Factual and Procedural Background
In 2004 the Requester, acting for her elderly father (Individual A), submitted a Freedom of Information request to The Hospital seeking the discharge address, date of birth and age of Individual A’s Deceased Mother, who had given birth in The Hospital in 1922. The Hospital supplied some information but refused to disclose the mother’s age, claiming statutory exemptions under the Freedom of Information Acts 1997–2003 (“the Act”). After an internal review confirmed refusal, the Respondent (Information Commissioner) conducted a statutory review under s.34 of the Act and ordered disclosure of two historic records (a Labour Ward Book entry and a Porter’s Lodge Book entry) containing the mother’s age.
The Hospital appealed that decision to the High Court on points of law. The High Court dismissed the appeal, holding that the Act applied and that no exemption prevented release. The Hospital then appealed to the Supreme Court; the Commissioner filed a notice to vary.
Legal Issues Presented
- Whether the Act applies to records created prior to its commencement (the “temporal issue”).
- Whether the mother’s age is “personal information” exempt from disclosure under s.28(1) of the Act.
- Whether the information is further exempt as confidential under s.26(1)(a) or (b).
- Whether s.28(2)(c) (information “available to the general public”) or the next-of-kin provisions in s.28(6) and the 1999 Regulations override the exemptions.
- Whether, even if exempt, the public-interest override in s.26(3) required disclosure.
Arguments of the Parties
Appellant’s Arguments (The Hospital)
- The Act does not extend to pre-1997 records unless expressly prescribed; the 1922 books therefore fall outside its scope.
- Age is expressly defined as personal information (s.2(1)(vi)); its disclosure is barred by s.28(1) and is not negated by s.28(2)(c) because the General Register cannot be searched without prior identifying data.
- The information was supplied in confidence; release would undermine future patient candour, engaging s.26(1)(a) and, alternatively, a duty of confidence under s.26(1)(b).
- No public-interest factor outweighs patient confidentiality; nor may the Commissioner create de facto policy favouring genealogical inquiries.
- The requester failed to prove that the mother was deceased or that she fell within the classes specified in the 1999 Regulations for access by next of kin.
Respondent’s Arguments (Information Commissioner)
- The temporal objection was never raised during the statutory review and should not be entertained on appeal; in any event s.6(5)(b) brings pre-Act records within scope where they relate to personal information about the requester.
- Although the entry records the mother’s age, s.28(2)(c) applies because information “of the same kind” (ages generally) is publicly available through civil registers.
- The data lack the “necessary quality of confidence” because the age could be discovered from public registers; accordingly s.26 does not apply, or, alternatively, the public-interest balance in s.26(3) favours disclosure to a son researching his origins.
- Even if s.28(1) applies, s.28(6) and the 1999 Regulations mandate disclosure to next of kin.
- The burden of proof (s.34(12)) rests on the Hospital to justify refusal; it failed to do so.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| C.C. v Ireland [2005] IESC 48 | Court may examine an issue not raised below where jurisdictional or of fundamental importance. | Majority relied on this to consider the temporal issue although it was not raised before the Commissioner. |
| Coco v A.N. Clarke [1968] FSR 415 | Tests for breach of confidence. | Reviewed when analysing whether patient age had the necessary quality of confidence under s.26. |
| Saltman Engineering v Campbell (1948) 65 RPC 203 | Confidential information must have the requisite secrecy. | Discussed in evaluation of s.26(1)(a). |
| House of Spring Gardens v Point Blank [1984] IR 611 | Scope of equitable confidentiality. | Cited in High Court reasoning; Supreme Court distinguished. |
| South Western Area Health Board v Information Commissioner [2005] 2 IR 547 | Balancing privacy of birth mother against adopted child’s interests. | Considered in weighing public-interest override. |
| I.O’T v B. [1998] 2 IR 321 | Constitutional right to know one’s origins balanced with mother’s privacy. | Part of public-interest analysis. |
| Odievre v France (2003) 38 EHRR 43 | European Convention balance between anonymity and right to origins. | Cited for comparative approach. |
| Sheedy v Information Commissioner [2005] IR 272 | FOI Act shifts culture toward openness but subject to statutory limits. | Quoted to frame purpose of the Act. |
| Australian Broadcasting Authority v Lenah Game Meats [2001] HCA 63 | Nature of confidentiality and privacy in common law. | Dissent referenced for comparative context. |
| Howard v Commissioner of Public Works [1994] 1 IR 101 | Statutory bodies confined to powers granted by statute. | Used when discussing Commissioner’s authority. |
Court’s Reasoning and Analysis
1 – Temporal jurisdiction. A majority (per Judge Fennelly) held that although the temporal point was not aired before the Commissioner, it implicated the Commissioner’s jurisdiction and required determination. Section 6(5)(b) expressly extends the Act to pre-commencement records that “relate to personal information about the person seeking access”. Because the Labour Ward and Porter’s Lodge entries also recorded details of Individual A’s birth, the records related to him. Therefore the Act applied.
2 – Personal information exemption. The mother’s age falls within s.2(1)(vi) and is therefore personal information. The Commissioner erred by adding an additional “overarching” requirement beyond the statutory list.
3 – Section 28(2)(c). The majority rejected the view that ages are “available to the general public” merely because ages can, in theory, be extracted from civil registers; practical difficulty, the need for prior identifiers and statutory context meant the test of general availability was not met.
4 – Confidentiality (s.26). The Court drew a sharp distinction between s.26(1)(a) (information given in confidence) and s.26(1)(b) (legal duty of confidence). It held that patient-supplied data are inherently confidential, that the Commissioner applied inapplicable Australian authority, and that the existence of a public register does not strip medical information of confidentiality. All three statutory elements of s.26(1)(a) were satisfied: the information was imparted in confidence; disclosure would discourage future disclosure of similar data; and ongoing receipt of such data is important to The Hospital.
5 – Public-interest override. Because s.26(1)(a) applied, access could be granted only if the public interest “on balance” favoured disclosure (s.26(3)). The majority held the Commissioner erred by elevating genealogical interest into a public-interest ground and by failing to weigh the Hospital’s duty of medical confidentiality. No sufficient public-interest basis was established.
6 – Next-of-kin regulations. The Court found that the Commissioner had not decided, and the High Court had erred in deciding, that the 1999 Regulations mandated disclosure; in any event, the mother’s death and the requester’s qualification had not been proven.
7 – Outcome. On these grounds, the majority (Judge Fennelly joined by Judge Macken and others) allowed the appeal, set aside the Commissioner’s decision and restored The Hospital’s refusal. Judge Denham dissented, finding that s.28(6) and the public-interest balance warranted disclosure to a son seeking knowledge of his origins.
Holding and Implications
Holding: APPEAL ALLOWED; the Commissioner’s direction is quashed and The Hospital is not required to release the mother’s age.
Implications: The decision clarifies (a) that pre-Act records are reachable only where they directly relate to the requester’s own personal information; (b) that s.28(2)(c) demands genuine, not theoretical, public availability; (c) that patient-supplied data retain confidentiality notwithstanding public registers; and (d) that the public-interest override cannot be used to create policy favouring genealogical inquiries. While the dissent signals an openness to broader disclosure, the majority solidifies medical-confidentiality protections and narrows the circumstances in which next-of-kin may obtain historic records.