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Case Number: 170098

Whether the Department was justified in its decision to refuse access to records relating to the applicant's child benefit claim under section 37 of the FOI Act on the ground that they contain personal information relating to third parties

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

The applicant submitted a request to the Department on 28 June 2016 for access to a file relating to her child benefit claim and to any correspondence regarding the decision to stop her payment. On 22 July 2016, the Department part-granted the request. It refused access to certain records, in whole or in part, on the ground that they contain personal information relating to third parties.

On 17 August 2016, the applicant applied for an internal review of the Department's decision to refuse access to record 6 and to grant only partial access to records 10, 13 and 22. On 26 August 2016 the Department affirmed its original decision. The applicant sought a review by this Office of the Department's decision on 24 February 2017.

During the course of the review, both the applicant and the Department were invited to make a submission on the matter. While the applicant did so, no submission was received from the Department. I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between the Department and the applicant and to the communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records that the Department identified as coming within the scope of the applicant's request.

Scope of Review

This review is solely concerned with whether the Department was justified in its decision to refuse access to parts of records 10, 13 and 22 and to refuse access in full to record 6 under section 37 of the FOI Act.

Preliminary Matters

Before I address the substantive matters arising in this review, I would like to make the following comments. Firstly, it should be noted that a review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.

Secondly, it should be noted that the courts have taken the view that, under FOI, records 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 decisions, 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.

Finally, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

This review has its background in a decision taken by the Department of Social Protection to suspend the applicant's child benefit payment in respect of a named child as it had been informed that the child in question left the household from a particular date. The Department subsequently decided to stop the payment on the ground that the child was no longer living with the applicant. Record 6 is described by the Department in the schedule of records it prepared when processing the FOI request as "a letter received from another customer". Records 10, 13 and 22 were released, with the redaction of information relating to parties other than the applicant.

The Department relied on section 37(1) of the FOI Act to refuse access to the relevant records, whether in whole or in part. Section 37(1) provides that access to a record shall be refused if granting access would involve the disclosure of personal information relating to an individual other than the requester. 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.

It is noteworthy that under Regulations introduced by the Minister for Public Expenditure and Reform (Freedom of Information Act 2014 (Section 37(8)) Regulations 2016), parents or guardians of individuals are entitled to access records that disclose personal information relating to those individuals where the individuals concerned have not attained full age at the date of the FOI request. However, it is also noteworthy that section 37(7) provides for the mandatory refusal of a request where access to the record at issue would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.

Having examined the records at issue, I am satisfied that the release of the redacted information would involve the disclosure of personal information relating to a third party or would involve the disclosure of joint personal information relating to the applicant's child and a third party. I find, therefore, that sections 37(1) and 37(7) of the FOI Act apply.

I note the applicant's argument that the redacted information contains personal information relating to the applicant, in line with the High Court judgment of O'Neill J. in E.H. v Information Commissioner. Even if this view is correct, it remains the case that the information also comprises personal information relating to a third party, in which case section 37(7) applies.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemptions at sections 37(1) and 37(7) do not apply. I am satisfied that none of those circumstances apply in this case. Section 37(5) of the FOI Act provides that access to the personal information relating to a third party may be granted where (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 request would benefit the person to whom the information relates.

It has not been argued that releasing the records would benefit the person to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances.

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. In her submission to this Office the applicant contends there is a public interest in release of the information withheld by the Department as she is engaged in a process of challenging the Department's decision relating to her child benefit payment.

In relation to the issue of the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). 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 FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, the language of section 37 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 un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(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.

In my view, the public interest in ensuring transparency and accountability in the manner in which the Department processed the applicant's child benefit claim has been met to some degree by the records released in full or in part to the applicant. While I accept that the release of the redacted information would serve to further enhance transparency, the question I must consider is whether the public interest in releasing the records outweighs, on balance, the privacy rights of the third party concerned. In considering this issue, I am cognisant of the fact that release of the records would, in effect, amount to release to the world at large.

Having carefully considered the matter, I find that the public interest in protecting the privacy rights of the third party outweighs, on balance, the public interest in granting the request, and that section 37(5)(a) does not apply in the circumstances.

I find, therefore, that the Department was justified in refusing to grant access to record 6 and in granting only partial access to records 10, 13 and 22 under section 37 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department in this case.

Right of 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.

Stephen Rafferty
Senior Investigator