Whether UCD was justified in its decision to refuse access to records relating to a workplace investigation, on the ground that they are exempt under sections 30, 35 and 37 of the FOI Act 

31 December 2018 

Background

On 2 July 2018, the applicant made a request to UCD for "all records and documentation handed in by [named people] to [a named person] for the investigation hearing on [dates] under the Freedom of Information Act 2014", in addition to copies of specific records which she listed. On 16 August 2018, UCD refused access to the records under sections 30, 35 and 37 of the FOI Act. The applicant applied for an internal review decision on the withheld records. On 5 October 2018, UCD issued an internal review decision to the applicant, in which it affirmed its original decision. On 7 October 2018 the applicant applied to this Office for a review of UCD's decision. 

In conducting my review, I have had regard to the correspondence between the applicant and UCD and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by UCD for the purposes of this review. 

Scope of this Review

UCD scheduled four records. As Records 1 and 3 were the subject of another review under section 22 of the FOI Act (Case 180324), I am not required to include them in this review. The Investigator notified the applicant of this.

The question for me is whether UCD was justified in refusing access to Records 2 and 4, under sections 30, 35 or 37 of the FOI Act. 

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following. First, with certain limited exceptions, 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. 

Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. 

Finally, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on UCD to satisfy me that its decision was justified.

Analysis and Findings

Section 37 - Personal Information

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term -�personal information-� as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: (i) information relating to the educational, medical, psychiatric or psychological history of the individual and (iii) information relating to the employment or employment history of the individual.

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 inCase 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". 

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records comprise correspondence between a workplace investigator and a party acting on behalf of an individual other than the applicant. They concern an individual other than the applicant, although they include references to the applicant. They contain information relating to the educational, medical, psychiatric or psychological history and the employment history of an individual other than the applicant. Although this individual is a staff member of an FOI body, given the content of the information concerned, I do not believe that it falls within the exclusion to personal information outlined in paragraph I of section 2 of the FOI Act. Having considered the nature and content of the correspondence, I am also satisfied that this information is held by UCD on the understanding that it would be treated by UCD as confidential.

In theory, one could extract certain words or phrases from the records which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, those words or phrases appear in the context of information given on behalf of, and relating to, a third party. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of the records would be to provide misleading records. My finding under sections 37(1) and 37(7) is subject to the provisions of sections 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. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate solely to the applicant; (b) the third party has not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information 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. I am then required to consider section 37(5) as it applies to the information.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates. 

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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 records relate to a workplace investigation. The applicant submits that her right of access to the records should outweigh the right to privacy of [a named third party] and that she has a right of access to all documents which were considered by the investigator in the workplace investigation concerned. She says that she should be entitled to see the documents to comment and correct the record if inaccurate and that the public interest is best served with transparency and compliance with fair procedures in an important process for her. She refers to her right to understand the investigator's decision and challenge the investigator's report. 

As noted above, I am required to disregard the applicant's reasons for her FOI request. Therefore I can only take into account the purpose for which she seeks this information to the extent that she identifies a public interest. I believe that the interests which the applicant sets out are more properly viewed as private rather than public. I consider that I am supported in this opinion by the High Court decision ofFP v The Information Commissioner[2016] IEHC 771. There, the Court found that the public interest in granting access to information was not to be determined on the basis of the appellant's personal circumstances and the fact that access to records might assist the applicant in determining whether he had a cause of action did not qualify as a matter of public interest. I must also bear in mind that release under the FOI Act is tantamount to release to the world at large. Accordingly, this is not a question of whether to disclose the records to the applicant for the purpose of challenging a workplace investigation. It is a question of whether to disclose the records to the world at large. 

On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individual to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the third party to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that UCD was justified in refusing access to the records under section 37(1) of the FOI Act. 

As I have found the records to be exempt under section 37 of the FOI Act, I do not need to consider sections 30 or 35 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm UCD's decision 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