Whether the Department was justified in its decision to refuse the applicant's request for "aon taifead a bhaineann le ceapacháin ar bhord Údarás na Gaeltachta ó 1/1/17 go dáta" [any record relating to the appointment of the board of Údarás na Gaeltachta from 1/1/17 to date]

25/5/2018
 

Background

On 18 January 2018, the applicant sought access to [records relating to the appointment of the board of Údarás na Gaeltachta from 1/1/17].    On 31 January 2018, he clarified that he was not looking for [any correspondence relating to the information booklet or to county councillors about process for appointing their representatives]  In its decision of 21 March 2018, the Department identified 29 records within the scope of the request.  It granted access to 19 of these in full, and part granted access to the remaining ten records.  The applicant made an internal review request on 16 April 2018 in relation to the withheld information in records 3 and 13 only.  On 4 May 2018, the Department affirmed its decision to refuse access to the withheld information on the basis that it did not relate to the subject matter of the request or that section 37(1) of the FOI Act applied. 

On 8 May 2018, the applicant sought a review by this Office of the Department's decision.

In conducting this review, I have had regard to the submissions of the applicant and the Department and to the provisions of the FOI Act.  I have also had regard to the content of the withheld information.  I have decided to conclude the review by making a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing access to the withheld information in records 3 and 13 on the basis that the content did not relate to the subject matter of the request or that section 37(1) of the FOI Act applied. 
 
Record 3 is an email between Department officials the subject matter of which is "Bord Nua an Údaráis 2017" and it contains two attachments.  The Department's position is that the redacted material in the email and one attachment, and the second attachment in full do not relate to the subject matter of the request i.e.  [appointments to the board of ] Údarás na Gaeltachta" .  Having examined the record at issue, I agree with the Department and find that the redacted material is not within the scope of this review. 

Record 13 is an email from an individual to the Minister of State at the Department.  The Department refused access to material in this record on the basis that  some of the information does not relate to the subject matter of the request and that section 37 applies to the other withheld information.  Having examined the record, I am satisfied that the last paragraph does not relate to the subject matter of the request and find that part of the record to be outside the scope of the request and this review. 

Analysis and Findings

The redacted content of Record 13 to which access was refused on the basis that section 37 applies contains the contact details of the sender and that individual's opinion of another individual. 

Section 37 - Personal Information. 
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information.
The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also contains a list of 14 specific types of information including (xiv) the views or opinions of another person about the individual.

Having examined the record, I am satisfied that the details of the sender are that individual's personal information, to which section 37(1) applies.  I am also satisfied that the other redacted material, being the sender's opinion of another individual, is the personal information of the individual to whom it relates, to which section 37(1) also applies. 
I am satisfied that none of the circumstances identified at section 37(2) arise in this case.

I turn now to section 37(5) which also provides for exceptions to the section 37(1) exemption. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) - Public Interest
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.  In relation to the issue of 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.
The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business.  The applicant asserts that, based on his assessment of what the content and context of the record is,  there is a public interest in the release of the personal information at issue.  I cannot reveal the content or context of the record as to do so would disclose exempt material (section 25(3) refers). 

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in 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.

I find that, in the circumstances of this case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request. 

In summary, I find that section 37(1) applies to the personal information of the individuals contained in the record, and that none of the exceptions under section 37 apply to the information. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department and find that section 37(1) applies to the withheld information.  As the applicant requested a finding on this, I also find as detailed in the scope of the review that the remainder of the information redacted from the records does not fall within the scope of his request and I affirm the Department's decision on this.

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