Whether the Board was justified in refusing to fully grant the applicant's request for an email, its "custody chain details" and contact details for any party to whom the Board distributed the email.

24  September 2018 

Background

On 24 April 2018, the applicant made an FOI request to the Board for a copy of an email sent by a named individual that she said concerned herself and her son, its "custody chain details" and contact details for any party to whom the Board distributed it. She also attached a letter signed by her son consenting to the disclosure to her of his personal information. 

The Board's decision of 18 May 2018 refused to grant access to the email under section 37 of the FOI Act (personal information). It provided details of persons in the Board and in a particular school who have seen the email. It said that, further to section 37, it could not provide details of any such persons outside of the Board or the school.

The applicant sought an internal review on 23 May 2018. On 30 May 2018, the Board affirmed its decision to refuse access to the email. On 1 June 2018, the applicant sought a review by this Office of the Board's decision. 

I have now decided to conclude my review with a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Board and the applicant. I note that the applicant did not reply to this Office's email of 10 August 2018 inviting her comments on the issues that arose. I have had regard also to the records' content and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the Board has justified its decision on the applicant's request.

Findings

Before I deal with the Board's reliance on section 37, I will deal with those parts of the applicant's request that sought information (i.e. the "custody chain details" for the requested email, and contact details for any party to whom the Board distributed it). I take it that "custody chain" covers details of those to whom the email was forwarded or who had sight of it. 

The FOI Act provides for a right of access to records held by FOI bodies (section 11). Further to section 12, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

However, requests for information, as opposed to requests for records, are not valid requests under the Act. Any FOI request that seeks information must be taken as a request for records containing that information and the applicant's request for information, as described above, must be treated accordingly. 

I appreciate that the applicant may be frustrated at the difficulty in obtaining the information she seeks.  However, my review has to be carried out in accordance with the requirements of the FOI Act, including those of section 11. My review and this decision are concerned only with whether records covered by a request exist in the first place and, if so, whether such records are exempt.

The Board's decision gave the applicant the contact details of parties whom it says have seen the requested email. The applicant has not disputed this Office's understanding that there is no need to consider whether records containing the same information exist.

The Board says that it forwarded the email to two external organisations (Organisation A and Organisation B). It provided this Office with copy of an email that it sent to Organisation A (the cover email) when forwarding the requested email. I will consider the cover email later in my decision. However, the Board also says that it holds no records containing contact details of the recipient in Organisation B and that it did not create any record detailing the email's custody chain.

Section 15(1)(a) - records do not exist

Section 15(1)(a) of the FOI Act provides that a request for a record may be refused in two circumstances, one of which is where the record does not exist. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that the requested records do not exist.

Contact details - Organisation B
As this Office's Investigator told the applicant, the Board says that it posted a copy of the requested email to Organisation B, along with a cover form that has no provision to be addressed to any particular officer. 

I have no reason to question the Board's position that no record exists containing the contact details of the recipient in Organisation B. I find that section 15(1)(a) applies to this part of the applicant's request. It is open to the Board, of course, to give the applicant the details concerned outside of the FOI Act. 

Custody chain of requested email
The Investigator told the applicant that the Board says it did not create any record showing the email's custody chain, but that it may be possible to generate a record from its databases detailing those to whom it was electronically forwarded. This would be in keeping with section 17(4) of the FOI Act, which requires FOI bodies, in certain circumstances, to extract records or existing information held on electronic devices. The Investigator also noted that any such record would not contain details of any party who may have otherwise have seen or received a hard copy of the email. She explained that FOI bodies are not required to extract relevant information from hard copy files and create a new record in order to compile the information sought.  

The Investigator told the applicant that, unless she heard otherwise, the review would proceed on the basis that there is no requirement for the Board to establish if it can generate any record further to section 17(4). I will not consider section 17(4) further. In any event, it seems to me that any record that might be created further to section 17(4) would contain only some or all of the details that the Board has already given to the applicant and the details in the cover email that I will deal with later in this decision.

I also accept the Board's position that it did not create any record showing the email's custody chain. I find that section 15(1)(a) applies to this part of the applicant's request.

Section 37 - personal information

The Board says that email and the contact details in the cover email are exempt under section 37.

The requested email
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information.

