Whether the Department was justified in its decision to refuse access under sections 30 and 37 of the FOI Act to records relating to a complaint made by the applicant concerning his former solicitors

30 July 2018  

Background

On 13 June 2017, the applicant sought records in relation to a complaint and related involvement by the Department in a matter concerning him and his former solicitors.  He sought five categories of information in the request.  The Department part granted the request on 12 September 2017.  81 records were identified by the Department.  20 of those records were released in full.  Access was refused to 25 records under section 15(1)(i) of the FOI Act (that they had previously been released to the applicant).  Access to 32 records was refused on the basis of section 37 (personal information) and access to the final four records was refused on the basis of section 30 (functions and negotiations of FOI bodies).  

The applicant sought an internal review of the decision to refuse access to the records over which sections 30 and 37 were claimed.  On 1 November 2017, the Department affirmed its original decision.  The applicant subsequently sought a review by this Office of that decision.

I have now decided to conclude my review by way of a formal, binding decision.  In conducting the review, I have had regard to the correspondence between the Department and the applicant as described above. I have also had regard to the correspondence between this Office and both the Department and the applicant on the matter, as well as to the records the subject of the review and the provisions of the FOI Act.  

Scope of the Review

During the course of this review the Department agreed to release a further record (record number five) to the applicant and this was released in July 2018.  
The scope of this review is therefore concerned with whether the Department was justified in refusing access to 31 records on the basis of section 37 of the FOI Act and to four records on the basis of section 30 of the FOI Act.  

Preliminary Issues

I wish to note at the outset that 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.  

Further, Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.  This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. 

Finally, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25 that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.  This constraint means that, in the present case, the extent of the description that I can give of the records is limited.

Analysis and Findings

Section 37
Section 37 provides for the mandatory refusal of a request if the FOI body considers that access to the records sought would involve the disclosure of personal information relating to a person other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her 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 of the Act details fourteen specific categories of information that is personal information without prejudice to the generality of (a) and (b) above, including:

(ii) information relating to the financial affairs of the individual, and
(iii) information relating to the employment or employment history of the individual.

Section 2 also includes some exclusions to the definition of personal information.  It states that the definition does not include:

(I) in a case where the individual holds or held -

(A) office as a director of,

(B) a position as a member of the staff of, or

(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,

(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.

The records in this case can also be said to contain joint personal information; that is information that relates to more than one individual.  Section 37(7) states that a head shall refuse to grant an FOI 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.  In this case, there is some information that relates to the requester, however it is inextricably linked to information relating to the solicitors who were the subject of the complaint.  

The Supreme Court, in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- The Information Commissioner [2012] 1 ILRM 301, (more commonly referred to as the Rotunda Case) considered the definition of personal information and found that it is sufficient for information to be captured by any one of the fourteen specific categories of information for it to be personal information. Release of the information in this case would involve the disclosure of the identities of specific individuals, about whom a complaint was made in relation to their professional employment.  It is clear that such information can be described as information relating to the employment and/or financial affairs of the individuals in question. On its face, therefore, for the purposes of the FOI Act the information sought is personal information relating to the individuals concerned, unless any of the exclusions to the definition of personal information apply.

The exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally. In this case, the records sought are not specifically related to the work of the relevant service providers, but rather to the manner in which those services were provided, including complaints about an alleged breach of a particular scheme.  

Essentially, when considering the exclusions, a distinction must be drawn between the role of a staff member or contractor as a provider of a public service which is subject to oversight and the privacy rights of those same individuals regarding their private employment and financial affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files, employment and financial affairs.

In this case, the information sought contains details of correspondence between the solicitors in question and the Department.  It also shows the steps taken by the Department on foot of a complaint and the manner in which it was investigated, handled and resolved.  The records show that an audit was undertaken and the outcome on foot of this.  Also included in the records is correspondence to and from the Law Society in relation to the matter.  

I am satisfied that this information goes beyond information relating to the terms of the contract where solicitors are providing a service under a contract for services with a public body. It relates to the standard of the solicitors' performance, rather than the terms of the service provided.  I find, therefore, that the information sought is personal information relating to the individuals concerned as the exclusions to the definition of personal information do not apply. It follows, therefore, that section 37(1) applies.

Further, I have examined the four records to which the Department has applied section 30 of the FOI Act.  I find that these records contain similar information to that noted above in that they disclose the identity of the individuals against whom allegations were made.  I therefore find that section 37(1) also applies to these four records.  

The effect of section 37(1) 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)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. 

I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. 

Section 37(5)
Section 37(5) provides that access to the personal information of a third party may 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.

It has not been argued that the release of the withheld information would be to the benefit of the third parties concerned, nor do I consider this to be the case. I therefore find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.  It should be noted that the Department made very inadequate submissions on the consideration of the public interest.  Nevertheless, the FOI Act itself recognises public interest arguments and I will address these below.  

The Act recognises a strong public interest in enhancing the openness, transparency and accountability of public bodies in the performance of their functions. 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). 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.

In relation to the issue of the public interest, it is also important to have regard to the obiter comments of the Supreme Court in 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.

In this case, the applicant is aware of the steps taken by the Department on foot of his complaint and the outcome of the review undertaken.  It could be argued that the public interest in how the Department deals with such complaints has been satisfied to some degree.  

The question I must consider, therefore, is whether on balance the public interest in further enhancing that transparency and accountability by releasing the information sought in this case is sufficiently strong to outweigh the privacy rights of the individuals to whom the information relates. In my view, it is not.  I do not consider that the release of the information sought would result in a significant further enhancement of transparency and accountability.  On the other hand, I consider that release would involve a significant breach of the privacy rights of the individuals concerned.

Finding
Having carefully considered the matter, I find that the public interest that the request should be granted does not, on balance, outweigh the right to privacy of the individuals to whom the information relates and that section 37(5)(a) does not apply.

I find therefore that the Department was justified in refusing access to all 35 records on the basis of section 37(1) of the FOI Act.  

Section 30
As I have found that section 37 applies to all of the withheld records, it is not necessary for me to go on to consider the applicability of section 30. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the records identified above on the ground that the information sought is exempt 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.

Elizabeth Dolan
Senior Investigator