Case Number: 160067

Whether the Agency was justified in its decision to refuse access in full or in part to certain records under sections 15(1)(a), 19(2) and 37(1) of the FOI Act, and whether the Agency fulfilled the requirements of section 10 in relation to the applicants' application for a statement of reasons for acts of the Agency affecting them and matters relating to them and their family

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

Between 12 and 30 August 2015, the applicants submitted five FOI requests to the Agency for access to records relating to their roles as foster carers. The requests specifically mentioned records about both applicants, their family, statistics in relation to child sexual abuse in Ireland and statements of reasons for decisions affecting the applicants and their family. The timelines in the decision making records on these requests are unclear. For example, in a letter dated 7 October 2015, the applicants applied for internal reviews of all five FOI requests, having received no original decisions. However, in a letter dated 8 October 2015, the Agency acknowledged receipt of at least one FOI request. The Agency then issued a decision on 9 November 2015 but it was not made clear to the applicants whether that decision covered all five requests. In the decision, the Agency granted access to some records and refused access in full, or in part, to others on the basis of section 37 of the FOI Act. On foot of that decision, the applicants submitted a second request on 2 December 2015, for an internal review covering five FOI requests.

From records provided to this Office, it is unclear whether the Agency processed the applicants' request for internal reviews. However, following communications with this Office, the Agency issued its 'effective decision' to the applicants on 1 February 2016. In that decision, the Agency released an additional record but affirmed the original decision to withhold in part, or in full, the remaining records. The Agency confirmed to this Office that the decision of 1 February was made in consideration of all five FOI requests made by the applicants in August 2015, and subsequently, during the course of this review, the applicants accepted the Agency's decision on that basis. On 14 February 2016, the applicants submitted an application for a review of all five requests to this Office.

I note here that in examining this review this Office had significant difficulties and delays in establishing the details of the Agency's decision making and consequently, the scope of this review. In addition, while the applicants clearly submitted five separate requests, it is not entirely clear whether they were requesting access to specific records and/or other information which they assumed ought to exist. Also, details in some of the requests overlapped with each other. Further, the Agency's description of records in its decision schedule does not always correspond to the records as described by the applicants.

The Agency did not respond to the requests within the statutory time limits, as required by sections 13(1) and 21(4) of the FOI Act. As noted earlier, the applicants submitted their requests in August 2015 and it is a matter of some concern to me that a decision on those requests was not made until five months later.

It also became clear in the initial stages of this review that while the Agency's decision purported to cover all five requests, it had failed to address a number of issues raised by the applicants and one specific request in particular. In relation to one issue, the Agency accepted that a request by the applicants for a statement of reasons under section 10 of the FOI Act was not appropriately considered by it under the provisions of that section. One of the applicants' requests was not addressed by the Agency in its internal review decision of 1 February 2016 and I will consider that matter later in this decision.

During the course of this review, the Agency released in full a number of additional records but withheld access to other records, identified by the applicants, on the basis of section 15(1)(a). Of the 240 records identified by the Agency as related to the applicants' requests, nine records were withheld in full, one was part granted and 230 records were released in full.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions of the Agency and the applicants, and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

This review is concerned with the question of whether the Agency has complied with the provisions of section 10 of the FOI Act in relation to the applicants' request for a statement of reasons and with whether the Agency was justified in deciding to refuse access, in full or in part, to records on the basis of sections 15(1)(a), 19(2) and 37(1) of the FOI Act. There is also the issue of a "deemed refusal" of part of the request (under section 19(2) of the Act).

Preliminary Matters

While I appreciate that the subject matter of the different requests was not entirely clear, the Agency's handling of the applicants' requests was very poor. The Central Policy Unit of the Department of Public Expenditure and Reform has made significant resources available on its website, www.foi.gov.ie, to facilitate the efficient processing of FOI requests, including a detailed Code of Practice for public bodies and sample letters for use when processing requests. This Office's website also contains guidance on the exemptions and other provisions. I expect a public body such as the Agency to make use of the supports available to it and to ensure that it follows the statutory procedure as set out in the FOI Act for processing requests.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicants' motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

Section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not 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.
When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Findings

Section 10

As referred to above, the applicants included a request for a statement of reasons in three of their requests to the Agency. In an application for review of a decision in relation to section 10, where the FOI body has refused to provide a statement of reasons, the Commissioner's review is concerned with whether the FOI body was entitled to refuse to provide the statement of reasons.

Section 10 provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Section 10 of the Act further provides:

(10) An application under this section shall be expressed to be such an application

(11) Notwithstanding subsection (10), where an FOI body receives either --
(a) an application which purports to be an application under this section but which is not in the proper form, or
(b) an application which does not purport to be an application under this section but which applies for the information access to which can be obtained only by way of an application under this section,

the head shall assist, or offer to assist, the individual in the preparation of an application under this section."

Since the Agency did not refer to any of the requests for statements of reasons in its original decision, I consider the requests by the applicants are deemed to be refused by the Agency, in accordance with the provisions of section 19(3) of the FOI Act.

The requests for statements of reasons were not made in the proper form since the applicants did not expressly state that the applications was made under section 10 of the Act, as required by section 10(10). Neither did they clearly specify the specific acts or material issues of fact that affected them. However, it is clear that the applicants wanted to know why the Agency took certain actions. Section 10(11) of the Act provides that "notwithstanding sub-section 10 FOI bodies shall assist, or offer to assist, the individual in the preparation of an application under section 10". During the course of the review, the Investigator asked the Agency if it had considered the applicants' requests in terms of section 10(11) of the FOI Act and whether it had offered to assist the applicants. The Agency stated that the requests were not specific but it did not address the matter of its obligations under section 10(11).

