless, it is clear, at least by implication, that the Commissioner accepted that Bridie Welsh had conveyed her personal information to the Hospital in confidence and on the understanding that it would be treated in confidence by the Hospital. It is also clear from the submissions made to the Commissioner by the Hospital regarded information about the age of a patient as clinically significant and that it was concerned that disclosure of that information would be likely to prejudice the giving to it of further similar information. It is obvious that the Hospital would wish to be able to offer such assurance of confidentiality that such further similar information would continue to be given to it in future.

  142. The Commissioner refused to apply section 26(1) essentially for the single reason that she did not regard the information as having the necessary quality of confidence. It is clear that, but for this, the information would have had to be treated as covered by section 26(1).

    Even if the information had been imparted to the Hospital confidentially, did the public interest justify its release?

  143. Having come to the conclusion that section 26(1)(a) did not apply, the Commissioner did not, strictly speaking, need to consider section 26(3) providing for what she called "a public interest override." That provision reads as follows:

    Subject to section 29, subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.

  144. The Commissioner decided to consider the application of this provision, although her primary view was that section 26 did not apply at all, because she did not believe that the information in the Hospital records had the necessary “quality of confidence.” She found that “on balance the public interest would be better served by releasing the records then by there being withheld.” She gave the following reason:

    The fact that one of the requesters is in this case is the son of Ms Welsh is a circumstance in which it is legitimate to have regard in applying the public interest test. Were it the case that the requester had no close personal ties to the person whose information is at issue (Ms. Welsh), then the public interest conclusion might be otherwise. However, the public interest in persons generally having the fullest possible information on their origins is a very strong one. In the circumstances of this case, I take the view that the public interest, on balance, would favour disclosure of the information to your father and your self.

  145. The issue of public interest, pursuant to section 26(3) of the Act, has been argued before this court in the somewhat unsatisfactory circumstance that neither the Commissioner nor the High Court technically made any decision on the issue. Nor was any consideration given to the application of the procedures set out in section 29 of the Act. The appeal was taken to the High Court on a point of law. That point cannot include a point such as this public-interest point which was not decided by the Commissioner. The Commissioner, nonetheless, expressed the opinion that section 26(3) would have entitled her to order the release of the information. In these circumstances, it seems to me unavoidable that the matter be addressed in this Court, even if the following views are necessarily obiter.

  146. McCarthy J, having reached his own conclusion that the information was in the public domain once the birth had been registered and having, in addition, approved the Commissioner’s view that the information did not have the necessary quality of confidence, nevertheless, proceeded, after expressing some hesitation, to consider the Commissioner’s views on the public-interest issue. He found that the Commissioner had been in error because she had not considered all relevant factors. In particular, he said that she had failed to take account of the views of the Hospital. Having made extensive reference to authority, the judge does not appear to have arrived at any conclusion on the public-interest issue. He explained that he had sought to address certain principles which must be applied by the Commissioner.

  147. The Hospital submits that, since the Commissioner failed to take all relevant facts into account, her decision cannot stand. The Commissioner submits that she is not under an obligation to recite the considerations she took into account. It is submitted that she balanced the factors in favour of release of the information against those militating in against, although she did not enumerate them in her decision. According to the written submissions of the Commissioner, “crucially what emerges is that the weighing of the public interest was carried out by the Commissioner, having regard to the definite link between the requester and the patient and, further, having regard to the information already within the Requester's knowledge and that which he could potentially have been accessed via the GRO.”

  148. It is clear, however, that, as the learned High Court judge pointed out, the Commissioner did not, in striking that balance, take account at all of the right or duty of the Hospital to respect the confidence of information confided to it by its patients, specifically by Bridie Welsh. The Commissioner responds to this finding of the learned trial judge by claiming that she had not failed in this respect, citing in support to the following passage from her decision:

    I accept that information arising in a professional relationship between a health professional and a patient would normally fall within the category of confidential relationships traditionally recognised by law.

  149. That statement, however, was taken from the part of her decision which considered whether the information was confidential. At that point, she entirely discounted the Hospital’s argument that the information was confidential because she could not see “how information that is available to the public through the GRO .... can be concerned with private or secret matters ....” This conclusion, which was erroneous in any event, led her to the further conclusion that section 26 had no application. Once she had decided that the obligation of confidence had no value, it is impossible to see how she could claim to have weighed this consideration in the balance for the purpose of considering the public interest in releasing the information. Moreover, her decision contains no suggestion that she did.

  150. The key point in the Commissioner’s decision was her view that “the public interest in persons generally having the fullest possible information on their origins is a very strong one.” The High Court judge implicitly accepted this proposition.

  151. The learned trial judge cited the judgment of Hamilton C.J. in I.O’T. v B [1998] 2 I.R. 321, at page 348, to the effect that “[t]he right to know the identity of one’s natural mother is a basic right flowing from the natural and special relationship which exists between a mother and her child..” On the other hand, the Chief Justice counterbalanced this right with the rights of the mother. At page 349, he remarked of children’s rights:

    While they enjoy the constitutional right to know the identity of their respective natural mothers, the exercise of such right may be restricted by the constitutional right to privacy and confidentiality of the natural mother in respect of her dealings with the [adoption society].

  152. The case of South Western Area Health Board v Information Commissioner [2005] 2 I.R. 547 also concerned the conflict between an adopted child wishing to trace her parentage and the parent’s wish to maintain privacy and confidentiality, in the context of her later marital and family circumstances, concerning information regarding the birth of her adopted child. Smyth J allowed an appeal from the Information Commissioner. He remarked at page 556:

    To have formed a view or opinion that "the degree of invasion of the birth mother's privacy occasioned by the release of the records was minimal and justified in the public interest" is to fail to consider relevant issues and rights, such as the constitutional rights, of the birth mother's family and the protection of her marriage and to make a value judgment as to the extent or degree of invasion of rights without according the birth mother directly, or indirectly through her legal advisors, the opportunity to make representations in support of the rights she sought to protect.

  153. McCarthy J also referred to a number of decisions of the European Court of Human Rights. The learned judge found most assistance in the decision of that Court in Odievre v France [2004] 38 E.H.R.R. 43. The case concerned a dispute in French law between a mother, who had surrendered her child for adoption and, in due course, the child. The former claimed an entitlement on her part to the maintenance of confidentiality. The latter applied to a French court for release of information about her birth and permission to obtain copies of any documents, birth, death and marriage certificates and civil status documents. The Court, in the course of its judgment made the following observation:

    The expression “everyone” in Article 8 of the Convention applies to both the child and the mother. On the one hand, people have the right to know their origins, that right being derived from a wide interpretation of the scope of the notion of private life. The child’s vital interest in its personal development is also widely recognised in the general scheme of the Convention. On the other hand, a woman’s interest in remaining anonymous in order to protect her health by giving birth in appropriate medical conditions cannot be denied .... The two private interests with which the court is confronted in the present case are not easily reconciled: moreover, they do not concern an adult and child, but two adults, each endowed with her own free will.

    [emphasis added]

    It will be noted that the Court spoke of the “two private interests concerned.”

  154. All of these cases concern intensely private matters. A child seeking information about his or her family may give rise to conflict with a profound wish for privacy on the part of the other party. The present case is different but only in degree. Thomas Walsh was seeking information about his mother, who, in all probability, is long since deceased. The Hospital, however, invokes section 26 of the Act to protect from disclosure information communicated to it in circumstances of confidentiality.

  155. The Commissioner considers that section 26(3) provides a "public-interest override." That provision applies where “the public interest would, on balance, be better served by granting than by refusing to grant the request ....” The request is made under section 7. It seeks access to a record and may be made by anybody. It was made, in this case, by a private individual for a private purpose. It was not made in the public interest.

  156. The Commissioner based her decision on the “public interest in persons generally having the fullest possible information on their origins.” Section 26(3) is concerned with the public interest in granting access to the particular record sought. Whether people generally should be granted access to information concerning their origins is a matter of policy. It would have been possible to include in the legislation. It has not been included. It is not, in my view, open to the Commissioner to adopt a general policy in the public interest.

  157. I have, for a number of reasons, decided that the Commissioner was in error in the factual reasons she gave for applying section 26(3). If those were the only reasons for setting aside the decision of the Commissioner, the appropriate procedure would be to remit the matter to her for further consideration.

  158. More fundamentally, I do not believe that section 26(3) applies in a case where the reason for seeking access to the record is exclusively private. The Commissioner’s jurisdiction pursuant to section 26(3) is to decide whether provision of access to a particular record is in the public interest. Whether a person in the position of the requesters in this case should be granted such access concerns their private interests.

  159. I am satisfied that the Commissioner was in error in considering that the grant of access in this case was in the public interest.

  160. I would, therefore, allow the appeal and set aside the decision of the Commissioner.

    Macken J

  161. This is an appeal from the judgment of the High Court (McCarthy, J.) delivered on the 2nd July, 2009, and the Order made thereon, concerning a request for information made to the appellant, known to all and sundry as The Rotunda Hospital (“the hospital”), a well known maternity hospital in the City of Dublin. By that judgment the learned High Court judge found that the request for information about the age of a woman who had a child in the hospital in 1922, was a request which

    1. came within the provisions of the Freedom of Information Acts, 1997 and 2003 (“the Act of 1997”), and

    2. the hospital was obliged to give the information sought.

