Whether the Agency was justified in its decision to refuse the applicant's request for access to social work records concerning his children under sections 35 and 37 of the FOI Act
31 August 2018
Background
On 14 February 2018, the applicant made an FOI request to the Agency for all social work reports, interviews and documents concerning his children. The Agency failed to make a decision on his request within the statutory time-limit and the applicant applied for an internal review on 15 May 2018. On 12 June 2018, the Agency issued an internal review decision. It identified four files of social work records. It refused access to parts of each file under sections 35 (confidentiality) and 37 (personal information). On 21 June 2018, the applicant applied to this Office for a review of the Agency's decision.
This Office provided both parties with an opportunity to make submissions and the applicant made submissions during the course of the review.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Agency, to correspondence between the Agency and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
Scope of Review
This review is concerned solely with the question of whether the Agency was justified in its decision to refuse access to parts of social work files 1-4 under sections 35 or 37 of the FOI Act.
Preliminary Matters
There is no indication in the Agency's internal review decision that it considered section 37(8) or the relevant Regulations providing for the grant of an FOI request in certain circumstances where the requester is the parent or guardian of the individual to whom the record relates. As I explain below, I am satisfied that the records do not fall to be released in this case under the provisions of the Regulations. Nevertheless in circumstances where a parent or guardian is seeking access to records relating to minor children, an FOI body ought consider the applicability or otherwise of section 37(8) and the Regulations.
Before dealing with the relevant exemptions, there are some preliminary points I wish to make. The first point to note is that, under section 13(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).
The second point has to do with the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines a -record- as including -anything that is a part or a copy- of a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Finally, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.
Analysis and Findings
The Agency argues that the records withheld are exempt from release under sections 35 and 37 of the FOI Act. In my view, section 37 is most applicable and I will address that exemption first.
Section 37(1) and 37(7) - 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 relating to an individual other than the requester. In a situation where a record, or part of a record, contains personal information relating to the requester, which is closely intertwined with personal information about another party (or parties), and where it is not feasible to separate the personal information from that relating to the other party (or parties), it can be described as joint personal information. Section 37(7) provides for the refusal of a request for information which, if released, would result in the disclosure of personal information about other parties as well as about the requester.
For the purposes of the FOI Act, personal information is defined as 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 a public body on the understanding that it would be treated by it as confidential. Section 2 of the Act further details fourteen specific categories of information which constitute personal information, without prejudice to the generality of the foregoing definition. These categories include: (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; (xiv) the views or opinions of another person about the individual.
I am satisfied that none of the withheld parts of files 1-4 contain information which is personal information relating solely to the applicant. The information withheld is either the personal information of third parties or personal information relating to the applicant and/or his children which is intertwined with the personal information of third parties. It may well be the case that a considerable amount of the withheld information is generally known to the applicant. Nevertheless, I must consider that when a record is released under the FOI Act, this, in effect, amounts to disclosure to -the world at large-, as the Act places no restriction on the subsequent uses to which the record may be put.
I have taken account of section 18 of the FOI Act as referred to earlier in this decision. However, having regard to the content of the withheld information it seems to me that it is not practicable to separate the personal information of the applicant or his children from the personal information of the third parties. On that basis, I find that the withheld parts of the records are exempt from release on the basis of section 37(1) and section 37(7) subject to the provisions of section 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 section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) 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) 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 a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties to whom the information relates, as envisaged by section 37(5)(b) of the FOI Act.
Section 37(5)(a) - The Public Interest
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting access to the information of which I have found section 37(1) to apply outweighs, on balance, the public interest in protecting the privacy rights of the third parties to whom the information relates.
In considering the public interest test in section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case ofThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner(the Rotunda judgment), available atwww.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, -a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law- must be distinguished from a private interest for the purpose of section 37(5)(a).
In his submission to this Office, the applicant states that he believes he has a right to access the social work files of his children as a concerned parent who wishes to protect their welfare. He states that the courts are currently determining custody matters in relation to his children and he requires the withheld information in order to protect them and to defend their wishes to live with him.
In case 160440 (Mr. X and the HSE) available atwww.oic.iethe Senior Investigator stated as follows:
"In line with the Rotunda judgment, in the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. I am of the view that the applicant's interest in obtaining information pertaining to his daughter's medical treatment reflects a wider public interest in allowing parents access to information relating to the medical treatment of their children. I also recognise that the Supreme Court in its judgment in McK v. The Information Commissioner [2006] 1 IR 260, held that a parent is entitled to a rebuttable presumption that access to his or her child's medical information is in the best interests of the child."
While the records at issue in the McK case related to medical treatment, the Commissioner takes the view that the judgment is likely to apply to any personal information of a minor that is relevant to his or her welfare.
The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Agency carried out its functions in relation to the applicant's children.
On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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 the release of the third party personal information or joint personal information contained in the records outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties to whom the information relates. In my view, it does not.
While there is a general public interest in openness and accountability as to the manner in which the Agency carried out its functions in relation to the applicant's children, this public interest has been met to an extent in this case by the release of information contained in the records already released to the applicant. The withheld records contain information not only relating to the applicant's children but also information of a private and personal nature belonging to other relatives of the children. In these circumstances, it is important to recall that release under FOI is regarded, in effect, as release to the world at large. I am not satisfied that the significant invasion of the privacy rights of the third parties, which would be the consequence of releasing the records at issue here, is warranted. Having carefully considered the matter, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individuals to whom the information relates should be upheld. I find, therefore, that section 37(5)(a) does not apply in this case.
Section 37(8) - Access to the personal information of minors
For the sake of completeness, I want to explain that the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, are not applicable to this review. The Regulations, in accordance with section 37(8) of the FOI Act, provide for a right of access by parents or guardians to personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child-s best interests. If the social work records in this case only contained personal information relating to the applicant and his children, the applicant may have had a right of access under the Regulations, in his capacity as a parent of the children, if the release of the information was determined to in the best interests of his children. However, the Regulations do not apply where the information is joint personal information, i.e. personal information relating to a child and a third party. I am satisfied that the applicant does not have a right of access under the Regulations.
Given my findings regarding section 37 of the FOI Act, there is no need for me to consider the section 35 exemption in this review.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby affirm the decision of the Agency in relation to records partially withheld 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