In my view, the Agency has not dealt with the applicants' request in accordance with the provisions of section 10(11) of the FOI Act. Accordingly, I annul that part of the decision of the Agency and direct it to assist the applicants in the making of a request for a statement of reasons and to consider any resulting request under section 10 the FOI Act.

Section 19(2) - 'Deemed refusal' of the request

Section 19(2) of the FOI Act provides that where notice of a decision under section 21 is not given to the person who made the application concerned under that section before the expiration of the period specified in subsection (4) thereof, a decision affirming the decision to which the application relates shall be deemed for the purposes of this Act to have been made upon such expiration.
As stated above, one of the requests made by the applicants was for access to records on statistics but the request was not considered by the Agency in its internal review decision of 1 February 2016. During the course of this review, the Agency stated that it would make a decision on that request. In spite of the fact that the Agency says it is still working on the non-personal information (statistics etc) element of the request, the reality is that its failure to give a decision on this amounts to a deemed refusal. I note that no reference was made by the Agency in its contacts with the applicants to the "administrative" type refusal reasons in section 15 of the Act. Consequently, I consider the request by the applicants is deemed refused by the Agency, on the basis of section 19(2) of the FOI Act.

Accordingly, I direct the Agency to undertake a fresh decision-making process in respect of the applicants' request for statistics and to inform the applicants of the outcome of its decision, in accordance with section 13 of the FOI Act.

Section 15

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records.

The Office's understanding of its role in these cases was approved by Quirke J. in the High Court case Matthew Ryan and Kathleen Ryan v the Information Commissioner (available on www.oic.ie).

It should be noted that this Office may conclude that a public body has conducted reasonable searches even where records were known to have existed but cannot be found. The Act does not require a public body to continue searching indefinitely for records that cannot be found, although I would expect the body to notify the requester immediately where records that could not previously be found are subsequently located.

The applicants stated they had not been provided with all the records requested and forwarded to this Office a list of records which they stated included a number of letters (with dates) sent to them, or received from the Agency. The applicants noted that references were made in some other records by social work staff which suggested that further correspondence could or may have issued to the applicants during the period corresponding to their requests.

The Agency provided this Office with details of searches undertaken to locate records within the scope of the requests, and in so doing, responded to detailed queries put to it by the Investigator. It stated that it had sought all records from the relevant departments and locations and that checks were made both manually and by computer, including its 'RAISE' system. It further stated that it was not aware that any other records related to the applicants were stored anywhere else, and that all files associated with the FOI requests were examined. It also stated that there were "no other records relating to this case which are either not scheduled or withheld".

This Office is also reviewing a second application (review 160305) concerning another request from the applicants to the Agency. The applicants' second request is similar to their first (the subject of this review) but is for access to records that were created after 30 August 2015. During the course of review 160305, this Office raised a number of "search questions" with the Agency. In particular, this Office queried whether there were files or areas within the Agency where records relating to the applicants are stored but which had not been searched. In response, the Agency stated that it had identified other records in another file which it considered were within the scope of the applicants' second request (review 160305). However, the Agency, in response to the Investigator's queries, also stated that the additional records recently discovered related to the second request only and that its search concluded that no other records exist.

The applicants have made it clear to this Office that they do not accept the Agency's decision that it does not hold further records. Having requested the Agency to conduct a number of additional searches, based on the applicant's submissions to this Office, and having received assurances that reasonable efforts have been made to locate any additional records, I do not accept that it is necessary to insist that the Agency carry out indefinite searches.

This review is not concerned with the question of whether or not the records ought to exist. Rather, the question I must consider is whether the Agency has taken all reasonable steps to ascertain the whereabouts of the records requested.

The position of the Agency is that it has taken all reasonable steps to look for records of relevance to the applicant's request. In view of the information provided by it relating to the searches undertaken and the records identified in the schedule, I consider that the Agency has taken all reasonable steps to ascertain the whereabouts of any further relevant records. Given the circumstances of this case, I would expect that if any further relevant records were to come to light, the Agency would consider them for release to the applicants. I find, therefore, that section 15(1)(a) of the FOI Act applies and that the Agency was justified in its decision on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 37
Section 37(1)

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.

Although the extent to which I can describe the contents of the records is limited, I can confirm that all of the withheld material contains information about persons connected to the applicants and other third parties.

Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicants, or personal information relating to the applicants that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) and/or section 37(7) of the Act applies to the records.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Having considered the provisions of section 37(2), I am satisfied that, (a) the withheld information contained in the records does not relate solely to the applicants; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) 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) - the Public Interest

Section 37(5) of the FOI Act 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 third parties 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 to privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), 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 (see www.oic.ie). 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).

In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. 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, 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 information in the records at issue is of a private and confidential nature. While there is a public interest in openness and transparency in the manner in which the Agency performs its functions, I am of the opinion that this has been met to a large degree by the full or partial release of many of the records at issue. I do not consider that the public interest in the release of withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Agency was justified in its decision to refuse access to the withheld records under section 37(1) and/or section 37(7) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul part of the decision of the Agency, as specified above, and direct it to assist the applicants in the making of a request for a statement of reasons and to consider any resulting request under section 10 the FOI Act. I direct that the Agency to undertake a fresh decision-making process in respect of the applicants' request for statistics, as set out above, and to inform the applicants of the outcome of its decision, in accordance with section 21 of the FOI Act. I find that the Agency has justified its position under section 15(1)(a) of the FOI Act that additional records identified by the applicants either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I affirm the decision of the Agency to refuse access to those records withheld in full, or in part, on the basis of sections 37(1) and 37(7) of the FOI Act.

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