Case Number: 160181

Whether the Board's decision to redact certain information from records relating to complaints made about the applicant was justified under section 37 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 21 December 2015, the applicant sought access to all records concerning complaints made against her by fellow students of [an educational establishment]. On 12 January 2016, the Board part-granted the request. It redacted certain information relating to third parties from a number of the records identified as coming within the scope of the request. The applicant sought an internal review of that decision on 9 February 2016. In its internal review decision of 12 April 2016 the Board varied the original decision by granting access to additional records that had not been considered, again with some redaction of information relating to third parties. On 21 April 2016, the applicant sought a review by this Office of the Board'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 correspondence between the applicant and the Board as outlined above, to the correspondence between this Office and both the applicant and the Board on the matter, and to the contents of the records.

 

Scope of the Review

The Board identified 43 records, comprising 116 pages, as coming within the scope of the request. It released 26 records in full and granted partial access to the remaining 17 records. This review is concerned solely with whether the Board was justified in redacting certain information from the 17 records to which access was granted in part.

 

Findings

The records under review include statements from the complainants, as well as from staff members and other students who were interviewed about the matter, together with handwritten notes and comments and tutor class diaries. The identities of the complainants, and the other students interviewed about the complaints, were redacted, as was a small amount of information concerning a number of the students. However, the majority of the records, including substantial details about the nature and substance of the complaints, has been released to the applicant. The final record (page number 81) contains redactions of the names of staff members rather than students, and is considered separately at the end of this decision.

In its decision on internal review, the Board relied upon the provisions of sections 37(1) and 42(m) for redacting the records. However, during the course of the review, it stated that it no longer wished to rely upon section 42(m). Section 37(1) of the FOI Act is a mandatory exemption which 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.

With the exception of the redactions from page 81, I am satisfied that the disclosure of the redacted material would involve the disclosure of personal information relating to individuals other than the applicant. I find, therefore, that section 37(1) applies. Section 37(2) of the FOI Act sets out certain circumstances in which 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 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 individuals 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 individuals to whom the information relates.

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 that judgment, the 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 applicant has referred to, and indeed 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, 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.

While there is a public interest in openness and transparency in the manner in which the Department performs its functions, I believe that this public interest has been served, to a large degree, by the amount of information already disclosed. The question I must consider is whether the public interest in disclosing the remaining information outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. In my view, it does not. In forming this view, I am conscious of the fact that under FOI, records 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. I find, therefore, that section 37(5)(a) does not apply, and that the redacted information should not be released.

Finally, page 81 has a limited number of redactions of names of staff members involved in the consideration of the complaint against the applicant. Section 2, which sets out the definition of personal information, provides that, where an individual is inter alia a member of staff of an FOI body, it does not include "the name of the individual or information relating to the office or position or its functions..." Therefore, I find that the names of the staff members on page 81 are not personal information for the purposes of the Act and I direct that this page should be released in full to the applicant.

 

Decision

Having carried out a review under section 22(2) of the Act, I hereby vary the decision of the Board. I direct the release of page 81 to the applicant. I uphold the remainder of the Board's decision to partially refuse access to the records under section 37.

 

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

Stephen Rafferty
Senior Investigator