Whether the Department was justified, under sections 36 and 37(1) of the FOI Act, in refusing some information in a report of an investigation conducted by the Department regarding the applicant

3 January 2023

Background

The applicant previously made a complaint to the Department regarding the alleged non-payment of social welfare contributions by his employer. The Department investigated his complaint and created a report. In a request dated 30 June 2022, the applicant wrote to the Department seeking access to the report in question. On 24 August 2022, the Department part granted the applicant-�s request and released one record. It withheld some information on the basis that sections 36 and 37 of the FOI Act applied. On 6 September 2022, the applicant made an internal review request seeking the report in its entirety. On 21 September 2022, the Department affirmed its decision. On 23 November 2022, the applicant applied for a review to 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 correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the content of the record concerned.

Scope of Review

The Department released a copy of the investigation report to the applicant with a number of redactions. This review is solely concerned with whether the Department was justified, under sections 36 and 37(1) of the FOI Act, in refusing access to the redacted information.

Analysis and Findings

Section 36(1)(b)- commercial sensitivity

Section 36(1)(b) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

Section 36(2) provides for a number of exceptions to section 36(1), including where the person to whom the record concerned relates consents, in writing or in such other form as may be determined, to access to the record being granted to the requester concerned.

Having carefully examined the information withheld, I am satisfied that it refers solely to a third party, not to the applicant or the Department. During the course of this review, the Investigating Officer contacted the third party concerned, which confirmed that it consented to the release of the information which the Department withheld on the basis that it was commercially sensitive.

In the circumstances, I find that section 36(1)(b) does not apply and I direct the release of the information on page 3 which was withheld on the grounds that section 36 of the Act applied.

Section 37(1)

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 would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (iii) information relating to the employment or employment history of the individual and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Having examined the record at issue, I am satisfied that releasing the information withheld would disclose personal information relating to third party individuals and that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions 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. I am satisfied that none of the circumstances in section 37(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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply in this case.

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 person(s) to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have 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 should be distinguished from a private interest.

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.

It is important to note at this stage that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.

I am required to disregard the applicant-�s reasons for making the FOI request except insofar as it can be construed as a public interest. The applicant explained in correspondence with the Department, that he was seeking the records in the context of a case with the Workplace Relations Commission. While I appreciate the reason why is seeking access to the record, it seems to me that this is a private, rather than a public interest.

In the circumstances of this case, I cannot identify any public interest reasons in favour of release of the withheld information. I find that the public interest in granting access to the withheld information does not, on balance, outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply and that the Department was justified in refusing access to the remaining information withheld on the basis of section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find that the Department was justified in refusing access to certain information on the basis of section 37(1) of the FOI Act and that the public interest, on balance, does not favour its release. I also find that the Department was not justified in refusing access to the remaining information on the basis of section 36(1)(b) and direct its release to the applicant.

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 applicant 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.

Sandra Murdiff
Investigator