    The High Court upheld the Commissioner’s substantive decision on her earlier review of the hospital’s refusal to furnish the information. For completeness sake, since the proceedings are between the hospital and the respondent (“the Commissioner”), I should mention that the request was made by a woman, [Miss Dawn Walsh], on behalf of her father, a man called Thomas Joseph Walsh, who was, in turn, the child born in 1922. He is now dead. She is therefore the grandchild of the woman who gave birth.

    Background Facts

  162. The request for information arose from the fact that the child born in 1922, the late Mr. Walsh, through his daughter, was seeking information from the hospital. The particular request the subject of this appeal, was made to the hospital in September, 2004, expressly under the provisions of the Act of 1997. It appears from the affidavit evidence filed that the woman and her father knew that he had been boarded out as a baby by his mother and that the mother had lived at College Road, Galway. Originally, in correspondence with the hospital, what was sought was a home address, the date of birth and the age of a woman, but eventually what was before the Commissioner and the High Court was information about her age at the time she gave birth to Mr. Walsh. Her name, corresponding to details in the request and as used by her or as recorded by the hospital, was variously Bridget Walsh, Bridie Walsh and/or Bridie Welsh. In this judgment I use the name Bridie Walsh.

  163. On the 21st October, 2004 the hospital replied to the request. It is necessary to set this out because it shows the basis for its refusal to provide the information sought. It said:

    The only hospital record from 1922 which contains information regarding Bridie Welsh is the 1922 Labour Ward Book, which records Bridie Welsh being admitted to the labour ward on the 10th May, 1922, and giving birth to a live born male child on the 10th May, 1922; the discharge date is recorded as the 18th May, 1922.

    The Labour Ward Books record all births by date order and by the mother’s name; they do not record the patient’s home address nor the patient’s date of birth. Therefore, we are unable to provide you with the specific information requested.

    While the hospital’s Labour Ward Book does not record an individual’s date of birth, the age of the patient at time of delivery is recorded. However, when a patient presents to the hospital, they do so on the understanding that the personal information they provide is to be held in confidence and for the purpose of receiving medical care. It is important that this confidentiality is maintained in order to ensure that each patient feels confident that the information they are giving is protected, and to protect the future collection of this information.

    Bridie Welsh’s age, as recorded in the 1922 Labour Ward Book cannot be released to you.

  164. The letter suggests two things:

    1. that the hospital was unable to give the date of birth or a home address of Bridie Welsh, because it didn’t have that information on record, and

    2. insofar as her age was concerned, because this was claimed by the hospital to have been given on the basis set out above, that information could not be given.

    Subsequently, the hospital wrote enclosing some guidance information and suggesting that the requester contact the Rotunda Girls Aid Society. The result of the above exchanges is that the hospital did not grant the information sought pursuant to the terms of the Acts, insofar as the age of Bridie Walsh was concerned.

  165. The requester then applied, as she was entitled to, for the hospital’s decision to be reviewed, but on the 13th April, 2005 the reviewer affirmed the decision not to release the information about the age of Bridie Walsh. Subsequently again, the hospital apparently discovered that another record of Bridie Walsh existed in what was called the “Porters Lodge Book”, whose dates and other details corresponded with the other records in the hospital, and which related to the person recorded as “Bridie Welsh” elsewhere in the hospital records.

  166. In the meantime, however, the requester had applied to the Commissioner, under the provisions of the Acts, seeking a review of the decision of the hospital’s refusal of the information sought. The Commissioner considered the matter, and issued her decision in December 2007. She points out that her review was concerned exclusively with the two records which contained the age of Bridie Walsh, the Labour Ward Book and the Porters Lodge Book.

    The Commissioner’s Decision

  167. In her decision, the most important elements of which I set out, the Commissioner, first, considered whether or not the information sought was “personal information”, as defined in the Acts, and found it capable of being so. She held, however, that, even if it is personal information within s.2(1) of the Act of 1997 as being one of the specific types of information which include “age” in s.2(1)(vi), it also had to comply with what she called the “overarching prior requirements” in the general definition of “personal information”, in s.2(1). Next, she found that information “of the same kind” as was contained in the record, that is, age, fell within the provisions of s.28(2)(c) of the Act of 1997, namely, that such information was available to the general public. The basis for this finding was that the General Register Office, which maintains a system, inter alia, for the public registration of births, marriages and deaths, includes in the appropriate register “information of the same kind” as the “age” of an individual. In the context of this appeal, that is the date of birth information recorded in the Register of Births. In such circumstances, she found that the information loses its status as personal information exempt from disclosure, under s.28(1) of the Act of 1997, which status it would have retained, absent the application to age of the provisions of s.28(2)(c).

  168. Next, and also of importance, in the context of this appeal, is the Commissioner’s position on the meaning and application of s.26(1)(a) of the Act of 1997. For the purposes of relating the findings of the Commissioner at this stage, it is sufficient to say that she found that while information given in the course of a professional relationship would, in general, come within what she called “confidential relationships” recognised in law, she determined that the information which is referred to in that section must have “the necessary quality of confidence”, before the exemption from disclosure provided for in that section can be properly invoked, and that in the case of “age” in the particular context of other facts, it did not have that status.

  169. In that regard, in her decision she invoked, in support of her conclusions, an extract from B v Brisbane North Regional Health Authority [1994] 1 QAR 279, mentioned in an Australian academic writing Essays in Equity, and to which I will return, from which she found that only “private or secret matters” were included in the definition of a “confidence”. Relying on that citation, as cited in her earlier decision in Case No. 050305, and on the fact that the requester had other information, she found that since the information sought, namely, age, was also available to the general public in the form of “information of the same kind” through the General Register Office, age in this case could not be concerned with “private and secret matters”, and did not have the necessary “quality of confidence”. In consequence, she concluded the exemption from disclosure in s.26(1)(a) did not apply.

  170. Although finding that the hospital was not entitled to rely on s.26(1)(a) for the above reasons, and that finding being sufficient to determine the issue, she nevertheless went on to consider what the position might be if she had come to a different view in relation to s.26(1)(a), that is to say, that the exemption there did apply. Section 26(3) of the Act provides for disclosure of the information where the “public interest” would best be served by providing for the release of the records, rather than by their refusal. One of the original requesters, Mr. Walsh, was the son of Bridie Walsh, and she found that since there was a strong public interest in persons “generally having the fullest possible information on their origins”, it was appropriate that the information would be made available.

  171. The Commissioner, pursuant to her findings, annulled the decision of the hospital, and directed it to disclose the requested information in the two records in question, from which decision the hospital, pursuant to s.42 of the Act of 1997, appealed to the High Court, on several points of law.

    The High Court Proceedings and the Judgment

  172. I now turn to the judgment of the High Court. First, it is necessary to say briefly what the hospital claimed. According to the High Court judgment, the relevant grounds of appeal before it were:

    1. The Commissioner was in error in treating the Act as applicable when it had no such application since the records in question came into existence before the Act’s commencement.

    2. The Commissioner was in error in failing to hold that age was personal information, inter alia, because of an erroneous view that one or other of certain so called “overarching requirements” was or were not fulfilled.

    3. The Commissioner had erroneously held that the exception to the prohibition on disclosure of the records in question as containing personal information applied (pursuant to s.28(1)(c) of the Act) on the basis that they were in the public domain.

    4. That the Commissioner had applied an incorrect test to the exemption provided for by s.26(1)(a).

    5. The Commissioner had incorrectly applied a certain balancing test permitting disclosure of the records in question as a matter of discretion under s.26(3).

    6. The Commissioner erred in making release of the record in question “conditional upon proof of the relationship of the requester to the patient” (by which, according to the learned High Court judge, was meant that that requirement was an effective admission that the requester had failed to show that he was the son of Bridget Walsh, whereby any ground of disclosure based upon that fact ought to be rejected).

  173. The High Court, in July, 2009, dismissed the hospital’s appeal on several grounds, in particular on both s.28 and s.26(1)(a). In other respects, including on the definition of “personal information” in s.2(1), the learned High Court judge did not uphold the Commissioner’s findings. On the application of s.26(3), he also reached a different view. In his judgment, the learned High Court judge found, in essence, as follows. On the applicability of the Act of 1997 to pre-Act records, in this case those created in 1922, the Commissioner had objected to this issue being heard, on the basis that this was not the subject of any debate before her, and was not part of her decision from which the appeal was being brought. The hospital argued it was an issue going to jurisdiction and, inter alia, for that reason, should be argued and determined by the High Court. The learned High Court judge decided to hear the matter, based on the following: his view that it raised an issue of jurisdiction; the same issue apparently was a feature in other cases under the same Acts; it was proper that, as a matter of public policy, such an issue should be aired, being of such a fundamental nature; and that he should not refuse to hear argument on this serous point, merely because it had not been raised earlier. Having so decided, the learned High Court judge then found, on the merits, that records created in 1922 were not excluded from the ambit of the Act of 1997, based on a proper consideration and application of s.6(4) and s.6(5)(b). The latter subsection made specific provision for disclosure of records created before the Act came into effect, provided they related to personal information about the person seeking access to them. He found that, in this case, they related to personal information about Mr. Thomas Walsh.

