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Whether the Department was justified in its decision to refuse to grant a request for access to records on the basis that section 28 of the FOI Act applies.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

In a letter dated 12 January 2012 the applicant's solicitors made a request to the Department under the FOI Act in which they sought information relating to "third party claims" submitted to and paid out by the Department "relevant to [their] client's lands". Details of the request were set out in numbered parts (numbered 1 to 5) in the letter of 12 January 2012. A decision was not made by the Department within the time frame required under the FOI Act. The applicant's solicitors requested an internal review by letter dated 8 March 2012. While the Department provided some limited information in response to the request in its decision dated 18 April 2012, it refused access to certain other information under section 28(1) of the FOI Act. In a letter dated 23 April 2012 the applicant's solicitors applied to my Office for a review of the Department's decision.

On 2 October 2012 Ms Roisin Connolly, Investigator, wrote to the applicant's solicitors and notified them of her preliminary views in relation to the matter. (I will refer to this letter - "preliminary views letter" - in the remainder of this decision as necessary, but I do not intend to repeat the detail in the letter.) The applicant's solicitors were given a period of three weeks within which to respond. A response has not been received by my Office. I have, therefore, decided to conclude this matter by way of binding decision.

In conducting this review, I have had regard to the correspondence between the applicant's solicitors and my Office, to correspondence between the applicant's solicitors and the Department and to correspondence between the Department and my Office. I have also had regard to the provisions of the FOI Act and to the contents of the records at issue.

Scope of the Review

In her preliminary views letter, Ms Connolly said that part of item 2 of the request sought access to certain records (copies of claims submitted). She noted, however, that other parts of the request were in the form of seeking information as opposed to requests for access to records. She advised the applicant's solicitors that the FOI Act confers a general right of access to records, rather than a general right of access to information. As Ms Connolly explained, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought. Ms Connolly informed the applicant's solicitors that this review is concerned solely with the question of whether the Department was justified in deciding to refuse the request for access to records containing the information sought at items 1 to 5 of their letter of 12 January 2012 (including access to the records of claims submitted, as described in part of item 2 of the request).

The Department provided copies of 15 records to this Office. Three of these records (including a letter to the applicant's solicitors dated 18 April 2012) were dated after the date of the request. Ms Connolly informed the applicant's solicitors that these three records did not fall within the scope of this review. Having examined the records, I agree with this view regarding these three records which post-date the request. However, I also note that part of another record also post-dates the date of receipt of the request and, in my view, also falls outside the scope of this review. The scope of this review is confined to the question of whether the Department was justified in deciding to refuse to grant the request for access to the other 11 records and to that part of the twelfth record which existed as of the date of receipt of the request.

Analysis and Findings

Section 43(3) of the FOI Act provides that I shall take all reasonable precautions to prevent the disclosure to a party to a review of information contained in an exempt record. I am therefore limited as to the information I may give regarding the contents of the records in this case.

Section 28(1)
Section 28(1) of the FOI Act provides that, subject to the provisions of the section, a public body shall refuse to grant a request if

"... access to the record concerned would involve the disclosure of personal information...".

Section 2 of the Act defines personal information as

"information about an identifiable individual that --

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual,

or

(b) is held by a public body on the understanding that it would be treated by it as confidential,"

Section 2 then lists 12 categories of information which "without prejudice to the generality of the foregoing" are included in the definition. These 12 categories include "(ii) information relating to the financial affairs of the individual".

Having examined the records, I am satisfied that the records within the scope of this review contain personal information about an individual or individuals other than the applicant. The effect of section 28(1) is that a record disclosing personal information of a third party or third parties cannot be released to another person unless one of the other relevant provisions of section 28 applies- in this case section 28(2) and 28(5) - and I will consider those provisions later in this decision.

Section 28(5B)

In her preliminary views letter Ms Connolly explained the concept of joint personal information and referred the applicant's solicitors to section 28(5B) of the FOI Act. Section 28(5B) provides that, subject to other provisions of the section, a public body shall refuse to grant a request where

"access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester."

Having examined the records, I consider that it is questionable whether the information or some of the information contained in them is personal information relating to the applicant. However, to the extent that the information or some of the information contained in the records may qualify as personal information relating to the applicant, such information is joint personal information; in such circumstances, access to the records would, in addition to disclosing personal information relating to the applicant (requester), also disclose personal information relating to an individual or individuals other than the applicant (requester). The effect of section 28(5B) is that, subject to section 28(2)(b) to (e) and section 28(5) and 28(6), access to the record(s) concerned cannot be granted.

I agree with the view expressed in the preliminary views letter regarding section 28(6) and I am satisfied that section 28(6) does not apply in this case.

I will now consider the other relevant provisions of section 28 in this case which are section 28(2) and section 28(5).

Section 28(2)
Section 28(2) provides that section 28(1) does not apply in a number of circumstances. Section 28(2)(a) provides that section 28(1) does not apply if the information concerned relates to the requester concerned. As I have said above, to the extent that the information or some of the information contained in the records may qualify as personal information relating to the applicant/ requester, such information is joint personal information and the records fall to be considered under section 28(5B).

