The High Court ruled that the Department of Health did not hold a transcript of an interview connected to the Drogheda Review for the purposes of the Freedom of Information Act 1997. It set aside the Information Commissioner’s decision and substituted its own finding that the record was not held by the Department.
The appeal arose from a request made on 16 May 2012 by the first named notice party for a transcript of their meeting with retired High Court judge Thomas C. Smyth. Smyth had been appointed by the Minister for Health in January 2010 to review whether a further investigation into practices at Our Lady of Lourdes Hospital in Drogheda between 1964 and 1995 would provide significant public benefit. His review concerned protections for patients against sexual abuse and how allegations against Michael Shine had been handled.
After completing the review, Smyth deposited boxes of records with the Department for safekeeping. He stipulated that specified materials, including interview transcripts, were not to be disclosed except by court order for discovery. The Department refused the FOI request, saying the records were not under its control. In June 2013, the Information Commissioner annulled that decision and directed the Department to deal with the request under the Act. The Minister appealed to the High Court on a point of law.
Justice O’Neill held that lawful physical possession alone does not make a record one “held” by a public body under the Act. The record must have been created, provided or obtained in connection with the body’s functions or business, and must not be subject to a prior legal prohibition on disclosure.
The court found that the Drogheda Review was a label for Smyth’s work, not a separate legal entity, and that his role required independence from the Minister and Department. It rejected the Commissioner’s view that Smyth’s work fell within the Act’s provision for records held by a service provider under contract. The court said applying that provision in these circumstances would conflict with the independent nature of the review.
The transcript was treated as Smyth’s interview note, created for his own use. The court relied on unchallenged evidence that participants had been told the transcripts would remain confidential and unavailable to others. It found that the Department had acquired no ownership or control rights when Smyth placed the record in its custody, and accepted it on terms that legally prohibited disclosure except by court order or Smyth’s agreement.
The ruling addressed whether the Department held this particular record under the 1997 Act. It did not decide whether the transcript should be disclosed under a court discovery order. The court allowed the Minister’s appeal, set aside the Commissioner’s 7 June 2013 decision and substituted its finding that the requested record was not held by the Department.