Case Number: 160552

Whether the Department was justified in its decision to refuse access to a record concerning the educational qualifications of one of its staff members 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 13 September 2016, the applicant submitted a request to the Department through his solicitors for copies of records relating to his position as the supervisor of a specified community project and to audits of the project. He also sought specific information concerning a named individual employed by the Department, including details of the professional qualifications, education, and experience of the employee.

In relation to that part of the request relating to the named employee, the Department part-granted the request. It granted access to three records but refused access to one record under section 37(1) of the FOI Act.

On 4 November 216, the applicant sought an internal review of the decision to refuse access to details of the employee's qualifications and experience. In its internal review decision, the Department affirmed the decision to refuse access to a record which it described in the accompanying schedule of records as a "Record of Course attended/Grades". On 8 December 2016, the applicant sought a review by this Office of the Department's decision.

I note that on 22 February 2017, Ms Lydia Buckley of this Office wrote to the applicant's legal representatives and outlined her view that the HSE was justified in refusing access to the record in question under section 37(1) of the FOI Act. The applicant's representatives indicted that they did not accept this view.

I have decided to conclude this review by way of a formal, binding decision. In concluding this review, I have had regard to the correspondence between the applicant and the Department as described above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the record at issue.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to a record setting out the courses attended by a named employee, under section 37(1) of the FOI Act.

Analysis and Findings

Section 37(1), 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 of individuals other than the requester. For the purposes of the FOI Act, "personal information" is defined under section 2 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 an FOI body on the understanding that it would be treated by it as confidential.

Section 2 details fourteen specific categories of information which constitute personal information, without prejudice to the generality of the foregoing definition, including information relating to the educational history of the individual, information relating to the employment or employment history of the individual, and a personnel record relating to the individual. Under section 11(6)(a) a personnel record is defined as including a record relating wholly or mainly to the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body.

Paragraph (I) of section 2 excludes certain information from the definition of personal information, including the name of a staff member of an FOI body and information relating to the office or position held or its functions or the terms and conditions upon which the office or position is held. In essence, the exclusion serves to ensure that section 37 cannot be used to exempt the identity of a staff member of an FOI body or to exempt any record created by the staff member in the course of the performance of his or her functions.

I am satisfied that the record at issue in this case contains personal information relating to the staff member in question and that the record is not captured by the relevant exclusion. I find, therefore, that section 37(1) applies to the record.

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 those circumstances arise in this case. 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. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the named employee. I find, therefore, that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates. In considering this issue, 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 acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they performs their functions. On the other hand, the FOI 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. 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.

In their letter of 23 February 2017 to this Office, the applicant's solicitors referred to their client's entitlement to his constitutional rights, rights to natural justice, due process, fair procedure and rights under the European Convention of Human Rights Act 2003. They gave no indication as to how the Department's decision to refuse access to the record at issue impinged in any way on those rights. This Office considers 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.

The information at issue in this case relates to educational qualifications of a named individual employed by the Department. I do not consider that there is a particularly strong public interest in the release of this type of information, particularly in the circumstances of this case. Having carefully considered the matter, I am satisfied that the public interest in granting access to the record at issue does not, on balance, outweigh the public interest in protecting right to privacy of the individual to whom the information relates. I find therefore that section 37(5)(a) does not apply in this case.

Accordingly, I find that the Department was justified in refusing access to the record setting out the educational qualifications of a named employee under section 37(1) of the 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 in this case.

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