Case Number: 150167

Whether the Defence Forces was justified in its decision to refuse access to records concerning the applicant on the basis of sections 15(1)(i)(i) and 32(1)(a) of the FOI Act

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 17 December 2014, the applicant made an FOI request to the Defence Forces seeking access to "All documentation in the possession of the Defence Forces pertaining to me including but not limited to:-

(i) Records of all psychometric and psychological assessment of, and counselling given to, me which was conducted by the Defence Forces;
(ii) All complaints made by me to the Defence Forces;
(iii) Documents containing details of all individuals present on the shooting range with me on or about 7th of October 2014, when I was addressed by one [named corporal].
(iv) Documents pertaining to the steps taken by the Defence Forces on foot of the complaints referred to at (ii), including all documents detailing all investigations into those complaints and documents relating to the outcomes of those investigations;
(v) Documents detailing the reasons for my discharge from the Defence Forces;
(vi) Records of all meetings/consultations between myself and all other members of the Defence Forces"

On 3 March 2015, the Defence Forces issued a decision partially granting the request. It refused access to records on the basis of sections 15(1)(i) and 32(1)(a) of the FOI Act. This decision was upheld in the internal review decision of 1 April 2015.

The applicant wrote to this Office on 4 June 2015 seeking a review of the decision of the Defence Forces.

The review took far longer than I would have liked. This was due mainly to the efforts of this Office to settle the matter once certain investigations by the Defence Forces (Military Police) had concluded. I note that the Defence Forces agreed to reconsider its position in the light of the completion of the investigation and that during the course of this review the Defence Forces released additional records. It withheld portions of three records numbered 8, 9 and 24 on the basis of section 37(1) of the FOI Act. The applicant has requested that the review proceed to a binding decision. In conducting my review I have had regard to the application from the applicant, the submissions from the Defence Forces and to correspondence between the applicant and the Defence Forces. I have examined the contents of records provided to this Office by the Defence Forces for the purposes of this review and had regard to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with whether the Defence Forces was justified in its decision to refuse access to records under section 15(1)(i) and to the withheld portions of records 8, 9 and 24 on the basis of section 37(1) of the FOI Act.

Analysis and Findings

Section 18
Firstly I should draw attention to section 18 of the FOI Act which 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, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

It is relevant to note that section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Defence Forces to satisfy the Commissioner that its decision to refuse access to the records was justified.

Section 15(1)(i)(i)
The Defence Forces refused access to Psychometric assessment tests. According to the Defence Forces, these assessment tests were carried out on its behalf by the service provider and these records would have been received by the applicant previously. Section 15(1)(i)(i) of the FOI Act provides for the refusal of a request where the records have already been released to the requester and are available to the requester. While it is not clear whether the previous release of the assessment tests was under FOI, I note that, in his submissions on this review, the applicant does not dispute the position notified to him by the Defence Forces i.e. that the (named) service provider supplied the information to him. Therefore, I see no reason to direct the release of copies of these records.

Section 37
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. In a situation where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. 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. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential.

The information redacted by the Defence Forces comprises parts of records numbered 8, 9 and 24 which are reports concerning the complaints made by the applicant. The applicant's solicitor argues that more than the names have been redacted and that some of the records are rendered "incomprehensible". Having regard to the context of the records which I have examined and the provisions of section 18 of the Act referred to above, I do not agree that this is the case. The information redacted concerns individual Defence Forces personnel other than the applicant who for the purposes of the FOI Act are regarded as staff members of a public body. In the case of staff members of public bodies, the definition of "personal information" normally excludes information disclosing the name of the individual and the office he or she holds, the functions of that office, the terms on which it is held or anything recorded by an individual in the course of and for the purpose of the performance of his or her functions - [paragraph (I) of section 2 of the FOI Act]. However, the redacted information in the reports is either about the Defence Force personnel in the context of the investigation of accusations against them rather than information for the purposes of performing their functions or is "information relating to the individual in a record falling within section 11(6)(a)", that is, a personnel record. Such material is considered to fall within the definition of personal information. On that basis, I find that the redacted parts of records 8, 9 and 24 are exempt on the basis of section 37(1) and section 37(7) subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2) and section 37(5)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here.

Section 37(5) of the FOI Act provides that a request which would fall to be refused under section 37(1), may still be granted where, on balance, (a) 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, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies, 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 FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. To a large extent, this public interest has been served by the release of the substantive records albeit with a small number of redactions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 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 privacy. I find that, in the circumstances of this case, the right to privacy of the Defence Force personnel whose personal information is in the records outweighs the public interest in granting the applicant's request.

In summary, I find that sections 37(1) and 37(7) applies and that none of the exceptions under section 37 apply to the information.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Defence Forces to refuse access to the withheld records.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator