Where now for “origins information?”

She suspected that for those involved in the State-funded origins tracing service, the fall-out from a recent Supreme Court judgments must be quite discouraging, Emily O’Reilly, Ombudsman and Information Commissioner said in a presentation to the Medico Legal Society of Ireland earlier this year.

The FOI Act is one of the instruments available to survivors of abuse or of abandonment. It has been used to access personal records by thousands of people who, as children, were incarcerated in reformatories or industrial schools or who had spent time in orphanages or other institutions. Overall, though there were considerable delays, the Departments of Education and Health (the main public bodies holding relevant records) dealt with these requests adequately.

Emily O'Reilly
Emily O'Reilly

However, there continues to be an unresolved difficulty in accessing personal information for some people who grew up separated from their parents and families. This difficulty is in the area of what is sometimes referred to as “origins information”. There are Irish people out there at the moment who know very little about their family origins; they are often ignorant on very fundamental things like who their parents were, where they came from, how old their mother was when they were born, why they were separated from their parents or parent and so on.

Over the past decade the State has been funding an origins tracing service, operated by Barnardos, to help former industrial school residents trace their origins and find family members. So far, Barnardos has received 1,229 applications for help from this origins tracing service.

The Kennedy Report of 1970 (Reformatory and Industrial Schools Systems Report) recognised this problem of children not having information on who they were. That Report pointed out that those running the industrial schools and reformatories had the difficulty of frequently having to admit a child while knowing nothing about the child’s background. As Kennedy put it: “On occasions it cannot even be ascertained where or when a child was born, whether he was baptised, or who his parents were”. Today, more than 40 years after the Kennedy Report, there are still people caught in the trap of not knowing the basics about their own family and origins. Most of the people in this terrible situation are now quite old themselves and many of them were reared in institutions such as orphanages and industrial schools; some were put into foster care at a very early age. It is fair to say that these are people whom we, as a society, have treated very badly.

And to some extent, we continue to treat them very badly. A FOI appeal decision I gave on one of these cases ended up in the Supreme Court which gave its definitive judgment in July last.

This story began with an FOI request made to the Rotunda Hospital in September 2004. The request was made by the daughter of a Mr. Walsh, then 82 years old and living in the UK. Mr. Walsh, who was born in 1922 in the Rotunda Hospital in Dublin, had been boarded out as an infant and never knew his mother. He was anxious to find out as much as he could about his mother and her family. Through their own detective work Mr. Walsh and his daughter had discovered the likely identity of his mother as well as a probable address for her at the time of his birth. In fairness, the Rotunda had given Mr. Walsh some information regarding his mother from its records.

In the great scheme of things, it is remarkable that letting a man in his eighties know the age of his mother when he was born should require to be decided ultimately by the Supreme Court

By the time the case came to my Office, the only outstanding issue was the Rotunda’s refusal to give Mr. Walsh a copy of a record disclosing the age of his mother when she gave birth to him.

In the great scheme of things, it is remarkable that letting a man in his eighties know the age of his mother when he was born should require to be decided ultimately by the Supreme Court. And, inevitably, getting this final adjudication involved the spending of several hundred thousand euro in legal costs – costs borne by the Exchequer ultimately. By the time of the Supreme Court’s judgment, almost seven years after the initial FOI request, Mr. Walsh had unfortunately died.

However, this seemingly simple scenario raised complex legal issues. While not wanting to simplify matters too much, the Rotunda’s position was that it should not disclose the age of Mr. Walsh’s mother (a) because it meant disclosing her personal information and (b) because the mother had given the details of her age to the hospital in confidence. While it was eventually accepted by all sides that Mr. Walsh’s mother was in all likelihood dead, the Rotunda’s main concern seemed to be to protect the principle that medical information given by a patient to a hospital is protected by confidentiality.

Without getting too technical, my decision was (a) that the FOI Act’s protection for a third party’s personal information did not apply in this case; (b) that the FOI Act’s protection for confidential information did not apply in this case and (c) that, even if the confidentiality protection did apply, it would be overruled in the public interest.

