Whether the CMO was justified in refusing access to records concerning the applicant, under section 28 and/or section 26 of the FOI Act.

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

Background

On 2 January 2010, the applicant made an FOI request for all correspondence about him that had passed between the CMO and his former employer (a public body), "prior to and at [his] retirement"; the criteria used by the CMO's occupational health physician in her assessment of the applicant's health and suitability for retirement; and all information and data sought, and received, by the occupational health physician from the applicant's former employer, or the Department of Finance, or his consultant psychiatrist, or others.

The CMO's decision of 17 February 2010 identified 53 records as relevant to the request, all of which were fully released with the exception of records 15-21, which it withheld under section 28(5B) of the FOI Act. The applicant sought an internal review of the refusal of records 15-21 on 23 February 2010. The CMO's internal review decision of 18 March 2010 refused the records but, on this occasion, relied on section 26(1)(a) of the FOI Act for the refusal to grant access.

On 12 April 2010, the applicant sought a review by this Office of the CMO's refusal to release all relevant records.

In carrying out my review, I have had regard to copies of the records of relevance to the request (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the CMO and the applicant as set out above; to details of various contacts between this Office and the CMO; and to details of various contacts between this Office and the applicant. I have had regard also to the provisions of the FOI Act and, in considering the public interest at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner.

Scope of the Review

The scope of this review is confined to assessing whether or not the CMO's refusal of records 15-21 is justified.

Findings

It is relevant to note, as a preliminary matter, that section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to consideration of the public interest). Furthermore, it is relevant to note that section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Finally, it is relevant to be aware that the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large.

The Records at Issue

The records at issue in this review are records sent to the CMO by the applicant's employer. Section 43(3) precludes me from giving any more details about these records other than to say that they concern the applicant and other parties.

Section 28(5B) - Personal Information of an Applicant and a Third Party (or Third Parties)
Section 28(5B), subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the joint personal information of the person making the FOI request along with that of another party or parties.

The applicant maintains that the information in the records at issue relates to him. While this is the case, it is also the case (having examined the records), that they relate to the personal information of other parties. I find, as a matter of fact, that these records contain personal information about the applicant that is inextricably linked to personal information about other parties. I do not consider it possible to direct the release of any personal information about the applicant without also directing the release of the personal information of the third parties. In these circumstances, I find the records to be exempt from release under section 28(5B) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(5B) does not apply. Having examined the records at issue here, I am satisfied that none of the circumstances identified at section 28(2) arises in the case of records 15-21. That is to say: that the third parties have not consented to the release of their information; that the information is not of a kind that is available to the general public; and that the information at issue does not belong to a class of information which would or might be made available to the general public.

The final circumstance in which the exemption at section 28(5B) is dis-applied is where disclosure of the records is necessary to avoid a serious and imminent danger to an individual's life or health. While the applicant has argued that release of the records would be of benefit to him, I am not satisfied that this is sufficient for me to find that release of records 15-21 is necessary to avoid a serious and imminent danger to the life or health of the applicant. Nor is there any reason to believe that release of the records, or any of them, is necessary to avoid a serious and imminent danger to the life or health of any other individual.

I find that section 28(2) does not apply in this case and that it does not have the consequence of dis-applying the exemption provided for at section 28(5B).

Section 28(5)
Section 28(5) provides that a record, which is otherwise exempt under section 28(5B), may be released in certain limited circumstances.

The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(5B), may be released if it can be demonstrated that "on balance, 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". In the judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.

Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 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). Accordingly, when considering section 28(5)(a), privacy rights will 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 FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as well as the public interest in ensuring that persons can exercise their rights under the Freedom of Information Act. However, I am not satisfied in the circumstances of this case that these public interests would, of themselves, be sufficient to warrant the breach of the other parties' rights to privacy.

In his contacts with this Office, the applicant has claimed that records 15-21 have been withheld to hide what he contends was his former employer's inappropriate influence on the CMO's assessment of his suitability for retirement. It seems to me that the applicant is seeking the withheld details for a "private purpose" rather than for reasons which serve the "public interest". Thus, I take the view that his stated reason for seeking the withheld records does not constitute a valid public interest argument that might weigh in favour of their release. It may be that the applicant's arguments could be taken as relating to the public interest in ensuring the CMO's openness and accountability regarding the applicant's medical assessment. However, being aware of the content of the withheld records, I do not consider that their release would serve that public interest to such an extent that a breach of the third parties' rights to privacy is required.

I find that section 28(5)(a) of the FOI Act does not apply in this case and that it does not have the consequence of dis-applying the exemption provided for at section 28(5B).

Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. It is not the case, as would seem to be argued by the applicant, that section 28(5)(b) can apply because release of the withheld records would be of benefit to him. The applicant has not made any case that the release to him of records at issue would benefit the other parties to whom the records also relate. Nor am I otherwise aware of any reason to think that such release would be to the benefit of the third parties concerned.

I find that section 28(5)(b) of the FOI Act does not apply in this case and that it does not have the consequence of dis-applying the exemption provided for at section 28(5B).

Conclusion

I have found that section 28(5B) applies to records 15 - 21 and that none of the other "dis-applying" provisions in section 28 applies. Accordingly, I find therefore that records 15 - 21 are exempt from release by virtue of section 28(5B) of the FOI Act. In these circumstances, it is unnecessary for me to consider whether or not the records are also exempt by virtue of section 26(1) of the FOI Act - as claimed by the CMO's internal reviewer.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the CMO's refusal of the withheld records.

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 an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Fintan Butler
Senior Investigator
2 August 2013