  174. On the second issue, the learned High Court judge found that the Commissioner was wrong to find that “personal information”, besides coming within its specific definition in s.2(1)(vi), must also satisfy what she had called the “overarching prior requirements” in the general definition in s.2(1) of the Act, since this misunderstood or failed to have regard to the phrase “without prejudice to the generality of the foregoing” appearing in that section before each of the specific matters included in the definition. In consequence, what followed in the definition could only constitute examples of matters such as age, constituting personal information.

  175. Dealing with the first important ground of appeal before this Court, namely, s.28, the learned High Court judge found that the Commissioner was correct to find that as to “age”, information “of the same kind” is found in the Register of Births, in accordance with s.28(2)(c). The exemption from disclosure of personal information, being age, otherwise found in s.28(1) was, in consequence of s.28(2)(c), disapplied by that latter provision, with the result that age was no longer, in this case, exempt from disclosure, under s.28. He also held that the information in the record must be furnished where the request was made by the next of kin of the individual, pursuant to s.28(5) of the Act.

  176. Dealing with the second important ground before this Court, the learned High Court judge also accepted the Commissioner’s view and application of s.26(1)(a) of the Act, to the information sought, and found, as did she, that the exemption from disclosure in that subsection only applied to “private or secret matters”, arising from certain case law from the field of intellectual property. He considered that, regardless of the belief of the original imparter of the information, that belief was merely subjective, and could not apply when, objectively, the information did not have the required “quality of confidence”. He disagreed with the Commissioner’s stated approach to s.26(3), in certain observations he made on that subsection, finding that she had not properly considered all the necessary elements in applying the public interest test, including the hospital’s interest in patient confidentiality.

    The Appeal

  177. The hospital has appealed the decision of the learned High Court judge and the Commissioner has served a Notice to Vary. As to the hospital’s appeal, it contends that the learned High Court judge was:

    1. wrong in law to hold that the Act applied to records created before its commencement;

    2. that information in the Register of Births, not being information “of the same kind” as that appearing in the records concerning Bridie Walsh; the information sought was not excepted under s.28(1)(c) he was wrong in law in so finding;

    3. was wrong, in fact, in his determination that the hospital had claimed the information was confidential, as it had always been the hospital’s contention only that the information had been imparted on the understanding that it would be treated as confidential; that age is a factor of high clinical relevance in maternity cases and that the hospital must be able to a give a guarantee of absolute confidentiality that details disclosed to the hospital will not be subsequently furnished to a third party without the consent of the patient; and he was therefore wrong in law to find that such information was required to have any “quality of confidence”,

    4. was wrong in law in applying the test under s.26(3) of the Act; and

    5. was wrong in law to hold that Dawn Walsh was a person who was entitled to apply and receive information under the Regulations, in particular since the Commissioner had made no decision on this issue.

  178. The Commissioner’s Notice to Vary raised several issues, being: that the learned High Court judge was in error

    1. in relation to the manner in which he awarded costs;

    2. in permitting the hospital to raise a new issue and in dealing with the same, when it had not been canvassed before the Commissioner in her review procedure; and she made no decision on it;

    3. in failing to have any proper regard to the burden of proof placed on a public body to show to the satisfaction of the Commissioner that a decision to refuse to grant a request for access is justified, s.34(12) of the Act; and

    4. in holding that personal information coming within the non-exhaustive list set out at (i) to (xii) in the definition of “personal information” in s.2(1) of the Act was not also required to satisfy the requirements of (a) and (b) of s.2(1) so as properly to come within the statutory definition.

  179. Detailed and very helpful written submissions were filed on behalf of each party and were supplemented by oral argument.

    Legislative Scheme

  180. Since a significant element in the Commissioner’s decision and in the judgment of the High Court, centres on the proper meaning, scope and application of particular sections of the Act of 1997 (I do not consider the Act of 2003 to be relevant to the issues), it is appropriate to cite portions of this before considering the judgment. The Freedom of Information Act, 1997 (“the Act of 1997”) came into force in that year, and sets out in the long form title the purposes and aims of the Act itself. It is helpful to set out the long title in part, because it seems to me that it may be of assistance in ascertaining the appropriate interpretation of key provisions of the Act which were under consideration by the Commissioner in reaching her decision, and which also formed key arguments before both the High Court and this Court.

  181. The long title to the Act commences as follows:

    AN ACT TO ENABLE MEMBERS OF THE PUBLIC TO OBTAIN ACCESS, TO THE GREATEST EXTENT POSSIBLE CONSISTENT WITH THE PUBLIC INTEREST AND THE RIGHT TO PRIVACY, TO INFORMATION IN THE POSSESSION OF PUBLIC BODIES AND TO ENABLE PERSONS TO HAVE PERSONAL INFORMATION RELATING TO THEM IN THE POSSESSION OF SUCH BODIES CORRECTED AND, ACCORDINGLY, TO PROVIDE FOR A RIGHT OF ACCESS TO RECORDS HELD BY SUCH BODIES, FOR NECESSARY EXCEPTIONS TO THAT RIGHT .... TO PROVIDE FOR THE INDEPENDENT REVIEW BOTH OF DECISIONS OF SUCH BODIES RELATING TO THAT RIGHT .... AND, FOR THOSE PURPOSES, TO PROVIDE FOR THE ESTABLISHMENT OF THE OFFICE OF INFORMATION COMMISSIONER ....

  182. As Fennelly, J., stated in Sheedy v Information Commissioner [2005] I.R., 272:

    The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen. It lets light in to the offices and filing cabinets of our rulers. The principle of free access to publicly held information is part of a world-wide trend. The general assumption is that it originates in the Scandinavian countries. The Treaty of Amsterdam adopted a new Article 255 of the EC Treaty providing that every citizen of the European Union should have access to the documents of the European Parliament, Council and Commission.

    Section 6(1) of the Act gives effect to the general principle of public access to documents “to the greatest extent possible consistent with the public interest and the right to privacy ....

  183. By the provisions of s.33 of the Act, the office of the Commissioner was established, and s.34 of the Act permits the Commissioner, in respect of certain decisions referred to in that section, to review any such decision, and having done so, to affirm or vary it, or annul the decision, and, if appropriate, to make such decision in relation to the matter concerned, as the Commission considers proper, in accordance with the Act.

  184. The Commissioner, and the High Court, both draw attention to the provisions of s.34(12) of the Act, which states:

    (b)

    a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

    “Personal information” is defined in s.2(1) of the Act as meaning information about an identifiable individual that:

    (a)

    would in the ordinary course of events be known only to the individual, or members of the family, or friends, of the individual, or

    (b)

    is held by a public body on the understanding that it would be treated by it as confidential.”

    [emphasis added]

    Personal information, by the same section, is expressly deemed to include “information relating to .... medical history” of the individual, and “age”, in providing as follows:

    and without prejudice to the generality of the foregoing, includes- ....

    information relating to the .... medical .... history of an individual, ....

    information relating to .... age .... of the individual, ....

    An “exempt record” is also defined by s.2 as being:

    (a)

    a record in relation to which the grant of a request under section 7 would be refused pursuant to Part III or by virtue of section 46 , or ....

  185. Part III of the Act is described in its title as “Exempt Records” and runs from sections 19 to s.32. Sections 19 to s.25 cover matters such as:

    1. records of meetings of the government,

    2. deliberations, functions and negotiations of public bodies,

    3. parliamentary court and certain other matters,

    4. law enforcement and public safety, and

    5. security, defence and international negotiations.

    Section.31 covers financial and economic interests of the State and public bodies. Some of these provisions provide that the record shall not be disclosed at all, save in very limited circumstances, or only on consultation with others.

  186. Among these sections covering exempt records, are included two sections of special relevance in this appeal, s.26 and 28. There are some sections analogous to these, such as s.27 and s.30, which I also consider.

  187. Section.26, in its relevant parts, reads as follows:

    (1)

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

    (a)

    the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or

    (b)

    disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

    (3)

    Subject to section 29, subsection (1)(a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned.”

    [emphasis added]

  188. Section 28 of the Act concerns “personal information”, as defined in s.2(1) and in relation to a request for information, the following relevant sections provide:

    (1)

    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 (including personal information relating to a deceased individual).

    (2)

    Subsection (1) does not apply if – ....

    information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

    (5)

    Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance –

    (a)

    the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

    (b)

    the grant of the request would benefit the individual aforesaid,

    the head may, subject to section 29, grant the request.

    [emphasis added]

  189. It will be seen from the foregoing that, at least in relation to the issues arising on this appeal, the Act of 1997 includes a protection for “personal information”, and that such information is exempt from disclosure, and information which complies with s.26(1)(a) is also exempt from disclosure.

  190. To understand the full tenor of Part III, however, I should also refer to similar or analogous rights to those in s.26(1), which are also exempt from disclosure, and are provided for specifically under s.27, 30, 31 and 32.

  191. Section 27, in its relevant part, reads as follows:

    (1)

    Subject to subsection (2), a head shall refuse to grant a request under section 7 if the record concerned contains –

    (a)

    trade secrets of a person other than the requester concerned,

    (b)

    financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

    (c)

    information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.

