Case 000193 . Records containing the names and work addresses of employees of the Board - whether disclosure prohibited by another enactment - section 32(1)(a) - whether personal information - section 28(1) - section 2.

Case Summary

Facts

The requester sought access to records containing the names and work addresses of persons employed by the South Eastern Health Board (the Board) as home helps. The Board refused the request on the grounds that the records were exempt under section 32(1)(a) of the Freedom of Information (FOI) Act as disclosure was prohibited by another enactment namely, section 2(1)(c)(i) of the Data Protection Act, 1988. The requester applied to the Commissioner for a review of the decision of the Board.

Decision

The Commissioner considered the application of section 32(1)(a) of the Act. He found that under section 8 of the Data Protection Act, 1988, the restriction on disclosure at section 2(1)(c)(i) of that Act does not apply if disclosure is required by another enactment. He considered whether, aside from the exemption at section 32(1)(a), the requester had a right of access to the records under the FOI Act. The Commissioner considered whether the information was exempt under section 28 of the FOI Act. He found that information about a person employed by a public body including his/her name and information relating to his/her position or functions is specifically excluded from the definition of personal information provided in the FOI Act. He found that the requester had a right of access to the information under the FOI Act and that therefore any restriction on disclosure under the Data Protection Act did not apply.

The Commissioner found that section 32(1)(a) did not apply, he annulled the decision of the Board and directed that the records be released..

Date of Decision: 31.10.2001

Our Reference: 000193

31.10.2001

Mr X

Dear Mr X,

I refer to your application to this Office for a review of the decision of the South Eastern Health Board (the Board) in relation to your Freedom of Information (FOI) request for access to the details of home helps employed by the Board. You made your original FOI request on 4 February 2000.

At the outset, please accept my apologies for the delay in bringing this matter to a conclusion. I appreciate that you would have wished to obtain a decision at an earlier date but unfortunately, due to the large number of cases pending in my Office, this has not proven possible.

Background

I have now completed my review of the Board's decision. In carrying out this review, I have had regard to the Board's conclusions on the matter and to the Board's responses to queries raised by my Office. I have also had regard to your correspondence with this Office and with the Board, to your discussion with Ms. Aimée Tallon, Investigator of 16 October 2001 and to the provisions of the FOI Act generally.

Scope of Review

My review is concerned solely with the question of whether the Board was correct in refusing you access to the records requested. I note that you have clarified that the details which you are requesting are the names and work addresses of home helps employed by the Board.

Findings

Section 32(1)(a) - Disclosure prohibited by another enactment

The Board refused your request under section 32(1)(a) of the FOI Act on the grounds that disclosure of the records requested is prohibited by another enactment. Section 32(1)(a) provides:

"(1) A head shall refuse to grant a request under section 7 if -
(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column 3 of the Third Schedule of an enactment specified in that Schedule)".

According to the Board, the details requested are stored electronically and their release is prohibited under section 2(1)(c)(i) of the Data Protection Act, 1988. Section 2(1)(c)(i) of the Data Protection Act provides:

" A data controller shall as respects personal data kept by him, comply with the following provisions:

...(c) the data -
(i) shall be kept only for one or more specified and lawful purposes"

The Board maintains that it has obtained and stored personal data in relation to persons employed by it as home helps for the purposes of personnel management only. It contends that the records may not be used for any other purpose and that disclosure is therefore prohibited under the Data Protection Act.

However, section 8(e) of the Data Protection Act provides:

"Any restrictions in this Act on the disclosure of personal data do not apply if the disclosure is-

....(e) required by or under any enactment or by a rule of law or order of a court"

Clearly, whatever prohibition on disclosure of data is contained in the Data Protection Act does not amount to an absolute prohibition; it is capable of being set aside where disclosure is required, inter alia, by some other enactment. In this context, section 6 of the FOI Act (enacted in 1997) creates a right of access to certain records subject to the other provisions of the Act. Therefore, if you have a right of access to the records at issue under the FOI Act, any restriction on disclosure under the Data Protection Act does not apply. Consequently section 32(1)(a) of the FOI Act would not apply as disclosure would not be prohibited by another enactment. I will therefore consider whether, aside from the exemption in section 32(1)(a), you have a right of access to the records under the FOI Act.

Section 6 - Right of Access

The FOI Act confers a right of access to records created after its commencement, which for health boards was 21 October 1998, subject to the provisions of the Act. The records to which are seeking access contain the names and work addresses of individuals employed by the Board as home helps and were all created after 21 October 1998. On the face of it, these records are records to which there is a right of access under section 6 of the FOI Act.

Section 28 - Personal Information

The Board originally refused access to the information requested on the grounds that it constituted personal information about its employees and was therefore exempt under section 28(1) of the FOI Act. Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the FOI Act, personal information is information about an identifiable individual which would ordinarily be known only to the individual or to his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Information about a person employed by a public body including his/her name, information relating to his/her position or functions, or the terms of his/her employment is specifically excluded from the definition of personal information provided in the Act. Therefore, I consider that the names and work contact addresses of individuals employed by the Board as home helps are not exempt under section 28 and that you have a right of access to the records.

As you have a right of access to these records under the FOI Act, any restriction on disclosure under the Data Protection Act does not apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby annul the decision of the Board and direct that the records be released. In the interests of clarity, the records to be released are those records containing the names and work addresses of home helps employed by the South Eastern Health Board.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Information Commissioner