Case Number: 170258

Whether the Department was justified in refusing access to a letter about a third party sent by Deputy Micheál Martin T.D. to the former Taoiseach, on the ground that the record is exempt from release under sections 31(2)(a) and 37 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 15 February 2017, the applicant made an FOI request to the Department for all correspondence between the former Taoiseach, Mr Enda Kenny, and Deputy Micheál Martin T.D., between January - June 2014. On 31 March 2017, the Department issued a decision, in which it granted access to some information and refused access to the remaining information, under sections 31(2)(a), 37(1) and 42(f) of the FOI Act. On 10 April 2017, the applicant applied for an internal review decision in respect of two records: Records 7 and 13. On 30 May 2017, not having received an internal review decision, the applicant applied to this Office for a review. On the same day, the Department issued an internal review decision to the applicant by e-mail. It part-granted Record 7, refused access to Record 13 under section 37 and affirmed its original decision on the attachments to both records under section 31(2)(a).
In reviewing this case I have had regard to the Department's decision 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; the content of the withheld records provided to this Office by the Department for the purposes of this review and the provisions of the FOI Act.
Scope of the Review
During this review, the applicant's representatives confirmed that the applicant seeks access to Record 13 and that he wishes for this Office to compare the Department's treatment of Record 13 with the treatment of other records which it part-granted. This review is therefore concerned with whether the Department was justified in refusing access to Record 13, under sections 31(2)(a) and 37 of the FOI Act.
Preliminary Matters
Before considering the exemptions 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 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 (e.g. section 37(2), which I consider below), 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

Section 37 - Personal Information
Section 37(1)

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", "(viii) information relating to the...age...of the individual" and "(xii) 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".

In its internal review decision, the Department says that it considered the possibility of part-releasing Record 13 in accordance with section 18 of the FOI Act, but was of the view that the record would be so heavily redacted as to be meaningless. In his application for review, the applicant submits that the decision-maker has no insight into what he may consider "meaningless" or "meaningful" and that he is not aware of any section of the FOI Act where it either states or infers that a record may be withheld because the decision-maker has interpreted that the redacted record would be meaningless to the requester.

Record 13 consists of a letter from Deputy Martin to the former Taoiseach about an individual other than the applicant and an email from that individual. It contains highly sensitive information about the individual concerned, which relates to their age, medical, psychiatric and psychological history. It also contains the person's name, email address, mobile telephone number, home-town and information about the individual's parents. Therefore releasing this record would involve the disclosure of personal information relating to an individual other than the applicant.

I note the applicant's submission on the Department's decision not to release the record with redactions. The FOI Act does not require me to consider whether redactions would render the record "meaningless". However, as noted above, section 18 of the FOI Act does not apply if providing a redacted record would produce a misleading record. In theory, one could extract particular sentences or paragraphs from Record 13 which do not relate to the individual concerned. I have considered whether this would be practicable in the circumstances. However, having regard to the content of Record 13 and to section 18 of the FOI Act, I conclude that to provide the record with isolated sentences and paragraphs would be to provide a misleading record.

I therefore find that Record 13 is 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), which I examine 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 Record 13. That is to say, (a) the information concerned does not relate to the applicant; (b) the third party has 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 my view, the information which the record contains is inherently private. It relates to the medical, psychological and psychiatric history of an individual other than the applicant and is very personal to the individual concerned. On balance, I do not consider that the public interest that the request should be granted outweighs the Constitutional right to privacy of the individual to whom the record relates. 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 person 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 Record 13, under section 37(1) of the FOI Act. In view of this finding, I am not required to consider section 31(2)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Department's decision, 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