    (2)

    A head shall grant a request under section 7 to which subsection (1) relates if— ....

    (b)

    information of the same kind as that contained in the record in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public, ....

    [emphasis added]

  192. Section 30, in its relevant part, reads as follows:

    30.

    (1)

    A head may refuse to grant a request under section 7 if, in the opinion of the head –

    (a)

    the record concerned contains information in relation to research being or to be carried out by or on behalf of a public body and disclosure of the information or its disclosure before the completion of the research would be likely to expose the body, any person who is or will be carrying out the research on behalf of the body or the subject matter of the research to serious disadvantage, or

    (b)

    disclosure of information contained in the record could reasonably be expected to prejudice the well -being of a cultural, heritage or natural resource or a species, or the habitat of a species, of flora or fauna.

  193. Section 31, in its relevant part, reads as follows:

    31.

    (1)

    A head may refuse to grant a request under section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head –

    (a)

    access to the record could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy,

    (b)

    premature disclosure of information contained in the record could reasonably be expected to result in undue disturbance of the ordinary course of business generally, or any particular class of business, in the State and access to the record would involve disclosure of the information that would, in all the circumstances, be premature, or

    (c)

    access to the record could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.

    (2)

    This sub-section applies to a record relating to several classes of financial importance, including rates of exchange, taxes or other sources of income, etc.

    [emphasis added]

  194. A specific provision relating to exemption is included in respect of other Acts of the Oireachtas.

    32.

    (1)

    A head shall refuse to grant a request under section 7 if –

    (a)

    the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule), or

    (b)

    the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.

  195. For the purpose of considering the approach of the Commissioner and the High Court to s.26(3), s.29 is relevant. It provides:

    29.

    (1)

    In this section “a request to which this section applies” means a request under section 7 to which section 26 (3) or 27 (3) applies or to which section 28 (5) applies and which, apart from this section, would fall to be granted.

    (2)

    Subject to subsection (5), before deciding whether to grant a request to which this section applies, a head shall, not later than 2 weeks after the receipt of the request—

    (a)

    if the request is one to which section 26 (3) applies, cause the person who gave the information concerned to the public body concerned and, if the head considers it appropriate, the person to whom the information relates, or

    (b)

    if the request is one to which section 27 (3) or 28 (5) applies, cause the person to whom the information relates,

    to be notified, in writing or in such other form as may be determined—

    (i)

    of the request and that, apart from this section, it falls, in the public interest, to be granted,

    (ii)

    that the person may, not later than 3 weeks after the receipt of the notification, make submissions to the head in relation to the request, and

    (iii)

    that the head will consider any such submissions before deciding whether to grant or refuse to grant the request.

    [emphasis added]

  196. By the above cited provisions, many types of information, analogous but not at all identical to those in s.26(1)(a) or s.28, and many others, are specifically exempt from disclosure, unless otherwise expressly stated, such as in s.27(2). A distinction is also drawn between those sections where the head “shall refuse” the request and those where the head “may refuse” to do so. The particular sections relevant to the appeal in the present case are s.26 and s.28, which are among those where the head “shall refuse” the request.

    Conclusion on the legislative scheme

  197. It seems to me that, apart from the issue of whether or not the Act applies to records created prior to its commencement, which I deal with last, the real issues which arise for consideration in this appeal stem from the correct interpretation and application, in particular of s.26 and 28 of Part III of the Act of 1997, and alongside those, how, if at all, the provisions of s.28 are relevant in the context of s.26.

  198. The Act, as is set out earlier in this judgment makes provision for the generous availability of information to a person requesting the same, and which is held by a public body. However, as is clear from the long title to the Act of 1997 and the provisions of the Act itself, that right is not absolute. and in both legal and constitutional terms could never be absolute. This is reinforced by the terms of both s.6(1) and s.6(7) of the Act itself. S.6 is an important provision as it expresses the statutory right, called the “right of access”, in 6(1), in the following terms:

    6.

    (1)

    Subject to the provisions of this Act, every person has a right to and shall, on request therefor, 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.

    However, section 6(7) is also of particular importance, especially in the context of this appeal, as it provides:

     

    (7)

    Nothing in this section shall be construed as applying the right of access to an exempt record.

    [emphasis added]

  199. On the face of it, therefore, and in the clearest terms possible, there is simply no statutory “right of access” to any records covered by Part III of the Act. It must nevertheless be recognised, as it is in the Act, that tensions may, or will arise, between the generous right of access to information, provided by s.6(1), and the equally important rights also properly protected by law, by the exemption from disclosure in Part III, and in consequence of the express recognition, in s.6(7), that the right of access in s.6(1) is not a right to an exempt record. The tension between these respective rights may have to be resolved. The manner in which it is resolved by the Oireachtas under the Act is through the mechanism of Part III. In Part III are recognised all the other rights, many of them private rights, and how these rights are to be dealt with, inter alia, in the event that a person makes a request for information, even though not having a “right of access” under s.6(1).

  200. When considering how the potential tension between competing rights has been resolved, it is important to consider the entire of Part III of the Act. I have set out some provisions of this in detail, in light of the particular issues arising under s.26(1) and s.28 in this appeal. It is both nuanced and sophisticated, and strikes varying balances between competing claims and policies. The Oireachtas has recognised first, that certain established legal rights must be respected, and there is clear provision for this. Among those rights are information disclosed in circumstances of confidence, and confidential information disclosed to parties pursuant to contract, or by statute, giving rise to a duty of confidence, trade secrets and similar rights. Some protections, already constitutionally protected, such as records of cabinet meetings are also protected (s.19). Others may be newly protected by the provisions of the Act of 1997, such as those in s.27(1)(b).

  201. In all the different circumstances set out in Part III, it would clearly be contrary to public policy that a person or body incorporated by statute, such as the Commissioner in the present appeal, might infringe those rights in response to the broad right of access provided for in S.6(1), without having regard for the proper protection of a competing right, which could well arise, if the specific provisions found Part III were not also included in the Act. It would be left to the Commissioner, and subsequently to the courts in such circumstances to resolve these competing interests, a difficult task, and one not conducive to the ready implementation of the Act. In a different context in I. O’T v B [1998] 2 I.R. 321 dealing with a conflict of constitutional rights, but apt to describe the dilemma faced by the Commissioner and by a court in the absence of provisions such as those in Part III of the Act, Hamilton, C.J., stated:

    (Where) there is a conflict of constitutional rights, the obligation on the courts is to attempt to harmonise such rights having regard to the provisions of the Constitution and in the event of a failure to so harmonise, to determine which right is the superior having regard to all the circumstances of the case. So far as the applicant and the plaintiff are concerned, the court must decide whether their constitutional rights outweigh the constitutional and legal status of their natural mothers.

  202. The Oireachtas has, instead, by a perfectly appropriate legislative mechanism, determined that the right holder in the information shall have the primary protection in law in those cases covered by Part III. It is not therefore a question of providing, by s.26 or s.28, or indeed by the analogous sections of Part III to which I have referred, any exception to the generous right of access provided for by s.6(1), as has been argued in the course of this appeal, and indeed as is mentioned in some academic writings, and thereafter providing further exceptions to that exception. Such an approach to legislative drafting is considered to be among the most unsatisfactory and unsuitable means as a solution to the possible tensions which may arise. It requires the application of particular norms to the interpretation and application of the exception, and more complicated norms to the application of an exception to an exception. True exceptions are of course provided for in the Act. For example, an exception to the protection for personal information in s.28(1) is provided by s.28(2)(c). I do not, with respect, agree with the judgment of the High Court (McMahon, J.) in H.S.E. v The Information Commissioner [2009] ILRM 44, where he stated:

    First, given the policy and the object of the Act to give wide and generous access to the documents held by public bodies, any exemptions or restrictions, such as those contained in Part III of the Act (ss. 19 to 32) ought to be given a narrow restrictive interpretation so as to derogate as little as possible from the main purpose of the Act.

  203. Whereas, there is legal norm that “exceptions” to a general rule ought to be given a narrow interpretation, that applies to true exceptions, of which there are several in the Act. When read in conjunction with the clear provisions of s.6(7) which grants no right of access to exempt records, Part III is not a derogation from a statutory right. There is no reason for suggesting an intention on the part of the Oireachtas that Part III records should be treated in such a narrow or restrictive manner.

  204. Instead, the extent or ambit of any access to information from records exempt under Part III, is quite different to that provided for in s.6(1). Given that no right of access exists, the access may even very limited or even non-existent, and lawfully so, as in the case of some provisions of Part IIII (s.19 to s.24 information for example). In the case of s.27 or s.30 information this may be available on a more generous scale. And there may be some information subject to be given at a level between the two. In consequence of such a valid policy approach by the Oireachtas, information in Part III records may legitimately be refused because the information sought, such as in the case of s.26(1)(a), has been vested in a party entitled to a competing private (or even public) right, the subject of a clear exemption from disclosure and mandated by statute to be refused. It is, in reality, a placing of any access to information in Part III records, at a level which clearly recognises the expression found in the long title to the Act “consistent with the public interest, and the right to privacy”, and the provisions of s.6(7).

