In a reserved judgment, Mr Justice Quirke said he was satisfied the commissioner had misconstrued the provisions of Article 28 (6) of the 1997 Freedom of Information Act and ministerial regulations through "failing to recognise that the decisions of the parent of minors are presumed to be in the best interests of that minor in the absence of evidence to the contrary".

The father had appealed a decision of the commissioner of August 12th, 2002 in which the commissioner affirmed a Dublin hospital's refusal to allow the father access to certain written records relating to his now 16- year-old daughter arising from her admission to the hospital in January 2002.

Granting the appeal, Mr Justice Quirke said the commissioner had found access must invariably be denied unless and until "tangible" evidence had been furnished showing that access would result in a benefit to the minor.

Mr Justice Quirke said he did not believe this construction of the legislation was correct. He said such a construction imposed on applicants, such as the father in this case, the obligation to discharge an onus which was not apparent from the terms of the legislation.

The 1997 Act and ministerial regulations, when read together, provided that access to records "shall" be granted where the deciding officers decided it was in the best interests of the minor "having regard to all the circumstances".

When considering those circumstances, deciding officers must have regard to the proximity of the relationship between parent and child, the judge said.

Although a complaint had been made in the past about the father (of having sexually abused his daughter), that complaint remained unsubstantiated and the father came before the court enjoying the presumption of innocence which was enjoyed by every citizen of the State, the judge said. The evidence indicated the father was concerned with the welfare of both of his children and had availed of his rights of access to them in a conscientious fashion.

Reluctance by another family member to agree to access did not, in the absence of any supporting evidence, amount to rebuttal sufficient to disclose the presumption that the father had the welfare of his child at heart.

The father had married his late wife in 1986 but differences between them resulted in a separation in 1992. During Circuit Court family law proceedings in June 1993, an allegation was made that the father had sexually abused his daughter at the end of 1991.

The father vigorously denied the allegation and in January, 1994, gardaí concluded there was "no evidence to warrant a prosecution".

In 1993, the courts granted the father supervised access to the son and daughter. The man's wife died in November 1998 and, by agreement, the two children went to live with their late mother's brother and his wife.

Under a Circuit Court order in November 2000, it was agreed that the father, his brother-in-law and the latter's wife would be joint guardians.

In January 2000 the daughter was admitted to a Dublin hospital. The father, when he visited her, was told she had been admitted for an unspecified viral infection.

Unable to get further information, he applied under the 1997 Act for access to her medical records. The commissioner refused.

Under the 1997 legislation, the commissioner can refuse access to records if it involved disclosure of personal information, Mr Justice Quirke noted.

However, 1999 ministerial regulations made under Section 28 (6) of the 1997 Act provided that access "shall, subject to the Act's other provisions, be granted where the requester is a parent or guardian".