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Whether the Department was justified in deciding to refuse access to records supplied to the Independent Review Mechanism panel that relate to the applicant

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 May 2014, the Government agreed to the establishment of a mechanism for the independent review of certain allegations of Garda misconduct, or inadequacies in the investigation of the allegations, with a view to determining the extent and manner in which further action might be required in each case. A panel consisting of two Senior and five Junior Counsel was established for the purpose. The applicant believed that certain information relating to him may have been forwarded to the panel and on 5 June 2015 he submitted a request to the Department for, among other things, "... all information from records which refer to me directly and/or which were supplied to the Independent Review Mechanism panel".

Following an exchange of correspondence in which the applicant clarified and refined his request, the Department issued a decision to refuse the request under sections 29, 35(1)(a) and 37 of the FOI Act. On 20 July 2015, the applicant sought an internal review of that decision. On 14 August 2015, the Department affirmed its decision to refuse access to the records. On 24 August 2015, the applicant sought a review by this Office of the Department's decision to refuse access to the records sought.

Scope of the Review

In its submissions to this Office, the Department identified seven records as coming within the scope of the applicant's request. Six of the records relate to one complainant (File 1), and one relates to another (File 2). While the applicant raised concerns as to the manner in which his request was processed by the Department, the scope of this review is concerned solely with whether the Department's decision to refuse access to the seven records was justified.

Preliminary matters

It is important to note at the outset that the courts have taken the view that records released under the FOI process are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(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 limited. Furthermore, while section 18(1) of the Act allows for the partial release of records, subsection (2) states that the requirement to grant partial access to a record shall not apply if the redacted record would be misleading.

I further note that during the course of the review, Simon Noone, Investigator, wrote to the solicitors for the two complainants to inquire as to whether their clients considered that the information provided by them to the independent review mechanism was personal information and/or was provided in confidence. Mr Noone stated that if no response was received by a specified date, he would proceed on the basis that the complainants had no objection to release of the records. No response was received from the solicitors by the specified date, or indeed since then. However, given that nature and contents of the records at issue, I consider that it is not appropriate to assume that the absence of a response means that the complainants had no objection to the release of the records.

Analysis and Findings

The relevant records relate to two individuals who made complaints of their alleged mistreatment by certain members of An Garda Síochána. In the case of the first complainant, reference is made to the applicant in six records, while he is mentioned in one record relating to the second complainant. While the Department refused access to the records under a number of different sections of the FOI Act, I believe that section 37 is of most relevance.

Section 37

Section 37(1) provides for the mandatory refusal of a request where the body considers that access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides for the mandatory refusal of 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. Such information is commonly referred to as joint personal information.

As I have outlined above, the records at issue in this case relate to two individuals who have made complaints concerning their alleged mistreatment. I am satisfied that for the purposes of the FOI Act, the records contain personal information relating to those individuals. Furthermore, having carefully examined the contents of the records, I am satisfied that the information contained in the records that relates to the applicant can be appropriately described as joint personal information relating to the complainants and the applicant, as the release of information relating to the applicant would also involve the disclosure of personal information relating to the complainants. I find, therefore, that section 37(1) applies.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. While section 37(2) sets out a number of exceptions to this exemption, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) 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 (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I note that the applicant queried whether the contents of the records are already in the public domain. No evidence has been presented to me to suggest that the specific information contained in the records is in the public domain.

Section 37(5) also provides for the release of certain information to which section 37(1) applies. It provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The records at issues in this case contain sensitive details of complaints made by individuals about their alleged mistreatment. While the FOI Act, at section 11(3), requires an FOI body to have regard to, among other things, the need to achieve greater openness in its activities and to promote adherence by it to the principle of transparency in government and public affairs in performing any function under the Act, I believe that the public interest in protecting the privacy of these individuals is particularly strong in this instance, given the nature of the information at issue. In respect of the information contained in the records that relates to parties other than the requester, I find that the public interest in protect the privacy rights of those parties outweighs, on balance, the public interest in granting the request.

In so far as the records contain joint personal information relating to the applicant and the complainants, I accept that there is a public interest in requesters being granted access to their own personal information. However, given that the applicant's personal information is inextricably linked to the personal information of third parties, the question I must consider is whether the public interest in granting access to that information outweighs, on balance, the public interest in protect the privacy rights of those third parties.

In considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court issued in July 2011 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, [2013] 1 I.R.1. In the judgment, 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 37(5)(a).

I accept that the public interest in openness and accountability of FOI bodies is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. However, I believe it is important to bear in mind the nature of the Independent Review Mechanism and the role of the Department in relation to the records at issue. According to the Department, the review panel reviews the papers submitted in a complaint, following which it makes recommendations to the Minister for Justice and Equality as to whether any further action is feasible and if so, what options are open to the Minister. Each recommendation is carefully considered and the Minister will decide whether any further action is desirable and could practicably be taken in each case in light of the recommendations made. Clearly, any action proposed at that stage would necessarily have regard to the constitutional rights of the applicant. In my view, such a process is different to a situation where the Department may make a determination on the actions of the applicant following a review of those actions.

In this case, it does not seem to me that the public interest in openness and accountability is sufficiently strong to outweigh, on balance, the public interest in protecting the privacy rights of the complainants. The right to privacy has a constitutional dimension, as one of the unenumerated personal rights under Article 40.1 of the Constitution. Privacy rights will therefore 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 fact that the records contain personal information pertaining to the applicant is not sufficient, of itself, to defeat the right to privacy of those other persons to whom the information relates.

In all the circumstances, I am satisfied the balance of the public interest lies in refusing access to the joint personal information, and consequently I find that the Department was justified in refusing access to the entirety of the records under section 37 of the FOI Act.

As I have found that the Department has justified its refusal to grant the request under section 37, I do not need to proceed to considering the other exemptions claimed.

Decision

Having carried out a review under section 22(2) of the Act, I hereby uphold the decision of the Department to refuse access to the records under section 37.

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

Stephen Rafferty
Senior Investigator