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Case number: 170163

Whether the OPW was justified in its decision to refuse access, in full or in part, under sections 15(1)(a) and 37(1) of the FOI Act, to records relating to a complaint made by the applicant

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 a request to the OPW in July 2016, for access to records relating to a complaint he had made under the OPW's Dignity at Work policy. In its decision, dated 1 September 2016, the OPW granted access in full and in part to a small number records and withheld access to information in the remaining records on the basis of section 15(1)(i)(i) and section 35(1)(a) of the FOI Act. Following a request for an internal review, the OPW granted access in full and in part to a small number of additional records and affirmed its original decision to withhold access to information in the remaining records. On 7 April 2017, the applicant submitted an application for a review to this Office.

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 the submissions of the OPW and the applicant, and to correspondence between the applicant, the OPW 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

During the course of this review, the OPW stated it had granted access to the records which it had previously refused under section 15(1)(i)(i). Therefore, such records are no longer within the scope of my review.

In his application to this Office, the applicant queried whether other records existed. In a submission, the applicant stated that a schedule associated with records released to him under a Data Access request listed more records than the number recorded by the OPW in its decision schedule. Different bodies list records in different ways and I note that a number of records itemised by the OPW in its decision schedule include several associated pages, e.g. recors 38 and 39 each contain an email and enclosure containing 8 pages. However, although section 15(1)(a) was not relied on by the OPW, in its original decisions, it was evident that an "adequacy of search" issue arose in this review.

During the review, the OPW informed this Office that it had decided that the exemption at section 37 (Personal information) applied to those records to which it had previously applied the section 35 exemption.

This Office informed the applicant of the exemption provisions of section 15(1)(a) and section 37, following which, a second submission was received from him. This review is concerned with whether the OPW was justified in deciding to refuse access to additional records on the basis of section 15(1)(a), and to the withheld records, in full or in part, under section 37(1) of the FOI Act.

The applicant raised an issue of a potential conflict of interest concerning his request. In its internal review decision the OPW stated that it found no evidence of a conflict. Also, in communications with this Office, the OPW stated that its FOI Officers are required to be impartial in consideration of their obligations as decision makers under the FOI Act. I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. Further, it is not unusual for FOI decision makers to be involved in decisions concerning records in their own area of responsibility within a public body. I stress that the findings which follow concern the applicant's right to access records under the FOI Act and do not extend to other matters related to the applicant's complaint.

Preliminary Matters

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.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. The applicant believes that certain records associated with his request were not identified by the OPW. However, it is not normally the function of this Office to search for records that a requester believes are in existence, nor is it concerned with the completeness of those records that do exist.

The OPW provided details of the searches undertaken to locate records associated with the request. It stated that as the records at issue related to matters concerning bullying and harassment processes, they were "treated seriously, fairly and in the strictest of confidence". It further stated that records associated with such matters are restricted to persons involved in the formal process. The OPW said that copies of records were held in a locked cabinet and that the search for such records was contained within the relevant group of associated persons. The OPW also stated that each person was contacted separately to confirm what records they held.

The position of the OPW is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the OPW to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, I consider that the OPW has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 37 - 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. Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the 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.

Paragraph I of section 2 of the Act excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally.

Thus, previous decisions of this Office have accepted that the exclusions do not apply to information involving allegations of inappropriate behaviour, whether proven or otherwise. The Office has taken the general view that references to public servants which allege inappropriate behaviour at work are their personal information for the purposes of the FOI Act.

The OPW refused access to the information in the records, under section 37(1) of the Act, on the basis they contained the personal information of persons other than the applicant. It is clear from my examination of the records that release of the withheld information would disclose the personal information of parties other than the applicant and that this information is of a private nature. I am satisfied that the withheld information in all of the records within the scope of this review is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the FOI Act applies to those records.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2)
Section 37(2) of the FOI Act provides for a number of circumstances 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.

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 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 openness 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.

Having regard to the above, on balance, I find that the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the OPW to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I also affirm its decision to refuse access to the withheld information on the basis of section 37(1) of the FOI Act since the withheld information contains the personal information of individuals other than 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