In a recent case, The Minister for Health v The Information Commissioner [2014] IEHC 231, the High Court ruled that records of an Inquiry into practices at a hospital, which were in the physical possession of the Department for Health (the Department), were not "held" by the Department for the purposes of a Freedom of Information (FOI) request.

Section 6 of the FOI Acts 1997 and 2003 (the Acts) confers a general right of access to records "held" by a public body.  Section 2 (5) (a) of the Acts provides that a reference to records "held" by a public body includes records "under the control of" the body. 

This decision shows that mere physical possession of records by a public body does not mean that the records are "held" by the public body, nor that they are "under the control" of the public body, for the purposes of the Acts.

Facts

Mr Justice Smyth was appointed by the Department to carry out an independent review of the practices and procedures at Our Lady of Lourdes Hospital, Drogheda, during the period 1964 and 1995, to protect patients from sexual abuse while undergoing treatment at the hospital. He conducted interviews of which he made transcripts and, when the review was concluded, he sent several boxes of documents to the Department, with a letter attached detailing the basis on which the documents were being handed over. The first notice party, who was one of those interviewed by Mr Justice Smith, made an FOI request to the Department, for a copy of the transcript of his interview. The Department refused the request on the grounds that all documentation relating to the Inquiry was the property of Mr Justice Smyth, and it had been lodged with the Department for safe-keeping purposes only. Therefore the transcripts of the interviews were not "under the control of" the Department. The first notice party subsequently referred the matter to the respondent, the Information Commissioner (the IC), for review.

The IC found that the Department "held" the records in question for the purposes of the Acts, as it had physical possession of them, and the records were also "under the control of" the Department as the Drogheda review was not a legal entity which could have control of the records.  The IC noted that Mr Justice Smyth was carrying out a service for the Department, that there was no evidence that there was ever any agreement between Mr Justice Smyth and the Department that the records would remain under Mr Justice Smyth's control, nor of any legal right of Mr Justice Smyth to assert control over the records.  The Department appealed against the IC's decision to the High Court.

Decision

The High Court allowed the appeal, on the grounds that the documents were not "held" by the Department within the meaning of the Acts.  O’Neill J. found that in order for a document to be "held" for the purposes of the Acts, mere lawful physical possession was not sufficient.  It was necessary for the document to be either lawfully created, or provided or obtained by the public body in question for the purpose of carrying out its functions, and the document must not be subject to any prior legal prohibition affecting its disclosure. 

A fundamental characteristic of the review was that it was to be conducted in an entirely independent and impartial way.  This required Mr Justice Smyth to have unfettered control over every aspect of the review, including the manner in which the material assembled would be disposed of at the conclusion of the review.

In addition, O’Neill J. held that the relationship between the Department and Mr Justice Smyth was not one of principal and agent.  He rejected the IC's finding that Mr Justice Smyth was providing a service to the Department and that therefore all of the material brought into existence in the course of the review was deemed to be "held" by the Department and amenable to FOI requests, pursuant to section 6(9) of the Acts.  O'Neill J. stated that such an interpretation "would be wholly inconsistent with the necessary independence of Mr Justice Smyth in discharging his function in the review".

Furthermore, when returning the boxes of documents to the Department, Mr Justice Smyth made it clear to the Department that the transcripts of the interviews were made exclusively for his own use and should remain confidential, and included them in a box which he indicated should not be accessed unless a court order for discovery was granted.

Comment

This case demonstrates that the physical location of a record on the premises of a public body does not automatically mean that it is "under the control of" that public body. 

There have been a number of decisions by the IC in relation to the issue of when records will be deemed to be "under the control of" a public body. These decisions show that in determining whether such control exists, it is necessary to have regard to a number of factors, including: the relationship between the parties; to any agreement between them concerning the records; and to any legal rights which a party seeking to assert control over the records might have.

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