Case Number: 170116

Whether the Department was justified in deciding to (a) refuse a statement of reasons under section 10 of the FOI Act and (b) refuse access to records relating to complaints about bullying and harassment in the work-place, on the ground that the records are exempt from release under section 35 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 8 January 2017, the applicant made an FOI request to the Department for: (a) "a statement as to the reason the Department processed complaints, which include references to me, without providing me the opportunity to comment on the complaints or to defend myself against any allegations that may be contained within", under section 10 of the FOI Act; and (b) copies of the two complaint documents concerned.
On 6 February 2017 the Department decided as follows: First, it stated that the applicant was not entitled to receive a statement under section 10 and advised that it was not its function to examine, verify or prosecute the content of the complaints concerned. Secondly, it refused access to the records under section 35 of the FOI Act (confidentiality).
On 13 February 2017 the applicant applied for an internal review. On 6 March 2017, the Department issued its internal review decision, in which it affirmed its original decision. On 6 March 2017, the applicant applied to this Office for a review of the Department's decision.
In reviewing this case I have had regard to the Department's decisions on the matter; the Department's communications with this Office; the applicant's communications with this Office; communications between the applicant and the Department on the matter; and the content of the withheld records provided to this Office by the Department for the purposes of this review.
Preliminary Matters
Before considering the exemption claimed, I wish to make the following points. First, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy me that its decision to refuse to grant access to the records concerned is justified.

Secondly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is limited.

Thirdly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is 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

Scope of Review

In submissions to this Office during this review, the applicant says that he is "requesting sight of all documents associated with the allegations made against [him] personally and all other documents and decisions made by the Department of Social Protection in processing these allegations. This is to include all payments of compensation to individuals and the reasoning for same...". However, I must make clear that my review of the Department's decision to withhold records is confined to the applicant's original FOI request, which concerns the two complaint documents ("the records"). The Investigator explained this point to the applicant during this review. Towards the end of this review process, the applicant sent a further document to this Office and asked that it be taken into consideration, as it "relates to the complaint you were dealing with". Again I must emphasise that my review of the Department's decision to withhold records is limited to the applicant's original FOI request.
Section 10 - Statement of Reasons

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.

An application under section 10 must, generally speaking, be made within twelve months after the date on which the person who is affected by the act becomes aware of it. It would seem from the chronology of events that the applicant made his application over twelve months after the Department made him aware of the complaints in respect of which he seeks a statement of reasons. However, lest there be any dispute about when the applicant became aware of the alleged act, I will proceed to consider section 10.

To be entitled to a statement of reasons for an act of an FOI body, an applicant must be affected by the act and must have a material interest in a matter affected by the act or to which it relates. Section 10(5) provides that a person has a material interest if the consequence or effect of the act may be to confer a benefit on, or withhold a benefit from, the person without also conferring the benefit or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances. Taking section 10 as a whole, the Commissioner's view is that the word "act" in the section must be interpreted as the exercise of (or refusal to exercise) a power or function which may result in the conferring or withholding of a benefit.

The Commissioner takes the view that the applicant bears the burden of proof in establishing the standing necessary to be entitled to a statement of reasons for an act of an FOI body; i.e. the applicant bears the burden of showing that he or she has a material interest in the matter.

In this case, the applicant seeks a statement as to the reason the Department processed complaints which included references to him without affording him an opportunity to comment on them or defend himself against any allegations. During this review, the applicant stated that he seeks a statement of reasons relating to a payment which he says that the Department made in respect of a liability which he says that it accepted. I should note that the applicant's original request for a statement of reasons did not specify this; nonetheless, the Investigator obtained the Department's views on the point. The applicant also stated that by "process", he means the process by which the Department deals with claims for payments, which he explained to this Office in detail.

The records concerned are two documents which contain complaints about bullying and harassment in the work-place, made by staff of a corporate entity. The documents primarily concern individuals other than the applicant.

The applicant submits that the Department had to have accepted the content of the complaints as fact. He says that by default, this includes accepting the accuracy of allegations made against him. The Department says that the entity receives funding from the Department. It says that the sole reason for which the entity provided the records to the Department was to ground a request to apply some of its Departmental funding to deal with the complaints. The Department says that it was not its function to examine, verify or prosecute the content of the complaints. It disputes the applicant's point about liability.