Notwithstanding section 37(1), Regulations have been made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act, which provide for access by a parent to the records of their child where the child is a minor and in particular circumstances. However, the relevant provisions do not entitle a parent to access to the personal information of other identifiable individuals in such a record.

I cannot give very much detail about the requested email. It refers to the applicant and her son, who is a minor, and also to another identifiable individual (the third party). I am satisfied that it contains personal information about the applicant and her son that is inextricably linked to personal information about the third party ( joint personal information). Furthermore, I do not consider it possible to extract any details from the email that concern only the applicant and her son. Accordingly, I do not consider the applicant to have any potential right of access to the requested email under section 37(8) of the FOI Act and the associated Regulations. In the circumstances, I see no need to consider the relevant provisions of section 37(8) of the FOI Act and the associated Regulations in this case.

I find the requested email to be exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, section 37(7) provides for refusal of a record that would, in addition to disclosing personal information relating to the requester, disclose joint personal information. 

Section 37(2)(b) provides for the grant of access to personal information relating to individuals other than the requester where those individuals consent to such access. The applicant's son has consented to his personal information being granted to the applicant. She also says that the third party gave consent to another organisation to give her access to the  email. However, the Board says that it is not aware of the third party having given such consent. It says that, in any event, it could not grant access based on consent given to another FOI body. 

I find that the applicant is not entitled to the email under sections 37(2)(a) or (b) of the FOI Act. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise in this case.

Section 37(5)

Section 37(5) provides that a record that is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I have no basis for considering that the release of the  email would benefit the third party and I find that section 37(5)(b) does not apply. 

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court inThe 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. 

Furthermore, McDermott J., in his December 2016 judgment in the case ofF.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case"),  said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-� Thus, I cannot take into account any private interests that the applicant may have in the grant of access to the requested email. 

Even if the applicant had argued that any dissatisfaction she may have with the Board's actions weighs in favour of granting access to the requested email, it would not be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that an FOI body's processes may have been inadequate or that it did not comply with fair procedures. 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." 

In the case at hand, there is a public interest, recognised by the FOI Act, in establishing that the Board carried out its functions in relation to the requested email in a way that was consistent with the principles of natural and constitutional justice. While this public interest may be entitled to significant weight in the overall circumstances, it has been served to some extent by Board's giving to the applicant details of some of the parties to whom it circulated the email.

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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. Given the sensitive content of the email. I am satisfied that placing it in the public domain would significantly breach the third party's right to privacy.

I find that the public interest in favour of granting access to the email does not outweigh the public interest that the right to privacy of the third party should be upheld. 

Contact details - Organisation A
I accept the Board's position that only part of the cover email it sent to Organisation A is covered by the applicant's request i.e. the recipient's email address in the form "[email protected]", the sender's name and the day, date and time at which it was sent. 

The Board does not consider the sender's details or the day, date and time at which the email was sent to comprise personal information about that individual. However, it says that the recipient's contact details comprise personal information about that person. 

Section 2 of the FOI Act defines personal information and gives a non-exhaustive list of what comprises personal information. It also sets out three types of information about public servants and contractors that cannot be considered to be personal information, including the name of the individual in their capacity as a public servant or contractor. 

I understand that Organisation A provides certain services to the Board under a contract for services. Disclosure of the recipient's email address would disclose his or her email address as an employee of Organisation A, and also that they received an email in the course of their work (further to the contract for services between Organisation A and the Board) on a certain day and date at a particular time. It seems to me that this limited information arising from a contract for services is generally not personal information under the FOI Act but that even if it was, given its context, disclosure would result in only a minimal breach of the recipient's right to privacy. On the other hand, disclosure would serve the public interest in ensuring openness and accountability regarding the Board's actions.

I find that the recipient's contact details are not exempt and I direct that access to them be granted. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Board's refusal of the applicant's request. 

I affirm its decision  to refuse access to the requested email under section 37. I affirm its decision to refuse access to  the contact details of the person in Organisation B to whom the requested email was posted and its "custody chain details" under section 15(1)(a). 

I annul its decision to refuse access to those parts of the cover email comprising contact details of the recipient in Organisation A and the sender and the day, date and time at which it was sent. I direct the Board to grant access to these parts of the cover email. 

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 by the requester not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator