Whether the Department was justified in refusing access, under section 37 of the FOI Act, to information held relating to the applicant arising from an investigation conducted by a social welfare inspector concerning a third party

19 February 2019

Background

On 11 September 2018 the applicant sought access to information held by the Department relating to her arising from an investigation conducted by a social welfare inspector concerning a third party. The applicant believes that the Department wrongly deemed her to be living with the third party in question.

The Department relied on section 37(6) of the FOI Act in refusing to confirm or deny the existence of relevant records on the ground that doing so would involve the disclosure of personal information relating to a third party. The applicant sought an internal review of that decision on 5 October 2018 following which the Department affirmed its original decision. On 13 November 2018 the applicant sought a review by this Office of the Department's decision.  

During the course of the review, the Department indicated that it was no longer relying on section 37(6) and instead sought to refuse access to the records it identified as coming within the scope of the request under section 37(1). However, it released two pages of one of the records which contained information relating solely to the applicant. By email dated 1 February 2019 Ms Hannon of this Office notified the applicant of the Department's position on the matter and invited her to make a submission on the matter. 

As submissions have now been received, I have decided to conclude my review by way of a formal, binding decision.  In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access to information held relating to the applicant arising from an investigation conducted by a social welfare inspector concerning a third party under section 37 of the FOI Act.

Preliminary Matters

Before I consider the substantive issues arising in this case, I wish to make a number of preliminary comments. 

Firstly, while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Thirdly, it should be noted that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records released may be put.

Fourthly, while I am required by section 22 (10) of the FOI Act to give reasons for my 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. Accordingly, I am constrained in the description which I can give of the information contained in the records to which the Department has refused access and of the reasons for my decision.

Finally, the applicant raised issues in her submission about the manner in which the social welfare inspector had conducted his investigation and the dissemination of information relating to her. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally. 

Analysis and Findings

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Having examined the records in question, I am satisfied that they contain either personal information relating solely to a third party or third parties, or personal information relating to the applicant that is inextricably liked to personal information relating to a third party (i.e. joint personal information). I am satisfied that the release of information relating to the applicant would also involve the disclosure of personal information relating to that third party. I find, therefore, that section 37(1) applies.  

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case, namely (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 the 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) 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 of the information would be to the benefit of the person to whom the information relates. It has not been argued that releasing the records would benefit the third party to whom the information relates. I find, therefore, that section 37(5)(b) does not apply to the relevant records. 

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the third parties to whom the information relates.  

In considering 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] 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 acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution.  Privacy rights will therefore 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.
 
The applicant argued that the Department has wrongly concluded that she is living with the third party who was the subject of investigation and that she has a right to know who is telling lies about her. This Office considers that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the 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. The question I must consider is whether the public interest in enhancing the transparency and accountability of the manner in which the Department carried out its functions outweighs, on balance, the privacy rights of the third parties to whom the information relates. Having regard to the nature of the information at issue and to the fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that it does not. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Department was justified in refusing access to the relevant records under section 37 (1) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to information held relating to the applicant arising from an investigation conducted by a social welfare inspector concerning a third party, under section 37 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.

Stephen Rafferty
Senior Investigator