Case 030010. Request for address of named individual - personal information - section 28(1) - reasons for the request - section 8(4) - the public interest - section 28(5)

Case Summary

Facts

The requester sought the address of a certain named individual from the Department for the purpose of serving a court document.

Decision

On review it was decided that the address of the named individual (if held by the Department) comprised personal information about that person. It was decided that in certain limited cases there may be a public interest in a particular requester, due to his/her interest in the matter concerned, gaining access to information which would otherwise be exempt. This would arise where his/her interest is of such a nature that it is not merely a matter of private interests or rights but involves principles of public interest. The public interest was considered and it was found that the public interest that the request be granted did not outweigh the public interest that the right to privacy of the individual in question be upheld.

Date of Decision: 25.04.2003

Our Reference: 030010

25.04.2003

Mr X

Dear Mr X

I refer to your application under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the Department of Social and Family Affairs (the Department) on your FOI request which was received by the Department on 12 December 2002. I have been authorised by the Information Commissioner to conduct this review on his behalf.

Background

In your request to the Department you stated that you were looking for the address of a particular named individual who, you stated, had been claiming Unemployment Assistance from the Department. As requests under section 7 of the FOI Act relate to access to records, to the extent that your request sought information, it may be interpreted as seeking access to records containing such information. The Department refused access to the records sought by you and you applied for an internal review of the Department's decision. In its internal review decision of 6 January 2003, the Department refused your request. It relied on section 26(1)(a) and section 28(1) of the FOI Act for this decision. On 9 January 2003 you applied to this Office for a review of the Department's decision and the matter was accepted for review.

I note that Ms Connolly of this Office wrote to you on 21 February 2003 informing you of her preliminary observations on this matter and affording you a further opportunity to make submissions to this Office. Ms Connolly also informed you that, in its submission to this Office, the Department stated that your request also fell to be refused under section 10(1) of the FOI Act, in addition to sections 26(1)(a) and 28(1) of the Act. The Department had informed this Office that, on the basis of the details provided by you, no records could be identified for the individual to whom the request related.

In conducting this review, I have had regard to your correspondence with this Office and to the correspondence from the Department. You have also made a request for similar information to the Western Health Board and you have applied for a review of the Board's decision in that matter (Our Reference: Case No. 030041). Where relevant and appropriate, I have taken account of the arguments made by you in the context of the review in Case No. 030041. I have also had regard to the provisions of the FOI Act.

As you are aware, section 26(1)(a) exempts from disclosure records which disclose information obtained by a public body in confidence. Section 28 exempts records which disclose personal information. Section 10 allows for the refusal of a request on a number of grounds, including where the records sought do not exist or cannot be found, where the request does not contain sufficient information to enable the records sought to be identified or where there would be a substantial and unreasonable interference with the work of the public body.

Scope of Review

This review is concerned solely with the question of whether the decision of the Department to refuse you access to the records sought by you (if they exist) was justified.

For the avoidance of any doubt, I wish to make it clear that my decision is concerned only with the question of release of information to you under the FOI Act. Whether, and in what circumstances, the Department may release this information to An Garda Síochána, or any other proper authority, is not a matter for the Information Commissioner.

The Department has stated that, on the basis of the information supplied to it, no records could be identified for the individual to whom this request relates. Thus, nothing in this decision should be taken as confirming that such records exist or are held by the Department.

Findings

Section 28 The Department has relied on section 28(1) of the FOI Act as one of the grounds for its decision to refuse your request. Section 28(1) provides:

28.(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).

In her letter of 21 February 2003, Ms Connolly expressed the view that a person's personal address is personal information as defined by section 2 of the FOI Act. As Ms Connolly stated, it also appears from your correspondence with the Department that you accept that the information sought by you is personal information. I note that, in your response to Ms Connolly's letter, you did not dispute that such information comprises personal information. I am satisfied that the information sought, if held by the Department, comprises personal information about the person to whom it relates. In such circumstances, the provisions of section 28(1) apply and, subject to the other provisions of section 28, access to the records (if they exist) must be refused. I consider that the only other provision of section 28 which is relevant is section 28(5)(a).

