Whether the CSO was justified in its decision to refuse the applicant's request for all information held about him in the 2006 and 2011 Census of Population records on the ground that that the non-disclosure of the records is authorised by the Statistics Act 1993

Conducted in accordance with section 22(2) of the FOI Act by Peter Tyndall, Information Commissioner

Background

On 4 August 2015 the applicant submitted a request to the CSO for details of all the information held about him in the 2006 and 2011 Census of Population forms. In its decision dated 7 August 2015 the CSO refused the request under section 41(1)(b) of the FOI Act on the ground that non-disclosure of the records sought is authorised by the Statistics Act 1993. On 12 August 2015 the applicant sought an internal review of that decision. The CSO upheld the original decision to refuse the request. On 7 September 2015 the applicant sought a review by my Office of the CSO's decision.

In conducting my review, I have had regard to the correspondence between the CSO and the applicant on the matter, and to correspondence between my Office and both the CSO and the applicant. I have also had regard to the relevant provisions of the Statistics Act 1993.

Scope of the Review

My review is concerned solely with the question of whether the CSO was justified in its decision to refuse access to the information sought by the applicant under section 41(1)(b) of the FOI Act on the ground that the non-disclosure of the records is authorised by the Statistics Act 1993.

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body shows to my satisfaction that its decision was justified. This means that the onus is on the CSO of satisfying me that its decision to refuse the applicant's request was justified.

I should also explain that for the purposes of the FOI Act, a record includes a copy or part of a record. Therefore, the applicant's request must be treated as a request for those parts of the 2006 and 2011 Census of Population forms, if any, that contain information about the applicant.

Analysis and Findings

Section 41(1)(b)
Section 41(1)(b) of the FOI Act provides that an FOI body shall refuse to grant a request if the non-disclosure of the record is authorised by any enactment (other than a provision specified in column (3) of Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record. As the Statistics Act 1993 is not specified in Schedule 3, this means that the CSO must refuse to grant the request in this case if the circumstances are such that the non-disclosure of the records sought is authorised by that Act and the case is one in which the CSO would refuse to disclose the records under that Act.

Submission of the CSO
In its submission to my Office the CSO stated that statistical confidentiality is a core value of official statistics and is enshrined in the UN Fundamental Principles of Official Statistics, European Statistics Code of Practice and EU Regulation 223/2009. It stated that the quality of official statistics depends on public trust that statistical information returned by individuals and businesses will be treated as strictly confidential and used only for statistical purposes. It argued that the principle of statistical confidentiality is codified into Irish law by Sections 32 and 33 of the Statistics Act 1993.

Section 32 of the Statistics Act, entitled Restrictions on use of information, provides as follows:

"All information furnished by a person, undertaking or public authority under this Act shall be used only for statistical compilation and analysis purposes".

Section 33 (1), entitled Prohibition on disclosure of information, provides as follows:

"No information obtained in any way under this Act or the repealed enactments which can be related to an identifiable person or undertaking shall, except with the written consent of that person or undertaking or the personal representative or next-of-kin of a deceased person, be disseminated, shown or communicated to any person or body except as follows --

(a) for the purposes of a prosecution for an offence under this Act;
(b) to officers of statistics in the course of their duties under this Act;
(c) for the purposes of recording such information solely for the use of the Office in such form and manner as is provided for by a contract in writing made by the Director General which protects its confidentiality to his satisfaction."

The CSO stated that the spirit and intent of section 33 is prohibition on disclosure of information. It argued that the only purposes [for which information which can be related to an identifiable person or undertaking shall be disclosed] are those set out in sub-paragraphs (a), (b), and (c). It argued that section 33 offers no scope for disclosure of identifiable information for any other purpose. It further argued that while section 33(1) provides for limited exceptions where written consent has been obtained, the section does not place an obligation on the CSO to release information nor does it grant a right to a person to receive such information. It stated that the only section of the Statistics Act explicitly providing for disclosure is section 35, which provides for access to the Census of Population after 100 years and that it is the policy of the CSO that census records are not released in advance of this 100 year period.

In addition, the CSO further argued that the request might also be validly refused under section 41(1)(b) of the FOI Act in accordance with section 13 of the Statistics Act. It argued that section 13, titled Independence on statistical matters, provides that the Director General is independent in relation to all the statistical functions of the CSO and that the Director General is therefore independent in deciding on whether a request of this kind, for access to a statistical form, be granted or not.

