Whether the Department is justified in refusing to fully grant the applicant's request for records concerning the regularisation of officers in an acting capacity

29 November 2018

Background

On 23 March 2018, the applicant made an FOI request to the Department for records "regarding the proposed regularising of or the correspondence relating to such decisions made in the time frame, of officers in an acting capacity for more than 3 years or any other length of time within [the Department], including any legal advice or opinion that may exist between January 1st 2014 and March 23rd 2018 (probably lies with personnel division in [the Department])."

The Department's decision of 24 April 2018 partially granted the request, and relied on sections 31(1)(a) (legal professional privilege) and 37 (personal information) in refusing access to some records. The applicant sought an internal review on 21 May 2018. The Department's internal review decision of 23 August 2018 affirmed its refusal to grant the remaining records under sections 31(1)(a) and 37. On 7 September 2018, this Office received the applicant's application for a review of the Department's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to details of the above exchanges and to correspondence between this Office, the Department, and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act. 

Scope of Review

This review is confined to whether the Department has justified its refusal to fully grant the applicant's request.

Findings

The Department was invited to make submissions in this case and did not do so. While it could be argued that it has not fully justified its decision to partially refuse the request, I cannot disregard the fact that sections 31(1)(a) and 37 are mandatory exemptions. Furthermore, I must also take account of third party interests that might be affected by release of the records.

Section 31(1)(a) - legal professional privilege
The Department has relied on section 31(1)(a) in relation to some of the records. Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege). 

The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from an original request for advice. Section 31(1)(a) does not require the consideration of the public interest.

I accept that the records comprise either requests made by the Department to its professional legal advisor for legal advice or legal advice received, or form part of a continuum of correspondence that results from an original request for advice. I am satisfied that they attract legal advice privilege. I find that they are exempt under section 31(1)(a) of the FOI Act. 

Section 37 - personal information
The Department withheld the rest of the records and parts of records under section 37 of the FOI Act.

Before I consider section 37, I will outline this Office's approach to granting partial access to records. 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 public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). 

In so far as the Commissioner's position on granting partial access to records is concerned, he takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs. 

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information. 

"Personal information" is defined at section 2 of the FOI Act, which also lists 14 examples of what must be considered to be personal information. These examples include (i), "information relating to the educational ... history of the individual", (iii) "information relating to the employment or employment history of the individual" and (xiv) "the views or opinions of another person about the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. 

The description that I can give of the withheld information is limited. Having examined the records, I am satisfied that the withheld information falls into a number of the examples of what comprises personal information about identifiable individuals other than the applicant. 

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally". Where the information identifies people in the context of "regularisation", I am satisfied that it falls within the definition of "personal information" and does not fall into the categories of information in paragraph I of section 2 of the FOI Act.

It is not relevant whether the applicant knows some of the third parties concerned. Furthermore, while the applicant says that he should be granted access to the records with names redacted, I consider that the context of the remaining details would in any event identify the individuals concerned given that the scope of the request is, of its nature, confined to matters concerning particular officers of the Department.

I find the withheld information to be exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. The applicant may consider that, in the circumstances, the information also relates to him. Even if this is the case, section 37(7) provides for refusal of a record that would, in addition to disclosing personal information relating to the requester, disclose personal information relating to an individual or individuals other than the requester. 

I am also satisfied that the remaining circumstances set out in section 37(2) do not arise in this case.

Section 37(5)
Section 37(5) provides that a record that 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 have no basis for considering that the release of the information at issue would benefit the third parties to whom it relates and I find that section 37(5)(b) does not apply. 

The public interest (section 37(5)(a))
On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally. 

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case"),  said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-� 

The applicant says that he does not want personal information relating to any individual that has been upgraded. He says that he does not have any problem with those upgrades except where they have "impinged on [him] personally". He says that the only way he can protect his own position is to have access to all the details relating to the issue. 

It is clear from the Rotunda and F.P. cases that I cannot take into account the applicant's private interests in the grant of access to the withheld information. It is not appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis that the information may relate to decisions that might have impinged on the applicant. 

Neither is it appropriate for me to direct the Department to grant the records on the basis of any assertions the applicant may be making to the effect that the Department's processes may have been inadequate or did not comply with fair procedures. As the Commissioner said in his composite decision in cases  090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement 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. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances." 

In this case, there is a public interest, recognised by the FOI Act, in establishing that the Department carried out its functions in relation to the applicant in a way that was consistent with the principles of natural and constitutional justice. It is entitled to significant weight in this case. While this public interest has been served to some extent by the material granted to date, I accept that it would be further served if access to the remaining withheld records or parts of records was granted.

On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. I am satisfied that placing the withheld information in the public domain would significantly breach the rights to privacy of the other third parties.

I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld. 

I should also say that, if it were necessary, I would find the records to which I have found section 31(1)(a) to apply to also be exempt under section 37(1) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby  affirm the Department's refusal to grant access to further records under sections 31(1)(a) and 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