I have considered the matter carefully and had regard to both the parties' submissions. I am not satisfied that the applicant has identified an act of the Department which affects him and in respect of which he has a material interest. The applicant has not shown me how any aspect of the Department's dealings with these complaint documents is an act which may be said to confer a benefit on, or withhold a benefit from, him.

Accordingly, I find that the Department is justified in refusing a statement of reasons under section 10.

Section 37- Personal Information

During the review, the applicant confirmed to this Office that he already has extracts from the records, which include references to him. As I understand it, he obtained these extracts outside of FOI. I note that the Investigator sought to reach a settlement in this case, by asking the Department whether it was prepared to release those extracts relating solely to the applicant to him, and by taking the other information out of the scope of this review. The Department did not agree to release the extracts and it was entitled to take this position.

It is not disputed that the extracts concerned are contained within records which consist of personal information relating to individuals other than the applicant. I have therefore decided to consider the records in their entirety under section 37 of the FOI Act. The applicant was notified of this and given an opportunity to make submissions.

In response, the applicant refers to the further document sent to this Office. As noted above, that record falls outside the scope of this review. He points to the fact that the definition of personal information in the FOI Act includes "views and opinions of another person about the individual". He also points to the definition of "personal data" under EU legislation and says that EU law must take precedence. I should emphasise that I am required to consider the definition of "personal information" under the provisions of the FOI Act. Finally, the applicant says that by denying the existence of allegations, the Department acted against the public interest by denying him the opportunity to vindicate his good name.

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: "(i) information relating to the educational, medical, psychiatric or psychological history of the individual", "(ii) information relating to the financial affairs of the individual", "(iii) information relating to the employment or employment history of the individual" and "(xiv) the views or opinions of another person about the individual".

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

Records 1 and 2 are written complaints about bullying and harassment in the work-place. They are complaints made by individuals other than the applicant and they predominantly concern individuals other than the applicant, although they include references to the applicant. They contain highly sensitive information relating to the mental and physical health of third parties; to the employment and finances of third parties; and views or opinions about third parties. Even if the references to the applicant can be said to constitute personal information relating to him, it is clear to me that releasing the records would involve the disclosure of personal information relating to individuals other than him.

In theory, one could extract certain sentences or paragraphs from the records which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, those sentences and paragraphs appear in the context of information given by, and relating to, third parties. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of the records would be to provide misleading records.

I therefore find that the records are exempt from release under section 37(1) of the FOI Act. This finding is subject to the provisions of sections 37(2) and 37(5), dealt with below.

Section 37(2)

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 the circumstances in section 37(2) apply to the records. That is to say, (a) the information concerned does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

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.

In relation to the issue of the public interest, it is important to take note of the obiter 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 applicant says that he seeks access to the records in order to defend his good name. As noted above, I am required to disregard the applicant's reasons for his FOI request. Therefore I can only take into account the purpose for which he seeks this information to the extent that he identifies a public interest. However, I believe that the interest which the applicant sets out is more properly viewed as a private rather than a public interest. I consider that I am supported in these opinions by the High Court decision of FP v The Information Commissioner [2016] IEHC 771. There, the Court found that the public interest in granting access to information was not to be determined on the basis of the appellant's personal circumstances.

I must also bear in mind that release under the FOI Act is tantamount to release to the world at large. Accordingly, this is not a question of whether to disclose certain information to the applicant alone; it is a question of whether to disclose certain information to the world at large.

Having regard to the above, on balance, I do not believe that the public interest that the FOI request should be granted outweighs the public interest that the Constitutional right to privacy of the individuals concerned should be upheld. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the record would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Having regard to the above, I find that the Department is justified in refusing access to the records, under section 37(1) of the FOI Act.

For completeness, I should note that I have reviewed the further document which the applicant sent and it does not affect my views on the records, as set out above.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decisions to: (a) refuse a statement of reasons under section 10 of the FOI Act and (b) refuse access to the records, under 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