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1. Allegations of sexual abuse were made against the Appellant. As a result of these allegations which were strenuously denied by him the Appellant instituted proceedings in which he claimed damages for negligence against Ireland, The Minister for Health and Children (hereinafter referred to as “the Minister”) and the Eastern Health Board (hereinafter referred to as “the Board”).

2. In the course of these proceedings the Appellant obtained an order for discovery against the Defendants from the Master of the High Court. In order to have obtained this discovery the Appellant gave to the Court an undertaking in the following terms

3. On the 12th of November, 1998 under the provisions of the Freedom of Information Act 1997, the Appellant applied to the Board for all records held by the Board relating to himself, his former partner and his daughter. The Board refused his request on the basis that all relevant information had already been made available to him by means of discovery.

4. The Appellant sought an internal review of this decision on the 11th of December, 1998. The initial decision was upheld on the basis that the reviewer was satisfied that all the relevant documentation had been furnished to the Appellant and that in those circumstances there was no obligation to produce documentation which had been furnished to the Appellant’s legal representatives and was already in his possession.

5. On the 7th of January, 1999 the Appellant requested from the Commissioner a review of the decision of the Board and the Commissioner accepted a case for such review.

6. On the 22nd of January, 1999 the Appellant applied to the Minister again under the Freedom of Information Act for all records in the possession or power of the Minister relating to the Appellant, the Department of Health, the Eastern Health Board, the Registered Medical Practitioner Dr. W. and the Sexual Assault Treatment Unit of the Rotunda Hospital and the Office of the Ombudsman and specifically the following records

7. The Minister refused access to the records detailed at 1 above on the basis that they were created pre the 21st of April, 1998 and did not contain personal information about the Appellant. Access was refused to one record at 2 above on the basis that it contained personal information about parties other than the Appellant. There were 12 records at category 3 above and 10 of these were released to the Appellant. Two records withheld were withheld on the basis that they related to personal information about parties other than the Appellant. The records described at 4 and 5 above are encompassed by the decision on category 3. above. Access to the records described at 6 and 7 above were refused as these records were pre commencement and did not relate to personal information about the Appellant. The Minister claims that Section 22(1)(a) of the Act applied to the records at 8 above as they attracted legal professional privilege. This decision was upheld on internal review.

8. The Applicant applied to the Commissioner for a review of this decision on the 14th of April, 1999 and the Commissioner accepted the application for review.

9. The Commissioner divided the records in issue in this review into four categories as follows:-

10. This category comprised of 119 records numbered and described in the first part of the first schedule to the Affidavit of Discovery sworn by P. H. in the High Court proceedings between the Appellant and Ireland, the Attorney General and the Minister for Health and the Board. These records were made available to the Appellant on foot of the High Court Order.

11. These were 17 documents listed in the second part of the first schedule to the Affidavit of Discovery of P. H.. These records were not made available to the Appellant on Discovery as privilege was claimed in respect of them by the Board.

12. These are 28 documents consisting of copies of Summonses, Motions, High Court Orders and Affidavits in connection with the above mentioned legal proceedings and also certain Judicial Review proceedings involving the Board as Applicant and the Fitness to Practice Committee of the Medical Council as Respondent. The Appellant required the Commissioner to rule on only two of these, namely an Affidavit of Dr. W. (a Notice Party to the Judicial Review proceedings), and an Affidavit of Mr. H. C., who acted as Solicitor to the Board in relation to these proceedings.

13. There were 43 documents in this category which consisted in the main of correspondence between the Appellant or public representatives acting on his behalf, internal memoranda between Board officials and/or their legal advisors and correspondence from the Department of Health in reply to same. There was also a small number of documents in this category which are copies of those listed in category A. The Appellant indicated to the Commissioner that he required a ruling only in respect of 19 of these documents which are listed in the schedule attached to the decision of the Commissioner appealed against herein.

14. In the portion of decision heading “Findings” the Commissioner in summary made the following findings:-

15. A. This relates to the interpretation of Section 8(4) of the Act which provides that in deciding whether to grant or refuse to grant a request under Section 7 a head shall disregard reasons for the request and any belief or opinion of the head as to what these reasons are. Unless it be thought that this provision is in conflict with the Respondents interpretation of Section 22(1)(b) he explains that in his view Section 8(4) does not permit the head to avoid the question “would disclosure of this particular record constitute contempt of Court.” Section 22(1)(b) requires the head to consider the record and to ask whether if it was ever disclosed would such disclosure amount to contempt of Court. If, therefore a record indicates on its face that its disclosure would lead to a contempt of Court or if the head is aware that disclosure by the public body concerned would lead to the same or if a head is on notice that the disclosure by the requester would be a contempt he must refuse to grant the access. In the present case the Board is actually aware that disclosure of the contents of the records concerned would amount to contempt of Court as the High Court has on two occasions let it be known that these documents are to be kept confidential.

