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Case Number: 150255

Whether the Department was justified in its decision to part-grant a request (to which section 29 of the FOI Act applies) for access to records whose disclosure would, in the applicant's opinion, disclose personal information relating to him

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 a request to which section 29 of the FOI Act applied. Section 29 applies to cases where the public body has considered at some stage in the decision-making process that the records in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act, but that the records should be released in the public interest. The relevant exemptions are sections 26, 27 and 28, which relate to information that is confidential, commercially sensitive or personal information about third parties, respectively.

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 requester or affected parties, on receiving notice of the final decision of the public body, may apply for a review of that decision to the Office of the Information Commissioner directly.

On 28 January 2013, the original requester sought the following information from the Department:

Information concerning all complaints, investigations, reports and inquiries regarding the engagement and/or serving of military personnel - whether current, former or those on leave of absence with or on behalf of foreign sovereign states and authorities and in particular in relation to the Seychelles and Mauritius.

Information concerning any investigation carried out by the Department of Defence or the Defence Forces into military personnel working in the Seychelles or Mauritius.

Information concerning any investigation concerning the circumstances surrounding leave of absence/sabbaticals or other leave taken or applied for by military personnel and whether or not such personnel were engaged in working in the Seychelles or Mauritius.

Information concerning the use by military personnel of any equipment of the Defence Forces in relation to the training of personnel in the Seychelles and/or Mauritius.

While processing the FOI request, the Department's decision-maker considered that some of the records contained personal information relating to the applicant (the affected third party who was notified of the FOI request) and formed the view that it would be in the public interest under section 28(5) of the FOI Act to release the records to the requester. As the decision-maker was of the view that these records should be released under section 28(5), the request was deemed to be one to which section 29 of the FOI Act applied. Therefore, on 29 May 2013 the Department notified the applicant of his right to make a submission and to have his views considered before a decision was made. On 16 June 2013, the applicant made a submission to the Department objecting to the release of the records.

The Department decided to grant the requester access to a number of records with "all of (the applicant's) personal details including (the applicant's) name and address" redacted. It informed the applicant of its decision on 28 June 2013. On 10 July 2013, the applicant sought a review by this Office of the Department's decision. Following completion of that review, this Office issued a decision on 12 September 2014 under Case 130175, in which the Department's decision to grant access to the records was affirmed.

The applicant subsequently appealed that decision to the High Court. During the High Court proceedings, it transpired that the Department had not provided this Office with a full set of relevant records during the course of the review. Accordingly, this Office decided not to oppose the appeal and indicated to the Court that it was willing to consent to having the matter remitted for a fresh review. On 13 July 2015 the High Court directed that the matter be remitted to this Office to be dealt with in accordance with law. The applicant then appealed the High Court's decision to the Court of Appeal. On 10 October 2016, the Court of Appeal affirmed the order of the High Court.

I have now concluded my review, under Case 150255, in accordance with the order of the High Court of 13 July 2015. In conducting the review, I have had regard to the Department's decision, to the Department's communications with the applicant and with this Office, to the applicant's communications with the Department and with this Office, and to the content of the records that were provided to this Office by the Department for the purposes of the review.

I should note that the Department has confirmed that it has provided this Office with all the records which it decided to release and about which it consulted with the applicant. During this review, the applicant claimed that "the Defence Forces and/or Information Commissioner's Office failed to forward me a full and proper copy of the related FOI information for release". The basis for this assertion is not clear to me, since it was the applicant himself who drew the parties' attention to the fact that this Office had not been provided with the full set of records. Nevertheless, during this review, Ms Jo Kenny, Investigator, checked the point with the Department, which confirmed that it has provided the applicant with a copy of the relevant records.

Finally, 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 the Review

This review is concerned solely with whether the Department was justified in its decision to grant partial access to the records about which the Department notified the applicant of its intention to release.

Preliminary Matters

Before I consider the substantive issues arising, I wish to make the following points.

First, it is important to note that section 34(12)(a) of the FOI Act provides that a decision to grant a request to which section 29 applies shall be presumed to have been justified unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justified. Therefore in this case, the onus is on the applicant to satisfy me that the Department was not justified in its decision to grant partial access to the records on which the applicant was consulted.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Finally, while I am required to give reasons for my decision under section 34(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 43. Therefore the extent to which I can describe the records at issue is limited.

Analysis and Findings

Section 28 - Personal information

The records at issue relate to allegations the applicant made of criminal misconduct. They comprise correspondence from the applicant to the Department and other State bodies, replying correspondence from the Department and other State bodies to the applicant, the transcript of a Seanad debate and newspaper clippings about some of the matters concerned. The Department decided to release the records with the redaction of the applicant's name and address. Section 28(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. The question I must consider is whether the release of the redacted records at issue would involve the disclosure of personal information relating to the applicant.

Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the foregoing definition. Following the Supreme Court's decision in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner1 I.R. 729, [2011] IESC 26, I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within the scope of either (a) or (b) of the definition or where it comes within one or more of the categories (i) to (xii), which are non-exhaustive.

The applicant made a number of submissions during the previous review process and the court proceedings. He reiterated the thrust of those submissions in correspondence with this Office during this review process, stating:

"the release of sensitive information which I provided and marked as Private and Confidential, is information which could endanger lives, including my family and I and in the circumstances, I would object to the release of any such information which would endanger lives or prevent future whistle blowers from exposing corruption".

In addition, the applicant argued that the Department's decision to redact certain information does not provide him sufficient protection and that the remaining information "can easily be compared and identify (him)".

While the subject matter of the redacted records is not about the applicant, I accept that their disclosure would disclose the fact that an individual had made certain allegations of criminal misconduct. I also accept that the disclosure of the records could be used to identify the applicant as the individual who had made the allegations in question. However, in the particular circumstances of this case, I do not believe that such information can reasonably be regarded as personal information for the purposes of the FOI Act.

Firstly, I do not consider that the fact that the applicant corresponded with the Department and other State bodies about these matters is information which would only be known to him, his family or friends. I say this in view of other information which the applicant has, of his own volition, put into the public domain and which is published in newspaper reports. This includes the fact that he corresponded with State bodies about the matters concerned.

Secondly, during the first review, the Department informed this Office that "all of (the applicant's) personal information and details were treated as private and confidential. This is in line with the Department's intention that copies of the correspondence would only be released with all personal/private information relating to (the applicant) redacted." In other words, the Department has redacted the information which it held on an understanding of confidentiality. As noted above, the applicant has himself publicised the fact that he corresponded with State bodies about the matters concerned.

In all of the circumstances, I do not accept that the remaining information falls into either paragraph (a) or (b) of the definition of personal information. I have also considered the categories of personal information listed at (i) to (xii) and cannot identify a basis on which to find that the disclosure of the redacted records would involve the disclosure of information that falls into any of these categories.

Having regard to the above, I find that the release of the redacted records would not involve the disclosure of personal information relating to the applicant and that the records are not exempt under section 28(1) of the FOI Act. In view of this finding, I am not required to apply the public interest balancing test under section 28(5) of the FOI Act.

Accordingly, I find that the Department was justified in deciding to grant partial access to the records about which the Department notified the applicant of its intention to release.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's decision to grant partial access to the records about which it consulted the applicant.

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. Any such 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