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Case Number: 160478

Whether the Agency was justified in its decision to refuse access in full and in part to certain records in the applicant's file under sections 30(1)(a), 35(1)(a), 37(1) & (7) of the FOI Act

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

Background

The applicant submitted an FOI request on 25 February 2016, for access to her file held by the Agency. The Agency did not issue a decision in accordance with the provisions of section 13(1) of the FOI Act. The applicant then submitted a request for an internal review on the basis of her request being deemed refused by the Agency, under the provisions of section 19(1) of the Act. On 27 October 2016, following communications with this Office, the Agency advised the applicant of its effective position in relation to her request. In its October decision the Agency granted access in full to some records and withheld other records in full and in part, on the basis of sections 30(1)(a), 35(1)(a) and 37(1) and 37(7) of the FOI Act. On 1 November 2016, the applicant submitted an application for a review of the decision of the Agency.

During the course of this review the Agency released an additional record in full and part granted access to two other records on the basis of section 37(1) of the Act.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the applicant and the Agency and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

This review is concerned with whether the Agency was justified in deciding to refuse access, in full and in part, to certain records on the basis of sections 30(1)(a), 35(1)(a), 37(1) and 37(7) of the FOI Act

Preliminary Matters

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

Section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on the Agency to satisfy the Commissioner that its decision is justified.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Findings

Section 30(1)(a)
Records 56, 57 and 58 were withheld in full by the Agency on the basis of section 30(1)(a). Section 30(1)(a) of the FOI Act provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the body concerned or the procedures or methods employed for the conduct thereof. Section 30(2) provides that this exemption does not apply if the public body considers that the public interest would, on balance, be better served by granting than by refusing the request.
In arriving at a decision to claim a section 30 exemption, an FOI body must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The test of whether the expectation is reasonable is not concerned with the question of probabilities or possibilities; it is concerned with whether or not the FOI body's expectation is reasonable.
The records at issue are completed forms which are used in a screening process applied by the Agency in matters relating to Child Care. In its submission, the Agency stated that it was concerned about release of the form, even if it was not completed. It stated that its position was based on the potential risk that knowledge of the detail of the screening criteria could undermine the methods the Agency applies to the investigation process.

I have considered the records in the context of the methods applied by the Agency. I accept that, in the circumstances, the decision maker's expectation that these records, if released, could prejudice the effectiveness of procedures or methods employed by the Agency in its child care screening process is reasonable. I find that the section 30(1)(a) exemption applies to these records.

Section 30(2) of the FOI Act provides that subsection (1) shall not apply in relation to a case in which, in the opinion of the FOI body concerned, the public interest would, on balance, be better served by granting rather than by refusing to grant the request. Therefore, I must now consider the public interest factors relevant to this review.

The Agency acknowledged the public interest in the right of access to records and in the openness, transparency and accountability of public bodies under FOI legislation.

However, it also identified a "strong public interest" in protecting the process it applies to safeguarding children.
On balance, I consider that the public interest in protecting the integrity of the Agency's investigative process and methods, and ensuring that its investigations, including its screening process, are not prejudiced, outweighs the public interest in releasing the records.

I am satisfied that section 30(1)(a) of the FOI Act applies to records 56, 57 and 58 and the public interest would not, on balance, be served by the release of these records. I find, therefore, that the Agency was justified in its decision to refuse access to the records under section 30(1)(a) of the Act.

Section 37(1) and 37(7) - Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information relating to an individual other than 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. Section 37(7) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.

Section 2 of the FOI Act defines "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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

The Agency refused access to the remaining records on the basis of section 37(1) and 37(7) of the Act. It stated that refusing access to the records under section 37 of the Act would protect the personal information of persons other than the applicant.

It is clear that most of the records at issue in this case disclose the personal information of parties other than the applicant and that much of this information is of a private and sensitive nature. The information to which access has been refused by the Agency relates to third parties and joint personal information relating to the applicant, other family members and other individuals.

I am satisfied that all of the remaining withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals i.e. joint personal information. Accordingly, I find that section 37(1) and/or section 37(7) of the FOI Act applies to those records.

Section 37(2)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act 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 any 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.

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court 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"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. To a large extent, this public interest has been served by the release of the substantive records albeit with some redactions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under 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.

I find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that sections 37(1)and 37(7) apply and that none of the exceptions under section 37 apply to the information.

Section 37(8) - Access to the personal information of minors
Section 37(8) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009) were continued in force by section 54(2) and Schedule 5 of the FOI Act 2014. The regulations provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances. The regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any relevant guidelines published by the Minister, access to the records by the parent/guardian would be in the minor's best interests.

In the particular circumstances of this case, I have considered whether there is any remaining information in the records, not otherwise found to be exempt from release, to which the provisions of section 37(8) would apply, i.e. is there any personal information of the applicant's children which could possibly be considered for release under this provision. Taking into consideration the position as regards sections 18 and 37(5) as set out above, I am satisfied that any remaining information in the records about the applicant's children is so intertwined with the personal information of third parties that it would be impractical to isolate it for release in any manner which would not make the information misleading.

Having reviewed the relevant records, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that sections 37(1) and 37(7) of the Act apply to the records.

Having found section 37(1) and/or section 37(7) to apply to the withheld records, I do not find it necessary to consider the decision of the Agency to exempt certain records on the basis of section 35(1)(a).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Agency to refuse access to certain records on the basis that section 30(1)(a) of the FOI Act applies. I also affirm the decision of the Agency to refuse access to the remaining records in full and in part, on the basis of sections 37(1) and 37(7) of the FOI Act, since the withheld information concerns the personal information of third parties and other individuals which is inextricably linked to the personal information of the applicant.

Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator