Case Number: 160156

Whether the Services was justified in refusing access to certain records listed in an investigation report, which concerned a complaint made by the applicants about the treatment of their son

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

The applicants made an FOI request on 2 February 2016 for eight records that were listed in a investigation report. The report concerned a complaint they had made about the Services' treatment of their son on a particular date.

The Services issued its decision on 19 February 2016. It released two of the requested records (in one composite document) in full, partially released one, and fully withheld the rest. It primarily relied on sections 37(1) and (7) of the FOI Act in withholding the material concerned, and also referred to sections 30(1)(a) and (b) of the Act.

The applicants sought an internal review of this decision on 4 March 2016. The Services issued its internal review decision on 30 March 2016. It released one sentence from one of the records it had fully withheld, and affirmed its refusal of the remaining details. .

On 6 April 2016, the applicants sought a review by this Office of the Services' refusal to release all of the requested records.

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, the Services, and the applicants; 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 Services has justified its refusal to grant access (whether in full or in part) to all of the records requested by the applicant. The review does not include a name annotated on the first page of record 7. I accept that the annotation concerned, for reasons already explained by this Office to the applicant and which I see no need to repeat in this decision, has no relevance to the request.

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 Services 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. It follows that the reasons I can give for my decision in this case are limited.

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(8)
Section 37(8) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. The regulations provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances. It has not been argued that the applicants in this case are not entitled to information regarding their son. However, the relevant regulations do not provide for the release of third party information to a parent or guardian. I am satisfied that the provisions of section 37(8) are not relevant in this case, having regard to the contents of the records at issue.

Section 37(7)
Section 37(7), subject to other provisions of section 37, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (joint personal information).

I am bound by the requirements of the FOI Act not to disclose the nature of the material at issue. In this case I can go no further than to say that, having examined the details concerned, I am satisfied that they fall into at least one category of material that must be considered as personal information (as listed at section 2 of the FOI Act) in relation to members of staff of the Services. I do not consider this information to be captured by any of the limited exclusions to the definition of personal information where members of staff of a public body are concerned (section 2 also refers). This information is inextricably linked to the personal information of the applicants and/or their son.

Accordingly, I am satisfied that the withheld details in this case comprise the joint personal information of the applicants and their son and staff members of the Services. I find the records to be exempt under section 37(7) of the FOI Act.

Section 37(2)

There are some circumstances, provided for at section 37(2), in which the exemption at section 37(7) does not apply. The applicant has not argued that any elements of section 37(2) apply in this case.

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 applicants; (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.

Section 37(5)

Section 37(5) provides that a record, which is otherwise exempt under section 37(7), 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 third parties to whom it relates, as envisaged by section 37(5)(b) of the FOI Act, nor have the applicants made any argument in this respect.

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

The July 2011 Supreme Court judgment, in the case of 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), ("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. Thus, 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. "

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. 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, 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.

The applicants have made no submissions to this Office. For the sake of completeness, however, it should be noted that this Office has no remit to consider, or make any findings on, the Services' treatment of the applicants' son, or its treatment of any complaints made by the applicants. Neither would it be appropriate to direct the release of sensitive third party personal information, effectively to the world at large, on the sole basis of an applicant's dissatisfaction with matters such as these. Furthermore, while in so far as any of the records at issue would provide the applicants with additional information about their son's care, it remains the case that they still contain intrinsically private third party personal information.

In this case, there is a public interest in establishing whether the Services carried out its functions in a manner 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 limited amount of material released to date. I accept that release of the remaining details at issue would enable further insight in that regard and therefore further serve the public interest in favour of release. However, I accept that such release - effectively to the world at large - would result in a significant breach of the Constitutional rights to privacy of the third parties whose information is contained in the records.

Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest that the right to privacy of the third parties to whom the records relate should be upheld outweighs the public interest that access to those records should be granted.

Section 30
Given my findings above regarding section 37 of the FOI Act, there is no need for me to consider the Service's application of section 30 to the records at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Services' refusal of access to the records 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