The Supreme Court allowed the Rotunda Hospital’s appeal and set aside the Information Commissioner’s direction to disclose a woman’s age from records of a 1922 birth. The Court held that the hospital was entitled to refuse the request under the Freedom of Information Act 1997, because the information had been given in confidence and the statutory conditions for the exemption were met.
The request was made under the Act in 2004 by a woman on behalf of her late father, who had been born at the hospital in 1922. The records gave his mother’s age when she gave birth. The judgment refers to her as Bridie Walsh, while noting that hospital records and the request used variants including Bridget Walsh and Bridie Welsh. Her age is not stated in the judgment.
The hospital refused to disclose the age, saying patients supplied personal information on the understanding it would be kept confidential. The Commissioner annulled that decision in 2007 and directed disclosure from the Labour Ward Book and Porters Lodge Book. She considered that information of the same kind was publicly available through the Register of Births and that the confidence exemption did not apply. The High Court dismissed the hospital’s appeal in 2009.
On appeal, the Supreme Court found that the Commissioner and High Court had applied the wrong test to the exemption in section 26(1)(a). The provision did not require the information itself to be private or secret. The Court said it depended on the circumstances in which it was given and received, alongside the statutory requirements concerning likely prejudice to the future supply of similar information and the importance of continued supply. Those requirements were not challenged in the case. The Court concluded that the hospital was entitled to refuse disclosure.
The Court did not make a definitive ruling on whether the public interest could override the exemption under section 26(3). It said that issue had not been formally decided below and had not been argued in detail on appeal; its comments on the subsection were therefore obiter. It also rejected the Commissioner’s grounds to vary the High Court decision.
The hospital had separately argued that the Act did not apply to records created before it came into force. Although the Supreme Court said the High Court should not have entertained that point because it had not been raised before the Commissioner, it addressed the issue in the circumstances of this case. It held that the particular age records fell within section 6(5)(b), which provides access to pre-commencement records relating to personal information about the person seeking access. That conclusion was confined to these records and was not a general ruling on all pre-1997 records.