Case 100122

The Senior Investigator affirmed the Department's decision.

Case Summary

Whether the Department is justified in its decision to refuse access to a particular record on the grounds that it was provided in confidence and is therefore exempt from release in accordance with section 26 of the FOI Act.

Date of Decision: 17.11.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

On 20 March 2010, the Applicant sought a copy of a record held by the Department which contained what he described as "incorrect personal information". In subsequent discussions with the Department he clarified that the record he was seeking was an allegation made about him by a relative.

On 27 April 2010, the Department refused access to the relevant record in accordance with section 26 of the FOI Act. On 5 May 2010, the Applicant sought an internal review of this decision. In his submission he argued inter alia that:-

• he had a right to know what information relating to him was held on government records,
• he had the right under section 17 to protect his good name and to have incorrect information relating to him corrected,
• that section 26 should only apply to factual information,
• that the public interest would be best served by release of the information.

On 14 May 2010, the Department in its internal review decision upheld its original decision not to release the record. On 24 May 2010, the Applicant applied to this Office for a review of the Department's decisions.

On 27 October 2010, Mr. Colin Stokes, an Investigator with this Office, issued his preliminary views on the issues involved in this review and informed the Applicant that, in his view, the Department was justified in its decision to withhold the relevant record. On 1 November 2010, the Applicant responded that he was not happy with this view and made a further submission outlining the reasons why he believed the record should be released. I am therefore proceeding to a formal binding decision against which there would be a right of appeal to the High Court on a point of law. My decision will take account of; the submissions made by both the Department and the Applicant; previous FOI reviews and decisions and previous Court rulings. In the interest of delivering a comprehensive decision it is necessary that I revisit many of the issues already considered by Mr. Stokes.

Conducted in accordance with section 34(2) of the FOI Act, by Sean Garvey, Senior Investigator, who is authorised by the Information Commissioner ("the Commissioner") to conduct this review.

Scope of this review

This review is therefore confined to the issue raised in the original request i.e. the request for a copy of the relevant record.

Submissions

.

Findings

Preliminary Matter

As mentioned by Mr. Stokes, while any decision made by this Office regarding access to a record must be explained, section 43(3) provides that the content of an exempt record in providing such explanation must not be revealed. This is to preserve all parties' right of appeal to the High Court. In the circumstances of this case, section 43(3) requires me to exercise caution in relation to the description I can give of the record at issue.

Section 17

The Applicant specified that he wanted the information to enable him have it corrected. However, in accordance with section 8(4)(a) of the FOI Act the Department must disregard any reason the requester gives for the request. Also, while section 17 of the Act gives the right to seek amendment of personal information, the Department interpreted the Applicant's request to it as a request for access to records rather than a request for amendment of personal information under section 17. In this case the Applicant's original request stated that "I request a copy of this information so that I may have same corrected." Having considered the matter, I am satisfied that the part of the Applicant's request where amendment of information is mentioned is a statement as to why he wanted access to the record rather than a specific request to have his personal information amended. Therefore, I agree with the Department's interpretation of the request and, accordingly, do not intend to consider section 17 any further in this review. As already mentioned by Mr. Stokes in his preliminary view, it is open to the Applicant to pursue a section 17 amendment with the Department in a fresh FOI request.

Findings

Section 26(1)(a)

In its decision the Department invoked the exemption provided for in section 26(1)(a) of the FOI Act.

Section 26(1)(a) provides that a head shall refuse to grant a request under section 7 if -

the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

It will be noted that there are four conditions or tests that must be applied to information to establish whether it qualifies as information given in confidence.

To summarise, the information must be:-

• given to the public body concerned in confidence,
• given on the understanding that it would be treated by it as confidential,
• its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

All four tests must be satisfied to justify exemption of a record. However, it is not a blanket exemption and is subject to a public interest test.

As explained by Mr. Stokes, the Department's position as outlined to the Applicant in its decision is that any information given to it regarding the Applicant was given in confidence and was expected to be treated as confidential. It further states that release of such information would prejudice the future provision of such information to the Department and that such information is important to it and in particular to its control mechanisms. In this particular case, I note the Applicant's contention that the complaint was "false and slanderous". In determining whether information was provided in confidence, the issue of whether it was provided in good faith is a factor to be considered. Malicious allegations, which are known to be false, cannot be regarded as having been made in good faith and it is difficult to see how, in such circumstances, they could be regarded as having been made in confidence or indeed whether it would be of importance to the Department to continue to receive such misinformation.

