Gov’t lawyers misuse FOI law

(CNS): The ombudsman has ordered the Office of the Director of Public Prosecutions (ODPP) to disclose the identity of the person who wrote an important report relating to a complaint by an applicant when she was a minor. In her latest appeal decision, Sandy Hermiston found, for several reasons, that the government lawyers wrongly refused to release information. But she also had to spell out to the prosecutors the law does not permit them to withhold information because of how it might be used.

The ODPP had disclosed the report when the freedom of information request was made but had redacted the name and other data that could identify the author of the report, who had been declared an “expert”.

The report was a review of a medical examination of the applicant when she was a child and appears to relate to both a medical and criminal issue involving child abuse, though the details in the appeal are not clear.

Following an FOI request by the applicant in September last year, the government lawyers had refused to identify the author on the grounds that it would be “unreasonable disclosure of personal information” and because the applicant intended to use the information to cause trouble for the author.

But Hermiston pointed out that one of the basic principles of the Freedom of Information Law was that a government entity had no right to refuse an applicant a document or information on the basis of what they might do with it because that was essentially censorship.

Quoting the previous commissioner, Jan Liebaers, the ombudsman said: “Questions of access to a record held by Government cannot be concerned with how that record might be used in the future. This would be a shortcut to censorship, and would contradict the fundamental objectives o the FOI Law. Either a record is exempt under the Law or it is not, but, in either case, any presumed future use of a record can have no bearing on its disclosure.”

She also pointed out that the author, who was an independent medical consultant engaged by the ODPP to review the appropriateness of the medical care provided to the applicant, had to expect his name to be public. The expert was acting in an official capacity writing a report that would receive a certain amount of exposure and where his credentials would form an integral part of the report.

The prosecutors’ office also claimed that, over time, the applicant had become vexatious enough to justify an outright refusal.

However, the ombudsman also dismissed this claim by the ODPP as she found that, while the applicant may have been persistent, intransigent and expressing unfounded accusations, the request was not vexatious because there was no intent to cause deliberate annoyance.

The ombudsman pointed out that by withholding the name, the prosecutors were fuelling the applicant’s suspicions about her complaint being deliberately mishandled.

“In view of the applicant’s persistent suspicions and accusations of wrongdoing in spite of the numerous investigations and reviews, a certain level of annoyance on the part of the ODPP is understandable,” Hermiston said in the decision. But she added there was no justification that the applicant was trying to misuse the system.

“Disclosure may allay some of the applicant’s suspicions about the nature of the Report,” the Ombusman wrote. “The request was limited in scope to the identity of the author of an independent Report on the subject of the applicant’s own medical history, which the applicant was reasonably entitled to.”

Finding against the ODPP on all points, Hermiston ordered the Office of the Director of Public Prosecutions to disclose the report to the applicant without redactions. However, but it would not be released to the public, given that the documents relate to the applicant’s own personal medical history.