Case Number: 160291

Whether the Department was justified in refusing access to certain records relating to the pension of the applicant's deceased mother 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

On 3 December 2015, the applicant made a request for access to all correspondence in relation to her dealings with the Department from 10 April 2014 and all correspondence from anyone who has been in touch with the Department in relation to the overpayment of her mother's pension. The Department part granted the applicant's request and refused access to certain records, in whole or in part, under section 37 of the FOI Act. The applicant sought an internal review of that decision on 26 January 2016 following which Department upheld its original decision. The applicant sought a review by this Office of the Department's decision on 5 July 2016.

In carrying out this review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule which accompanied its initial decision on the request.

 

Scope of Review

During the course of the review, the Department agreed to release additional records that had been previously withheld in part. It continued to refuse access to four records (three referred to as Tab 6 in the schedule of records provided and one as Tab 8) and to certain information contained in three records referred to in the schedule as Tabs 16, 18 and 22 respectively. Accordingly, this review is concerned solely with whether the Department was justified in its decision to refuse access, in whole or in part, to these records.

 

Analysis and Findings

The Department refused access to the records and information at issue under section 37(1) of the FOI Act. That section, subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a request where access to the record at issue would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.

In this case, the Department agreed to release information relating both to the applicant and to her deceased mother. However, the information to which access was refused also relates to an individual other than the applicant or her deceased mother. 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 the applicant's deceased mother that is inextricably linked to the personal information of another individual. Accordingly I find that section 37(1) of the Act applies to the records and information at issue.

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, which I will deal with below.

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 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, while the applicant has not identified any particular public interest factors favouring release of the records, the FOI Act nevertheless recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. 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.

The records at issue in this case relate to an overpayment that arose as a result of the applicant continuing to collect her deceased mother's pension for a period after her death. The Department has sought to recover the overpayment from the applicant. I accept that there is a clear public interest in promoting openness and transparency in the manner in which the Department deals with such issues. However, it seems to me that the public interest has been served to a large extent by the release of the vast majority of the records the Department holds on the matter. The question I must consider is whether the public interest in releasing the records and information at issue outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. In my view, it does not. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Department was justified in its decision to refuse access to the withheld records and 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 Department.

 

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