Case Number: 160548

Whether the Department was justified in its decision to refuse access to information in a record, under section 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

On 6 October 2016, the applicant submitted a request under the FOI Act for access to records relating an alleged incident involving the applicant, which took place at a social welfare branch office. The Department released a number of records and refused access to others under section 31(1)(a) and (b) of the FOI Act. The applicant submitted a request for an internal review, following which, the Department affirmed the original decision but also exempted a number of the records on the basis of section 32(1)(a)(iii) of the Act. On 8 December 2016, this Office received an application from the applicant for a review of the Department's decision.

During the course of this review, the Department released additional records to the applicant. It advised the applicant that it had released in full all but one record the subject of the applicant's FOI request. The Department further advised that the remaining record, which it identified as record 4, was withheld in part on the basis of section 37(1) of the FOI Act.

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

Scope of Review

This review is concerned with whether the Department was justified in deciding to withhold information in a record on the basis of section 37(1) of the FOI Act.

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 record is limited.

Analysis and Findings

Section 37 - Personal Information
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. 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.

In the circumstances of this case, I am satisfied that the withheld information is personal information relating to an identifiable individual and that the redaction of a small part of the record is appropriate. Accordingly, I find that section 37(1) of the Act applies to the information at issue.

The effect of section 37(1) applying 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)
There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case.

Section 37(5)
Section 37(5) of the FOI Act provides that a request which 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 concerned. In my view, the grant of the request would not benefit the individual to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. 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 FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is worth noting that the right to privacy also 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 satisfied that the public interest in this case has been served by the release of the information relating to the applicant. I find that, in the circumstances of this case, the right to privacy of the third party whose personal information is in the record outweighs the public interest in granting the applicant's request.

Accordingly, I find that the Department was justified in its decision to refuse access to the withheld information in record 4 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.

Elizabeth Dolan
Senior Investigator