Reasons for RequestBefore considering section 28(5)(a) in any detail, I will address the issue of section 8(4) of the FOI Act. As you are aware, the Department has argued that section 8(4) precludes it from taking into account the reasons for the FOI request. Section 8(4) provides:

8(4) In deciding whether to grant or refuse to grant a request under section 7(a) any reason that the requester gives for the request, and(b) any belief or opinion of the head as to what are the reasons of the requester for the request,shall be disregarded.

In your email of 14 March 2003 you refer to section 28(5) and section 8(4) and you state that you do not understand how the consequence for the public interest can be judged without knowing what will be done with the information. I am satisfied that, by virtue of section 8(4), I am not concerned with the question of such matters as whether the particular individual referred to in your request is likely to engage in fraud, has committed a criminal offence or is in breach of a court order. On the other hand, some of the reasons you have given and arguments you have made may be relevant to the public interest. As Ms Connolly stated in her letter of 21 February 2003, in certain limited cases there may be a public interest in a particular requester, due to his/her interest in the matter concerned, gaining access to information which would otherwise be exempt. This will arise where his/her interest is of such a nature that it is not merely a matter of private interests or rights but involves principles of public interest. The degree of weight attaching to such a public interest would depend very much on the facts of the case.

The Public Interest Section 28(5)(a) provides:

28(5) Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, 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, ....the head may, subject to section 29, grant the request.

The Department, in its decision on internal review and in its submission to this Office, stated that it had identified a number of public interest considerations which it took into account. It found that there is a public interest in requesters exercising their rights under the FOI Act and this public interest factor favoured the release of the records (if they exist). It found that the following factors weighed against the release of the records:

• the right to privacy of the individual
• such information is provided to the Department for a specific purpose by third parties and cannot be disclosed except in specific circumstances outlined in the Social Welfare legislation ( these circumstances do not include provision of information to the public to pursue recovery of debts)
• the public interest in maintaining the ability of the body to effectively discharge its functions
• the need to preserve confidentiality
• the Department's obligations under the Data Protection Act which include a requirement that data must not be disclosed in any manner incompatible with the purposes for which it was provided unless otherwise provided under legislation or where the individual concerned has consented
• there were other means by which the information could be obtained.

The Department also argued that release under FOI is release to the world at large and it would not be in the public interest to release personal information which the Department holds on an individual.

In making your request you stated that you were trying to serve a court summons on the individual to whom this information relates. You stated that the individual was also avoiding repayment of other debts. You argued that there was every reason to believe that he would continue to defraud people unless action was taken. In her letter of 21 February 2003 Ms Connolly said that it seemed that your argument was essentially that there was a public interest in discouraging fraud and in enabling individuals enforce court orders. In your email of 14 March 2003 you appear to suggest that a further public interest factor was relevant, i.e. a public interest in bringing criminals to justice.

Ms Connolly has already mentioned the fact that there is nothing in the FOI Act which qualifies or restricts the use by requesters of information released to them under the FOI Act. She has also referred you to a previous decision of the Commissioner in which he considered the application of section 28. There is no necessity for me to repeat this in this decision. However, it is important to note that section 28 is a mandatory exemption. The Commissioner has expressed the view that the protection of personal privacy afforded by the exemption was intended to be a strong one. I find that significant weight attaches to the public interest that the right to privacy should be upheld; this is a strong public interest. It is also important that members of the public are able to communicate in confidence with public bodies without fear of disclosure regarding personal matters. I also consider that there is a public interest in safeguarding the flow of information to public bodies and in public bodies being able to perform their functions effectively. These additional factors serve to strengthen the public interest in protecting the right privacy in this case.

I agree with Ms Connolly's preliminary observation that claimants provide information to the Department, including their addresses, on the general understanding of confidentiality. I am satisfied that, in such circumstances, there is a general understanding that the information supplied to the Department will be used for the purpose for which it is supplied e.g. the processing of a social welfare claim, and will not generally be disclosed except in a permitted manner.

It is also of some significance that the information sought by you relates to a private individual and does not, for example, relate to the business of government or the performance by a public body of its functions. The public interest considerations relating to openness, transparency and accountability in government do not arise in this case.