16. B. The Commissioners comment here relates to the applicability of Section 22(1) (b) to situations in which a public body makes discovery of documents to another party but without any special undertaking of confidentiality being given by that party over and above the normal implied undertaking. The Commissioner says that although he does not wish at this stage to express a definitive view as to the position which would obtain where the usual implied undertaking is given by any person obtaining discovery. He goes on to say that it seems to him that the disclosure by a public body under the Act of records which have previously been discovered by it in legal proceedings and which have been the subject only of the usual undertaking by the other party to those proceedings is not a contempt of Court as the Court has not expressed a desire to preserve the confidentiality of the records generally.

17. Having regard to Section 22(1)(a) all the documents in this category can be withheld on the grounds of legal professional privilege in the Court proceedings. The Commissioners ruling in this regard is not appealed.

18. For the purpose of his finding the Respondent divided the documents sought in this case into two categories as follows

19. These were 695 documents described in the Affidavit of Discovery sworn by E. C. on behalf of the Minister in the aforementioned proceedings between the Appellant and Ireland the Attorney General and the Minister for Health.

20. Documents in category B are held in two files namely C10.03.07 and C20.02.06. They are described in the Affidavit of E. C. as containing confidential reports of Dr. W. in relation to the alleged sexual abuse of children who were not connected with the proceedings giving rise to the Affidavit and some other documentation arising out of a Garda investigation and habeas corpus proceedings respective by. These records were not furnished to the Appellant on discovery as the Minister claimed privilege.

21. The Commissioner found that all these records were created before the relevant commencement date and did not contain personal information about the Appellant nor were they necessary or expedient in order to understand records created after the commencement of the Act and thus access was refused.

22. Before going on to consider the submissions made by the parties it is appropriate to set out the provisions of the Act relevant to these appeals. They are as follows:-

23. Mr. Hogan SC for the Appellant made the following submissions in both cases.

24. And he further submits that almost none of the documentation at issue in these proceedings contains material in category A above.

25. For the Commissioner Mr. O’Donnell submitted as follows

26. For the Minister Ms. Power submitted the following, and adopted the submissions of the commissioner.

27. For the Board Mr. Griffin submitted as follows and adopted the submissions of the Commissioner

28. Mr. Murphy submitted as follows

29. In the proceedings some attention was given to the reasons of the Appellant for seeking disclosure under the Act. In my view his reasons, be they to pursue his case in the Fitness to Practice Committee Inquiry, to generally vindicate his good name; or if it was merely idle curiosity are entirely immaterial and must be disregarded by the head of body, the Commissioner and by me on this appeal. Section 8(4) makes that absolutely clear.

30. The first issue of substantial contest in the case has to do with the meaning and effect of Section 22(1)(b). The first thing to be observed about this Section is that it is mandatory in its effect. It allows for no discretion once either the head or the Commissioner is satisfied that the disclosure of a record would constitute a contempt of Court. The second thing to be observed is that the concept of disclosure is there in the widest sense and I would interpret that as meaning “any disclosure” be it disclosure by the public body itself or disclosure by the person seeking the record or either of them.

31. I accept that neither a head of public body or the Commissioner has any jurisdiction under the Act to impose any conditions on the type or extent of disclosure or the use of the documents after disclosure and hence in permitting disclosure a head of public body and the Commissioner must assume that the disclosure of a record will be to the world at large. Indeed this is at the heart of the scheme of the Act, which as was submitted by Mr. Hogan creates in the circumstances in which the Act operates, an untrammelled right to information, based on a philosophy of disclosure wholly different to that which is at the root of the discovery process in Court proceedings.

32. Thus, it is against this background that a head of public body or the Commissioner must form a view as to whether or not the disclosure of a particular record or records would constitute contempt of Court.

33. It is common case that the documents in category A in both cases i.e. the Board and the Ministers were discovered to the Appellant in Court proceedings in which he sued the Board and the Minister for negligence and that for the purposes of obtaining such discovery the Appellant gave to the Court an express undertaking “to preserve the total confidentiality of all documents hereinafter discovered and to obtain a similar undertaking from each and every person to whom the documents or any of them are submitted in the course and preparation for the hearing of this action.”

34. Apart from this undertaking another potential restriction on the use of documents emanating from the Board arises from the Judgment and order of Barr J. in the case of the Eastern Health Board -v- The Fitness to Practice Committee of the Medical Council (1990) 3 IR 339.

