A man has lost his appeal over being refused records arising from complaints by his wife he had sexually abused a child whom he always believed to be his biological daughter until he later discovered she was not.
Following an investigation by a hospital child sex abuse unit, the complaints of abuse were found to be “unconfirmed”.
The man claimed the public interest required he get records held by the Eastern Health Board (EHB), now the HSE, relating to himself and the child for reasons including the rights involved and the seriousness of the functions of the HSE and hospital in investigating the claims against him.
He also argued there was a public interest in ensuring full details of such allegations be provided to an accused person at an early stage as a means of deterring false allegations of child sexual abuse, particularly where parents were separated or divorced.
He complained to the Information Commissioner after he got some records relating to himself but was refused records relating to the child, referred to as S, or jointly to himself and S.
The Commissioner decided the public interest in allowing him access to the joint personal information sought by him was outweighed by the public interest in upholding the privacy of the mother and child.
After the High Court upheld the Commissioner's decision, the man appealed but the Court of Appeal, in a judgment on Wednesday, dismissed the appeal.
Giving the judgment, Mr Justice Michael Peart said the records sought emanated from complaints by the man’s wife he had sexually abused S, then aged about four, in 1997. The details of the allegations have never been disclosed to the man, other than the child had said he had “touched her back bottom and her front bottom”.
The man was notified by the EHB of the allegations but declined to attend a meeting as part of the Board’s investigation into them or to attend a hospital for interview in relation to its assessment of S after he failed to get certain assurances relating to fair procedures.
In late 1998, his wife made further allegations of sexual abuse against him in relation to S.
Investigation
The hospital began an investigation but he again refused to be interviewed on grounds he was not satisfied the appropriate procedures and facilities would be in place.
After failing to get certain information, he made a request for information under the Freedom of Information Acts to the board and hospital seeking all records relating to himself, to S and to himself and S jointly.
Some records relating to him were released but records relating to S individually, or himself and S jointly, were refused.
In October 1999, the EHB notified him of the outcome of the investigation which was the concerns or allegations were “unconfirmed”. It said the gardaí would also be so notified.
The core issue in the COA appeal was whether the High Court erred in finding the Commissioner correctly interpreted and applied Section 28 of the FOI Act concerning the public interest in disclosing records.
Mr Justice Peart upheld the Commissioner’s decision the public interest factors identified by the man as being relevant to the balancing exercise required under Section 28 were to be seen as the private interest of the man, notwithstanding the acknowledged public interest generally in openness and transparency.
The Commissioner had clarified the distinction between a “real public” interest served by providing access to certain documents and the “purely private” interest of the man in getting access so he could, for example, get further details of the allegation and consider any remedies he might pursue, the judge said.
He rejected all other grounds of appeal, including claims the Commissioner applied an “inflexible” policy or erred in not saying he did not see the value of the man’s offer of a declaration of his willingness to uphold the privacy rights of the other parties concerned because there was no means of enforcing that.
