The Supreme Court has today ruled the Information Commissioner was wrong to refuse a separated father who is a joint guardian of his two children access to his daughter's hospital medical records.
The five-judge court yesterday found the Commissioner, Ms Emily O'Reilly, applied the wrong legal test in determining that the release of the records would only be directed where there was "tangible evidence" that it would serve the interests of the girl.
The Commissioner should have approached the request by acknowledging that a parent entitlement to access the information is presumed and that its release was in the child's best interests, the court held.
However, the Commissioner may then proceed to consider any evidence that release of the information would not be in the minor's best interests.
Although the original request was made in 2000 when the girl was 11, there was, due to no fault of the father, a "most unfortunate" lapse of time prior to yesterday's decision, and the girl was now almost 18, Ms Justice Susan Denham said.
In those circumstances, the court would send the matter back to the Commissioner for review in accordance with the correct legal test and all the circumstances, including the girl's own attitude to her medical information being released to her father.
It was "unfortunate", she added, that the father's rights as a parent and guardian were viewed so erroneously by the Commissioner.
The father had successfully appealed to the High Court against a decision of August 12th, 2002, in which the Commissioner affirmed a Dublin hospital's refusal to allow the father access to written records relating to his daughter arising from her admission to the hospital with a viral infection in March 2000.
The mother of the girl is dead, and she and her brother were under the legal guardianship of maternal relatives in 1993. The guardians had objected to the girl's father having access to her hospital records.
The High Court today ruled the Commissioner had misconstrued the provisions of Article 28 (6) of the 1997 Freedom of Information Act in "failing to recognise that the decisions of the parent of minors are presumed to be in the best interests of that minor in the absence of evidence to the contrary".
Although a complaint had been made in the past about the father having sexually abused his daughter, it was unsubstantiated, and he had came before the court enjoying the presumption of innocence, the High Court also noted.
The evidence indicated the father was concerned with the welfare of his children, it added.