Whether the public body was justified in accordance with section 28(1) of the FOI Act in deciding to refuse access to records on the applicant's personnel file and certain other records concerning a third party

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

On 4 February 2013, SMH received a request from the applicant under the FOI Act for access to records relating to information held by it on the applicant's personnel file together with records about a third party. SMH issued a decision on 8 March 2013 and partially granted the request. It withheld certain parts of records under section 28(1) of the FOI Act on the basis that the information was personal information of individuals other than the applicant. SMH also refused access to two records under section 22(1)(a) of the FOI Act, claiming that they qualified for legal professional privilege. On 2 April 2013, the applicant wrote to SMH stating that certain records released to him contained inaccurate information. On 15 April 2013, SMH responded to this letter and asked for clarification as to whether the applicant wished to appeal the original decision. The applicant replied on 10 June 2013 requesting an internal review and specified that records to which he sought access were given to a then work colleague "about me from Assistant H.R. Manager [sic]". However, in the internal review request the applicant did not refer to the inaccuracies mentioned in his earlier letter. An internal review decision was issued on 2 July 2013 affirming the original decision, with one minor exception. On 19 December 2013, the applicant applied to this Office for a review of the decision of SMH.

In the course of this review, this Office wrote to the applicant and explained that in regard to "inaccurate records", it was open to the applicant to submit a separate FOI request to SMH under the provisions of section 17 of the FOI Act.

Mr Edmund McDaid, Investigator of this Office, wrote to SMH setting out his observations on its decision. Mr McDaid asked SMH to explain its reliance on section 22(1)(a) in relation to two records. In its response, SMH stated that it was no longer relying on section 22(1)(a) and would release those two records to the applicant. It also said that it would remove some redactions in other records and re-release those records to the applicant. SMH further said that it would offer the applicant the opportunity to submit a request outside of the provisions of FOI, and on an administrative basis, for access to some records comprising correspondence to and from the applicant and minutes of meetings which he attended.

In October 2014, SMH wrote to the applicant and advised him of its revised position. Mr McDaid also spoke to the applicant on several occasions and explained the exemption provisions of section 28. The applicant stated that he already had complete, un-redacted copies of the correspondence referred to earlier and that he was not interested in furthering that aspect of his request. Mr McDaid then wrote to the applicant about the status of the remaining records at issue. In response by telephone, the applicant stated that he did not accept Mr McDaid's view that section 28(1) applied to the remaining records and requested that the review be brought to a close by the issue of a formal binding decision.

In conducting this review I have taken account of the decision of SMH and its communications with this Office, to the applicant's communications with this Office and SMH, and the provisions of the FOI Act. I have also examined the records at issue which were provided to this Office by SMH for the purpose of the review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 and 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 Review

This review is concerned solely with the question of whether the public body (SMH) was justified in deciding to refuse access to records containing information relating to third parties in accordance with the provisions of section 28(1) of the FOI Act.

Preliminary Matters

Before setting out my findings, I should explain the Commissioner's approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, this Office takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Findings

Section 46(2)(a) - records to which the Act does not apply
In relation to record 85 (File A), SMH cited section 46(2)(a), which provides that the FOI Act does not apply to a record that is already available for inspection whether on payment of a fee or free of charge to members of the public. I am satisfied that this record is publicly available so that the Act does not apply to it. I find accordingly. In any case, it is the Investigator's understanding from his conversation with the applicant that he is not interested in pursuing those parts of the request which comprise records already held.

Section 28
SMH refused access, on the basis of section 28(1) of the FOI Act, to the names and other particulars of individuals either with whom the applicant worked when he was employed by SMH, or who were clients of SMH for whom the applicant had some level of responsibility during his employment. The records at issue contain either information about the applicant, information about a third party/parties, or a mix of both.

Section 28(1) of the FOI Act provides:

"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".

The effect of section 28(1) - a mandatory exemption - is that a record disclosing personal information cannot be released to another person unless one of the exceptions relevant in section 28 applies. In this regard, section 28(2) provides for a number of exceptions and of these, I have identified two which may have relevance. The exceptions are subsection (a), which provides for access to personal information which relates to the requester and subsection (b), which provides for access with the consent of the individual. It is clear that some of the partially granted records do relate to personal information about the applicant and I deal with this below given that the applicant's personal information appears linked to that of other individuals in the records. However, the applicant has not indicated that the persons whose information he is seeking have consented to his having access to the records. Neither do I consider that it would be appropriate or feasible for this Office to seek such consent. Therefore, section 28(2)(a) and (b) do not serve to lift the prohibition on release in section 28(1).

Section 28(5B)
Section 28(5B) provides that ... a head shall..."refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester." Having examined the records, I have concluded that insofar as the excerpts of some of the records at issue contain personal information relating to the applicant, that information is inextricably linked with personal information of other parties. Consequently, I am satisfied that section 28(5B) applies in this case.

Section 28(5)(a) - The Public Interest
Section 28(5)(a) provides that an exemption could be set aside if 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 applicant, in his conversations with this Office and in written requests to SMH, made reference to his view that he had been wronged by staff and management. Insofar as this may be taken as a public interest argument, I accept that there is a public interest in exposing wrongdoing, error or unfairness. I accept also that there is a public interest in the applicant exercising his access rights under the Act.
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.

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.

On balance, I consider that the public interest in granting access to records containing the personal information of persons other than the applicant does not, in the circumstances of this case, outweigh the public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 28(1) of the FOI Act and section 28(5B) apply to the withheld details as they disclose personal information about a party or parties, other than the applicant.

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 made no case that the release to him of the records at issue would be of benefit to 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.

I find therefore that SMH was justified in its decision to refuse access to the information withheld on the grounds that section 28(1) and section 28(5B) apply to exempt the remaining parts of the records at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the public body in this case.

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