  205. In the Act of 1997, there is also a clear distinction drawn between the availability of information covered by s.19, s.26 and s.28, for example, and the position which arises under the remaining sections of Part III. In the case of s.19, 26, 28 and other sections, the protection for the information is strong since the refusal is of a mandatory nature, the sections speaking of “shall refuse”, whereas in the case of information not subject to such significant protection, and whose disclosure may carry less serious implications, but against which the Oireachtas has nevertheless provided there should be an exemption against disclosure, the right to refuse is permissive, in the sense that the holder of the information “may refuse” the information sought. And for completeness sake, although s.27(1) commences with “shall refuse” to cover certain situations, in other situations mentioned in s.27(2), the head “shall grant” the information. This latter subsection is only one in Part III having a “shall grant” provision, and is clearly one covering records closest to those subject to a s.6(1) right of access. It is, nevertheless one subject to s.6(7).

  206. In consequence, I am of the view that under the provisions of Part III, a right holder in information corresponding to the various sections, being the beneficiary of a private, or public right, protected by law, and exempt from disclosure, is fully entitled to refuse to grant the information sought, provided the conditions set out in the particular corresponding section is met. Where those conditions are met, the only further issue to be considered is whether, in the sections where this is provided – and it is not provided for in all sections of Part III – there is a public interest right which can be invoked notwithstanding proper refusal of the request, and which public interest may in an appropriate case, override that refusal.

    The Section 28 Issue

  207. In light of the foregoing, I deal, first, with the issues arising under s.28 of the Act. By the provisions of s.28(1), which have already been set out above, and from which it will be seen that, if the request includes the disclosure of “personal information”, the head “shall refuse” to grant the request. Nevertheless, if “information of the same kind” as is contained in the record, is available to the general public, then, by the application of s.28(2)(c), the exemption from disclosure in s.28(1) will not apply.

  208. The Commissioner took the view, and the learned High Court judge agreed with that view, that insofar as age is concerned information “of the same kind” is available, as described above, in the Register of Births maintained by the Central Register Office. Whether or not information “of the same kind” is so available, is, it seems to me, a question of fact, but to some extent may also be a question of degree. Quite clearly, a date of birth, if sought by way of information in a record, is personal information of which “information of the same kind” is available from the Register of Births. It may be more difficult, depending on the precise information which is sought within the term “personal information” – the definition of which is quite broad – to determine whether “information of the same kind” is truly available to the public.

  209. The Commissioner made a general finding, incorrectly in my view, that a recording of a birth in a public register is, ipso facto, and objectively speaking, “information of the same kind” as age. I would prefer not to make any general statement of principle as to whether or not, in all circumstances, the registration of a birth automatically leads to that information constituting “information of the same kind” as age. In a different case, for example, where the death of a person is recorded in the Register of Deaths, and a cause of death is recorded, as required by law, it would not follow that a person seeking personal information consisting of age, or say, the medical history of that person immediately before death, or as to the cause of death, could properly be met with the contention that “information of the same kind” was available in the Register of Deaths. I am, however, satisfied that, in the present case, the Commissioner was correct to determine that information in the Register of Births was information of the same kind as age. As is clear from her analysis of the information available for the purposes of s.26(1)(a), the Commissioner was alert to the fact that certain information was available to the requester, such as a date of birth of Thomas Walsh, and the home address of Bridie Walsh in Galway, and actually invoked these factors in the context of her determination under the latter section. With those data, I believe it could be safely deduced, or the Commissioner would be entitled to conclude that information of the same kind was publicly available.

  210. The High Court judge agreed with the Commissioner, but the reason which the High Court judge invoked, inter alia, was that since there is a legal obligation to register a birth, once that legal obligation exists, age can no longer be exempt from disclosure. He dealt with age and date of birth, as he said, “as one”.

  211. For the reasons which I have set out above I am of the view the learned High Court judge was incorrect in law to conclude that the obligation to register a birth can properly constitute a legal basis for concluding that information of the same kind as “age” was available and that, for that reason, the provisions of s.28(1) and of s.28(2)(c) came into play. On the question of the provision of such information to the next of kin, also pursuant to the provisions of s.28 of the Act, I am in agreement with the learned High Court judge and the Commissioner. The wording of the provision is clear and lends itself to no other interpretation.

    The Section 26 Issue

  212. I turn now to how the Commissioner and the learned High Court judge dealt with s.26(1)(a). As to the approach of the Commissioner, she relied, in her decision, upon the above Australian report for the purpose of her finding that the provisions of s.26(1)(a) can only apply if the information covered by the section consists of “private or secret matters”, and thereby has the necessary “quality of confidence”.

  213. On this issue, the learned High Court judge considered, first, that no confidentiality could arise in respect of any material where there is a legal requirement that it be disclosed, and therefore the information provided for registration to the Register of Births could not, by reason of that very fact, be confidential. He therefore found that s.26(1) could not apply. He next moved to consider cases relating to confidential information, or a duty of confidence, upon which he relied significantly. He examined a series of very well known cases, such as Saltman Engineering Co. Ltd. v Campbell [1948] 65 RPC 203; Coco v A. N. Clark (Engineering) Ltd [1968] FSR 415; House of Spring Gardens Ltd. v Point Blank Ltd. [1984] I.R. 611, and others in the field of intellectual property. The learned High Court judge said that, as a matter of law, “information in the public domain” could not concern “private and secret matters”, which he understood to be required by that case law, and found in consequence, to be a necessary ingredient in the test applicable to the issue of what was properly exempt from disclosure under s.26(1)(a), following a somewhat similar approach to the Commissioner.

  214. Before this Court, the hospital first, disputes that the Commissioner and the learned High Court applied the correct case law, and argues that the case law invoked is inapplicable to S.26(1)(a). Secondly, it points to the fact that it is bound by the Guidelines of the Medical Council in that regard, and contends that it could never be a defence for a medical practitioner to argue that the information was in the public domain. It also submits that the learned High Court judge had ignored or failed to have regard to the requirements of the subsection as to the “prejudice to the future supply of further similar information”, which it submits is an extremely important rationale for the existence of the exemption. The Commissioner supports the High Court judgment and continues to rely on the same arguments she presented in the High Court in support of her original decision, as well as relying on a second Australian authority, to which I will refer.

    Conclusion on S.26(1)(a)

  215. Before dealing with the provisions of s.26(1)(a) of the Act, I confess it is unclear to me upon what basis the Commissioner felt entitled to rely on the Australian decisions she invoked in considering the proper application of the section. Her powers and functions – as in the case of all persons or bodies incorporated pursuant to statute - are governed exclusively by, and limited to, the provisions of the statute by which she is appointed (see Howard v The Commissioner of Public Works [1994] 1 I.R. 101). She must apply Irish law. Her decision is a detailed and considered one, even if I disagree with her findings at the end of the day. The Commissioner clearly did not intend to exceed her statutory functions in any way, by seeking to develop Irish law or by adopting, as part of Irish law, principles found in other legal systems or jurisdictions, when these have not already been adopted by the Oireachtas as legislator, or by the Courts in the development of Irish law, and she undoubtedly took advice, either internally or externally. Advisers must, however, be careful to ensure that the Commissioner, or other statutory persons or bodies in analogous positions, do not inadvertently exceed their statutory role, or are not placed in a position which might lead to their decisions being challenged on the basis that they have done just that. I say this because the Commissioner might have come to a quite different decision, if the legal position concerning the protection of information given under s.26(1)(a) was not subject to a requirement of so-called “privacy and secrecy” requirement, adopted from these Australian sources. I will return to these later in the judgment, since the first of them – the only one mentioned in the decision - formed such a pivotal basis for the Commissioner’s position on the section.

  216. What is protected under s.26(1)(a) stems from the circumstances in which the material is given, and not from the nature of the material itself. This is clear from a simple reading of the subsection. Its terms, which, as to the record in question, provide that it should: (a) contain information, (b) given to the body in confidence, and (c) on the understanding that it would be treated by it as confidential. When those three simple conditions as to the giving and receiving of information are met, the remainder of s.26(1)(a) comes into play. That requires (a) that the head is of opinion: (a) its disclosure would be likely to prejudice the giving to the body of further information; (b) from the same or other persons; and (c) it is of importance to the body that such further similar information should continue to be given to the body.

  217. In passing, I note that neither the Commissioner in her decision, nor the High Court in its judgment, challenged or criticised the hospital’s approach to fulfilling these remaining terms of s.26(1)(a). In the Commissioner’s submissions to this Court, however, it is suggested that she did. I can find no clear evidence to that effect. In this appeal some factual matters are raised by the Commissioner in the context of s.26(3). I will deal with those in considering that subsection.

  218. The Commissioner appears to have proceeded on the basis that she was considering the right of access granted under s.6(1) of the Act, and indeed neither the Commissioner nor the learned High Court judge mentions the clear limitation in s.6(7) of the Act. She also appears to treat both s.26(1)(a) and (b) as dealing with the same situation, or the same type of information, and although (b) certainly covers a situation where there is a contract, for example, which contains a specific provision imposing a duty of confidence, the two subsections are different both in their ambit and in the manner in which are treated in law. It may be, of course, that the information given under s.26(1)(a) is, in fact, secret, but the section does not require it to be so. The protection extends to information provided in confidence, such as, in the present case, upon admission to hospital, but does not require it to be confidential information in the sense in which that is used in, for example, intellectual property cases, upon which the learned High Court judge relied.