My Findings
Before I consider the arguments presented by the CSO, I would like to state that I fully appreciate the CSO's concern to ensure the confidentiality of statistical information provided by individuals and businesses and I accept that, without an assurance of confidence, respondents may be reluctant to provide the level of detailed information that is required for the compilation of official statistics. However, the only question I can consider in this case is whether the CSO was justified in its decision to refuse access to the information sought by the applicant under section 41(1)(b) of the FOI Act on the ground that the non-disclosure of the records is authorised by one or more provisions of the Statistics Act 1993.

In order for me to uphold the CSO's decision that section 41(1)(b) of the FOI Act applies in this case, I must be satisfied that the circumstances are such that the non-disclosure of the records sought is authorised by the Statistics Act and the case is one in which the CSO would refuse to disclose the records under that Act.

I accept that Section 33(1) generally prohibits the disclosure of information obtained under the Act that can be related to an identifiable individual or undertaking. However, the prohibition on disclosure is not absolute. The section clearly provides that no information that can be related to an identifiable individual or undertaking shall, except with the written consent of that person or undertaking or the personal representative or next-of-kin of a deceased person, be disseminated, shown or communicated to any person or body [my emphasis].

As a general rule, therefore, it seems to me that the disclosure of such information is prohibited unless appropriate written consent exists. In my view, it is implicit in the wording of the section that the general prohibition on disclosure of information that can be related to an identifiable individual or undertaking does not apply where the identifiable individual or undertaking or the personal representative or next-of-kin of the individual, if deceased, has given written consent for its disclosure.

The section also provides, at sub-paragraphs (a), (b), and (c), for three specific exceptions to the prohibition on disclosure. However, it seems to me that the purpose of sub-paragraphs (a) to (c) is to provide for the release of relevant information in the circumstances described in the sub-paragraphs without the requirement for relevant written consent.

In response to the CSO's argument that section 33(1) does not place an obligation on the CSO to release information or grant a right to a person to receive such information and that the only section of the Statistics Act explicitly providing for disclosure is section 35, I would state that this is not a relevant consideration as it is not what section 41(1)(b) requires. Section 41(1)(b) requires that the non-disclosure of the records sought is authorised by section 33(1); it does not require that disclosure is authorised by section 33(1). The FOI Act provides for a right of access to the records unless they are otherwise exempt.

The circumstances of this case are that an individual is seeking access to information obtained under the Statistics Act that can be related to him and he has made a written request for that information. In such circumstances, it seems to me that section 33(1) of the Statistics Act does not prohibit the release of the information sought to that individual. Accordingly, I find that the circumstances are such that the non-disclosure of the records sought is not authorised by the section 33(1) and that section 41(1)(b) of the FOI Act does not, therefore apply.

On the matter of whether the request might also be validly refused under section 41(1)(b) of the FOI Act in accordance with section 13 of the Statistics Act, I note that section 13 provides that the Director General shall have sole responsibility for, and be independent in, the exercise of the function of deciding the statistical methodology and professional standards used by the Office, the content of statistical releases and publications issued by the Office, and the timing and methods of dissemination of statistics compiled by the Office. The section does not authorise the non-disclosure of information of the kind at issue in this case. For the avoidance of doubt, I find that the section does not provide a statutory basis for non-adherence to the provisions of the FOI Act. I find, therefore, that the non-disclosure of the records sought is not authorised by the section 13 and that section 41(1)(b) of the FOI Act does not, therefore apply.

Before I conclude, I would like to make the following observation. The effect of my finding that section 41(1)(b) does not apply is that the CSO must now undertake a fresh decision making process on the applicant's request. In its correspondence with the applicant during the processing of his request, the CSO stated that the location of the individual forms sought was not a practical proposition. It stated that the returns for Censuses are bulk stored in enumeration area order which vary from Census to Census and that neither names nor addresses have been entered electronically so that a computer search is not feasible. During the course of the review, my Office contacted the CSO to clarify the grounds upon which it refused the request. The CSO confirmed that it wished to rely solely upon section 41(1)(b) and therefore I am bound to confine my review in this case to a consideration of the applicability of section 41(1)(b).

Decision

Having carried out a review under Section 22(2) of the FOI Act, I hereby annul the CSO's decision. I direct it to undertake a fresh decision making process on the applicant's request and to inform the applicant of its decision in accordance with section 13 of the FOI Act. That decision is subject to the usual rights of internal and external review.

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.

Peter Tyndall
Information Commissioner