Ms Connolly's preliminary views letter outlined the reasons why, in her view, the remaining provisions of section 28(2), paragraphs (b) to (e), were not relevant. I agree with her view. I am satisfied that section 28(2) paragraphs (b) to (e) do not apply.

Section 28(5)
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1), may still be granted where, on balance -

 

(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid,

Section 28(5) also applies to a request which would fall to be refused under section 28(5B) (joint personal information).

In my view the grant of the request would not benefit the individual or individuals to whom the information relates. I am satisfied that section 28(5)(b) does not apply in this case.

In relation to the issue of the public interest under section 28(5)(a), the preliminary views letter to the applicant's solicitors referred to the comments of the Supreme Court regarding the public interest in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- the Information Commissioner(more commonly referred to as The Rotunda Hospital -v- the Information Commissioner) ([2011] IESC 26). While the comments are obiter, it is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. The applicant's solicitors had stated that until such time as their client could ascertain the identity of "this third party individual, it is not possible for him to pursue this individual for compensation". To the extent that this might be relevant to the issue of the public interest, it reflects a private interest, rather than a public interest.

Nevertheless, I consider that there is a public interest in ensuring openness, transparency and accountability in the public service and in ensuring openness and transparency in how a public body performs its functions. Specifically, I accept that there is a public interest in maximising transparency and accountability in terms of the administration by the Department of grant schemes and in the expenditure of public money. Having considered the contents of the records at issue, however, I fail to see how release of the records in this particular case would enhance, to any significant extent, the public interest in ensuring such openness, transparency or accountability.

On the other hand, the FOI Act recognises a public interest in protecting privacy rights. The language of section 28 and of the Long Title to the Act recognises this public interest. The right to privacy also has a constitutional dimension. As the preliminary views letter explained, release of a record under FOI may be regarded as release to the world at large as records are released without any restriction as to how they may be used. In my view the public interest in protecting the right to privacy is a strong public interest. Accordingly, I am satisfied that the public interest in granting the applicant's request does not outweigh the public interest that the right to privacy of the individual or individuals to whom the information relates should be upheld. Thus, I am satisfied that section 28(5)(a) does not apply.

For these reasons, I find that the Department's decision to refuse the request in this case pursuant to section 28 of the FOI Act was justified.

I should explain at this stage that I am aware that my consideration of the public interest in this case runs contrary to the approach I adopted in previous cases where I considered that applicants for certain grant aid are, as farmers, comparable to sole traders and as such, information relating to the payment of such grants relates to the business affairs of sole traders and does not constitute personal information about the individuals concerned. However, those decisions were taken before the judgement in the case of the Rotunda Hospital -v- the Information Commissioner (referred to above). Among other things, the judgement has required me to alter the approach I previously adopted in my interpretation of the definition of personal information for the purposes of the FOI Act. As I said above, section 2 of the FOI Act defines personal information as information that falls within paragraph (a) or (b) and also provides that "without prejudice to the generality of the foregoing includes"12 (listed) categories of information. In the past both the former Commissioner and I took the view that information falling within the 12 categories must also satisfy the requirements of (a) or (b) in order to meet the requirements of the definition of personal information. However, the Supreme Court has found this approach to be incorrect. In the Rotunda Hospital -v- the Information Commissioner Fennelly J stated that "[T]he Commissioner failed to have regard to the expression "without prejudice to the generality of the foregoing ...". That expression, which occurs routinely in statutes, means that what goes before is a general statement, but that, as in this case, in any event, it will suffice for whatever is the relevant statutory purpose to comply with what follows." Thus, once the information complies with or falls within one of the 12 listed categories, it will suffice for purpose of the definition and is personal information as defined by the FOI Act. I am now satisfied, having regard to the judgement in the Rotunda Hospital case, that information relating to the payment of grants such as the information in this case is, indeed, personal information. As such, the manner in which I consider the public interest balancing test set out in section 28(5)(a) is necessarily affected.

I would also add the following with regard to this review. On 30 August 2012 Mr Sean Garvey, Senior Investigator, wrote to the solicitors for the applicant. In informing them that the case would proceed to formal review, he referred to a requirement of this Office to consult with relevant third parties and to the policy of this Office in that regard. I should explain that, in deciding whether to notify a third party of a review in a case such as this, this Office takes the view that, as a general rule, it would not be desirable that a decision be made to release information which might affect someone's interests without that person's knowledge. Ms Connolly, the investigator to whom this case was assigned, did not form the preliminary view that the records should be released in this case. I am satisfied that the Department's decision to refuse to grant access to the records within the scope of this review was justified. It was not, therefore, necessary to notify any third parties of this review or to consult with any third parties in relation to the matter.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's decision to refuse access to the records within the scope of this review.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Emily O'Reilly
Information Commissioner
12 December 2012