IN JUDGMENTS giving the majority court’s findings, Mr Justice Nial Fennelly and Ms Justice Fidelma Macken found the age information given to the hospital by Bridie Welsh (also known as Bridget Walsh) was confidential.
They found the hospital was entitled – under section 26 of the Freedom of Information Act which allows non-disclosure of confidential information given to a public body if that would prejudice the body receiving similar information in the future – to refuse to disclose the age information.
They rejected the findings’ section 26 did not apply because the hospital had registered the birth of Thomas Walsh and ruled section 28.1 prevents disclosure of personal information, including about a deceased person.
They also found the age information related to Mr Walsh’s private interests and the Information Commissioner, while she had not technically decided that issue, erred in her view granting him access was in the public interest. The commissioner failed to take account of the right or duty of the hospital to respect the confidence of information confided by patients, specifically Bridie Welsh, they said.
It was not clear there was anything in the Act which supported or suggested there is, in law, an overriding public interest of the type invoked by the commissioner, Ms Justice Macken said. The reason for seeking access to this information was exclusively private, Mr Justice Fennelly said. The commissioner based her view the public interest was in people having the fullest possible information on their origins but the Acts contained “no such policy”.
This “apparently innocuous . . . even trivial” piece of information had been the subject of two decisions by the hospital, a review by the commissioner and an appeal to the High Court, he noted. It was difficult to avoid the feeling it would have been released without this “great litigation” in absence of the Acts.
DISSENTING JUDGMENT: MRS JUSTICE DENHAM FAVOURS DISCLOSURE
IN HER dissenting judgment, Mrs Justice Susan Denham said it was probable Bridie Welsh was dead and it was not disputed Mr Walsh was her son and next of kin.
While satisfied the age information was confidential, she believed, in the circumstances of this case, the public interest would be better served by disclosing it to Mr Walsh, by way of his daughter.
The fact that Mr Walsh was next of kin of his mother carried significant weight and this was an “entirely different situation” to a request for information from a person with no kinship connections, the judge stressed.
The hospital previously told the court many people seeking similar information were brought up in humble circumstances, reared in institutions or informally adopted and had little or no information about their parents.