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Whether the Agency was justified in deciding to refuse access to records concerning allegations made about the applicant on the basis that the records contain personal information of third parties which are exempt from release under sections 28(1) and 28(5B) of the FOI Act

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

On 6 February 2014, the applicant made a FOI request, through his solicitors, seeking the release of "all information dealing with allegations made to [a named social worker] at the Portlaoise office of the HSE in respect of [the applicant]...". Included with this request was a document from the applicant authorising the release of this information to his solicitors, as well as a request in the same terms for the release of the same information pertaining to two other named individuals, one of whom is deceased. (For the purposes of this decision, all references to "applicant" may be read as references to the applicant or his agents, as appropriate.)

Given the sensitive content of the records at issue in the FOI request made in this case, the Agency contacted the applicant seeking identification and authorisation documents to be furnished to it in order to proceed with the FOI requests on behalf of the two named individuals. These documents were not provided. For this reason, the FOI request proceeded in respect of the applicant alone. I note that the applicant did not object to the request proceeding on this basis.

A decision was issued by the Agency on 27 June 2014 in relation to this request. In its decision, the Agency included a schedule of records comprising of a list of 38 records, the release of which was considered in the course of the FOI request made. Access to one record was granted in full, 16 records were found to be outside the scope of the request, while exemptions were invoked in respect of 19 records. Two additional records examined were copies of records (specifically records numbered 6 and 7). The Agency stated that the records were subject to two exemptions contained in the FOI Act, section 28(1) (personal information) and 28(5B) (joint personal information).

The applicant applied for an internal review of the decision made by the Agency on 6 August 2014. While the review varied the result of the original decision, this did not lead to any increase in the amount of information provided to the applicant under the FOI request. Instead, the basis under which access was refused to records numbered 6, 26 and 37 was varied.

The applicant made a request for review to this Office on 24 September 2014. Following correspondence with the applicant, this Office subsequently accepted the application for review of the Agency's decision on 5 December 2014, upon payment of the relevant fee.

In conducting this review, I have had regard to copies of the records of relevance to the request, which were provided to this Office for the purposes of the Commissioner's review; to correspondence between the Agency and the applicant, details of contact between this Office and the applicant, and details of contact between this Office and the Agency.

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 whether the Agency was justified in refusing access to the records in this case on the basis that they contain personal information of third parties which is exempt under the provisions of sections 28(1) and 28(5)(B) of the Act.

Preliminary Matters

Section 34(10) of the Act obliges me to give reasons for my decisions. However, this is subject to section 43(3) which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This constraint places some limitations on what I can divulge about the contents of the records in the course of this decision.

Section 8(4) of the FOI Act does not allow the review of this Office to have regard to any reasons as to why the applicant is seeking the withheld records.

Analysis and Findings

The records in this case relate to allegations of child sexual abuse. The Agency relied on exemptions contained in section 28 of the Act to partially grant access to records, and to refuse access to other records. The exemptions relied upon were section 28(1), records containing personal information of a third party, and section 28(5B), records containing joint personal information.

Section 28(1) of the FOI act provides that access to a record shall be refused by a public body if access would involve the disclosure of personal information of the third party.

Section 28(5B) provides for the refusal by a public body of a request for information which if released would result in the disclosure of personal information of third parties as well as the requester. In a situation where a record, or part of a record, contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties) and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information.

Having examined the records, I am satisfied that the records contain personal information and/or joint personal information relating to third parties, as well as containing personal information of the applicant, and I find accordingly.

These exemptions are subject to the provisions of section 28(2), which outlines circumstances in which the exemptions contained in section 28(1) do not apply. Sections 28(2)(b), 28(2)(c), 28(2)(d) and 28(2)(e) are not applicable in this case, insofar as the applicant has not received consent to the release of the records from the relevant third parties, the information is not of a kind that is available to the general public nor does it belong to a class of information that might be made publicly available, and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(2)(a) holds that where information in a record related to the requester, the exemption contained in section 28(1) does not apply, and the information will be released to the requester. I am satisfied that where information contained within the records does relate to the applicant for the purposes of section 28(2)(a), it has been released to the applicant.

Section 28(5) provides that a record which is otherwise exempt under section 28(1) or 28(5B) may be released in certain limited circumstances, if:
(a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld; or,
(b) the grant of the request would benefit the individual.

I do not consider that the release of the information contained in these records would "benefit the individual(s)" to whom it relates, as envisaged by section 28(5)(b) of the FOI Act.

In relation to the issue of the public interest under section 28(5)(a) it is important to take note of the obiter comments on the question of public interest of the Supreme Court 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). 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 Agency at internal review identified public interest factors both in favour and against the release of the records.

The public interest considerations in favour of the release of the records highlighted by the Agency were:

The public interest in a person's right to know the views or opinions that are held on file by the CFA (Child and Family Agency).
The public interest in a person being provided with access, to documents that contain personal information about that person.
The public interest in the requester exercising rights of access under the FOI Act.
The public interest in public bodies being open, transparent and accountable in the manner in which they perform their duties.

In addition to the factors identified by the Agency above, the applicant, in his submission to this Office, raised the right to a fair trial under Article 38.1 of the Constitution as a further public interest factor to be considered in the determination of this review.
The countervailing public interest considerations highlighted by the Agency were:

The public interest in members of the public being able to communicate in confidence with public bodies, and without fear of disclosure in relation to sensitive family matters.
The public interest in safeguarding the flow of information to public bodies.
The public interest in public bodies being able to perform their functions effectively particularly in relation to issues involving the welfare and protections of children.
The public interest in protecting the rights of privacy of individuals to whom the information relates.
The public interest in maintaining the personal privacy of third parties.
The importance to the CFA of receiving such personal information in the execution of its functions and duties under the Child Care Act 1991.

I am satisfied that the arguments raised above by both the Agency and the applicant represent the key public interest considerations for the purposes of section 28(5) in this case.
The language of section 28 and the Long Title to the FOI Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY") 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). Section 28 expressly provides for the protection of personal information relating to third parties, save in specific circumstances. Records involving the investigation of child abuse claims by a state agency, by their nature, contain personal information of a third party of an extremely sensitive nature. 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.

Having regard to the competing public interest factors outlined above, I am satisfied that, on balance, the public interest in upholding the right to privacy of the third parties in this case outweighs the public interest in granting the request in this case and I find, therefore, that section 28(5)(a) does not apply.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Agency to refuse access to records under the provisions of sections 28(1) and 28(5)(B) of the FOI Act.

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 after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator