Whether the Department justified in refusing access to records concerning the applicant's request for all documents retained on its systems relating to him

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

Background

On 10 February 2015, the applicant made an FOI request, through his solicitors, for "a copy of all documents [the Department retains] on [its] system(s) relating to him."

The Department's decision of 23 February 2015 told the applicant that it was granting his request in part. It provided him with a schedule of the various records it had considered relevant to the request. The Department withheld a number of records, some in full and some in part, under sections 35 and 37 of the FOI Act, on the basis that they contained information provided in confidence and/or third party personal information.

On 8 April 2015, the applicant sought an internal review of the Department's refusal of 15 records that it had fully withheld (records 4; 14; 33; 36; 37; 39; 43; 49; 51; 71; 73; 74; 75; 78; and 96). He said that he wished to see them in order to address the Department's refusal to pay Child Benefit to him. The Department's internal review decision of 23 April 2015 affirmed its refusal of the 15 records concerned.

On 17 June 2015, the applicant made a request to this Office for a review of the Department's decision. He said that no evidence had been put forward to suggest that the information in the records had been given in confidence; that he had a right to reply to information he believed to have been provided by a particular third party, which he considered "may well be entirely false"; that he was being denied an opportunity to exercise his right to have the relevant records amended; and that he believed the exception at section 37(2)(a) applied to any information that may be exempt under section 37(1) of the FOI Act.

On 2 July 2015, the applicant was asked to pay a statutory fee to enable the review to encompass records which do not contain only personal information relating to the applicant concerned (the FOI Act 2014 (Fees) (No. 2) Regulations 201 refer) . He did not do so. On 24 July 2015, he was notified that his application for review was accepted. Submissions were invited from him, but he did not reply.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the Department, and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal of access to the 15 records at issue.

Findings

Section 37(7)
Section 43(3) of the FOI Act requires me to be circumspect in my description of the records at issue. Having examined them, however, I do not consider any to contain personal information solely about the applicant.

I am satisfied that records 4 and 96 entirely pertain to third parties and contain only the personal information of those parties. As the applicant did not pay the required fee, these records are outside the scope of my review and I do not intend to deal further with them.

The 13 remaining records pertain to the applicant and others.

I consider the details about the applicant to be inextricably linked to details about the other parties referred to in the 13 records concerned and that it is not possible to extract any information from these records that pertain to the applicant alone. Accordingly, these records contain what is generally described as "joint personal information" of the applicant and other parties. I find that these records are, accordingly, exempt under section 37(7) of the FOI Act. Section 37(7), subject to other provisions of section 37, 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.

In so far as any of these records contain information about the applicant's minor children and/or the applicant, they also contain personal information of other parties. Therefore, no right of access arises to the records concerned under section 37(8)(a) of the FOI Act.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(7) does not apply. The applicant argues that, in particular, the records relate to him and are releasable under section 37(2)(a).

Section 37(2)(a) provides that section 37(1) - which is applicable to records consisting of personal information of a party other than a requester - does not apply where the information in that record relates to the requester concerned. Although not immediately obvious, this provision essentially enables applicants to obtain their own personal information because release of records under FOI is deemed to be release of records to the world at large. However, section 37(7) must be applied to records containing joint personal information "notwithstanding paragraph (a) of subsection (2)". In other words, section 37(2)(a) is only required to be considered, and only operates, when the information in a record relates solely to a person seeking access to the records. This is not the case with respect to the 13 records at issue.

I find that no right of access arises to the records concerned further to the provisions of section 37(2)(a) of the FOI Act.

Having examined these records, I am satisfied that none of the other circumstances identified at section 37(2) arise in this case, nor has the applicant argued that they do. That is to say, (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (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 37(5)
Section 37(5) provides that a record, which is otherwise exempt under section 37(7), may be released in certain limited circumstances.

Section 37(5)(a) - The Public Interest

The effect of section 37(5)(a) is that a record, which has been found to be exempt under section 37(7), 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 37(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 FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 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 37(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 applicant maintains that the records may contain false information submitted by a particular third party. He also maintains that he has a right to reply to any such allegations, which he contends would have tainted the Department's decision making process. Essentially, he contends that he has been deprived of a right of reply, and a right to fair procedure because he does not know exactly what was said about him. He argues that he is also being deprived of an opportunity to correct inaccurate information.

It is not this Office's role to determine whether any information given to the Department about the applicant was false or malicious or otherwise. Furthermore, 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 any of the details in the records at issue in this case had been established to be false or malicious, they still comprise joint personal information about the various parties referred to in them.

The applicant's arguments are largely based on what I consider to be his own private interests, to which I cannot have regard in making my decision in this review. It is not open to me to direct release of the records so that the applicant may exercise his right to seek to have them amended under the FOI Act. In particular, it is not within this Office's remit to determine if the Department complied with the requirements of fair procedure in making any decisions that affected the applicant. In other words, it is not open to me to determine that the details at issue should be provided to the applicant now, in the public interest under section 37(5)(a) of the FOI Act, simply because the Department might not have given him a right of reply to the details in the records at issue. As the 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 - available on www.oic.ie), "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."

In the case at hand, this means that there is a strong public interest in revealing 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. The records at issue do not disclose how the Department made any decisions that affected the applicant and therefore their release would not enable any insight to be gained into the Department's operations.

On the other hand, I accept that release of the records at issue, effectively to the world at large, would result in a significant breach of the Constitutional rights to privacy of the third parties whose information is also contained in the records.

Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I consider that, on balance, the public interest that the right to privacy of the third parties to whom the records at issue also relate should be upheld outweighs the public interest that access to those records should be granted.

I find accordingly.

Section 37(5)(b) - Benefit to individuals

The effect of section 37(5)(b) is that a record, which has been found to be exempt under section 37(7), 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 not made any argument that this provision is applicable but for avoidance of doubt on the matter, section 37(5)(b) does not enable me to direct the release of the information in the records at issue if such release would be of benefit to the applicant.

I am not satisfied that release of the details at issue would be of benefit to the various third parties whose personal information is 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 37(5)(b) of the FOI Act.

Section 35
Given my finding that section 37(7) applies in this case, there is no need for me to consider the Department's application of this provision of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal of access to the records at issue under section 37 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 or, where the party or person concerned contends that the release of a record concerned would contravene a requirement imposed by European Union law, on a finding of fact set out or inherent in 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.

Elizabeth Dolan
Senior Investigator