Whether the Council was justified in refusing partial access to a certain record in the applicant's social worker file containing emails between An Garda Síochána and staff members of the Council

11 June 2018

Background

In a request dated 12 December 2017, the applicant and her minor children sought access through their solicitors to all personal information and records held by the Council in relation to the family's housing application, including, but not limited to, all personal information and records relating to their housing needs and applications for accommodation/social housing.  In a decision dated 22 December 2017, the Council granted the request in part, but refused access to parts of certain records in the applicant's social worker file under section 35(1)(a) and section 37(1) of the FOI Act.  In addition, the Council refused access to the applicant's housing file under section 15(1)(d) on the basis that the file was available for "public inspection". 

On 11 January 2018, the applicant sought an internal review of the Council's decision to apply section 15(1)(d) in relation to her housing file and to apply section 35(1)(a) to parts of record number 35, which is described in the schedule of records as consisting of emails between two named members of An Garda Síochána and two named staff members of the Council, including a social worker, "clarifying which family [the applicant's] husband is from".  The applicant also suggested that the Council may have taken an unduly narrow approach to the scope of her request.  In a decision dated 2 February 2018, the Council affirmed its original decision, but it nevertheless provided a copy of the housing file sought.  On 22 March 2018, the applicant applied to this Office for a review of the Council's decision.

In the course of the review, the Council conceded that section 15(1)(d) of the FOI Act was incorrectly applied in this case given that applicant's housing file is not in fact in the public domain.  In addition, it provided details of the searches carried out for records relating to the applicant's housing application.  The applicant was notified of these matters and also of the Investigator's view that the redactions made from record 35 consist of personal information relating third party private individuals to which section 37(1) applies.  In response, the applicant stated that she was satisfied with the Council's position apart from its decision in relation to record 35. 

Accordingly, I have now decided to conclude this review by way of a formal, binding decision on the question of the redactions made from record 35.  In carrying out my review, I have had regard to the submissions made by the applicant in support of her application for review and have also examined the contents of the record concerned.

Scope of the Review

This review is concerned solely with the question of whether the Council was justified in refusing access in part to record 35, as described above.  While some of the redactions were in fact made by the Council in reference to section 37(1) rather than section 35(1)(a), for the sake of completeness, all of the redactions will be addressed in this review.  However, for the sake of clarity, I note that this Office has no role in adjudicating on how FOI bodies carry out their functions generally or in investigating complaints against FOI bodies.

Analysis and Findings

As the Investigator has explained to the applicant, the redactions made from record 35 include information that was provided to the Council by named members of An Garda Síochána about individuals with the same surname as the applicant.  The applicant takes issue with the Investigator's characterisation of record 35 as being part of the Garda check process, and indeed it seems that the initial email contained in record 35 may have been prompted by concerns raised by an anonymous source, but it is nevertheless the case that information pertaining to other individuals was provided by the Gardaí to the Council for reasons that relate to the applicant's surname.  The information was forwarded to the social worker, who replied by clarifying that the comments from the Gardaí relate to another family, not the applicant's family.  Part of the clarification refers to the applicant's in-laws, including her husband, but all of the information contained in record 35 that relates solely to the applicant and her family of origin has been released.  In its original decision, the Council applied section 37(1) of the FOI Act to the comments made by the social worker regarding the other individuals concerned, but the Garda comments regarding some of the same individuals were redacted under section 35(1)(a) of the Act.  In its submissions to this Office, the Council has confirmed that section 37(1) of the Act should have been applied to all of the redactions in the circumstances.

Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual).  Section 37(7) clarifies that 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 referred to as joint personal information.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential.  The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual"; "(viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status . . . of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual"; and "(xiv) the views or opinions of another person about the individual".

In this case, I am satisfied that the information redacted from record 35 qualifies as personal information within the meaning of the Act; it is in fact information of a particularly sensitive nature.  Even if the information may be regarded as also relating to the applicant and her children because it is contained in her file and involves her in-laws and others who were mistakenly considered by the Gardaí to have some connection to her or her family, it is nevertheless exempt as joint personal information (section 37(7) refers).  With certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only.  Rather, 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.  I therefore find that section 37(1) applies to the information redacted from record 35.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply.  However, I am satisfied that none of those circumstances arises in this case.  Section 37(5) 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.

As I find no basis for concluding that the release of the information concerned would be to the benefit of the third party individuals to whom it relates, I find that section 37(5)(b) does not apply.  In considering the public interest test contained in section 37(5)(a), 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 Hospital 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, I find that the public interest in granting access to the redacted information does not, on balance, outweigh the public interest in upholding the right to privacy of the individuals concerned.  In the circumstances, I do not consider it necessary to determine whether the Garda comments are also exempt under section 35 of the FOI Act, as initially claimed by the Council. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's decision in this case on the basis of section 37(1).
 

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