Case Number: 160545

Whether the Department was justified in refusing access to certain records on the applicant's Means Assessment file

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 11 October 2016, the applicant made an FOI request for a "full copy of [his file] within the Department ... from 2009 to October 2016 ... ". The Department issued its decision on 9 November 2016 in relation to records on the applicant's Job Seeker's Allowance claim file and on his Means Assessment file. It partially released both files. It relied on sections 30(1)(c), 32(1)(a)(i) and 37 (exemptions that, generally speaking, concern functions and negotiations of an FOI body; law enforcement and public safety; and personal information) in refusing to grant access to certain records on the files concerned.

On 10 November 2016, the applicant sought an internal review of the Department's refusal to grant him access to certain records from his Means Assessment file (i.e. the fully withheld records 12, 21, 31, and 55 and the partially withheld records 33 and 40). On 30 November 2016, the Department issued its internal review decision, further to which it released records 12, 33, and 55 in full, partially released records 21 and 40, and fully withheld record 31. It again relied on the exemptions cited in the original decision, and also relied on section 30(1)(a), in relation to the information it was refusing to release.

On 1 December 2016, the applicant sought a review by this Office of the Department's decision. On 31 January 2017, I served notice under section 23 of the FOI Act directing the head of the Department to provide the applicant and the Commissioner with a statement of reasons for the refusal of access to the withheld records. The Department complied with this and told the applicant and this Office, on 15 February 2017, that it was partially releasing record 31. My Office also contacted the applicant to clarify the scope of the matters remaining in the review.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Department, and the applicant. I have had regard also to copies of the records at issue, which were provided to this Office for the purposes of this review, and to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Department has justified its refusal to release the remainder of records 21, 31 and 40, as contained on the applicant's Means Assessment file. In relation to record 40 in particular, at this stage only one brief annotation remains withheld i.e. on the second page of the record.

Preliminary Matters

It is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the Department has partially released some of the records at issue, the Information Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

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.

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.

Findings

Section 37

Sections 37(1) and 37(7)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record. Section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (joint personal information).

"Personal information" is defined at section 2 of the FOI Act as

"information about an identifiable individual that -
(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 a public body on the understanding that it would be treated by it as confidential" ...

I am constrained in the description I can give of the details that the Department has withheld under section 37. However, I am satisfied that all of the withheld details meet the one or both of the above definitions and contain personal information about parties other than the applicant and/or contain the joint personal information of the applicant and other parties. I find that the withheld information is exempt under sections 37(1) and/or 37(7) of the FOI Act.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that no such circumstances arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that 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) that 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)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest

In relation to the issue of the public interest ,it is important to have regard to the 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 ("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. The Commissioner's approach in this regard has been endorsed by McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case"), when he said that "'private' as opposed to 'public' interests [were] not a sufficient basis upon which to exercise the discretion in favour of the appellant [under the relevant public interest test in that case]".

The applicant maintains that "comments and information relating to [him] have been kept on file about [him] and are being withheld for no good reason." He says that this "is unfair as [he is] not being given the opportunity and right to natural justice. There might be misinformation on [his] file and [he] won't know if it's true or not unless [he has] access to it." These arguments clearly represent the applicant's own private interests in obtaining the withheld information, which, as he is aware, cannot be taken into account. Furthermore, I have no remit to consider, or make findings on matter such as the adequacy of the Department's procedures for dealing with the applicant's claims for allowances. It would not be appropriate for me to direct the release of third party personal information or joint personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that such procedures may have been inadequate. Neither is it appropriate for me to direct the release of the withheld third party or joint personal information on the basis that it "might be misinformation".

As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances." The Commissioner's comments were endorsed by McDermott J.'s judgment in the F.P case referred to above.

In the case at hand, there is a public interest in establishing that the Department carried out its functions in dealing with the applicant in a way that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. This public interest has been served to some extent by the material released to date.

On the other hand, both 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). Furthermore, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large (an understanding that was also endorsed by McDermott J. in the F.P. judgment).

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. I accept that release of the details concerned would further serve the public interest in openness and accountability regarding the Department's dealings with the applicant. However, I find that the weight of the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the rights to privacy of the third parties should be upheld.

There is no need for me to consider any of the other exemptions relied on by the Department in light of the above finding.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to fully release the remainder of records 21, 31 and 40, as contained on the applicant's Means Assessment file.

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