Case Number: 170073

Whether NMBI was justified in refusing access to statements made by a named individual regarding a formal complaint and to a letter sent by that individual's representatives to NMBI regarding the matter

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 30 August 2016, the applicant requested all documentation sent to NMBI by the representatives of a named nurse regarding a formal complaint made by him about that individual. NMBI refused the request on 7 September 2016 under sections 29, 31, 35(1)(a) and 35(1)(b) of the FOI Act. The records identified by NMBI comprised a letter from the individual's representative and two statements made by the named individual regarding the applicant's complaint. Following an internal review, NMBI affirmed its original decision. On 9 February the applicant sought a review by this Office of that decision.

During the course of this review, Mr Christopher Flood of this Office wrote to the applicant to inform him of his view that NMBI's decision was justified in refusing the request on the ground that the records at issue contain personal information which is exempt under section 37 of the FOI Act. The applicant was given the opportunity to respond but to date, no such response has been received.

Accordingly, I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the contents of the records at issue. I have also had regard to correspondence between the applicant and NMBI on the matter, and to communications between this Office and both the applicant and NMBI during this review.

Scope of Review

This review is concerned solely with the question of whether NMBI was justified in refusing access to the three records it identified as coming within the scope of the applicant's request.

Preliminary Matters

It should be noted that section 18(1) of the FOI Act 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 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). Neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Analysis and Findings

Having reviewed the contents of the records at issue, I consider section 37 to be the most relevant provision of the FOI Act in this case. My jurisdiction under section 22 is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Given the fact that the exemption relating to the protection of personal information is mandatory, and that the release of the records at issue may affect the interests of a third party/parties, I am satisfied that it is appropriate for me to consider the applicability of section 37, notwithstanding the fact that it was not originally relied upon by NMBI in refusing access to the records sought.

Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the records concerned would involve the disclosure of personal information of 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 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 that is personal, without prejudice to the generality of the foregoing definition.

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 his/her office or position or its functions, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions. This exclusion is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant while carrying out his or her official functions. However, the exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. Indeed, the personnel records of staff members of FOI bodies are included within the definition of personal information.

Given the nature of the matters to which the statements in question relate, I find that they cannot be said to have been prepared by the named individual for the purpose of the performance of her functions. Rather, they were prepared in the course of an enquiry into allegations of misconduct made against the individual who is the subject of the applicant's FOI request. I find, therefore, that the exclusion in Paragraph I does not apply.

I have carefully examined the contents of the records at issue. In addition to information regarding the applicant's complaint, the statements in question also contain information relating solely to the named individual in question, and other information concerning additional third parties. Having regard to the definition of personal information set out above, I am satisfied that the information contained in the records is either personal information relating to a party/parties other than the applicant or joint personal information relating to the applicant that is inextricably linked to personal information of a third party/parties. I have also had regard to the provisions of section 18, detailed above. In the circumstances, I find that section 37(1) applies.

There are some circumstances, provided for at section 37(2), where section 37(1) does not apply. Having examined the records at issue, and having regard to the correspondence between this Office and both the applicant and NMBI during this review, I am satisfied that none of the circumstances identified at section 37(2) 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 parties concerned. I find, therefore, that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. There is a distinction to be made between a request made by a private individual for a private purpose and a request made in the public interest. 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.

In his request for internal review, the applicant indicated that he wished to obtain access so that he could assess the accuracy and fairness of statements made regarding his complaint. While the applicant has also stated his desire to ensure, via his complaint, the safety of others, it seems to me that his complaint concerned matters particular to him. In my view the applicant has expressed what is, in essence, a private interest in release.

In the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest. An applicant's private interest in certain records cannot be construed as a public interest based on the applicant's own motives for seeking access to the records.

Nevertheless, the Long Title of the FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy. 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.

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. The right to privacy has a constitutional dimension. Furthermore, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. Another important consideration in this regard is that the release of records under FOI is regarded as being, in effect, to the world at large because the FOI Act places no restriction on the subsequent uses to which records released may be put.

Having carefully considered the matter, I do not consider that the public interest in the release of the records sought in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the persons to whom the information in question relates. I am satisfied, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that NMBI was justified in its decision to refuse access to the withheld information under section 37 of the Act. Given my findings regarding section 37, it is not necessary for me to consider the applicability of the other provisions of the FOI Act relied upon by NMBI in refusing the request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of NMBI to refuse access to the records sought, on the basis of section 37 of the FOI Act.

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