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Whether the Department was justified in its decision to partially refuse a request for access to correspondence between the Department and a third party, on the basis that the records contain information that is exempt from release under section 28 of the FOI Act - the request was one to which section 29 of the Act applies

Conducted in accordance with section 34(2) of the FOI Act, by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review arises from a decision made by the Department to release records following an FOI request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has considered at some stage in the decision making process that the record in question qualifies for an exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record should be released in the public interest. Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s), considered to apply, should be overridden in the public interest. The applicant or affected parties, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to the Office of the Information Commissioner directly.

On 19 June 2014 the applicant sought under the FOI Act a copy of the letter mentioned in Page 62 (Appendix III) of the Inquiry into Reports of Unlawful Surveillance of GSOC (the Cooke Report). The Department's decision maker identified two records as relevant to the request, namely a letter dated 24 February 2014 from a third party to the Attorney General expressing an interest in working for the GSOC inquiry and a second letter from the third party to the Department attaching a copy of that letter. As the decision maker was considering the release of the records in the public interest, he notified the third party, on 1 July 2014, of his right to make a submission if he did not wish the records to be released.

On 13 August 2014 the Department issued its decision to grant access to the records subject to the redaction of certain personal information relating to the third party contained in the records. On 21 August 2014 the applicant wrote to this Office requesting a review of the Department's decision and seeking access to the records in full.

In conducting this review, I have had regard to the submissions and decisions of the Department and to the correspondence between the applicant and the Department. I have also had regard to the contents of the records in question, copies of which have been provided to this Office by the Department for the purposes of this review, and I have had regard to the submissions of the applicant and the third party who wrote the letters in question.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in its decision to grant only partial access to the records at issue in accordance with the provisions of section 28(1) of the Act.

Preliminary Matters

While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is somewhat limited.

Analysis and Findings

In its decision, the Department refused access to certain parts of the records under section 28(1) on the basis that they contained personal information relating to a third party. Section 28(1) provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. Notwithstanding the provisions of section 34(10), I can say that the information withheld from the rcords comprises the third party's name, address, phone number, and employment history details.

Personal information is defined in section 2 of the FOI Act 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. The Act goes on to include twelve categories of information that are considered to constitute personal information, including information relating to the employment or employment history of the individual and the name of the individual where it appears with other personal information relating to the individual. I am satisfied that the information redacted from the records in question comprises personal information relating to the third party. I find, therefore, that section 28(1) of the Act applies to the redacted parts of the records at issue.

Under Section 28(2) there are some circumstances in which section 28(1) does not apply. Having examined the withheld portions of the records, I am satisfied that none of those circumstances arise in this case. That is to say, (a) that the third party has not consented to the release of their information; (b) that the information is not of a kind that is available to the general public; (c) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (d) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)(a) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances where it can be demonstrated that on balance, 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. In the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"], the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

The applicant argued in his letter of 21 August 2014 to this Office that the Cooke Report makes reference to the letter he is seeking and that the letter (and a phone conversation referenced in the Report) was the subject of considerable debate and concern within the media, within the Oireachtas and among civil groups. He argued that there is a public interest in full transparency on what he described as a genuine issue of public concern. While the applicant has inferred a connection between the phone conversation and the letter, this is not a matter to which I can have regard although I note that Judge Cooke explained in his report that he considered it unnecessary to "ascertain whether there was any connection between the assertions made by the caller and the ... offer of assistance to the Inquiry".

It is important to note that the records at issue in this case are not held by the Department because of some particular role it had in the GSOC Inquiry. Rather, it holds the records simply because the third party was led to understand that the Department may be a more appropriate forum for considering his offer of assistance to the Inquiry. As is clear from the Cooke Report, the Department passed on the letters at issue to Judge Cooke. In so far as there is a public interest in increasing the accountability and transparency of the Department in how it dealt with the correspondence, it seems to me that the release of the identity of the author of the letters would not serve to achieve such an aim, and certainly not to an extent that it would warrant a breach of the third party's privacy rights. Accordingly, I do not consider that the public interest in the release of the redacted parts of the records at issue outweighs, on balance, the public interest in upholding the third party's privacy rights. Thus, I find that section 28(5)(a) of the Act does not apply in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the Department's decision in this case.

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.

Stephen Rafferty
Senior Investigator