O’Reilly ‘wrong to refuse access to records’

IN a decision addressing important issues under the Freedom of Information legislation, the Supreme Court has ruled the Information Commissioner was wrong to refuse a separated father, who is by court order a joint guardian of his two children, access to his daughter’s hospital medical records.

The five-judge court yesterday found the commissioner, Emily O’Reilly, applied the wrong legal test in determining the release of the records would only be directed where there was “tangible evidence” that such release would actually best serve the interests of the girl.

The commissioner should have approached the request by acknowledging that a parent is presumed to be entitled to access the medical information and that release of the information was in the child’s best interests, the court held.

However, the commissioner may then proceed to consider any evidence that it would not be in the minor’s best interests that the parent should be furnished with such information.

Although the request was made in 2000, when the girl was aged 11, there was, due to no fault of the father, a “most unfortunate” lapse of time prior to yesterday’s decision and the girl is now almost aged 18, Ms Justice Susan Denham said.

In those circumstances, the court would send the matter back to the commissioner for review.

It was “unfortunate”, she added, that the father’s rights as a parent and guardian were viewed so erroneously by the commissioner, she added.

The father had appealed to the High Court against a decision of August 12, records relating to his daughter arising from her admission to hospital with a viral infection in March 2000.

The mother of the girl is dead and in 1993 the girl and her brother went to live with relatives of her mother who also have guardianship of the girl and objected to the father having access to her hospital records.

The High Court ruled the commissioner had misconstrued the provisions of Article 28 (6) of the 1997 Freedom of Information Act.

Although a complaint had been made in the past about the father (of having sexually abused his daughter), that complaint remained unsubstantiated and the father still enjoyed presumption of innocence.

Ms Justice Denham said the case raised fundamental issues.

Ms Justice Denham said the commissioner was in error in requiring “tangible evidence” the release of the information would best serve the interests of the child. The correct approach was to presume the release of such information would best serve her interests.