Whether the Department was justified in refusing to release to the applicant two records, comprising complaints submitted to the Department about [a company that awards EU (LEADER) funding to projects that it considers to meet certain qualifying criteria] (the company) between July 2011 and the date of the request, which refer to [the applicant's employer/the applicant's job with that employer] and/or the applicant

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

Background

The company, as I understand it, awards EU (LEADER) funding to projects that it considers to meet certain qualifying criteria. On 24 September 2012, the applicant made an FOI request to the Department seeking "[c]opy + supporting documentation of complaint/complaints re [the company] submitted by Mr Y in which references are made to [the applicant's employer and/or his job with that employer] and/or [the applicant] sent to [the Department] in the period July 2011 to date." The applicant subsequently clarified that he sought access to such records in full, not just any details therein that refer to his employer or himself (note: the applicant's employer is not the previously mentioned company that awards LEADER funding).

The Department's decision of 25 October 2012 confirmed the existence of two records relevant to the request. It refused access in full under section 21(1)(a) of the FOI Act, on the basis that release "could prejudice the effectiveness of an investigation currently being conducted by the Department." It did not consider release of the records at that point to be in the public interest, saying that such release "could compromise the transparency of the disbursement of public funds in this instance."

The applicant sought an internal review of the Department's decision on 25 October 2012. On 13 November 2012, the Department upheld its earlier refusal of his request. It cited section 21(1)(a) and a number of other provisions of the FOI Act in this regard.

On 19 November 2012, this Office received the applicant's request for a review of the Department's refusal of the records.

In carrying out my review, I have had regard to the two records at issue (which were provided to this Office for the purposes of this review); to correspondence between the Department and the applicant as set out above; to contacts between Ms Anne Lyons, Investigator in this Office, and the Department; and to contacts between Ms Lyons and the applicant. I have had regard also to the provisions of the FOI Act. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is confined to the issue of whether the Department has justified its refusal of access to the records.

Findings

At the outset, it is relevant to note a number of preliminary matters.

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, 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.

The Courts have found the release of a record under the FOI Act to be akin to its release to the world at large. Furthermore, the Courts have recognised that a review decision by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of the review, rather than by reference to the facts and circumstances that applied at an earlier date. It is also open to this Office to consider the application of particular provisions of the FOI Act not previously relied on by a public body.

Finally, 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).

Section 28- Personal Information

Sections 28(1) and 28(5B)

Given the particular content of the records and the number of identifiable individuals whose information appears in the records, I consider that it is appropriate to examine them in the context of section 28 of the FOI Act - a mandatory exemption. Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties.

I cannot go into any detail about the nature of the information in the two records at issue, due to the requirements of section 43(3) of the FOI Act. However, I can say that much of the information comes within the definition of "personal information" as set out in section 2 of the FOI Act.

Having examined the records concerned, I consider the majority of the details therein to comprise personal information about persons other than the applicant. Such information is, on the face of it, subject to my examination of section 28(2) and section 28(5) below, exempt from release under the mandatory section 28(1) of the FOI Act. I find accordingly.

I have considered whether it is possible to direct the partial release of the records i.e. any details that pertain solely to the applicant. In this regard, section 13(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 13(1) does not apply, however, if the copy provided for thereby would be misleading (section 13(2) refers). I am satisfied, however, that section 13 is not applicable in this case. This is because, having examined the remaining withheld details, I consider them to comprise personal information about the applicant that is inextricably joined to personal information of other parties (i.e. joint personal information). I find that, subject to my examination of section 28(2) and section 28(5) below, this information is, on the face of it, exempt under the mandatory section 28(5B) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) and section 28(5B) do not apply.

One such circumstance is that provided at section 28(2)(c), which provides that sections 28(1) and (5B) do not apply "if information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public." In his application to this Office, the applicant said that parties have spoken to him about the content of the records at issue, and that a redacted version of one of the records was put into the public domain at some point before he applied to this Office. In his email to this Office of 7 October 2014, he also said that the "false allegations" contained in the complaints are in the public domain in the county in which he lives.

As the applicant is aware, the Department says it provided the Chairperson of the company with a redacted version of its own draft report into the matter, on a confidential basis (whether redacted or in full, this report is not covered by the applicant's request, and is therefore outside the scope of this review). Thus, I have no reason to consider that either of the records at issue in this case, or the particular details and information therein, is, in fact, legitimately available to the general public. In the circumstances of this case, I do not consider section 28(2)(c) to be relevant because I am not satisfied that the same kind of information about individuals as appears in the records under review can be found in records available to the general public.

