Amendments to Records under Freedom of Information Act

In this judgment, the High Court quashes a decision of the Information Commissioner for failure to take into account material information as to why the record contained one set of information, but not other available information in refusing to amend a record. This article written by Alison Kelleher, Partner, CKT and Jamie Aspell, Paralegal, CKT gives an overview of the judgment.

Ms T v Information Commissioner [2023] IEHC 108: New and Material Information arising in the Context of Section 22(7) of the Freedom of Information Act 2014.

Introduction

This recent decision of the High Court centred upon a largely unexamined aspect of the Freedom of Information Act – the statutory settlement process set out under Section 22(7). This Section enables the Information Commissioner to ‘effect a settlement between the parties…and may for that purpose…suspend…and, if appropriate, discontinue, the review concerned’.  More specifically, this case addressed a situation where new and material information arose in the context of the mediation process. The core question considered by Ms Justice Niamh Hyland, which had not been addressed by the courts up until this point, was whether the Commissioner must furnish both parties with such information and take it into account in their overall adjudication of the matter.

Background

This decision was preceded by the attempts of a Ms T to have the medical records of her late partner, Mr L, amended under Section 9 of the Freedom of Information Act. This Section sets out that ‘where personal information in a record held by an FOI body is incomplete, incorrect, or misleading, the head of the body shall, on application by the individual to whom the information relates, amend the record’. The relevant body,  a Hospital, refused Ms T’s request to have the record amended.

Following this, Ms T appealed the hospital’s decision to the Information Commissioner. This appeal focused upon one specific record – a letter from one hospital to another, asking that they take over the evaluation of whether Mr L was suitable for a liver transplant. The point of contention in this letter was a statement of Mr L’s past alcohol consumption being 40 units week. Ms T argued that this information was misleading and should be viewed alongside other lower accounts of Mr T’s alcohol consumption, while the hospital argued that this information was not misleading as it had been contemporaneously recorded from an account by Mr L himself.

It was at this point that the settlement process under Section 22(7) was invoked. While the hospital refused Ms T’s proposal for amendment, it was the content of this refusal which formed the core of this case.

In correspondence with the Commissioner during the settlement process, the hospital outlined that ‘the higher level of alcohol consumption recorded in the chart would be used in the referral process for transplantation as is accepted clinical practice referring a patient for transplantation assessment’ (emphasis added). When the Commissioner rejected Ms T’s appeal, it was his failure to furnish Ms T with the above information and to take it into consideration in his decision which became the focus of the following decision of the High Court.

Decision

In her judgment, Ms Justice Hyland outlined that there was neither any case law nor guidance in the Commissioner’s ‘Summary Procedures’ documentation dealing with how to treat material provided in the context of the settlement process. In quashing the Commissioners decision, Justice Hyland as such divided her decision into the following two steps.

Firstly, she established whether the information in the letter was ‘material and/or relevant’. She notes that the reference in the letter to the ‘higher level of alcohol consumption’ suggests that it was selected from other, lower accounts of Mr L’s alcohol consumption. This represented a conscious approach in the referral process which had not previously been outlined by the hospital, leading Justice Hyland to the conclusion that the information in the letter was both new and material.

Having established the materiality of the letter, Justice Hyland addressed the subsequent question of whether the Commissioner was ‘entitled to disregard material information where it arises in the context of the settlement process’. Justice Hyland noted that there was no case law supporting this proposition, and that the Commissioner had not advanced any arguments in this regard.

Meanwhile, Grange v Information Commissioner [2022] IECA 153 sets out that the Commissioner should furnish each party with summaries of the other party’s submissions in Section 22(7) proceedings. Finding no reason that this rule should not be applied here, Justice Hyland found that the Commissioner had erred in law by not furnishing Ms T with the above information and by disregarding it in his adjudication of the matter.

Conclusion

While this case has seemingly established the position that new and material information arising out of the Section 22(7) settlement process cannot be disregarded by the Commissioner, it should be noted that this decision was made in the absence of any contrary arguments.

Ms Justice Hyland indicated that her decision may have been different had arguments been advanced that either ‘an impossible administrative burden’ would be placed on the Commissioner or that the settlement procedure would be undermined. As such, future decisions may well lead to exceptions to this decision.