BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

Case Number: 170295

Whether the IPS was justified in refusing to release records to the applicant relating to the investigation file concerning a complaint made against him

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

On 20 March 2017, the applicant submitted an FOI request to the IPS for access to records relating an investigation of a complaint made about him. The IPS did not issue a decision on the initial request. On 22 April 2017, the applicant submitted a request for an internal review on the basis of his request being deemed refused by the IPS, under the provisions of section 19(1) of the Act. The IPS issued a decision on 7 June 2017 and refused access to all the records on the basis of sections 35 and 37 of the FOI Act.

During the course of the review, the IPS identified records (a number of emails) which it had previously withheld and which it said were not part of the investigation file but were associated with the investigation process. The IPS agreed to grant access to a number of those records subject to the redaction of third party personal information under section 37(1) of the FOI Act.

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

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 the public interest.

Section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office 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, this Office is 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.

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 IPS to satisfy the Commissioner that its decision is justified.

Scope of Review

This review is solely concerned with whether the decision of the IPS to refuse the applicant's request under sections 35(1) and 37(1) of the FOI Act was justified. I understand that records 1-14 have been released to the applicant, subject to redaction of personal information relating to individuals other than the applicant.

Analysis and Findings

Section 37 - Personal information
Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose; [and] (xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".

Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

While I cannot discuss their content in any detail, I can say that the records contain information relating to the investigation by the IPS of an allegation of assault. Having reviewed the records and redactions, including those records the IPS agreed to release in part during the course of this review, 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 section 37(1) of the Act apply to the records.

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)
Sections 37(5)(a) and (b) provide that a record, which is otherwise exempt under section 37(1), may be released in certain limited circumstances. The effect of section 37(5)(b) is that such an exempt record may be released if it can be demonstrated that the grant of the request would benefit the third party whose personal information is contained in the records. There is no obvious case, nor has such a case been made, that the third parties would benefit from the release of the records. Thus, I find that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - The Public Interest
The effect of section 37(5)(a) is that a record, which has been found to be exempt under section 37(1), may be released if it can be demonstrated that, on balance, "the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld".

On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

I cannot take into account any private interests that the applicant may have in the release of the records. However, I accept that the FOI Act itself recognises a public interest in promoting the openness and accountability of FOI bodies. In the case at hand, there would be a public interest in establishing that the IPS dealt with the applicant in a way that was consistent with the principles of natural and constitutional justice.

It would not be appropriate for me to direct the release of any third party personal information on the basis of the applicant's reasons as to why he required access to the records. As the Commissioner said in his composite decision in cases 090261/090262/090263, which was upheld by the High Court in FP v The Information Commissioner [2016] IEHC 771, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

On the other hand, both 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. I consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI.

I consider that the public interest has been met to some extent by the fact that the IPS instigated the procedure for investigation of the complaint and appointed an Investigator who gave the applicant the opportunity to put forward his account of the incident at issue. It seems to me that it would not be possible to serve the public interest in ensuring openness and accountability of the IPS further without breaching the right to privacy of third parties. Having considered the matter carefully, I find that the public interest served by the release of the records would not outweigh the public interest in upholding the right to privacy of the individuals other than the applicant whose personal information is in the withheld records.

In summary, therefore, I find that the applicant would not be entitled to the records further to sections 37(2) and 37(5) of the FOI Act.

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. I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.

Having found section 37 to apply to the records, I do not find it necessary to consider the decision of the IPS to refuse access to them on the basis of section 35 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 IPS to refuse to release records in full and in part to the applicant, under section 37(1) of the FOI Act.

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.

Elizabeth Dolan
Senior Investigator