  219. The Commissioner was influenced in reaching her decision, it seems, by the Australian material she relied on and cited, and in light of that, or independently – this is not entirely clear to me from her decision –she also considered that the same kind of information appears in the Register of Births. She was influenced by, or took into account for the purposes of s.26(1)(a), but not for s.28 purposes, that the requester had additional information, and in part because of this, and her finding that the personal information in the record (age), otherwise exempt from disclosure, had lost that status by virtue of her finding on s.28(2)(c), age could not, in the context of s..26(1), have he necessary “quality of confidence” to support the exemption provided for. The citation from the relied on Australian decision: B v Brisbane North Regional Health Authority, supra., is, in turn, taken from an article in PD. Finn Essays in Equity, Law Book Company [1985], an Australian publication, the outcome of a seminar held in 1984 at the Australian National University, and in which F. Gurry, citing the decision, states:

    The definition of the term “confidence” is derived from the law relating to breach of duty of confidence: “A confidence is formed whenever one party (“the confider”) imparts to another (“the confidant”) private or secret matters on the express or implied understanding that the communication is for a restricted purpose.

    [emphasis added]

  220. It is an unfortunate state of affairs that this extract has been adopted by the Commissioner as the basic and fundamental law relating to the correct meaning of s.26(1)(a) of the Act of 1997, and its application, as it is stated in the papers furnished to the Court, her decision that this section has been “the subject of many previous decisions”, and it seems to me likely that this has also been adopted as correct by persons in turn relying on decisions of the Commissioner, for some time.

  221. The “case” requires some analysis. First, it is not a case at all, or a decision of any court in Australia, State of Federal, on appeal or otherwise. It is clear from the report itself that the decision is that of the Information Director for the State of Queensland on the particular provisions of that State’s legislation on freedom of information. This was made in the course of a review of a refusal to disclose medical records to the person the subject of them, pursuant to an exemption from disclosure in the relevant legislation. By the decision, the information sought was, in fact refused. The necessity for the decision, as is also clearly apparent from the report, is the wide range of sometimes conflicting decisions of courts, on an equally wide range of dissimilar State and Federal legislation on the topic, and so as to give guidance to persons (recognised as not normally legally qualified) in reaching decisions on behalf of Information Authority.

  222. Secondly, and also of significance are the terms of the legislation itself governing the exemption. The exemption is found in s.46(1) of the Queensland Act and it provides:

    46.

    (1)

    Matter is exempt if –

    (a)

    its disclosure would found an action for breach of confidence; or

    (b)

    it consists of information of a confidential nature that was communicated in confidence, the disclosure of which could reasonably be expected to prejudice the future supply of such information, unless its disclosure would, on balance, be in the public interest.

    [emphasis added]

  223. Having accepted that the matter in issue was one falling within s.46(1)(a), all comments of the Director in relation to s.46(1)(b) were expressly stated by the Commissioner to consist of “brief observations”, confirmed in the following terms:

    The Authority found that the matter in issue was exempt under s.46(1)b) without giving separate consideration to s.46(1)(a). Since I have found that s.46(1)(a) does apply, it is not necessary for me to determine whether s.46(1)(b) also applies and for reasons explained at paragraph 164 below, I do not propose to do so; but I will make some brief observations.

  224. It is obvious that the Director was dealing with a matter which he found fell within the closest equivalent to s.26(1)(b) of the Act of 1997, (which imposes a duty of confidence), where a breach of confidence action could be mounted. All other comments relating to s.46(1)(b) above, the closest equivalent to s.26(1)(a) of the Act of 1997, were merely “observations”. While this Court and the High Court may consider case law of Australia’s courts – generally those of its highest federal court, the High Court of Australia - I find it wholly surprising that, given the status of the above observations, they have been accepted by the Commissioner as representing Irish law on the correct interpretation of s.26(1)(a). And I find this to be so, notwithstanding that in one or two High Court cases this same so-called “case” has been mentioned, although without any evidence that it has been the subject of any debate or argument, or that its true status – since its title suggests it is a court decision – has ever been brought to the attention of the High Court.

  225. I find as a matter of law, that these observations do not constitute a valid basis for the proper interpretation and application of s.26(1)(a) of the Act of 1997.

  226. In this Court, the Commissioner also relies on another Australian decision, this time a court decision, Australian Broadcasting Authority v Lenah Game Meats [2001] HCA 63 [15 November 2001] and an extract from the judgment of Gleeson, C.J., which, she argues, also contains the same requirement of “private or secret”. As to this case, I make the following comment. It is, on any analysis, a wholly inappropriate case from which to seek to adopt principles concerning the interpretation of s.26(1)(a) of the Act of 1997. The case concerned a meat processing plant, where persons had entered the plant as trespassers, and had made a film about the meat processing activities which involved possums. These parties had subsequently furnished the Australian Broadcasting Authority with a tape or video recording for broadcasting. The Supreme Court of the State of Tazmania had granted an injunction in respect of the same. The issues which arose for consideration in the Australian High Court in a decision which was not unanimous, were primarily, and indeed overwhelmingly, those concerning:

    1. whether or not an interlocutory injunction can be granted where there is no independent cause of action pleaded, or apparently available in law;

    2. whether an interlocutory injunction can be granted simply on the basis of unconscionable activities, such as trespass;

    3. whether or not trespass into commercial premises can give rise to a privacy right which can be invoked (there being no other possible cause of action pleaded which might support an interlocutory injunction), and

    4. whether any analogous right to a breach of confidence right might be considered as a possible ground in the context of the injunction sought.

    In relation to the question of the slaughtering process, it was found that this was not confidential, and “information about it was not obtained in circumstances of trust and confidence, or otherwise importing an obligation of good faith”. Presumably, if it were, such an analogous cause of action would lie. In the course of the hearing Gleeson, C.J., stated: “In the full court, the present respondent (there the appellant) made a limited challenge to the reasoning of Underwood, J. Wright, J. recorded a concession by counsel, that the respondent had no maintainable action for breach of confidence. Spicer, J. recorded that no issue of breach of confidentiality was raised.”

  227. A considerable exposé was undertaken of rights of privacy and other rights, in the context of the particular facts of that case, not only by Gleeson, .C.J., but by all other members of the court, those both in favour and against the continuation of the injunction. [He cited Hellewell v Chief Constable of Derbyshire in stating:]

    If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence.

    [emphasis added]

  228. It is not, however, evident to me how any statement by means of the most passing comment, at its height, an obiter dictum, could be considered in any way relevant to the questions which have to be considered in the context of s.26(1)(a) of the Act. Of particular interest from the judgment are the lengthy comments on this area of the law, in particular in relation to the overlap of rights of privacy and breach of confidence, where, as they sated, there is a division on the matter, even in the Court of Appeal in England. Apart from these comments, I know of no case in which the comment enunciated in the Australian Broadcasting case on any of the several relevant matters referred to in that interesting judgment, has been adopted into Irish law, nor am I aware of any Irish law which reflects the comments enunciated, in passing, in that judgment, or in the essay by Mr. Gurry, in relation to the terms of s.26(1)(a). Many cases do, of course, exist both in Ireland and elsewhere, in the context of s.26(1)(b).

  229. In the circumstances, I do not consider it was appropriate for the Commissioner to rely upon this case as a correct statement of Irish law. The article by F. Gurry, in P.D. Finn Essays in Equity, cited in support of her decision against the hospital, appears to have been the only authority upon which the Commissioner relied for her conclusion that the information lacked the “quality of confidence”, allegedly required by s.26(1)(a), because it was not “private or secret matter”. I have already found that this is not an appropriate authority in relation to the matter.

  230. It is preferable it seems to me to rely on the actual wording of s.26(1)(a) itself. Whereas, I have cited s.26 previously, it is worth citing again the provisions of subsection (1)(a) which reads as follows:

    (a)

    the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

  231. I am satisfied that the appropriate starting point is the specific right exempted from disclosure in this subsection, which does not impose an obligation that the information in question should have the characteristic of being “confidential information” or “private and secret” or subject to a “duty of confidence” of the type mentioned in the material relied upon by the learned Commissioner, or to have any so-called necessary “quality of confidence”, as defined, other than as to the circumstances in which it was imparted and received.

  232. As to the basis invoked by the learned High Court judge for his finding that the information lacked the same quality of confidence, I make the following findings. There can be no loss of the protection in s.26(1)(a) arising out of, for example, a legal obligation to register a birth in the Register of Births. The provisions of s.28(1)(a) are, in any event, distinct and independent from s.26(1). There is nothing in the Freedom of Information Acts which suggests that the status of personal information otherwise protected within the definition of s.2(1) of the Act, and even if lost by virtue of s.28(2)(c), on the basis that information of the same kind is available in a public record, is to affect the purpose, function or application of s.26(1)(a), an approach adopted by the learned High Court judge. There is nothing in the Act which suggests that s.26, or indeed any other provision of Part III, is subject to the provisions of s.28. On the contrary, it is certain that some information given to a public body, a hospital in the present example, would inevitably contain personal information subsequently found to correspond to “the same kind of information” which might be recorded on the Register of Births, or other registers, such as, for example, a home address corresponding to an address recorded in the Registry of Deeds, another public register. A simple example in the case of a hospital might be the disclosure of the names and ages and even perhaps dates of birth of parents, siblings, spouse and/or children of a patient, as well as a medical history, so far as that is known, of any one or all of them. Can the fact that all the births and any deaths (together with the causes of the same) are recorded in a public register render the exemption in s.26(1)(a) for the information given inapplicable? I think not. I am satisfied that the learned High Court judge was wrong in his interpretation of that section, and in his application of it by reference to the registration of the birth of Thomas Walsh, pursuant to s.28.