35. In that case Barr J. ordered the Board to make available to the Fitness to Practices Committee medical records in the Board’s possession or power relating to the children in question but imposed several conditions in relation to same including the following

36. The issue which arises on this appeal in relation to the undertaking given by the Appellant to obtain discovery is whether or not the Commissioner was right in concluding as a matter of law that the disclosure of the documents sought would be a breach of the undertaking given and hence a contempt of Court,

37. Similarly an issue arises as to whether or not the disclosure of the information sought by the Appellant under the Act would be a breach of the order of Barr J. and thus also a contempt of Court.

38. As is clear from the decision of the Commissioner, he based his decision in regard to the undertaking on the basis that it was an express undertaking given to the Court for the purposes of protecting the third parties. He formed the view that the disclosure of the documents would breach that express undertaking and because of that he arrived at the conclusion that a contempt of Court would arise. For the guidance of public bodies he additionally expressed the view, that on the basis that the usual implied undertaking given in relation to discovered documents was for the benefit only of the party giving the discovery, that in his view a contempt of Court in this situation would not arise.

39. In my view the purpose of Section 22(1)(b) is to prevent the Act operating in such a way as to permit interference in the administration of justice a function which is reserved by the constitution solely to the Courts established by or under the constitution. If it were the case that one could under the provisions of the Act obtain documents disclosure of which was prohibited by the ruling of a Court or by a undertaking given to a Court, I have no doubt that this would amount to a gross and constitutionally impermissible interference in the administration of justice. Although it was not opened in the course of the proceedings in this regard, it is worth looking at Article 34(1) of the constitution which reads as follows

40. I have come to the conclusion that notwithstanding the entirely laudable and separate philosophy of disclosure which underpins the Act, that the Act construed in a manner consistent with the constitution could not be used, so that access to documents under the Act would have the result of robbing an order of a Court or an undertaking given to a Court of the force and effect which the Court in question intended these to have.

41. Mr. Hogan has submitted that the express undertaking given is no more extensive than the usual implied undertaking. No doubt he makes this submission in the light of the distinction drawn by the Commissioner between an express undertaking and the usual implied undertaking and the view expressed by the Commissioner in relation to the effect of an implied undertaking in the context of Section 22(1)(b).

42. In my opinion in the context of this case the distinction is not a material one for this reason. The Commissioner was, in my view wrong, in his conclusion that the usual undertaking given in relation to discovery would not give rise to a contempt of Court. Breach of the implied undertaking given in respect of discovered documents is a contempt of Court. Notwithstanding that the undertaking benefits solely the party making discovery, the undertaking is given to the Court and like all undertakings given to a Court, breach of it is a contempt of the Court. Indeed this is abundantly clear from the case of Home Office -v- Harmon (H.L) E (1983) AC 280, a case which was cited to the Court by Mr. Hogan and relied upon by Mr. Murphy.

43. True, in the case of the usual implied undertaking the party for whose benefit it is given i.e. the party making disclosure can waive the undertaking but in the absence of such waiver as in the present case the undertaking continues as an undertaking to the Court with all of the attending consequences of a breach of an undertaking to the Court.

44. In the light of this conclusion it is unnecessary for me to decide whether or not the undertaking given in this case expressly, was either co-extensive with the usual implied undertaking or more extensive than it.

45. I have come to the conclusion that where a head of a public body or the Commissioner is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b).

46. Undertakings given to a Court can only be discharged either in the case of the usual undertaking in relation to discovery by waiver of the party making discovery or otherwise by the express permission of the Court itself. Having regard to the very important public policy served by these undertakings the Courts are slow to vary or discharge these undertakings. Disclosure under the Act cannot be used as a method of circumventing or robbing these undertakings to a Court of force and effect.

47. Mr. Hogan in his submissions pointed to what he perceived as impracticalities or disadvantages arising from the conclusion I have just reached. He expressed the view, that by the mere fact that documents were listed in an Affidavit of Discovery; as if by some forensic magic they would be excluded from disclosure under the Act. I do not share his apprehension in this regard. I think it will undoubtedly be the case that as the public grow accustomed to the opportunities of disclosure contained in the Act, as time goes by and where litigation may be contemplated or indeed where it has even occurred they may opt to seek disclosure of documents via the Act rather than via the traditional method of discovery. Thus it is to be anticipated that a difference of practice may emerge where a Defendant or Plaintiff is a public body. That is not of course to say the existing policy of requiring an implied undertaking in relation to discovered documents should change. The vast majority of Defendants or indeed Plaintiffs will not be public bodies and will be entitled to privacy in respect of their confidential documents save to the extent that they are required to be discovered under order of the Court. Therefore it is easy to foresee that there will be a rational and harmonious co-existence between the two regimes of disclosure.

