Case Number: 160091

Whether the Defence Forces was justified in its decision to grant only partial access to a record relating to the applicant under section 37(1) of the FOI Act

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

On 9 October 2015, the applicant submitted a request to the Defence Forces for access to emails relating to him sent by three named members of staff. The Defence Forces identified 68 records as coming within the scope of the request. The applicant was granted full access to 50 of these records and partial access to 18 records. Information was redacted from the latter records under section 37(1) of the FOI Act on the basis that it constituted personal information belonging to third parties. The applicant sought an internal review of the decision to redact two sentences from a single record, number 52. The internal reviewer affirmed the original decision of the Defence Forces. On 25 February 2016, the applicant sought a review by this Office of the decision of the Defence Forces.

In carrying out my review, I have had regard to the correspondence between the Defence Forces and the applicant as set out above. I have also had regard to the communications between this Office and the applicant, and between this Office and the Defence Forces. I have also had regard to the content of the record at issue.

Scope of Review

This review is concerned solely with the question of whether the Defence Forces was justified in its decision to redact two sentences from an email of 7 July 2016 (part of record 52) under section 37(1) of the FOI Act.

Analysis and Findings

Section 37(1) of the FOI Act provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to a third party. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information which is personal information without prejudice to the generality of (a) and (b) above. Of relevance to this review is category (iii), which is information relating to the employment or employment history of an individual.

Section 2 of the Act also excludes certain information from the definition of personal information. In particular, paragraph (I) provides that personal information does not include the following information relating to an employee of an FOI body:

"... the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid"

I am satisfied that the redacted information at issue is personal information about an identifiable individual for the purpose of the FOI Act as it contains information relating to the employment of that individual. While section 25(3) of the Act requires me to prevent disclosure of information contained in an exempt record, I feel it appropriate to state that while the third party is an employee of the Defence Forces, I am satisfied that the exception to the definition of personal information in paragraph (I) does not apply in this case as the information relates to the ability and capacity of the individual to carry out his/her functions. I find, therefore, that section 37(1) applies.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arise in this case. Section 37(5) 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.

As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the third party concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

In considering the public interest test contained in section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case of the Governors and Guardians Rotunda Hospital v Information Commissioner[2011] IESC 26. In this case, 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).

The FOI Act recognises a public interest in ensuring the openness and transparency of public bodies in how they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). It is also worth noting that the right to privacy 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.

The information at issue in this case relates to the personal employment details of an individual. I do not consider that there is a particularly strong public interest in the release of this type of information. While there is a public interest in openness and transparency in the manner in which the Defence Forces performs its functions, I am of the opinion that this has been met to some degree by the partial release of the record at issue. I must also consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put.

I do not consider that the public interest in the release of the redacted 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 to the record in question.

Accordingly, I find that the Defence Forces was justified in its decision to redact the personal information relating to a third party and grant partial access to record number 52 under 37(1) of the Act.

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 in this case.

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.

Stephen Rafferty,
Senior Investigator