  233. Further, the learned High Court judge, in adopting and applying a test of “private and secret” by reference to certain cases in the field of intellectual property, also erred in law. These are all cases arising in very different circumstances and are subject to different legal criteria, including those of novelty or secrecy. All of the cases relied upon by the learned High Court judge were cases on, what might be called, “the commercial side”, in which the facts made it clear that the particular information which was being sought to be protected by a duty of confidence concerned patents, copyrights, design rights or analogous rights, know how, etc., all of which are subject to very specific requirements as to confidentiality, without which the person claiming the right in the transferred intellectual property information loses the intellectual property protection. This was the position also in the case of House of Spring Gardens v Waite, supra. It is not surprising therefore that cases such as Saltman, or House of Spring Gardens, laid particular emphasis on whether, in these particular cases, the information communicated was truly “confidential information” to support a duty of confidence (a matter in any event covered by S.26(1)(b) rather than s.26(1)(a)). A very thorough analysis of the law relating to the duty of confidence is found in Intellectual Property Law in Ireland (3rd Edition) (Bloomsbury Publications, Dublin 2010). In it, considerable emphasis is placed on difficulties mentioned in the Australian cases arising from the, as yet unsettled, state of the law there and in the United Kingdom, in particular having regard to the adoption in the United Kingdom of so-called “duty of confidence” in cases which are, in reality, privacy cases, at least, in light of the absence of any constitutional right to privacy, or any statute law protecting such privacy, until the adoption of the Convention on Human Rights Act in the United Kingdom. All these matters establish that cases from other jurisdictions must be looked at very carefully, when seeking to apply principles enunciated in them, to the exemption from disclosure in s.26(1)(a) of the Act of 1997.

  234. Finally, it is worth comparing s.26(1)(a) and (b) to see whether the Oireachtas intended to limit s.26(1)(a) the type of information covered, in the manner suggested, by the learned High Court judge and the Commissioner. In s.26(1)(b) is included information the subject of a duty of confidence, created

    1. by agreement,

    2. by enactment, or

    3. otherwise by law.

    If what was intended to be covered in s.26(1)(a) was only such information as gave rise to such a duty of confidence, as is suggested, s.26(1)(a) would itself be redundant, because the information would fall to be considered, in that event, under s.26(1)(b), as being “information the subject of a duty of confidence”, “created .... otherwise by law”.

  235. The Oireachtas has enacted Part III of the Act of 1997 so as to cover several different situations, as is clear from the exposé of the legislative scheme earlier in this judgment. It has done so by recognising a series of varied rights and interests, responding to equally varied rights and interests, including public and private. It would have been a very simple matter for the Oireachtas to have included a requirement that the information covered by s.26(1)(a) be “secret” or “private and secret” but it did not do so, although the legislation was passed some years after the first Australian decision relied on. It is perfectly understandable why. There is no evident basis for inserting into s.26(1)(a) the series of tests laid down in the case of disclosures in the field of intellectual property, or those from a decision of the Information Director in Queensland in respect of different legislation. The three simple tests as to the circumstances giving rise to the status of confidential information in s.26(1)(a) serve a different function and do not have the limitations found in s.26(1)(b) to those covered by s.26(1)(b). In the present case there seems to be no dispute but that the information furnished by the mother of the child was given in circumstances meeting the terms of subsection 26(1)(a). Once they were, and the information also corresponded with the remaining matters mentioned, the refusal is permitted.

  236. Both the Commissioner and the High Court dealt with information given under s.26(1)(a) on the basis that it must be “private and secret” so as to have the necessary “quality of confidence” supporting the exemption provided for. Having wrongly adopted an incorrect legal test with regard to the alleged requirement of secrecy and quality of confidence, relying on inapplicable material, the Commissioner was, in consequence, in error in her application of the provisions of s.26(1)(a) to the records in question. The learned High Court judge, in adopting the same approach, although by invoking different or additional arguments and case law, was incorrect in that regard also, in finding that the test in the section requires the information to be private or secret, and only if it does, does it have the necessary “quality of confidence”. It is the case that no challenge was made to the opinion of the hospital on the prejudice likely to follow disclosure, and to the importance attached to the continued furnishing of information, also required by s.26(1)(a).

  237. Having regard to the foregoing, I am satisfied that the hospital was not wrong in law to refuse disclosure of the information, and was entitled to do so.

    The s.26(3) issue

  238. Turning now to the provisions of s.26(3), which provide for the possibility of the information being granted, if there is an overriding public interest in that being done, I express some reservation that that provision can be applied by the Commissioner without due regard being had to the right holder’s interests, and without hearing the parties involved in the giving and receiving of the information. In the present case, of course, one of the parties is deceased, as indeed is Mr. Thomas Walsh, so the same position does not necessarily apply, and the hospital was heard. Whereas a refusal to grant the information can only be overridden if a public interest is established sufficient to do so, even where it is proposed to grant the information, this situation is envisaged as being of sufficient importance to the legislator, that there is what might be called a degree of double protection, because in such a case. Section 29 sets down the procedure which is to apply to requests to which, inter alia, s.26(3) relates, where the requests falls to be granted. This clearly implies that the interests of both the donor and the holder of the information must be considered, even then presumably so as to ensure rights are not infringed, and to provide for possible refusal.

  239. It is, of course, true that the Commissioner, and indeed the High Court, to which judgment I will return in a moment, both considered the possible application of s.26(3). This was on the basis that, although both considered that their findings on s.26((1)(a) disposed of the entire issue, it was nevertheless appropriate to consider also the applicability of s.26(3). The Commissioner took the view that the “public interest” referred to in the subsection consisted of the right in the requester to have information relating to birth, and that this overrode the refusal. The learned High Court judge on the other hand, took the view that the Commissioner had failed, in assessing the public interest, to “consider all relevant factors” and was in error in that regard. Having found that the exemption in s.26(1)(a) was not permitted, he then offered, with some reluctance, a number of general observations on s.26(3). He cited several cases concerning the right of a person to have information concerning birth, but found that, [in circumstances other than those arising in this appeal because of his decision on s.26(1)(a) and s.28], the hospital has rights, including constitutional rights, which must be considered, and were not. The Commissioner had, he found, failed to consider any aspect of public interest beyond the policy of favouring disclosure. It can gleaned from the judgment that one of his concerns appears to have been the failure of the Commissioner to have appropriate regard to the importance attached by the hospital to the issue of patient confidentiality.

  240. On this otherwise important point, no formal decision was made by either the Commissioner or the learned High Court judge, and there was, in the circumstances, no detailed argument on that issue, before this Court. It is, therefore, inappropriate to make any definitive findings on s.26(3). My comments on how I would have approached the exercise had it been necessary to do so, are therefore wholly obiter, and must be considered from such perspective.

  241. It seems not at all clear to me that there is anything in the Act which supports or suggests that there is, in law, an overriding public interest of the type invoked by the Commissioner. On the contrary, such an approach in considering only a so-called public interest in a requester having information relating to the circumstances of birth, suggests an interpretation of the Act coming close to establishing a right of access to exempt information, which can only be denied by some exceptional circumstances. That is not a correct application of s.26(3) of the Act, and ignores the provisions of s.6(7) of the Act of 1997 as they apply to Part III. Rather, as mentioned above, in circumstances where a tension exists between a right of access under s.6(1) rights of access and other rights recognised as being important, and therefore exempt from disclosure under Part III of the Act, the Act mandates a refusal of information. The right generating the exemption under s.26(1)(a) is a private interest right vesting primarily in the hospital, on the facts of this case, and the information sought must be refused, provided the hospital is in a position to meet the tests set out there. In such circumstances, any “public interest” would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law. In the present case, the Commissioner made a statement of alleged policy as constituting the “public interest”. There is no evidence that the Oireachtas has adopted such a policy. I am of the view that, at least on the materials mentioned, no established public interest has been properly identified.

  242. I am not satisfied that the private right vesting in the hospital, arising from the giving of information and its status in its hands, and the private right of a person to have information concerning his birth mother, are those which fall into the category of public interest rights contemplated by section 26(3). The structure of Part III is to permit and even mandate refusal, provided the terms of s.26(1)(a) are met, as I find they were here. A true “public interest” over and above the terms of the section, must therefore be found to exist. That adopted by the Commissioner does not fall into the category of a clear policy decision, which the Commissioner is not, in any event, mandated by the Act to adopt.