In considering the application of section 28(5)(a), the degree of invasion of privacy and the extent of the possible benefit that may accrue from release of information are factors which must be taken into account. I consider it to be of relevance that the information being sought in this case is about the individual in question in a private aspect of his life. In a previous decision (Case 99168 Mr Richard Oakley and the Office of the Houses of the Oireachtas) the Commissioner made the following comment in the context of his consideration of personal information in that case:

"It is pertinent to recall at this point that the information at issue in this case concerns amounts paid to individuals to defray expenses incurred by them in discharging their functions as public representatives. The payments do not arise out of some private activities or private aspects of their lives. On this point they can be distinguished from, say, a payment made to a claimant under the Social Welfare Acts, where there is an expenditure of public money but the payment derives from some private aspect of the claimant's life such as family circumstances or inadequacy of means."

In a further case (Case 99591 Mr and Mrs ACG and others and the Department of Agriculture, Food and Rural Development), the Commissioner considered information relating to the names of recipients and the amounts of the top ten payments under EU farm grant schemes:

"It should be apparent from the above description of the schemes that the payments do not derive from any particularly private aspect of any individual recipient's life, such as family circumstances or inadequacy of means. This case is therefore distinguishable from other cases involving, for instance, social welfare payments or third level education grants."

The information sought by you in this case relates to the private aspect of the life of the individual in question. Thus, in my view, the degree of invasion of privacy is relatively high and higher than in the cases referred to above.

In her letter of 21 February 2003 Ms Connolly stated that, if a breach of the criminal law was involved in this case (as alleged by you), then it seemed that such a matter could be referred to An Garda Síochána. In response, you say that matters are not as simple as Ms Connolly had described; you repeat the statement that there is a criminal offence in this case and you state that you need the address sought in order to get an arrest warrant. You also suggest that there is a public interest in bringing criminals to justice. In your related application to this Office regarding the decision of the Western Health Board, you argued that people who commit criminal offences should not be protected from justice by privacy policies, and when providing information on forms to public bodies such people can hardly expect it not to be used to reveal something which they are trying to hide.

I am satisfied that where personal information may relate to criminal behaviour it is still capable of constituting personal information. Indeed, the definition of personal information in section 2 of the FOI Act states that it includes information relating to the criminal history of the individual. The issue which is of relevance in this decision is whether the public interest that the request be granted outweighs the public interest that the right to privacy should be upheld. I should add, as I have indicated above, that I am not making a finding with regard to the behaviour or intent of the individual referred to in your request. It appears that the court order you refer to relates to a matter of a debt or money owing. The Department has argued that there is provision under section 222 of the Social Welfare (Consolidation) Act, 1993 for the provision of information, held by the Department, to specified bodies including to An Garda Síochána. As I have said above, whether and in what circumstances the Department may release information to the Gardaí is not a matter for the Information Commissioner. However, I am satisfied that An Garda Síochána is the national police force with responsibility for the investigation of crime and the bringing of those responsible to justice. I am satisfied that, if An Garda Síochána requires the information for the purposes of a criminal investigation or the enforcement or administration of the criminal law, there is an existing procedure in place for the provision of appropriate information to the Gardaí by the Department. Such a procedure is sufficient, in my view, to meet the requirements of any public interest in that regard.

I accept that there is a public interest in the prevention of fraud and in measures which may improve the functioning of the enforcement process. However, I am not satisfied that release of information of the nature sought in this case would necessarily have such results. Further, the extent of the possible benefit that may accrue from the release of such information must be balanced against the public interest factors favouring the upholding of the right to privacy. In my view, the public interest that the request is granted does not outweigh the public interest that the right to privacy of the individual, to whom the information relates, is upheld. For these reasons, I find that section 28(1) applies and that the Department was justified in refusing access to the records sought by you, if they exist.

As I have found that the Department's claim for exemption under section 28 is justified, and that the public interest that the request be granted does not outweigh the public interest that the right to privacy of the individual in question should be upheld, I do not consider that there is a necessity for me to consider the application of the other provisions relied upon by the Department in this case.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I affirm the decision of the Department to refuse access to the records sought in your request.

A party to a review or any 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 eight weeks from the date of this letter.

Yours sincerely

Fintan Butler
Senior Investigator