The issue of possible malice or bad faith, in the context of complaints made to public bodies,has been considered previously by the Information Commissioner. In Mrs ACL and the Mid-Western Health Board (Case Number 99227 also on our website) the then Commissioner explained that "clear evidence" is required to support a claim that, in that case section 23(1)(b) an exemption to protect the identity of those supplying information, should not apply on the basis that the information was given maliciously. Moreover, in Mr X and a Health Board(Case Number 99397, also available on our website), the former Commissioner also stated: "There is, of course, a clear distinction to be made between, on the one hand, allegations which are known to be false and are made maliciously and, on the other hand, allegations made or information given in good faith which are ultimately discovered to be unfounded." The Commissioner has also held previously that even if a public body did not, on foot of a complaint made, make a finding that an Applicant was in breach of particular legislation, it does not necessarily follow that the complaints made were malicious or that where a complaint ultimately proves to be unfounded that does not, of itself, undo the confidential basis on which a Body receives such information. In view of the foregoing, I agree with Mr. Stokes's finding that it has not been demonstrated that the information was supplied in bad faith or that it was malicious. I therefore accept that the information was legitimately given to the Department in confidence and on the understanding that it would be treated by it as confidential. I also accept that it is of importance to the Department that it continue to receive such information.

The remaining question to be considered is whether the disclosure would be likely to prejudice the provision of such information to the Department in the future. On this point I again agree with Mr. Stokes's view that information relating to fraud or misuse of social welfare schemes, by its nature, comes mainly from people who either know the person allegedly committing the fraud or come into regular contact with them. In such circumstances I believe it reasonable to expect that even limited or occasional disclosure of this type of information would result in a perception among people that the process is not secure or safe and that if they were to supply information there is a passibility of it being released and that they might subsequently suffer negative consequences in their daily lives. This perception would, I believe, take hold even if the Department were to release only information in relation to allegations which subsequent investigation established to be unfounded. In view of the foregoing I agree with the Department that people would be less willing to supply this important information to the Department with a consequent negative effect on its ability to properly carry out its functions. The previous Commissioner set out his understanding of this type of case in an earlier decision (see case no. 98103, again on this Office's website). I agree with the previous Commissioner's conclusions in that case and see the circumstances of this case to be similar to it. Accordingly, I am satisfied that all four requirements for the application of section 26(1)(a) have been met and that the records fall for exemption under that provision.

However, that is not the end of the matter as there is a public interest test to be considered under section 26(3).

Public Interest Test

Section 26(3)

Section 26(1)(a) is subject to the public interest override contained in section 26(3). What this means is that, even though section 26(1)(a) applies, the record may still be released where its release best serves the public interest. Accordingly, it is necessary to consider the application of section 26(3), which provides that:

" Subject to section 29, subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

To apply section 26(3), it is necessary to identify the various public interests served by the release of the particular record as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

The following are public interest factors that favour release of information in this case:-

• the public interest in Applicants exercising to the full their rights under the Acts.
• the possible public interest in exposing wrongdoing, inefficiency or unfairness including the making of malicious allegations,
• the possible public interest in achieving greater transparency in how the Department carries out its statutory functions,
• the public interest in persons against whom allegations are made, which are not upheld, being given full details of those allegations so that they can formally rebut them.

In relation to the first consideration in favour of release, I am satisfied that there is an undoubted public interest in applicants exercising to the maximum extent their rights of access to information under the FOI Acts. However, having regard to the Long Title of the Act and to the specific terms of section 26, it seems to me that, generally, sufficient weight will not attach to this factor, of itself, to enable it to be said that the public interest in access rights will necessarily outweigh the right to confidentiality between the public body and a third party. The second and third considerations are closely related and I consider that they represent stronger arguments in favour of release. In a general sense, it is considered that, in the context of a mature, representative democracy, public bodies must be open and accountable in the exercise of their functions. In relation to the fourth consideration I consider that the proper investigation by the Department of all allegations will ensure that unjustified, incorrect and malicious allegations are rebutted without any negative effects on those against whom such allegations were made. The extent to which a person needs access to a particular record to ensure that false allegations are rebutted lies at the heart of this review.

The main public interest argument against release that have been presented to me is:-

• the public interest in the Department being able to engage fully with concerned citizens to ensure that information relating to possible fraud is brought to its attention and can be properly investigated.

I consider this to be a very strong public interest given the extent of social welfare payments, the number of recipients and the cost of those schemes to the State. I accept the Department's contention that detection of improper activity is an integral part of its role in administering these schemes. While this Office has no role regarding whether or not the allegations made against the applicant by a relative have any substance, I accept that it is in the public interest for the Department to continue to receive this type of information to allow it to properly carry out its functions in ensuring pension arrangements for its clients are fairly administered.

In addition, in the context of the record at issue, this Office has been in contact with the Department which has confirmed it is satisfied that there has been no wrongdoing on the part of the applicant and that no further action is necessary or contemplated. Therefore, as the Department does not intend taking any action on foot of the information in the record, I have no reason to believe that failure to release it would put the applicant at any disadvantage on that point.

In these particular circumstances, I find that the weight attaching to the public interest arguments for release is less than that attaching to the public interest in withholding the record. I am therefore satisfied that the public interest would not be better served by granting than by refusing to grant the request for access to the record and that, accordingly, it has been properly withheld in line with section 26 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department.

Right of Appeal

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 a review must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

17 November 2010