Case Number: 160305

Whether the Agency was justified in its decision to refuse access in full or in part to records created since August 2015, relating to the applicants, under sections 15(1)(a) and 37(1) of the FOI Act

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 submitted a request to the Agency on 18 March 2016, for access to records relating to their roles as foster carers, dating from 31 August 2015. In its decision, dated 16 May 2016, the Agency considered a total of 38 records. It granted access in full to 34 records and withheld in part a further four records on the basis of section 37 of the FOI Act. The applicants applied for an internal review on 18 May 2016 but a decision was not received within the statutory period provided for at section 21(4) of the Act. However, on 18 July 2016, following communications from this Office, the Agency issued an 'effective decision' to the applicants. That decision of the Agency affirmed the original decision. On 21 July 2016, the applicants submitted an application for a review to this Office.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions of the Agency and the applicants, and to correspondence between the applicants, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

 

Scope of Review

Although the exemption at section 15(1)(a) was not referred to by the Agency in any of the decision making records, it was evident at an early stage of this review that an "adequacy of search" issue arose. The applicants stated that they had not been provided with all the records requested and made it clear to this Office that, in their view, there were considerably more relevant records than had been identified by the Agency. The applicants identified numerous letters and referred to other events involving them which, in their opinion, could have resulted in the creation of further records by the Agency.

As such, this review is concerned with whether the Agency was justified in deciding to refuse access, in full or in part, to additional records on the basis of sections 15(1)(a) and to the withheld records under 37(1) of the FOI Act. The partially withheld records are numbered 14, 16, 17 and 36.

 

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicants' motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Reasons for acts of an FOI body
I note that in their original request to the Agency the applicants made reference to reasons affecting their family but this was not addressed by the Agency. However, I am aware that the applicants made a request for a statement of reasons in an earlier request to the Agency and that this Office directed the Agency to deal with it under Section 10(11) of the Act in a separate decision (Case no: 160067). Therefore, although it is by no means certain that the applicants intended in this case to make a request for a statement of reasons under section 10, I have decided to discontinue that part of this review under section 22(9)(a)(iii) of the FOI Act, which allows me to discontinue a review where the matter has been the subject of another review.

 

Findings

Section 15(1)(a) - Adequacy of Search
Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. My role in such cases is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his or her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for the records were reasonable. My Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner [2002 No. 18 M.C.A.]( available on www.oic.ie)

While the Agency did not refer to section 15(1)(a) in its decisions to the applicants, it did rely on that exemption in its submission to this Office. The Agency provided details of the searches undertaken to locate records associated with the request. It stated that it was not aware that any other records related to the applicants were stored anywhere else, and that all files associated with the FOI requests were examined. It also stated that there were "no other records relating to this case which are either not scheduled or withheld". However, on the basis of the information provided by the applicants to this Office, the Investigator took the view that the Agency was likely to hold more relevant records which it should have identified. Consequently, he raised a number of "search questions" with the Agency.

As a result, the Agency identified additional records associated with applicants' request. I understand those records have been released in full. However, the Agency stated that it had identified other records, described as "third party correspondence", held in another file, some of which it considered fell within the scope of the applicants' request. At the time of making this decision, I am not aware of the Agency having notified the applicant of the existence of those other records, or of its position on them, and it appears that those records have not been released.

In the circumstances, I cannot find that section 15(1)(a) applies. I do not consider that, in this case, this Office should be required to make a first instance decision on the records recently identified by the Agency or, indeed, embark on a further investigation as to whether all the records held have now been identified and considered. I am satisfied that it is appropriate to annul any decision of the Agency in respect of any additional records held and to direct that it conducts a fresh decision making process under section 13 of the FOI Act.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 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 parties other than the applicants and that section 37(1) of the Act applies. 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 - in this case, section 37(2) or 37(5).

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the records which I have found to be exempt under sections 37(1). That is to say, (a) the information contained in the remaining records does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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.

I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where:

(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 request would benefit the person to whom the information relates.

It has not been argued that releasing the remaining records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

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. Therefore 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.

In my view, the information which the records contain is inherently private. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances and that the redacted information in records 14, 16, 17 and 36 is exempt 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 vary any decision of the Agency in respect of additional records which came to light during the review and which have not been released, or any further records that might be held and direct that a fresh decision making process be undertaken in relation to any further records held within the scope of the request. I affirm the decision of the Agency to refuse access to the records in part, on the basis of section 37(1) of the FOI Act since the withheld information contains third party personal information.

 

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