Case Number: 160226

Whether the Department was justified in its decision to refuse access to records relating to the selection process for an overseas election observation roster under section 37(1) of the FOI Act on the basis that the records concerned contain personal information relating to third parties

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

On 4 March 2016, the applicant made an FOI request to the Department for access to:

"All records concerning applicants for the Election Roster 2013 that applied late or were allowed to apply electronically, including details of any missions that they subsequently participated in, as well as representations made on their behalf."

The Department identified two series of records coming within the scope of the applicant's request. On 20 April 2016, it decided to refuse access to both series of records on the basis that the records contain personal information of third parties. On 25 April 2016, the applicant requested an internal review of this decision. On 17 May 2016, the Department affirmed its original decision. On 19 May 2016, the applicant applied to this Office for a review of the Department's decision.

In the course of this review, both parties were invited by this Office to make submissions. The Department provided a submission in support of its decision. The applicant chose not to provide a submission. I have decided to conclude this review by issuing a formal binding decision.

In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the Department and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to the records contained in series one and two on the basis that they contain personal information of third parties and are exempt under section 37(1) of the Act.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Section 18 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. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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.

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. Therefore, in this case, the onus is on the Department to justify its decision.

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. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is 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.

Analysis and Findings

As stated above, the Department identified two series of records coming within the scope of the applicant's request. Series one contains applications for the roster that were received late and associated correspondence including a document which the Department described as a template for responding to representations. Series two contains two applications in relation to specific election observation missions in 2013.

In his internal review application, the applicant stated that the Department failed to consider whether the records could have been released in a redacted format. He also stated that, at the time of the application process, it was stated that only applications submitted by post before the specified deadline would be considered. The applicant argued that, in light of these specific requirements, it is a cause of concern that late applicants were admitted to the process. The applicant also argued that in its initial decision the Department failed to consider the public interest in release of these records.

In submissions to this Office, the Department stated that the application forms and correspondence under series 1 and 2 consist of personal information and it would not be possible to release the records in a redacted format. The Department stated that, having examined the records, it considered that the public interest in transparency, which would be served by the release of the records at issue, did not outweigh the public interest in upholding the right to privacy of the applicants for the roster.

Section 37(1)
Section 37(1) provides, subject to other provisions of section 37, for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. Section 2 of the Act states that personal information means information about an identifiable individual that, either -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by an FOI body on the understanding that it would be treated by that body as confidential,

Section 2 provides that personal information includes-

(i) information relating to the educational...history of the individual...
(iii) information relating to the employment or employment history of the individual...
(xii) the name of the individual where it appears with other personal information relating to the individual or where the 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...
(xiv) the views or opinions of another person about the individual...

The application forms under series 1 and 2 include the names, addresses, telephone numbers, email addresses, education history, employment history, details of references and previous election experience. I am satisfied that the application forms contain personal information and it would not be practicable to provide these forms in a redacted format. I am satisfied that the correspondence associated with the applications also contains personal information. I conclude that, subject to the provisions of section 37(2) and 37(5) which I examine below, the records in series one and two are exempt from release on the basis of section 37(1) of the Act.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (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 any 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 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, [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law".

In the present case, the applicant points to the public interest in transparency in relation to the manner in which appointments are made to a public roster. However, the context of this application is the applicant's dissatisfaction at not having been appointed to this roster. In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request (section 13(4) of the FOI Act refers). However, this is not necessarily the case where the public interest becomes a consideration. As can be seen from the comments of the Supreme Court in the Rotunda case, there is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests may overlap. While the applicant may have a private interest in acquiring the records this private interest overlaps with the public interest in openness, transparency and accountability.

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, there is a public interest in openness and accountability as to the manner in which the Department carried out the selection process and dealt with appointments to a public roster.

I note that in its submissions, the Department points out that following a previous FOI request (reference number 140040) it provided the applicant with a significant volume of records in relation to the selection process for the roster, including scoring sheets, a full list of the scores received by candidates, correspondence with appraisers, correspondence relating to a review of the roster, extracts from requests for feedback and responses to such requests. I am satisfied, having regard to the records that have already been released to the applicant and the extent to which the applicant is aware of details of the selection process for the roster, that the public interest in openness and transparency has already been met to some extent by the material released to date. In this regard, I understand that several FOI requests, Data Protection requests, Parliamentary Questions and complaints to the Ombudsman have focused on the election roster issue. I note that the Department met with the applicant in regard to his complaint in 2013.

The FOI Act recognises a very strong public interest in protecting privacy rights 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 also 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. Having considered the matter carefully, I am satisfied in this case that the public interest that the request should be granted does not, on balance, outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find therefore that section 37(5)(a) does not apply in this case.

In light of the above, I find that the Department was justified in refusing access to the records.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby affirm the decision of Department 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.

 

Elizabeth Dolan
Senior Investigator