Whether the Council was justified in refusing to grant access to records relating to a debt owed by a named individual

28 July 2021

Background

In a request dated 18 February 2021, the applicant sought access to records relating to the Council’s attempts to recover a particular debt from a named individual. He said he understood that there was a registered judgment regarding the debt since a particular date. He also sought access to records showing how the debt was incurred and correspondence from the debtor. In a decision dated 23 February 2021, the Council part granted the request. It released two records and withheld 24 others under sections 31(1)(a) (legal professional privilege) and 37(1) (personal information) of the FOI Act. The applicant sought an internal review on 13 April 2021. The Council’s internal review decision of 4 May 2021 affirmed its decision on the request.  On 12 May 2021, the applicant applied to this Office for a review of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Council and the applicant. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of the Review

The review is confined to whether the Council was justified under the provisions of the FOI Act in refusing to fully grant the applicant’s request.

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to set out some preliminary points that are relevant to my review.

First, section 25(3) of the FOI Act requires the Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As such, I am limited in the descriptions I can provide of the withheld records and of the Council’s arguments in this case.

Furthermore, with certain limited exceptions, when a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.E. v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. As such, the fact that there is certain information in the public domain about the matter does not mean that the records at issue cannot be withheld under the provisions of the FOI Act.

Findings

The Council clarifies that it is now relying on section 31(1)(a) in relation to only records 2, 8, 14, 16, 18, 23 and 26. However, having regard to the contents of all of the records at issue, it seems to me that section 37(1) is the most appropriate exemption to consider at the outset.

Personal Information - section 37

Section 37(1) – personal information

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record where such access would involve the disclosure of personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (ii) information relating to the financial affairs of the individual. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

The Council says that the records are exempt under section 37(1), having regard to the definition of personal information and the example at (ii) above. The applicant does not appear to dispute that the release of the records would involve the disclosure of personal information of the person named in the request.

However, for avoidance of doubt, I will address the application of section 37(1). The released records relate to the judgment registered against the individual and legal proceedings. Bearing in mind the requirements of section 25(3), I can only say that, having examined the withheld records, they concern the Council’s dealings with the individual on these matters. By their nature, records relating to the debts of a named individual relate to the financial affairs of the individual and therefore comprise personal information. I find that section 37(1) applies to the withheld records. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. I am satisfied that none of the circumstances concerned arise in this case.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.

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.

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 had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. 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.

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.

The applicant argues that there is a strong public interest in providing transparency regarding how the issue of monies owed to the public has been dealt with over many years. He says that the court actions have lain dormant for some time but the Council has put a cloak of secrecy around records concerning its interactions with a person whom he describes as a high profile individual. He says that the records will also show who has lobbied or supported the debtor’s attempts to avoid paying the debt and should be released in the public interest of there being transparency over the dealings with public monies.

The Council says that it pursues debts owed, explores all avenues of possible repayments and reports on outstanding debts in its annual financial statements. It says that, in May 2020, due to the Covid-19 pandemic, it decided to defer all legal cases until restrictions eased. It also says that an individual’s right to privacy is not altered by their public profile and that the named individual is entitled to privacy rights when dealing with the Council regarding the matter at issue.

Noting the applicant’s position that the records will show who has allegedly lobbied or supported the debtor’s attempts to avoid paying the debt, I should say that it is not within my remit to make any finding on whether or not any withheld information might constitute lobbying. I should also say that the Council’s submission explains why it disagrees with the applicant’s position. It is not appropriate for me to set out the details here because doing so would itself disclose exempt personal information relating to the individual named in the applicant’s request.

I accept that disclosure of the withheld records would give a better insight into and understanding of the Council’s dealings with the individual to whom the request relates. However, this does not mean that there should be no protection of privacy rights of individuals. It is also my view that the individual in question has the same reasonable expectation of privacy in relation to their financial affairs, as has any other private individual, regardless of their “high profile” in other areas of their life. In this respect, it is worth remembering that FOI is concerned with the actions of FOI bodies, not those of private individuals.

Neither is it appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant appears to question the actions of the Council in relation to the individual named in the request. It is also important to note that I do not have any remit to consider, or make findings on, the adequacy of those actions. I am satisfied that placing the records in the public domain would significantly breach the rights to privacy of the individual named in the applicant’s request.

Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the records that, on balance, outweighs the right to privacy of the individual to whom the records relate. I find, therefore, that section 37(5)(a) does not apply. In the circumstances, there is no need for me to consider section 31(1)(a) in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to withhold the remaining records on the basis that they are exempt under section 37(1) 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.

Deirdre McGoldrick

Senior Investigator