Case Number: 160286

Whether the Services was justified under section 37 of the FOI Act in refusing to grant access to records relating to the financial affairs of the applicant's brother on the basis that they contain personal information relating to his brother

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

By letter dated 23 December 2015, the applicant submitted a request to the Services for information relating to the financial affairs of his brother, Mr. Y. The Services issued its decision on 22 January 2016, refusing access to the records sought. The applicant sought a review by this Office of the Services' decision by way of letter dated 29 June 2016.

As submissions have been received from the Services and the applicant's solicitor, I consider that this review should now be brought to a conclusion by way of a formal, binding decision. In conducting this review I have had regard to the submissions of both parties, to the communications between the applicant and the Services, and to the communications between this Office and bother the applicant's solicitor and the Services on the matter. I have also had regard to the contents of the records identified by the Services as falling within scope of the applicant's request, copies of which were provided to this Office for the purpose of the review.

Scope of Review

This review is concerned solely with the question of whether the Services was justified under section 37 of the FOI Act in refusing to grant access to records relating to Mr. Y's financial affairs on the basis that they contain personal information relating to Mr. Y.

Preliminary Matter

The letter issued by the Services in refusing the applicant's request failed to provide adequate reasons for its decision. Therefore, I issued a notice under section 23 of the Act directing its Director of Services to furnish to me and to the applicant an adequate statement of reasons for the decision. At the same time, my Office sought a submission from the Services focussing on the issues likely to be central to the review. I am satisfied that the statement of reasons that issued on foot of the section 23 notice was adequate in general, although it would have been desirable for the Services to have set out in more detail its consideration of the public interest.

Analysis and Findings

The applicant sought "an update on [Mr. Y's] finances". Mr. Y is described as being "severely disabled and non-verbal" and "incapable of managing his own affairs". He is in full time residential care in a facility operated by the Services. The Services refused the application under section 37 of the FOI Act on the basis that the information sought is personal information relating to Mr. Y.

Section 37(1) of the FOI Act provides that a public 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. "Personal information", for the purposes of the FOI Act, is defined at section 2 as including "information relating to the financial affairs of the individual". It is therefore clear to me, having examined the records at issue, which consist of bank statements and other accounts, that the information sought is indeed personal information relating to Mr. Y. Accordingly I find that section 37(1) of the Act applies to the records at issue.

 

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. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third party has 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) 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid

The applicant's core arguments centred on the assertion that the release to him of the information sought would benefit Mr. Y. He submitted on two main grounds that that section 37(5)(b) therefore applies.

Firstly, the applicant contended that to release the records would allow for an additional safeguard to be put in place in relation to Mr. Y's financial affairs. He claimed that clarification to him of the details of Mr. Y's finances would be in Mr. Y's best interests. Secondly, the applicant argued that access would be to Mr. Y's benefit insofar as it would allow his surviving siblings to ensure adequate financial provision for him into the future.

In its submission to this Office, the Services made reference to various oversight and complaint mechanisms that are available to protect Mr. Y's financial interests. It also referred to the statutory framework governing its fee structure, and stated that in the event of any anticipated shortfall in funding, "all relevant parties would be advised".

In addressing the applicant's arguments, it is important to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put. Therefore, while I have no doubt that the applicant wishes to safeguard his brother's financial affairs and to make adequate provision for his future care, I must consider the wider argument as to whether the release of Mr. Y's records, of itself, would benefit Mr. Y. I would add that it is not possible for this Office to be certain that it is in possession of all relevant facts which might allow for an accurate assessment of whether the release of the records sought would benefit Mr. Y in this particular case. Having carefully considered the submissions of the parties, I do not accept, in the circumstances of this case, that release of Mr. Y's records would benefit him.

Turning to section 37(5)(a), I must also consider whether the 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 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, available at www.oic.gov.ie. In the judgment, 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 applicant's core submissions are set out above. He also raised issues going to the general public interest in openness, transparency and accountability. However, it seems to me that what is at issue in this case is, in essence, a private interest as opposed to a true public interest. Nevertheless, 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.

In its submissions, the Services set out the relevant oversight and complaint mechanisms regarding the performance of its functions. It stated that, as matters stand, a wardship application would be necessary to appoint persons to formally oversee Mr. Y's accounts, but that this would be a costly and complex process. It further submitted that the Assisted Decision Making (Capacity) Act, 2015 is due to come into operation in 2017, which will bring about various changes to the relevant legal framework. The Services also suggested that the applicant could seek the assistance of an independent advocate, appointed by the National Advocacy Service for People with Disabilities.

Having carefully considered these submissions, it does not seem to me that the public interest in granting access to the records sought outweighs, on balance, the significant public interest in protecting Mr. Y's privacy rights. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8) provides that, notwithstanding section 37(1), the Minister for Finance may provide by regulations for the grant of an FOI request where "the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual". The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016) make provision for access by parents or guardians to personal information in relation to persons in certain circumstances.

Regulation 5(b) provides for a right of access by the parent or guardian of persons who at the time of the request have, or are subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which are certified by a registered medical practitioner, and by reason of that condition, incapacity or disability, are incapable of exercising their rights under the FOI Act.

It is not disputed by either party that Mr. Y's condition is such that he is not capable of exercising his rights under the FOI Act. Therefore, the key issue for consideration is whether the applicant is Mr. Y's guardian for the purposes of the regulation.

The applicant confirmed that that Mr. Y is not a ward of court and thus the applicant is not his committee. The applicant suggested that a statutory declaration could be sworn by each of Mr. Y's surviving siblings consenting to the appointment of the applicant, or one of his siblings, as Mr. Y's guardian. However, even were this step to be taken, and the applicant's siblings were in agreement that they would consent to his being appointed as guardian, it does not seem to me that this would have the effect of actually appointing him as Mr. Y's guardian, and as such would not be sufficient to meet the requirements of the regulation.

The applicant made a separate submission that legal rights arise out of the family relationship as between the applicant and Mr. Y. The exact nature and standing of any such rights is not clear, and in any event I am satisfied that even were I to accept that rights of the kind outlined by the applicant do exist, this would not entail that the applicant is Mr. Y's guardian within the meaning of the regulation. Similarly, the applicant claimed that Mr. Y's next of kin should be treated as his guardian for these purposes, stating that in the case of deceased persons a specific provision is made in the provision for access by third parties to personal information. However, the fact that the regulation 7 specifically provides for access to records of deceased persons by their next of kin, and defines next of kin for those purposes, but that no similar provision is included under regulation 5, only reinforces my view that next of kin cannot be treated as a guardian for the purposes of the latter regulation.

Having carefully considered the submissions furnished by the applicant and the Services, I am not satisfied that the applicant is Mr. Y's guardian, and I therefore find that the requirements of the regulations are not satisfied and that a right of access under the 2016 Regulations does not exist.

Accordingly, I find that the Services was justified in its decision to refuse access to the records at issue under section 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 Services' decision to refuse access to the record 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.

 

Stephen Rafferty
Senior Investigator