Whether the Defence Forces was justified in its decision to refuse access to CCTV footage of an alleged incident under section 37 of the FOI Act on the ground it contains personal information of third parties.

6 April 2018

Background

The applicant sought a copy of CCTV footage of an alleged incident that took place in October 2016 in a named barracks. On 7 July 2017, the Defence Forces issued a decision in which it refused access to the record sought under section 37(7) of the FOI Act on the ground that disclosure of the record would involve the disclosure of personal information relating to individuals other than the applicant. The applicant sought an internal review of that decision on 24 July 2017. The Defence Forces affirmed its original decision on 21 August 2017. On 1 December 2017, the applicant sought a review by this Office of that decision.

During the course of the review, Ms Hannon of this Office contacted the applicant and informed her of her view that the Defence Forces was justified in refusing access to the record concerned as it contained personal information relating to third parties other than the applicant. The applicant has chosen to proceed with the review so I have decided to bring this case to a close by way of a formal, binding decision.

In conducting the review I have had regard to correspondence between the applicant and the Defence Forces and to the correspondence between this Office and both the applicant and the Defence Forces on the matter. I have also had regard to the content of the withheld record provided to this Office by the Defence Forces for the purposes of this review.

Scope of the Review

This review is concerned solely with whether the Defence Forces was justified in refusing access to the CCTV footage sought under section 37 of the FOI Act.

Analysis and Findings

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

In a submission to this Office, the Defence Forces stated that the CCTV footage in which the applicant appears features a considerable amount of people in each frame/stream other than the applicant. Having regard to the nature of the request and having reviewed the footage sought, I am satisfied that the release of the footage would involve the disclosure of personal information relating to individuals other than the requester and that section 37(1) applies.

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) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 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 granting of the information would be to the benefit of the person to whom the information relates.

No argument has been made that the release of the record would benefit the individuals to whom the information relates and I find 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 individuals to whom the information relates.

The applicant argued that she requires access to the record to clear her good name and character. As a general rule, section 13(4) requires that the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. Furthermore, when considering 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. Accordingly, the reasons for a request are relevant only in so far as they reflect or overlap with what may be regarded as a "true" public 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 perform their functions. I am satisfied 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.

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 it 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, as one of the unenumerated personal rights under the Constitution. 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.

The question I must consider is whether the public interest in further enhancing the transparency and accountability of the Defence Forces is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view, it is not. In holding this view, I have had regard to the fact that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put. I find, therefore, that section 37(5)(a) does not apply in the circumstances and that the Defence Forces was justified in refusing access to the record under section 37(1) of the FOI Act.  

For the sake of completeness, I should address the applicant's point, as set out in correspondence with this Office, that the CCTV footage could easily be redacted by pixelating the faces of other individuals. Section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) 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 head of the FOI body concerned considers appropriate, of the record with the exempt information removed.

In submissions to this Office, the Defence Forces stated that at the time of the request and currently, it does not have the capability to pixelate/black out the CCTV footage in question. It said that the time frame in question is in excess of ten minutes duration, it comes from multiple camera feeds and there are considerable numbers of people in each frame/stream that do not relate to the requester.

This Office takes the view that the fact that it might be possible to redact a record does not mean that the public body must always do so and that being "practicable" for the purpose of section 18(1) necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. The FOI Act recognises that there are limitations on the resources, both financial and non-financial, a public body must expend in processing requests. In this case, the Defence Forces simply does not have the necessary facilities required to allow it to prepare a copy of the record with the exempt information removed in order to grant the request.

It is noteworthy that section 17(4) of the Act, which is concerned with the release of electronically held information contained in a number of records, requires a body to take reasonable steps to extract that information, but only in so far as those steps involve the use of any facility for search or extraction that existed on the date of the request and was ordinarily used by the body. In other words, the body is not required to extract the data if a facility that it does not ordinarily use is needed in order to do so.

In all the circumstances, I am satisfied that section 18(1) does not require the Defence Forces to provide a redacted version of the record sought in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Defence Forces decision to refuse access to the CCTV footage sought under 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