Case Number: 160105

Whether the Council was justified in refusing access to the names of the individuals who attended a meeting with the Lord Mayor of Cork on 30 October 2015 and accompanying photographs 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

The applicant in this case is an organisation that provides certain support services. All references to the "applicant" in this decision may be read as references to the organisation, or its legal representatives, as appropriate.

By letter dated 18 December 2015 to the Lord Mayor of Cork City, the applicant alleged that five persons purporting to act for and represent it met with the Lord Mayor and his officers at the Council's offices on or about 30 October 2015. In that letter, the applicant sought copies of all records relating to the meeting to include the identity of all persons attending the meeting, and photographs of those in attendance at the meeting.

On 25 January 2016, the Council decided to grant the applicant's request in part. It released a copy of an extract from the Lord Mayor's diary which indicated that the Lord Mayor was due to receive members of the organisation for a courtesy visit on 30 October in the Lord Mayor's Chamber. It also released a copy of an agenda for the meeting in question with the redaction of the names of proposed attendees for both a private meeting and for attendance afterwards. It refused access to two photographs taken on the day.

The applicant sought an internal review of that decision on 1 February 2016. On 24 February 2016, the Council affirmed its original decision. The applicant sought a review by this Office of the Council's decision on 2 March 2016.

In carrying out this review, I have had regard to the correspondence between the Council 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 Council.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to withhold the names of individuals identified in the agenda for the meeting concerned and to refuse access to the related photographs.

Analysis and Findings

The Council withheld the names of the individuals concerned and the related photographs under section 37(1) of the FOI Act. That section provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".
In the particular circumstances of this case, I am satisfied that the withheld information is personal information relating to parties other than the applicant and that section 37(1) of the Act applies. The effect of section 37(1) is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies - in this case, section 37(2) or 37(5).

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption under section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that access to the personal information of a third party may 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.

No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the third parties concerned. I therefore 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 persons to whom the information relates.

I should point out at this stage that the decision letters issued by the Council to the applicant gave no indication of any consideration being given to where the balance of the public interest lay in this case. In this regard, the Council's attention is drawn to its obligation to ensure that all future decisions provide appropriate details of its consideration of the public interest, where required.

In relation to the issue of the public interest under section 37(5)(a), it is important to take note of the obiter comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 (which I shall refer to as the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

In this case, the applicant has expressed what appears to be a private interest in accessing the names and photographs of the attendees at the meeting. In its FOI request, the applicant stated its concern about individuals purporting to represent it and stated that it sought the relevant records to "deal with this matter appropriately". Nevertheless, the FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. In my view, the public interest in ensuring the openness and accountability of the Council in the performance of its functions has been met to some degree by the release of records without identifying the relevant third parties. Furthermore, it is not clear to me how the release of the information at issue would serve to further enhance the openness and accountability of the Council to any significant extent.

On the other hand, the 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. I am also cognisant of the fact that disclosure of a record under FOI is, in effect, disclosure to the world at large. Accordingly, I find that the public interest in the release of the information at issue does not, on balance, outweigh the 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 Council was justified in its decision to refuse access to the withheld information under section 37(1) of the FOI 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 Council.

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