Case Number: 160307

Whether the Department was justified in refusing access, in whole or in part, to certain records held on the applicant's jobseeker file 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

In a request dated 5 May 2016, the applicant sought access to all of her personal records held by the Department. On 25 May 2016, the Department part granted the request but refused access to certain records in whole or in part under section 37 of the FOI Act on the ground that they contained the personal information of third parties. The applicant applied for an internal review of that decision and on 7 July 2016 the Department varied its original decision and granted access to some additional information. However, it withheld access to 48 records, either in whole or in part. The applicant sought a review by this Office of the Department's decision on 25 July 2016.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Department and to the contents of the records at issue. I have also had regard to the correspondence between the Department and the applicant as outlined above. I note that the applicant was invited to make a submission on 9 August 2016 but that she did not do so.

 

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing access, in whole or in part to 48 records under section 37 of the FOI Act.

Analysis and Findings

The records at issue relate to the applicant's jobseekers allowance. As such, there is a considerable amount of information in the records relating to other family members as their details, including financial details, were relevant to the assessment of the applicant's claim. In this case, the Department released information relating both to the applicant and to her minor children, but refused access to any information relating to her spouse, partner, adult children, foster children and some additional third parties.

It is worth noting that regulations made under the FOI Act provide for the release of personal information of minors to their parents in certain circumstances but that those access rights do not extend to information relating to adult children.

Section 37(1) of the FOI Act, 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.

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 "(ii) information relating to the financial affairs of the individual," "(viii) information relating to the religion, age.....of the individual," "information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary (within the meaning of the Social Welfare Acts) or required for the purpose of establishing whether the individual, being a claimant (within the meaning of those Acts), is such a beneficiary," and "(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 individuals other than the applicant or her minor children. 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. While I note that section 37(2)(b) provides for the release of personal information where the individual to whom the information relates consents to its disclosure to the requester, no argument has been made that such consent has been given 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.

No argument has been made that the release of the information at issue would be to the benefit of the individuals concerned and I am satisfied 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.

The FOI Act 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, given that the Act places no constraints on the potential uses to which records released under FOI may be put.

The records at issue in this case contain information relating to the applicant's entitlement to jobseeker payments. I accept that there is a clear public interest in promoting openness and transparency in the manner in which the Department processes such applications. 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. It does not seem to me that the release of the withheld information would significantly add to the applicant's understanding of how the Department processed her application. The question I must consider is whether the public interest in releasing the information at issue outweighs, on balance, the public interest in protecting the privacy rights of the individuals 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, in whole or in part, under section 37(1) of the FOI Act.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, 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 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