The Supreme Court allowed the Rotunda Hospital’s appeal and set aside the Information Commissioner’s decision directing it to release two 1922 records containing the age of Bridie Welsh, the mother of Thomas Walsh. The court did not itself make a new access order or finally determine whether the records must be withheld under the relevant confidentiality test.
Thomas Walsh’s daughter, Ms Dawn Walsh, requested the information on his behalf in 2004 as part of their family-history research. The Hospital located entries in its Labour Ward Book and Porter’s Lodge Book. It initially refused access, saying the requested address and date of birth were not recorded and that the patient’s age was personal information that could not be disclosed.
The Information Commissioner annulled the refusal in 2007 and directed the Hospital to provide copies of the two records. The High Court dismissed the Hospital’s appeal in 2009. The Hospital then appealed to the Supreme Court, while the Commissioner challenged parts of the High Court’s reasoning.
The Supreme Court held that the records came within the Freedom of Information Acts despite being created before the legislation commenced: they related to personal information about Thomas Walsh, including his birth. It also held that the age information was personal information about Bridie Welsh, but that the exemption in section 28 did not apply because information of the same kind was available to the public through the General Register.
The court rejected the lower courts’ treatment of public availability as enough to defeat the separate confidentiality exemption in section 26. It said that exemption had to be assessed under its own requirements, including whether disclosure would likely prejudice the future supply of similar information to the Hospital and whether receiving that information remained important. The Commissioner and High Court had applied the wrong approach, and those requirements had not been determined.
The court also ruled that the Commissioner had wrongly relied on a general public interest in people learning about their origins to justify release under section 26(3). The request was made for a private purpose, the court said, and the provision did not allow the Commissioner to apply a general policy in favour of access in such circumstances.
The Supreme Court therefore allowed the appeal and set aside the Commissioner’s decision. Its judgment did not decide the unresolved section 26(1)(a) requirements or direct the Hospital to release or withhold the records.