Whether the Department was justified in its decision to refuse access to further records relating to the applicant's request for a copy of his social welfare file under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist and to redact certain information from one of the records released under section 37(1)

20 June 2019

Background

On 3 May 2018 the applicant wrote to the Department in connection with his case before the Social Welfare Appeals Office. He sought a copy of his social welfare file and all documentation relating to his case. On 1 June 2018 the Department issued a decision on his request. It noted that all records up to and including July 2017 had already been released on foot of a previous request. It released what it described as 21 records (some of which comprised a number of documents) that had been created after July 2017 with the redaction of a small amount of information from two of the records under section 37(1) of the Act on the ground that the redacted information was personal information relating to third parties. 

On 20 June 2018 the applicant sought an internal review of the Department's decision, following which the Department affirmed its original decision. On 25 August 2018 the applicant wrote to the Department and stated that he had not received any records in connection with his request. According to the Department, it had mistakenly forwarded the records to the applicant's solicitors as they had been dealing with the Department previously in relation to his requests and as his solicitors were unsuccessful in their efforts to contact him they destroyed the records. Accordingly, it forwarded a second copy of the records to the applicant on 30 August 2018.

On 6 September 2018, the applicant sought a review by this Office of the Department's decision. In his application for review, he indicated that the file he received was incomplete. He mentioned, for example, that he had not received a copy of his application for jobseeker's allowance.

I have now concluded my review in this case. In carrying out the review I have had regard to the correspondence between the Department and the applicant and to the communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the withheld records provided by the Department to this Office for the purpose of the review.

Scope of the Review

As I have outlined above, the Department treated the applicant's request as a request for all records created after July 2017 in light of the fact that it had already granted access to records created before that date on foot of a previous request (Ref. 2017-8301). In my view, this was a reasonable approach to take and the applicant did not raise any concerns with the Department about the approach taken. In his subsequent submissions to this Office, the applicant alleged that the records released on foot of Request 2017-8301 were released to his solicitor who refused to give him the records and he stated that he required access to those records. He also alleged that he did not receive all relevant records.

Section 15 of the Act provides for the refusal of FOI requests on certain administrative grounds. One of those grounds is where the request relates to records that were already released to the requester and are available to the requester concerned (subsection (1)(i) refers). In this case, the applicant did not raise any concerns with the Department about the non-availability of the records released on foot of Request 2017-8301. As such, it is not appropriate for this Office to make a first instance decision on the question of whether those records should be released again. If the applicant still requires copies of such records, it is open to him to submit a fresh request to the Department for them.  

I note, nevertheless, that the Department identified 11 additional records during the review that were created before July 2017 and which it considered had not previously been released to the applicant, and I note that the Department has since provided the applicant with copies of the records. 

As outlined above, the Department redacted a small amount of information from two of the records under section 37(1) of the Act on the ground that the redacted information was personal information relating to third parties. During the course of the review, the Department reconsidered its position and released one of these records completely unredacted.

Accordingly, this review is concerned solely with whether the Department was justified in its decision to refuse access to further relevant records created after July 2017 apart from those already released and to redact certain information from one of the records released under section 37(1) of the FOI Act.

Analysis and Findings

Do additional records exist?
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. 

In submissions to this Office the Department provided details of the searches conducted on foot of the applicant's request. Ms Hannon of this Office has already provided the applicant with those details. While I do not propose to repeat the details in full here, I confirm that I have had regard to them for the purpose of this review. In summary, the Department stated that both manual and electronic searches of hardcopy and electronic files in the relevant division were undertaken to locate relevant records. It said this include all data stored on network drives. It said all relevant individuals were consulted and their records searched and no records had been destroyed. 

In submissions to this Office, the applicant gave details of 10 records that he stated he had not received. Ms Hannon informed the applicant that such records, if they exist, do not fall with the scope of this review, which is for records held by the Department dated July 2017 to the date of his request. 

Having regard to the Department's description of the searches undertaken, I am satisfied that the Department has conducted reasonable searches for relevant records from July 2017 and that no such further records exist or can be found. I find, therefore, that the Department was justified in refusing the applicant's request for further records under section 15 (1)(a) of the FOI Act. 

Withheld Information
Section 37(1) of the FOI Act provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides that a public 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. For the purposes of the Act, personal information is 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 an FOI body on the understanding that it would be treated by it as confidential.

The information now withheld in this case is the name of an individual other than the applicant. I am satisfied that the release of that information would involve the disclosure of personal information relating to a third party and that section 37(1) applies. 

Section 37 also contains a number of provisions that serve to disapply section 37(1). Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. Section 37(5) provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates.

It has not been argued that releasing the information would benefit the person to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The FOI Act itself recognises the public interest in ensuring the transparency 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 release of the withheld information in this case would serve little or no purpose in the enhancement of the transparency or accountability in relation to the Department's dealing with the applicant. I find, therefore, that the public interest in granting the request does not outweigh, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In conclusion, I find that the Department was justified in withholding the information at issue 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 decision of the Department to refuse access to further relevant records relating to the applicant's request apart from those already released under section 15 (1)(a) of the FOI Act and to redact certain information from one of the records released under 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.

Stephen Rafferty
Senior Investigator