48. Thus for these reasons, I would uphold the finding of the Commissioner, that the documents in Category A in both cases should not be disclosed, because of the application of Section 22(1)B.

49. The Commissioner partly based his decision in respect of categories A in both cases on the perceived contempt of Court arising from a breach of the order of Barr J. in the Eastern Health Board -v- Fitness to Practice of the Medical Council case. In that case the documents which were in dispute appeared to have been medical records which had been referred to or used in the course of in camera District Court proceedings. Barr J. directed the Board to produce these to the Fitness to Practice Committee but on certain terms and conditions and he held that in camera rule was relaxed but only to the extent of permitting such disclosure. The Appellant is a notice party to those proceedings but apart from that as a party to the inquiry or indeed generally he would have being bound by the condition as to confidentiality contained in the Judgment of Barr J. which is wide ranging and covers all persons who would learn of the contents of the documents in question whether in the course of the inquiry or in any subsequent proceedings or in any other way.

50. It is not clear to me how many of the documents that are in issue in this case are affected by Barr J.’s Judgment and order. In the Affidavit of Discovery of E. C. on behalf of the Minister some 695 documents are listed. The Minister was not a party to the proceedings in which Barr J. It has not being pointed out to me and I have no way of knowing whether or not any of these documents were caught by the in camera rule in that case. Whilst the Board were parties to the proceedings in which Barr J. gave his Judgment and order, again it is not clear how many of the 119 documents listed in the Affidavit of Discovery of P. H. were referred to in the in camera District Court proceeding and thus caught by the in camera rule.

51. However in the light of my conclusions on the question of the undertakings given in relation to discovery it would appear to me to be unnecessary for me to make any finding or to reach any conclusion as to whether or not the disclosure of these documents in both categories A’s would be in contempt of Court on the grounds that the disclosure of them would be a breach of the Judgment an order of Barr J. in the above case.

52. This brings me finally to the documents listed in categories B C and D of the Boards case and in category B of the Minister’s case in respect of which access was refused by the Commissioner on the basis of Section 6(4) and (5) of the Act. These Sections throw up a practical problem in the context of an appeal to this Court under Section 42(1) of the Act. Under this latter Section appeal can only be taken on a point of law. However the grounds upon which a head of public body or the Commissioner can refuse access under these subsections are essentially questions of fact i.e. was the record created before the commencement of the Act, if so does it refer to the requester or is its disclosure necessary or expedient for interpretating a record created after the commencement of the Act. The problem that arises is that if the requester does not know of the content of the documents or indeed may not even know the identity of the particular document where there is a refusal under these subsections how can such a refusal be made amenable to an appeal under Section 42(1). I appreciate that in this case it is contended by the Commissioner that the Appellant may have had sight of some of these documents and perhaps could have obtained certain Affidavits through the central office, but that notwithstanding, the problem in general remains, namely, without knowing the identity of the document or its content, neither the Appellant nor indeed this Court can know whether or not the refusal based on these subsections is an error of law amenable to appeal. In this regard, I am not satisfied on the evidence, that the Appellant, could have obtained these documents as suggested.

53. I would accept Mr. Hogan’s submission that to constitute an error of law in this regard there would have to be either no evidence at all to support the conclusion of the head of public body or the Commissioner, or alternatively that the decision must be one which on the basis of the facts, flies in the face of reason and common sense, namely the test set out in the case of The State (Keegan) -v- The Stardust Tribunal . If either of those two situations were to exist if would warrant the conclusion that the head of a public body or the Commissioner had misdirected himself into an error of law.

54. It was submitted by Mr. O’Donnell that if the Appellant apprehended irrationality grounds that he could have instituted Judicial Review proceedings. In my view that would not solve the problem. Had the Appellant instituted Judicial Review proceedings no doubt in the ordinary way he would have sought discovery of documents and at that point an argument would have arisen as to whether or not the proceedings could be used in that way in order to get information which might be prohibited under the Act and it is to be anticipated that it would be contended that the proceedings in that regard were an abuse of process.

55. In my view the only solution to this problem is for this Court to examine those documents in respect of which there is a refusal on the basis of subsections 4 and 5, in order to be satisfied, that there do not exist grounds of appeal on a point of law. The Court will only examine those documents where there is a refusal exclusively on the grounds of these two subsections and will not examine those documents which are also excluded on the grounds of Section 22(1)(b).