The Minister for Health v The Information Commissioner & Ors

Factual and Procedural Background

This appeal arises from a Freedom of Information (FOI) request made by the First Notice Party on 16 May 2012, seeking records related to an inquiry conducted by the Second Notice Party into practices at Our Lady of Lourdes Hospital, Drogheda. The Department of Health (the Appellant) held physical possession of certain records but contended it did not have legal possession or control of them under the Freedom of Information Act 1997 (the 1997 Act). The Information Commissioner (the Respondent) determined on 7 June 2013 that the Department held or controlled the records. The Appellant appealed this decision pursuant to section 42(1) of the 1997 Act, alleging errors of law by the Respondent.

The inquiry, known as the 'Drogheda Review,' was conducted by a retired High Court Judge (the Reviewer) appointed by the Minister for Health on 15 January 2010 to investigate alleged sexual abuse at the hospital during 1964-1995. The Reviewer conducted interviews, including one with the First Notice Party, and compiled transcripts and records. Upon completion, the Reviewer delivered several boxes of documents to the Department with a letter specifying confidentiality terms and restrictions on disclosure, particularly for six boxes containing sensitive information.

The First Notice Party requested a copy of his interview transcript under FOI. The Department refused, citing confidentiality and lack of legal control over the records, stating it held them solely for safekeeping. An internal review upheld this refusal. The matter was then referred to the Information Commissioner, who investigated and ultimately directed the Department to process the FOI request, concluding that the Department held the records within the meaning of the Act.

Legal Issues Presented

1. Whether the Department of Health 'holds' the records within the meaning of section 6(1) of the Freedom of Information Act 1997, given it only has physical possession but no legal control.
2. Whether the Reviewer, as an independent appointee, retains control over the records despite depositing them with the Department for safekeeping.
3. The proper interpretation of 'control' under section 2(5)(a) of the 1997 Act and its application to the facts.
4. Whether the Reviewer was providing a service under contract to the Department such that records in his possession are deemed held by the Department under section 6(9) of the 1997 Act.
5. The effect of confidentiality stipulations imposed by the Reviewer on the Department's ability to disclose records.

Arguments of the Parties

Appellant's Arguments

• The Respondent erred in law by equating physical possession with 'holding' under the FOI Act; legal possession or control is required.
• The Department only holds the records for safekeeping and has no legal entitlement or control over them.
• The Reviewer’s transcripts and notes are his personal documents prepared independently, akin to professional advisers’ documents not held by their clients.
• Precedents in discovery law demonstrate that possession by an agent or professional adviser does not equate to possession by the principal without enforceable legal rights.
• The Reviewer was independent and not an employee or agent of the Department; thus, section 6(9) does not apply as no contract for services exists.
• The Respondent failed to identify when or how the Department acquired control over the records, and the Reviewer’s letter expressly reserved control and confidentiality.
• Allowing the Department to control the records would undermine the independence of judicial inquiries and the confidentiality necessary for their operation.

Respondent's Arguments

• The 1997 Act should be interpreted broadly and purposively to promote transparency and public access to records held by public bodies.
• The Department has physical possession of the records and therefore holds them within the meaning of section 6(1) of the Act.
• Control is one aspect of 'holding' under section 2(5)(a), but physical possession alone suffices to bring records within the Act’s ambit.
• The Reviewer was effectively providing a service to the Department, and thus section 6(9) applies even absent a formal contract.
• The confidentiality stipulations imposed unilaterally by the Reviewer do not create a binding legal prohibition on disclosure under the FOI Act; confidentiality is addressed separately under section 26.
• Case law on discovery does not prevent disclosure simply because a third party claims interest in documents physically held by a public body.
• The Respondent’s decision properly annulled the Department’s refusal and directed it to process the FOI request subject to the Act’s provisions.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed examination of the legal meaning of 'held' under section 6(1) of the 1997 Act. It rejected the view that mere lawful physical possession by a public body is sufficient to constitute holding for FOI purposes, as this would lead to absurd and unintended consequences in rare cases. Instead, the Court held that a document must be lawfully created, provided, or obtained by the public body in connection with its functions or business, and not subject to any prior legal prohibition on disclosure, to be considered 'held'.

The Court analysed the nature of the 'Drogheda Review' and found it had no separate legal personality; the Reviewer himself was the legal entity conducting the inquiry. The Reviewer’s independence was essential, including control over documents and participants, to ensure cooperation and effective inquiry. The relationship between the Reviewer and the Department was not employment, agency, or a contract for services within the meaning of section 6(9). The Court concluded that the Reviewer was not providing a service in the sense contemplated by the Act, and the application of section 6(9) would be inconsistent with the Reviewer’s independence.

The Court considered the various categories of documents delivered to the Department and distinguished the transcript at issue from other records. The transcript was prepared solely for the Reviewer’s use, with confidentiality assurances to participants. The Reviewer’s letters made clear that no proprietorial rights or control over the transcript were transferred to the Department, and disclosure was only permissible by court order.

Although the Department had physical possession of the transcript, it was bound by the terms imposed by the Reviewer and had no legal control or ownership. Thus, the Department did not 'hold' the transcript within the meaning of the 1997 Act. The Court disagreed with the Respondent’s determination and held that the transcript was not a record held by the Department.

Holding and Implications

The Court’s final decision was to SET ASIDE the Information Commissioner’s decision dated 7 June 2013 and substitute its own, holding that the record sought by the First Notice Party is not a record 'held' by the Department of Health within the meaning of the Freedom of Information Act 1997.

The direct effect of this ruling is that the Department is not obliged to process the FOI request for the transcript under the 1997 Act, as it does not hold the record. The decision recognises and protects the independence of judicial inquiries and the confidentiality arrangements made by the Reviewer. No new precedent was established beyond the application of existing principles concerning possession, control, and the meaning of 'held' under the Act in the context of independent inquiries.