The Supreme Court dismissed an appeal by the Information Commissioner in a dispute over access to an interview transcript from the Drogheda Review. It upheld the High Court’s conclusion that the Department of Health did not hold the transcript for the purposes of the Freedom of Information Act 1997.
The case concerned a request by an anonymised notice party for a transcript of their meeting with the review’s appointed reviewer, former High Court judge Thomas C. Smyth. The Minister for Health had appointed Smyth to examine whether further investigation into practices at Our Lady of Lourdes Hospital, Drogheda, from 1964 to 1995, would provide information of significant public benefit concerning patient protection from sexual abuse.
The review was non-statutory. Smyth delivered boxes of documents to the Department after it concluded, with the transcript in a box sealed under conditions he set. He said the interview records had been provided to him in confidence and that the box could not be opened except by court order. The Department refused the FOI request, saying it held the records for safekeeping and could not access or release them.
The Information Commissioner annulled that decision in June 2013, finding that physical possession meant the Department held the records. The Minister appealed. The High Court set the Commissioner’s decision aside and substituted a decision that the requested record was not held by the Department.
On appeal, the Supreme Court said physical possession alone was not enough. A record is held under section 6(1) only where the public body lawfully possesses it in connection with its functions and is entitled to access the information it contains. Whether the body may disclose a record to a requester is a separate question, to be considered under the Act’s exemptions and other grounds for refusal.
The Court found that the Department’s information to the Commissioner, including the review terms and exchanges with Smyth, objectively justified its position that it had no right to access the transcript without a court order. It therefore upheld the High Court’s ultimate decision and dismissed the appeal. The Court did not decide whether the requester would have a right to obtain the transcript if the Department could access it.