When the Rotunda appealed this decision to the High Court, that court dismissed the appeal. The case was then appealed to the Supreme Court by the Rotunda.

The Supreme Court, on the basis of a four to one majority, found in favour of the Rotunda and set aside my decision. It accepted that the FOI Act’s protection for a third party’s personal information did not apply in this case; but it found that the information at issue – the age of Mr. Walsh’s mother when she gave birth to him in 1922 – was protected by the confidentiality provisions of the FOI Act.

The Supreme Court, on the basis of a four to one majority, found in favour of the Rotunda and set aside my decision

What the judgment means is that the principle of protecting the confidentiality of information given by a hospital patient takes precedence over the right of a person to information about the age of his or her own mother. And this principle, it would seem, applies even though the patient in question is dead and the information at issue is not terribly sensitive.

I’m sure many of you will know that several of the exemptions in the FOI Act, which serve to prohibit the release of records, may be overruled following the application of a public interest test. In my decision I took the view that the public interest is served by enabling people generally to have the fullest information possible on their origins. I think there is general acceptance that not having such “origins” information is, at the very least, very upsetting for people and, in some cases, may leave them more exposed than would otherwise be the case to psychological stress and relationship strain. My thinking was that it is to the good of society, and in the public interest, that people generally be helped to avoid or overcome such stresses and strains and thus be free to participate as fully as possible in society. In other words, there is a dividend for society generally in minimising the risks of people either becoming a burden on
society or of being unable to participate fully in society. Thus, as I saw it, while it was in Mr. Walsh’s personal or private interest to find out about his mother and his family, it was also in the public interest that people generally be as informed as possible about their origins and family history.

In her minority judgment, Mrs. Justice Denham appeared to agree in general terms with my view; while acknowledging that there is a strong public interest in protecting the confidentiality of medical records, in balancing all the circumstances of this case she found that “the public interest favours the requester.”

The majority Supreme Court judgments, on the other hand, took the view that the public interest does not come into play at all in the context of Mr. Walsh’s efforts to establish “origins information”. They took the view that the interest a person has in knowledge about his or her origins is a private interest rather than a public interest. Furthermore, they expressed the view that it is not open to me, as Information Commissioner, to decide that accessing “origins information” is a public interest matter.

All of this is far from being simply academic. In addition to the case of the late Mr. Walsh, I had given decisions in three other cases involving elderly people who were looking to the Rotunda Hospital to fill in important gaps in their family stories. Following the Supreme Court judgment, I had to agree to have my decisions in those three cases set aside. For the future, all other FOI requests for such “origins information”, where they involve records held by a hospital or doctor, are likely to be refused. And this, in fact, is likely to prove a significant impediment to the government’s commitment to implement a specific recommendation made by the Commission to Inquire into Child Abuse in its major report (the Ryan Report) from 2009.

The previous Government committed itself to implementing all of the recommendations in the Ryan Report; and I assume that the present Government is standing by that commitment. Recommendation 7.05 of the Ryan Report (Vol. IV, Ch. 7) has to do with the continuation in place of family tracing services “to assist individuals who were deprived of their family identities in the process of being placed in care” and recommends that the “right of access to personal documents and information must be recognised and afforded to ex-residents of institutions.” In seeking to implement this recommendation, the previous Government cited reliance on access to “origins” information under the FOI Act as an action being taken in support of the recommendation. As the Report of the Commission to Inquire into Child Abuse, 2009 – Implementation Plan puts it: “Personal records will continue to be provided to individuals on request, under the terms of the Freedom of Information Act (ongoing)”.

In the light of the Rotunda judgments, it does seem probable that the FOI Act will no longer feature as an action in support of implementing Recommendation 7.05 of the Ryan Report. I expect that for those involved in the State-funded origins tracing service, the fall-out from the Rotunda judgments must be quite discouraging.