Case Number: 150426

Whether the Board was justified in refusing access to certain records relating to a claim made to it by a particular party (the claimant), which named the applicant's organisation as one of the respondents

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 16 April 2015, the applicant made an FOI request to the Board for (i) all records concerning a claim made to it by the claimant, and (ii) all records concerning other contemporaneous claims the claimant had submitted. The Board's decision of 15 May 2015 released some of the records it held of relevance to (i), and refused access to the rest of these records under sections 30, 35, 36 and 37 of the FOI Act. It also said it held no records relating to (ii).

On 28 May 2015, the applicant sought an internal review of the Board's refusal to release all records of relevance to part (i) of his request. The Board affirmed its decision on 23 June 2015.

The applicant sought a review by this Office of the Board's decision on 9 December 2015. During the review, this Office notified a party (who had invoiced the Board in relation to a medical assessment he had carried out on the claimant) that the decision on the review could direct the release of certain details that might affect his interests, in the public interest. He agreed to the release of the details concerned. The Board subsequently said it would release the relevant records (87 and 88) to the applicant, subject to the redaction, from record 87, of the date of the assessment concerned and the PPS number of the assessor.

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 Board and the applicant; 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 Board has justified its refusal to grant access to the remainder of the 183 records it identified as relevant to part (i) of the applicant's request, including the remainder of record 87. I am satisfied that the details withheld from records 77 and 114 fall outside of the scope of the applicant's request. The details concern other claims dealt with by the Board and need not be considered further.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the Board has released details from certain records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

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 head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

I have taken the applicant's submissions into account insofar as they are relevant ; the fact that I do not comment on each of his arguments in the analysis below should not be taken as confirmation that I accept his views.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

Section 37(1)

Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record.

"Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -

(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 a public body on the understanding that it would be treated by it as confidential"

Section 2 goes on to list 14 examples of personal information, including "information relating to the ... medical ... history of the individual" and "information relating to the financial affairs of the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

I am constrained in the description I can give of the details at issue. However, they relate to the claim made by the claimant and, by their very nature, comprise information about that individual's financial and medical history. This is the case even if, as the applicant argues, new medical evidence is not generated as part of the Board's process and the process is confined to an assessment of what has already been supplied by the claimant.

Some of the claimant's personal information in the records is linked to information about the applicant's organisation. Some of that personal information also relates to other respondents (organisations, and in some cases, persons acting on behalf of such organisations) that the applicant says are connected to his organisation. However, I am satisfied that all such information is inextricably linked to the claimant's personal information. Accordingly, release of any information relating to the applicant's organisation and/or the other allegedly linked respondents would also disclose personal information about the applicant. Furthermore, any direction to release such parts of the records would also breach section 18(2) of the FOI Act.

The applicant also claims that the names or contact details of individuals, who work in law firms or in insurance companies and who contacted the Board in relation to the claim on behalf of their employers, cannot be classified as personal information. He says that this is not information that in the ordinary course is only known to the individual or their family or friends. However, this information is information relating to the employment of the individuals, which is within the definition of personal information in the FOI Act (The Supreme Court judgment in 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 refers ("the Rotunda case")).

I also find the medical assessor's PPS number to be his personal information.

In summary, I find all of the details at issue to be exempt under section 37(1) of the FOI Act.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply.

Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal 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.

The applicant argues that consent given by the claimant for the Board to provide respondents and/or insurers with certain information she provided to the Board in relation to her claim means that "all this information is already in the 'public domain' i.e. with the Respondents". I do not accept this. The terms of that consent indicate that it was given only in respect of some material on her file - not for all records on it. Furthermore, any material provided to respondents and their insurers (so that they "may know the nature and extent of [the] claim") was given on the proviso that they "treat such information confidentially and [do not] further disclose it". Thus, I do not accept that material provided to a respondent under such terms can be said to be in the public domain. Neither do I accept that the fact that the applicant's organisation or insurers may have obtained some of the material at issue as part of the Board's assessment creates an entitlement to the same records under FOI.

In such circumstances, it is irrelevant whether, as claimed by the applicant, those respondents connected to the applicant's organisation consent to the release of their information. Furthermore in respect of the issue of consent generally, the Commissioner takes the view that, it is not appropriate for his Office, or indeed public bodies, to approach third parties to seek their consent to the release of personal information.

Section 37(5)

Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the claimant, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

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

The Supreme Court judgment in 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. While the applicant maintains that "public interest" in this case should be taken as the interests of respondents rather than that of the general public, the Supreme Court has made it clear that, 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. " Any interest a respondent has in obtaining information relevant to a claim against them is quite clearly a private interest.

While the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies, this does not mean, as argued by the applicant, that his organisation has an "absolute right" to receive all information relating to it. Neither does the Act require the release of a third party's personal information to the world at large, in the public interest, simply because the Act also enables individuals to seek the correction of their own personal information.

The applicant also maintains that failure to release all of the records at issue is contrary to the principles of natural justice. I have no remit to consider, or make findings on, the adequacy of the Board's procedures for dealing with claims. Neither have I any remit to examine the applicant's assertion that the claim made to the Board was fraudulent. Nor would it be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of mere assertions. As the Commissioner said in his composite decision in cases 090261/090262/090263, "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, there is a public interest in establishing that the Board carried out its functions in dealing with the claim, in a way that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. This public interest has been served to some extent by the material released to date.

On the other hand, both 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.

I do not accept the applicant's position that the claimant cannot expect any of her dealings with the Board to be confidential. On the contrary, I accept that release of the sensitive third party personal information at issue, effectively to the world at large, would result in a significant breach of the Constitutional rights to privacy of the claimant. While I accept that release of the details concerned would further enhance the public interest in openness and accountability in respect of the Board's assessment of and decision on the claim, I find that the public interest in granting the request is not such that it outweighs the public interest that the right to privacy of the claimant should be upheld.

In so far as the personal information of employees of companies and the medical assessor is concerned, I do not consider that release will further the public interest in ensuring the Board's openness and accountability. In those circumstances, and even if the resulting breach of privacy is on the lower end of the scale of significance, I do not consider such breach to be required in the public interest.

Given my finding that section 37 applies to all of the withheld material, there is no need for me to consider the Board's application of other provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Board's refusal of access to the details at issue.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator