Case Number: 170101

Whether the Council was justified in its decision to refuse access to certain information under section 37(1) of the FOI Act, on foot of the applicant's request for access to his personal information

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 21 October 2016, the applicant submitted a request under the FOI Act for access to his personal records. The Council identified seven 'schedule' files related to the applicant and granted access in full to most records. It granted access in part to a small number of records under section 37(1) and refused access to other records, in schedule 7, on the basis of section 30(1)(a) of the FOI Act. The applicant submitted a request for an internal review of the Council's decision as it related to schedule 7. On 13 January 2017, the Council affirmed the original decision. On 24 February 2017, this Office received an application from the applicant for a review of the decision of the Council.

During the course of this review, the Council changed its position on the withheld records in schedule 7. On 7 April 2017, the Council granted access in full to most of the records and withheld in part, access to information in a number of records, on the basis of section 37(1) of the FOI Act. I would note here that the Council mistakenly referred to "schedule 1", instead of 'schedule 7'. However, following communications with an Investigator of this Office, the applicant confirmed that he was seeking a review of the Council's position of 7 April 2017, as it related to the withheld information in the records in schedule 7.

In conducting my review, I have had regard to the submissions of the Council and the applicant and to correspondence between the applicant and the Council. I have also had regard to the content of the records 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 Council was justified in deciding to withhold information in the records 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 provides that access to a record shall be refused if access would involve the disclosure of personal information. Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

The Council refused access to the information in the records, under section 37(1) of the Act, on the basis they contained the personal information of persons other than the applicant. It is clear from my examination of the records that release of the withheld information would disclose the personal information of parties other than the applicant and that this information is of a private nature. I am satisfied that the withheld information in all of the records within the scope of this review is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the FOI Act applies to those records.

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)
Section 37(2) of the FOI Act provides for a number of circumstances 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. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue.

Section 37(5) - the Public Interest
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.
I am satisfied that the release of the information at issue would not be to the benefit of any of the individuals concerned and 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.

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 the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, 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.

Having regard to the above, on balance, I find that the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse access to the withheld information in the records, on the basis of section 37(1) 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.

Elizabeth Dolan
Senior Investigator