Having examined the withheld details, I am satisfied also that none of the other circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)(a) - The Public Interest

Section 28(5) provides that a record, which is otherwise exempt under section 28(1), 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(1) or 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".

The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26), ("The Rotunda case") 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. Thus, in considering section 28(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law.

There is a general public interest in ensuring that persons can exercise their rights under the FOI Act. Furthermore, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. Specifically in this case, it would recognise a public interest in revealing how the Department carried out its functions in respect of the company.

On the other hand, however, 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 records at issue do not reveal how the Department conducted its functions viz. the company generally, or what it did when it received the complaints at issue. Neither do they reveal any findings arrived at by the Department further to any investigation it duly conducted, or any further steps or actions it took accordingly. It seems to me, thus, that no insight would be gained into the operations of the Department if the records were to be released.

One could argue that, although the company is not a public body for the purposes of FOI, there is a public interest in ensuring openness where public monies are at issue. If there is such a public interest, it would be relevant that the records at issue do not disclose any findings arrived at in respect of the company, further to the Department's investigation of the complaints. Furthermore, even if there is a public interest in release of details that purport to be statements of fact about the company, it seems to me that to do so would render the ensuing copy of the record misleading and thus be in breach of section 13, as well as being likely to disclose personal information of certain parties other than the applicant.

The applicant maintains that the allegations in the complaints about the company, its CEO, and the applicant himself were false, and have deprived the people in the relevant region of the country of roughly five to six million euro in public funds. However, the Commissioner considers that false or unproven information supplied to a public body could well comprise personal information, given the context in which the information was provided to the body. Mindful of section 43(3), I am satisfied that, even if the details in the records at issue in this case had been established to be "false allegations", they still comprise personal information about the various parties referred to therein (or joint personal information, as appropriate).

The applicant also says that, arising from the details in the record at issue, a complaint was made about him to the Gardai about potential fraud, which has "come to nothing". He thus, wishes to pursue those who made the allegations. I consider this to be a private interest, and one to which I cannot have regard in making my decision in this review.

One could argue that the public interest weighs in favour of release of the withheld records, given, as I understand it, that the applicant does not know the detail of what the records say about him. However, it is not within my remit to determine if the steps taken by the Department, on receipt of the complaints, accorded with fair procedure, or to determine whether or not the applicant should have been made aware by the Department of any or all details in the complaints that concerned him personally. In other words, it is not open to me to determine or find that the records at issue should be provided to the applicant now, in the public interest under section 28(5)(a) of the FOI Act, simply because the Department might not have made him aware of all the salient details.

As the current Commissioner has said in his composite decision in cases 090261/090262/090263 (Mr X and the Health Service Executive & Our Lady's Hospital for Sick Children), "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

As applied here, this means that there is a strong public interest in revealing information that would shed light on whether the Department carried out its functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. However, as is evident from the foregoing, I am satisfied that the records contain no details that would enable any assessment of this issue.

Having regard to the above, I consider, in the circumstances of this case, that the public interests in favour of release of the records at issue do not carry a particularly heavy weight.

Release of any details in the records at issue would ultimately require the disclosure of personal information of parties other than the applicant. Such disclosure is equivalent to disclosure to the world at large and, in my view, would result in a significant breach of the Constitutional rights to privacy of those other parties whose information is contained in the records. In describing this potential breach as significant, I have had regard to the fact that the records at issue comprise details of complaints submitted to the Department. The breach of privacy arising from the release of such complaints is greater, in my view, than would be the case if the records comprised the Department's findings of fact or opinion further to its investigation of the complaints. Thus, I consider a heavy weight to attach to the public interest in protecting against the breach of the third parties' rights to privacy.

In the circumstances of this case, therefore, I find, that the public interest weighs in favour of withholding the records at issue.

Section 28(5)(b) - Benefit to individuals
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(1) or 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. The applicant has suggested in contacts with the Investigator that release of the records may be of benefit to one of the parties who may be named in the records. It would breach section 43(3) if I were to engage in any detailed analysis of this issue, or to confirm if the party concerned is, in fact, referred to in the records. However, if the records did refer to the party concerned, I must be satisfied that release of the relevant information would be of benefit to that person which implies a degree of certainty. It would also be relevant that the records at issue pertain to a wide variety of third parties whose personal information is inextricably linked. The applicant has made no case that the release to him of the records at issue would be of benefit to all the various third parties whose personal information is at issue in the records, nor am I otherwise aware of any reason to think that this would be the case.

I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.

Given my findings that sections 28(1) and 28(5B) apply, there is no need for me to consider the other provisions of the FOI Act that were relied upon by the Department.

Decision

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

Elizabeth Dolan
Senior Investigator