Whether the Department was justified in refusing the applicant's request for a letter his estranged wife sent to the Department

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 30 October 2014 the applicant submitted a request to the Department for "the letter my separated wife sent to Immigration which made false allegations of me been [sic] violent to her". On 3 December 2014 the Department refused the applicant's request under section 15(1)(a) of the FOI Act, on the basis that the record sought did not exist. The applicant requested an internal review of the Department's decision and on 29 January 2015 the Department issued its internal review decision, wherein it affirmed the original decision. On 15 April 2015, the applicant sought a review by this Office of the Department's decision.

During the course of the review, Mr Art Foley of this Office wrote to the applicant on 26 August 2015, setting out his view that the Department was justified in refusing the request, albeit based on a different exemption to that cited by the Department. In his response dated 30 August 2015, the applicant indicated that he disagreed with Mr Foley's view on the matter and requested that a final decision be made by this Office in relation to his request. I therefore consider that this review should be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Department and the applicant as set out above. I have also had regard to communications between this Office and the applicant and to communications between this Office and the Department.

Scope of Review

This review is concerned with whether the Department was justified in refusing the applicant's request for a letter his estranged wife sent to the Department

Preliminary Matters

I should explain at the outset that a review conducted by this Office under section 22 of the FOI Act is considered de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner [2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

In addition, while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. Accordingly, in the analysis which follows, I must be careful not to disclose whether or not a record of the type sought by the requester exists. It is also worth noting that release of information through FOI is considered, effectively, to be release to the world at large.

Analysis and Findings

While the Department relied on section 15(1)(a) of the FOI Act to refuse the applicants request, on the basis that there are no records coming within the scope of the request, I agree with Mr Foley that the more appropriate course of action would have been for the Department to consider the provisions of section 37(6) in the first instance.

Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 37(7) further provides for the refusal of a request where the body considers that access to the record 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 other than the requester.

Section 37(6) of the FOI Act provides that where a body considers that disclosure of the existence or non-existence of a record would involve the disclosure of personal information relating to an individual other than the requester, the body shall refuse to grant the request and shall refuse to disclose to the requester whether or not the record exists. This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information. The usefulness of the section 37(6) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist. It seems to me that to require a body to disclose the non-existence of a particular record essentially negates the effectiveness of the entitlement to refuse to disclose the existence of such a record.

In short, for section 37(6) to apply, the following requirements must be satisfied:

1. the record sought must be of a type which would disclose the personal information of a third party, if it existed, and which would be exempt from release by virtue of section 37(1) of the FOI Act;
2. none of the exceptions to the section 37(1) exemption, contained at sub-sections (2) or (5) of section 37, applies or, in the case where relevant records do not exist, would apply if such records did exist; and
3. the head of the FOI body must form the opinion that to state whether or not relevant records exist would in itself be to disclose the personal information of a third party.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual of his/her family or friends or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

In this case, the request is predicated on an assumption that the applicant's estranged wife wrote to the Department alleging that the applicant was violent towards her. In relation to the applicant's estranged wife, the disclosure of such a record would disclose, at a minimum, the fact that she had made allegations in writing to the Department that she had been a victim of domestic violence. I am satisfied that such a disclosure would involve the disclosure of personal information relating to both the applicant and his estranged wife. I am also satisfied, therefore, that such a record, if it exists, would be exempt from release under section 37(1).

Sections 37(2) and 37(5) contain exceptions to the exemption set out in section 37(1), including, at section 37(5)(a), where the public interest in the granting the request outweighs, on balance, the public interest in upholding the right to privacy of the person to whom the information relates. On the matter of where the balance of the public interest would lie in such circumstances, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The applicant, in his submissions to this Office, has indicated that he wishes to obtain such a letter, if it exists, in order to vindicate his good name and in order to ensure his constitutional right to fair procedures. The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by FOI bodies, provided that it is consistent with the right to privacy. Indeed, section 11(3) of the Act provides that an FOI, in performing its functions under the Act, shall have regard to, amongst other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. This Office does not, however, consider that the public interest under FOI is concerned with the actions of private individuals.

I accept 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 FOI bodies. On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). The right to privacy also has a constitutional dimension in Ireland. Privacy rights will therefore 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 the constitutionally recognised right to privacy.

With certain limited exceptions not applicable in this case, the Oireachtas has determined that personal information should be given strong protection in response to an FOI request. Even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). Having regard to the constitutional right to privacy, Article 8 of the European Convention on Human Rights, and the judgment of the Supreme Court in the Rotunda Hospital case, this Office takes the view that even in exceptional circumstances, the amount of sensitive personal information about a third party individual that could properly be released under FOI without consent may be quite limited. It is also of some significance that, as I have explained above, release of information under FOI is, in effect release to the world at large as the Act does not make any provision for restricting the use of information released pursuant to an FOI request

In his application to this Office, the applicant suggested that the alleged letter was considered in the context of his estranged wife's immigration status. In such circumstances, it seems to me that if the Department held the record sought, it would do so in the context of dealing with the affairs of the applicant's estranged wife. Accordingly, I am satisfied that the public interest in favour of disclosure of such a record would not, on balance, outweigh the privacy rights of the applicant's estranged wife. I find, therefore, that a right of access under section 37(5)(a) would not exist. I also find that none of the other exceptions in section 37 would apply.

Finally, on the matter of whether the disclosure of the existence or non-existence of the record sought would disclose disclose personal information relating to the applicant's wife, I am satisfied that this would, indeed, be the case. Accordingly, I find that the disclosure of the existence or non-existence of the record sought would have the effect of disclosing personal information that is exempt from release under section 37(1). I find, therefore, that section 37(6) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department. I find that the Department is not required to disclose the existence or non-existence of the record sought under section 37(6) of the FOI Act.

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 four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty,
Senior Investigator