Whether the Department was justified in its decision to refuse access to records relating to the applicant under section 37 of the FOI Act

1 April 2019 

Background

On 10 August 2018 the applicant sought access to copies of all communications that mentioned him directly or indirectly since 1 January 2018. On 28 September 2018 the Department issued a decision in which it refused the applicant access to the records sought, with the exception of one redacted record, under section 37 of the FOI Act. 

The applicant sought an internal review of that decision on 23 October 2018. In its internal review decision of 26 November 2018 the Department varied the original decision and granted partial access to two further records, with information redacted under sections 35 and 37 of the FOI Act. On 19 December 2018, the applicant sought a review by this Office of the Department's decision.  

In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above and to the communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it prepared when processing the applicant's request.

Scope of the Review

This review is concerned solely with whether the Department was justified in its decision to refuse access, either in whole or in part, to the records sought by the applicant.

Preliminary Matters

Before I make my findings in this case, I wish to make the following points on certain issues arising in this case. 

Firstly, while I am required by section 22(10) of the FOI Act to give reasons for 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 to which the Department has refused access and of the reasons for my decision.

Secondly, it should be noted that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large given that the Act places no restrictions on the use to which records released under the Act may be put. 

Finally, in his correspondence with this Office the applicant argued that he has been denied the right to have incorrect information about him corrected by the Department's refusal to grant access to the information sought. Section 9 of the Act provides for the right of amendment of incomplete, incorrect, or misleading personal information contained in a record held by a public body. While section 9 may arguably be regarded as recognising a public interest in ensuring that personal information held by public bodies being accurate, complete, and not misleading, it does not give a right of access to an otherwise exempt record in order to make an application for amendment under that section.

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).

I have examined the records at issue in this case. I am satisfied, with one exception, that the disclosure of the records to which access was refused and of the redactions contained in the records to which partial access was granted would involve the disclosure of (i) personal information relating solely to a third party or third parties, or (ii) personal information relating to the applicant that is inextricably linked to personal information relating to a third party (i.e. joint personal information) and that section 37(1) applies. The exception is the information redacted from the fifth paragraph of record 3, which is publicly available information relating to the Collaborative Forum mentioned in the record. I find that this information is not exempt from release.

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. I find no basis for concluding that the grant of the request would benefit other individuals named in the records. I am therefore satisfied that section 37(5)(b) does not apply to the relevant records. 

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons 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 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 outlined various reasons as to why he believes he should be given access to the records at issue. Among other things, he argued that the decision of the Department impinges on his constitutional right to a good name. He maintained that his confidential data was stolen and disseminated against his wishes. He argued that the decision of the Department denies him access to justice as he has the legal right to know and face his accusers. He further argued that he has the right to know who is making false allegations against him and that he requires the records to give to An Garda Síochána as there is an ongoing investigation taking place. 

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.

The Department stated that while it noted the information provided in the records, no action was taken to the detriment of the applicant in relation to the issues raised. The Department further stated that all records in question were received unsolicited and the Department has not endeavoured to established whether there is any truth to the claims made. It said the people involved have been advised to make their complaints directly to An Garda Síochána. It said the allegations made have not had an influence on the Department's approach with any of the parties involved. 

I accept 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. The question I must consider in this case is whether the public interest in enhancing transparency and accountability in relation to the manner in which the Department dealt with issues concerning the applicant 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 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 of the FOI Act, apart from the information redacted from the fifth paragraph of record 3.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case, I find that it was justified in refusing access, either in whole or in part, to the records sought by the applicant under section 37(1) of the FOI Act, except for the information redacted from the fifth paragraph of record 3. I direct the release of the fifth paragraph in full.

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