Whether the Department was justified in refusing access, under section 37(1) of the FOI Act, to certain records relating to the applicant’s request for a copy of all records pertaining to her child, in particular all forms, applications and documents requested by the Department in order to secure a national passport for her child

17 May 2021

Background

At all stages of the FOI process, the applicant in this case had legal representation. As such, for the sake of convenience, all references to communications with the applicant in this decision should be taken to include communications with her legal representatives.

On 30 November 2020, the Department of Justice wrote to the applicant’s legal representatives and informed them that certain documentation remained outstanding in respect of their client’s application for leave to remain in the State under parent of an Irish citizen child conditions. It requested a copy of all forms, applications and documents requested by the Department of Foreign Affairs in order to secure a national passport for the applicant’s child, and suggested that the Department of Foreign Affairs might be in a position to assist.

Subsequently, on 1 December 2020, the applicant sought from the Department copies of all records pertaining to her child, in particular all forms, applications and documents requested by the Department in order to secure a national passport for her child. In a decision dated 10 February 2021, the Department part-granted the request, releasing eight records to the applicant and refusing access to seven records under section 37 of the FOI Act, which is concerned with the protection of personal information relating to third parties. It noted that consent for the release of the third party’s personal information had not been received. The applicant sought an internal review of that decision, following which the Department affirmed its original decision. On 17 February 2021, the applicant sought a review by this Office of the Department’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access, under section 37(1) of the FOI Act, to certain records relating to the processing of a national passport for the applicant’s child, on the ground that they contain third party personal information.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

Secondly, I must also explain at the outset that section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the records is limited in this case.

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).

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 his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.

The records at issue consist of documents relating to a third party that were submitted to the Department in connection with an application for a passport for the applicant’s child.

Having examined the withheld records, I am satisfied that they comprise either personal information relating solely to an individual other than the applicant or her child or joint personal information relating to that individual and the applicant’s child. I am satisfied that release of the records would involve the disclosure of personal information relating to an individual other than the applicant or her child. Having regard to this Office’s approach to section 18 as set out above, I find that section 37(1) applies to all of the records at issue. However, that is not the end of the matter as section 37(1) is subject to subsections (2) and (5) of section 37.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. In her application for review to this Office, the applicant argued that subsection (2)(a) applies. That subsection provides that section 37(1) does not apply if the information concerned relates to the requester concerned. The purpose of subsection (2)(a) is to ensure that section 37(1) cannot be used to deny a requester access to his or her own personal information. However, subsection (7) provides that, notwithstanding paragraph (a) of subsection (2), a public 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. I find that subsection (2)(a) does not apply in this case.

Subsection (2)(b) provides that section 37(1) does not apply where the individual to whom the information relates consents to its disclosure. I note that the original decision maker attempted to contact the third party in question to seek consent to release of the personal information but was unable to do so. Furthermore, it is relevant to note that in her application for internal review, the applicant indicated that the individual in question failed to co-operate with the applicant’s permission to remain application. In the circumstances, I am satisfied that subsection (2)(b) does not apply.

In her application for review to this Office, the applicant also argued that subsection (2)(e) is relevant in this case. That subsection provides that section 37(1) does not apply if disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual. She argued that the refusal to release the records has the very likely effect of preventing her from being able to have her deportation order revoked and from being granted permission to remain in the State. She said that for as long as she is unable to prove that she is the parent of an Irish citizen child, her deportation order will most likely remain in place and, therefore, there is a real possibility that she and her child could be deported from the State. She argued that this represents a “serious and imminent danger to the life or health of her child”, as she would have no way or means to provide for her child in the country she left when she was a teenager.

Without prejudice to that argument, the applicant also argued that even if the deportation order is not enforced, for as long as it remains extant, she and her child are forced to live in Direct Provision Accommodation, without access to employment, social housing, or social welfare, in conditions which represent a serious and imminent danger to the health of her child. She argued that understanding “health” in a general way, which encompasses the child’s welfare and development as well, it is unquestionable that her child’s health is put at risk by the fact of growing up in the social and financial circumstances imposed by living in Direct Provision Accommodation.

Thi Office considers that the test to be met in subsection (2)(e) is a high one. The risk to life or health must be serious and must be imminent. This means that the degree of danger must be grave and the danger must be impending or close at hand. It must also be shown that disclosure of the information is required in order to avoid such harm. A clear link must therefore be established showing that disclosure of the information is necessary for such purposes. In my view, the applicant has not identified a serious and imminent danger to her life or health or to the life or health of her child, nor do I consider that the disclosure of the information at issue is necessary in order to avoid such a serious and imminent danger. I find that subsection (2)(e) does not apply in this case.

For the avoidance of doubt, I am also satisfied that none of the other paragraphs of subsection (2) apply in this case.

Section 37(5)

Section 37(5) 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 request would benefit the person to whom the information relates. I am satisfied that subsection (b) does not apply in the circumstances of this case.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. v The Information Commissioner [2014 No. 114 MCA] (“the F.P. case”), which was subsequently upheld by the Court of Appeal, 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.”

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

The applicant argued that the fundamental rights of her child as an Irish citizen and her rights as a mother of an Irish citizen child should take precedence over the privacy rights of the third party concerned. She argued that by being denied access to the records, she is being prevented from exercising her lawful entitlement to assert a right to reside in the State under the provisions of the Constitution, the European Convention on Human Rights and the EU Charter of Fundamental Freedoms.

It is important to note that pursuant to section 13(4) of the Act, any reason that a requester gives for making a request must be disregarded in deciding whether to grant or refuse the request. 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.

It seems to me that the applicant has, in essence, identified a private interest in favour of releasing the records at issue. A decision to release the records in the public interest would be on the basis that there is an overriding public interest in the information that outweighs the privacy rights of the third party concerned. On this point, it is also important to note that the release of a record 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 may be put.

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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

I know of no public interest factors in favour of the release of the withheld records, that would, on balance, outweigh the privacy rights of individual involved. I find, therefore, that the public interest in granting the request does not outweigh the right to privacy of the individual to whom the information relates, and that the Department was justified, under section 37(1) of the Act, in refusing access to the records at issue.

Finally, while it can form no part of this decision, I can see no reason why the Department of Justice cannot engage directly with the Department of Foreign Affairs to obtain the information it needs to process the applicant’s application for leave to remain in the State under parent of an Irish citizen child conditions. Indeed, I note that in its submissions to this Office, the Department said that it is open to the Department of Justice to request the Passport Service to confirm the validity of the child passport issued and that it would be happy to engage with the Department of Justice on the matter.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access, under section 37(1) of the FOI Act, to certain records relating to the processing of a national passport for the applicant’s child, on the ground that they contain third party personal information.

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