  243. I recognise of course, the desire of persons to have as much information as possible about circumstances of birth. A policy, however, giving rise to a public interest, is not easily adopted without legislative guidance, because of course, such a policy must be debated and its limits, if any, fixed by reference to any competing interests (the mother’s, a new family’s, privacy and such matters).

  244. Even if, as appears to be suggested by the learned High Court judge, the public interest was of a different type, namely, one of balancing the respective rights of the parties affected, the High Court was not in error in finding that the Commissioner did not carry out that exercise correctly, by failing to take into account the rights of the hospital. This is so, despite the argument of counsel for the Commissioner, that she did so. In support of that argument, counsel points to the fact that the Commissioner, in her decision, stated as follows:

    I accept that information arising in a professional relationship between a health professional and a patient would normally fall within the category of confidential relationships traditionally recognised by law.

  245. It is argued, therefore, that the Commissioner clearly had regard to the hospital’s submissions on confidentiality when considering the public interest issue. However, apart from the fact that this statement does not, on its face, appear to do so, that is only a very small part of the exercise that would be required to be carried out, and does not, it seems to me, comply with s.29 either. The acknowledgement of the normal confidentiality of a professional relationship does not address the remaining matters set out in s.26 itself, such as the important element attaching to disclosure having a likely prejudice on giving to the body further similar information “from the same person or other persons”, and the importance which the body attaches to “further similar information continuing to be given to the body”.

  246. It might, with legitimacy, be considered that these words in the section are intended also to satisfy a public interest in ensuring, in the context of a hospital, and having regard to the critical medical impact of age in the case of women presenting to give birth the protection of such information, and the continued supply of information, as well as patient confidentiality. These matters, however, were simply not considered by the Commissioner at all, if it was though that the public interest under s.26(3) was to be met by balancing the right of Thomas Walsh to secure information concerning his birth, and the rights of the hospital.

  247. If what is being considered is a balance between the rights of the respective parties, it seems to me, however, that another factor would have to be taken into account. This flows from the finding that information of the same kind in the Register of Births corresponds to age, and which disapplies the exemption otherwise available in respect of age in s. 28(1). Although s.28 and s.26 are not linked, in the sense of one being dependent on or subject to the other, nevertheless, in seeking to establish whether the hospital’s rights are to be protected by reason of the underlying rationale of s.26(1)(a), over the requester’s rights, if any, on the basis of a public interest invoked under s.26(3), all relevant and appropriate factors should be considered, including the fact that the information is available if it is from a different source. Given the exemption from disclosure in s.26(1)(a), the purpose behind the protection granted, the importance of ensuring that similar information should continue to be given to the body – such as a hospital in this appeal – and the fact that, as compared to analogous provisions, the importance of s.26(1)(a) is underlined by the mandatory nature of the refusal, it is, in my view, wholly logical and proper that the balance is best represented in this particular, but not necessarily in all, cases, by the Commissioner not interfering with the protection granted in law, when the age can be obtained elsewhere, such as from a Register of Births.

  248. A separate argument of a more general nature is made by the Commissioner that she was entitled, in considering the application of s.26(3), to have regard to the provisions of s.34(12)(b) of the Act. It provides:

    A decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.

  249. This is a very clear statement which, on its face, appears to apply to all decisions. I have no difficulty in its application to all circumstances covered by the right of access in s.6(1). I have a significant difficulty in its application to requests made in respect of information exempt from disclosure under Part III of the Act, which by statute mandates a refusal, and to which no right of access exists. It is difficult to see how it would apply to the provisions s.19 to 32, other than the head in question meeting the terms of the various sections. Even then it is difficult to see how a head goes about “justifying” a decision in the case of, say, s.19(1)(a), which exempts from disclosure, inter alia, a record which has been or is proposed to be submitted to the Government for its consideration, which I take as the first example of the type of record covered. Either s.34(12) does not apply to such exempt records, or it is sufficiently satisfied by proof that the record in question is, in fact, one submitted to or is proposed to be submitted to the Government. Such proof would likely suffice if it is made by an appropriate person, and could not be rejected by the Commissioner, save in the most exceptional circumstances, of which I can imagine none. If therefore s.34(12) of the Act does apply, and I do not accept the Commissioner has established that it does, to Part III records, then compliance with the terms of s.26(1)(a) also appears sufficient to justify the decision made. In the present case I am satisfied that that legal requirement was complied with by the submissions made on the part of the hospital responding to the criteria mentioned in the section itself, and from the terms of its original refusal. As I have mentioned previously in this judgment, neither the Commissioner nor the High Court suggested that the opinion criteria mentioned in s.26(1)(a) were not met.

    Whether the Act Applies to Records Created in 1922 Prior to the Commencement of the Act

  250. Although I am dealing with this issue last, it does not mean that the issue is without considerable importance. The learned High Court judge had to decide whether or not, this issue not having been raised before the Commissioner in the course of her review exercise, he should nevertheless deal with this issue which had been raised by the hospital, and dealt with by him, notwithstanding the hospital’s objections. I have already set out the earlier in this judgment, the reasons the learned High Court judge decided to hear this issue.

  251. Any person who has been a party to a review before the Commissioner (under s.34) may appeal to the High Court “on a point of law from the decision”. The Commissioner has relied on the provisions of s.34(12)(b) of the Act of 1997 under this heading also. I have addressed this in relation to the legislative scheme, and s.26(3), and although the Commissioner relies on this paragraph, I do not think that it is necessary to invoke any statutory provision. Under s.42 a party may appeal from the Commissioner’s decision to the High Court on a point of law. Quite clearly, this should be confined to points of law arising out of her “decision” and not from something outside its boundaries, upon which she naturally has made no decision at all. Apart from the implied meaning arising from s. 42, in any event, the general law requires that a party will bring forward, at least in the context of legal proceedings, his entire case, so that there is no incremental decision making process, and by analogy it seems to me appropriate to find that, save in some exceptional circumstance, which does not appear to arise here, the hospital was obliged to bring forward before the Commissioner, all points of law upon which it wished to rely, including any point concerning the applicability or otherwise, of the provisions of the Act to a record created in 1922, and therefore before its commencement.

  252. For the most part, I do not consider that the reasons given by the learned High Court judge are those upon which he was entitled to entertain the point of law in issue, such as his finding that it was a serious matter, and he should therefore not rule out hearing the issue, or the fact that he believe the same issue will arise in other cases, because in both circumstances other parties may bring forward all of the legal points or issues which they wish properly to raise, and the issue can be disposed of at that point. Nest, whereas I do think that the matter concerns a question of the jurisdiction of the Commissioner, I am not entirely satisfied that it is such a serious point of law, having regard to the provisions of the Act, that it should, on that basis, be entertained. It is, however, impossible to come to that conclusion without an exposure of the arguments on the part of both parties to the review. On balance I am of the view that on any of the grounds mentioned by the learned High Court judge, he should not have entertained the issue.

  253. I am more inclined, however, having regard to the circumstances of this particular case, to consider that because the learned High Court judge actually dealt with the matter, but on no other grounds, it would be incorrect for this Court to leave unaddressed a point of law on the correct interpretation of the statute, and having some importance. In the circumstances, since the High Court dealt with the matter, it is, in my view, preferable that this Court also make a ruling on it, both to avoid uncertainty and to eliminate the possibility of an incorrect finding on the matter gaining a foothold. I would however add that I am not expressing any general principle that in all such cases where the High Court has entertained a point of law not raised before a statutory body, this Court do so also. This will depend on the particular circumstances of any such case.

  254. In my view, the answer to the question raised as to the applicability of the Act to records created prior to its commencement, in this case in 1922, is relatively simple. Section 6(4) of the Act gives a clear indication of the records intended to be included. Apart from the general rule evidence by the section itself that Acts are intended to apply for the future, in line with much of the other provisions of the Act, it does not remain silent on the matter of its application to pre 1997 records, but instead makes provision for certain access. I have out set out earlier the provisions of s.6(1) on the right of access to records. Section 6(4), however, provides as follows:

    (4)

    The records referred to in subsection (1) are records created after the commencement of this Act and –

    (a)

    records created during such period (if any), or after such time (if any), before the commencement of this Act, and

    (b)

    records created before such commencement and relating to such particular matters (if any), and

    (c)

    records created during such period (if any) and relating to such particular matters (if any),

    as may be prescribed, after consultation with such Ministers of the Government as the Minister considers appropriate.

    [emphasis added]

    Section 6(5) goes on provide as follows:

    (5)

    Notwithstanding subsections (1) and (4) but subject to subsection (6), 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,

    subsection (1) shall be construed as conferring the right of access in respect of those records.

    [emphasis added]

  255. I am satisfied from the foregoing, and having regard to the definitions previously mentioned in this judgment of “personal information”, that s. 6(5)(b) covers a record as to the age of Bridie Walsh, because it relates to “personal information” about Thomas Walsh, on whose behalf the information was sought. Having regard to the foregoing, I am satisfied that these particular records are not ones which are excluded by the Act, but I make no general finding beyond the finding that the particular age records sought in the present case falls within the ambit of the above mentioned provisions and therefore the Act is applicable to those records.

  256. I would allow the appeal and set aside the decision of the Commissioner. I would reject the grounds of appeal in the Commissioner’s notice to vary.


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