Case Number: 150450

Whether the Service was justified in refusing access to a record relating to a complaint made against the applicant

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

In January 2014, a prisoner complained that the applicant, a prison officer, assaulted him during a search for contraband material. The Service carried out an investigation into the complaint. Subsequently, on 28 August 2015, the applicant requested access to all records relating to the complaint. The Service refused the request on 19 October 2015. On 16 November 2015, the applicant sought an internal review of the decision. The Service upheld its original decision on 30 November 2015. On 23 December 2015, the applicant sought a review by this Office of the Service's decision.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the relevant record, to the submissions of the parties and to the provisions of the FOI Act.

Scope of the Review

The Service has identified one record as coming within the scope of the applicant's request, which it describes as the "Complaint File". This record contains 79 pages, and includes an investigation report together with a number of appendices. Therefore, the scope of this review is concerned with whether the Service was justified in refusing access to the complaint file.

Findings

It is important to note at the outset that the courts have taken the view that records under FOI are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Additionally, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the record at issue is limited. Furthermore, this review is de novo, and the decision is made in light of the facts and circumstances as they apply on the date of the review.
The Service has justified its decision to refuse access to the record on the basis of the exemption provided for by section 35 of the FOI Act, which concerns confidential information. However, in my opinion, the more appropriate exemption to consider is that relating to personal information. While this exemption has not been relied upon by the Service, it is a mandatory exemption which is intended to protect third party interests, and therefore I consider that it appropriate to consider whether it is applicable in this instance. Given my findings as set out below, I did not consider it necessary to notify the third party of the review in this case.

Section 37

Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned 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 or individuals other than the requester, commonly referred to as joint personal information.

In submissions to this Office, the applicant's solicitor stated that "[S]ome of [the] information, and, in particular, the key part of that information, has already been provided to [the applicant]...It clearly must be in the interests of justice that [the applicant] is furnished with all information relating to the investigation of the specific complaint made against him. It seems to us that our client is probably already in possession of personal information relating to the prisoner in question concerning the complaint."

Having carefully examined the contents of the complaint file, I am satisfied that, by its very nature, it contains information that is personal to both the applicant and the prisoner, and that therefore the information can be appropriately described as joint personal information, as the release of information relating to the applicant would also involve the disclosure of personal information relating to the prisoner. I find, therefore, that section 37(1) applies.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. While section 37(2) sets out a number of exceptions to this exemption, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) also provides for the release of certain information to which section 37(1) applies. It provides that a request that 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 right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individual concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individual to whom the information relates.

The record at issues in this case contain sensitive details of the complaint made by a prisoner about his alleged mistreatment. While the FOI Act, at section 11(3), requires an FOI body to have regard to, among other things, the need to achieve greater openness in its activities and to promote adherence by it to the principle of transparency in government and public affairs in performing any function under the Act, I believe that the public interest in protecting the privacy of this prisoner is particularly strong in this instance, given the nature of the information at issue. In holding this view, I am cognisant of the fact that release of the complaint file would, in effect, amount to release to the world at large. In respect of the information contained in the record that relates to the prisoner, I find that the public interest in protect the privacy rights of that individual outweighs, on balance, the public interest in granting the request.

In so far as the record contains joint personal information relating to the applicant and the prisoner, I accept that there is a public interest in requesters being granted access to their own personal information. However, given that the applicant's personal information is inextricably linked to the personal information of a third party, the question I must consider is whether the public interest in granting access to that information outweighs, on balance, the public interest in protect the privacy rights of that third party.

In considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court issued in July 2011 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, [2013] 1 I.R.1. In the judgment, the Supreme Court 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. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

I accept that the public interest in openness and accountability of FOI bodies is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. However, I believe it is important to bear in mind the nature of the process under which the record in this instance was prepared. The Prison Rules (Amendment) 2013 (SI 11/2013) provide that when a so-called 'Category A' complaint is made against a prison officer, an investigation team is appointed to prepare a report for the prison Governor. Rule 57B(10)(d) provides that the report shall not be a basis for imposing any disciplinary action on a prison officer, and the Governor must decide whether disciplinary proceedings should be instituted. Clearly, any action proposed at that stage would necessarily have regard to the constitutional rights of the applicant. However, I do not agree with the applicant's solicitor that the applicant's "constitutional rights to fair procedures are very relevant here", in circumstances where the record under review could not be a basis for imposing disciplinary action against him.

In this case, it does not seem to me that the public interest in openness and accountability is sufficiently strong to outweigh, on balance, the public interest in protecting the privacy rights of the prisoner. The right to privacy has a constitutional dimension, as one of the unenumerated personal rights under Article 40.1 of 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. The fact that the record contains personal information pertaining to the applicant is not sufficient, of itself, to defeat the right to privacy of the other person to whom the information relates. Nor is it sufficient, in my opinion, that the applicant has already been made aware of some personal information pertaining to the prisoner, in circumstances where release under FOI is considered as effectively release to the world at large.

In all the circumstances, I am satisfied the balance of the public interest lies in refusing access to the joint personal information, and consequently I find that the Service was justified in refusing access to the entirety of the record under section 37 of the FOI Act.

As I have found that the Department was justified in refusing to grant the request under section 37, I do not need to proceed to considering the exemption under section 35.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Service to refuse access to the record under section 37.

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