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Case Number: 170299

Whether the Department was justified in refusing, under section 37(6) of the FOI Act, to confirm or deny the existence of records relevant to the applicant's request for correspondence to the Department purporting to be from him in respect of the employment of a named party (the third party)

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's solicitor acted on his behalf at all stages in the FOI process in this case.

On 7 April 2017, the applicant made an FOI request to the Department for correspondence purporting to be from him in respect of the employment of the third party, his former employee.

The Department's decision of 9 May 2017 told the applicant it was refusing to confirm or deny whether relevant records existed, further to section 37(6) of the FOI Act. Section 37(6) is a provision that enables an FOI body to refuse to confirm or deny whether requested records exist, where to do so would itself disclose personal information about a party other than the person requesting the records. The applicant sought an internal review of this decision on 10 May 2017, which the Department's internal review decision of 22 May 2017 affirmed.

On 7 June 2017, the applicant sought a review by this Office of the Department's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above and to correspondence between this Office, the Department, and the applicant, including his letter of 7 September 2017. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal to confirm or deny whether it holds the particular records requested by the applicant.

Findings

The applicant says he "understands that there may have been some correspondence sent to the Department" purporting to have come from him that did not. Because of this, he did not reply to the Department's notice for information in respect of the third party, for which he says he is currently being prosecuted by the Department. I cannot take into account the applicant's reasons for making his request (section 13(4) of the FOI Act refers).

Section 37(6)
Section 37(6) provides as follows:

"Where-
(a) an FOI request relates to a record to which subsection (1) applies but to which subsection (2) and (5) do not apply or would not, if the record existed, apply, and
(b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1),
he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists."

This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information. The usefulness of section 37(6) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist.

My consideration of section 37(6) must be conducted on the basis of what would be the case were the Department to hold records of the specific kind requested, rather than on whether or not such records are actually held. Furthermore, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Therefore, I cannot outline in detail the reasons for certain aspects of my decision in the circumstances of this case. Neither can I disclose whether the specific records sought by the requester do, or do not, exist.

For section 37(6) to apply, the following requirements must be satisfied:
the records sought must be of a type which disclose the personal information of a third party and which, on the face of it, are exempt from release under section 37(1) of the FOI Act;
none of the exceptions to section 37(1), as contained in sections 37(2) and 37(5) of the FOI Act, apply or, in the case where relevant records do not exist, would apply if such records did exist, and
the head of the FOI body must form the opinion that to state whether or not relevant records exist would in itself be to disclose the personal information of a third party.

1. Would the Records Constitute "Personal Information"?
Section 2 of the FOI Act defines "personal information" and gives 14 specific examples. Information is personal information where it meets the requirements of the definition, or where it can be classified as any one of the 14 examples.

The 14 examples include (ii) "information relating to the financial affairs of the individual", (iii) "information relating to the employment or employment history of the individual", and (x) "information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary ... or required for the purpose of establishing whether the individual, being a claimant ... is such a beneficiary". These examples would seem relevant in this case, given the functions of the FOI body to which the request was made.

I accept, therefore, that the requested records, if they exist, would be of a type which disclose the third party's personal information. I find that, on the face of it, they would be exempt from release under section 37(1) of the FOI Act. 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(s) other than the requester.

2. Do any of the Exceptions to Section 37(1) Apply?

While section 37(1) prohibits the disclosure of personal information, this is subject to consideration of sections 37(2) and (5).

Section 37(2) provides that section 37(1) does not apply to a record if (a) the information concerned relates to the requester; (b) the third party has consented to the release of their personal information; (c) the information is of a kind that is available to the general public; (d) the information at issue belongs to a class of information which would or might be made available to the general public; and (e) disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

I find that the applicant would not be entitled to the requested records, if they existed, further to section 37(2) of the FOI Act.

It may be the applicant's position that the records, if they exist, relate to him as well as the third party and that he would be entitled to them further to section 37(2)(a). However, even if any records that exist could be said to also contain personal information relating to the requester, section 37(7) would be relevant. Section 37(7) provides that, notwithstanding section 37(2)(a), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester ("joint personal information"). Section 37(7) is also subject to sections 37(2(b) to (e). I am satisfied that none of sections 37(2(b) to (e) would have relevance in the present case.
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 party would benefit from the release of relevant records (if such records exist). Thus, I find that section 37(5)(b) would not apply in this case, if the requested records existed.

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 would lie if the requested records exist, 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 any records that might exist. 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 Department dealt with the applicant in a way that was consistent with the principles of natural and constitutional justice.

Although the applicant has made no argument in this regard, I have no remit to consider, or make findings on, any steps taken by the Department in relation to him. It would not be appropriate for me to direct the release of any third party personal information that may exist in this case in the public interest, effectively to the world at large, on the basis of the applicant's reasons as to why he did not reply to the Department's notice for information, or on the basis of any prosecution that may have resulted. As the Commissioner said in his composite decision in cases 090261/090262/090263, "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. If relevant records exist, I consider that a significant invasion of privacy would occur if they were disclosed to the world at large, which is the effective result of releasing records under FOI.

If the requested records exist, it seems to me that it would not be possible to serve the public interest in ensuring the Department's openness and accountability without also breaching the third party's right to privacy. Having considered the matter carefully, I find that if records of the type sought by the requester exist, the public interest served by their release would not outweigh the public interest in upholding the third party's right to privacy.

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

3. Would Disclosure of Existence or Non-Existence of Records Amount to Disclosure of Personal Information?

One possibility is that the Department does, in fact, hold records of the type sought by the requester. In that event, disclosure of their existence will disclose that correspondence purporting to be sent by the applicant is held by the Department in relation to the third party. The alternative possibility is that the Department does not hold records of the type requested. Disclosing this would disclose that the Department does not hold correspondence purporting to be sent by the applicant about the third party. Therefore, disclosing that records exist, or do not exist, would disclose personal information about the third party.

Section 37(6) - Summary

I find that each of the three requirements for the application of section 37(6) is satisfied in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal, under section 37(6) of the FOI Act, to confirm or deny whether the records requested by the applicant exist.

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