Whether the Department was justified in refusing to release records relating to complaints made in relation to the applicant by a named individual as well as associated correspondence under sections 31, 35 and 37 of the FOI Act.

5 March 2019

Background

This case has its background in a personal dispute involving the applicant and a third party. The applicant is employed by the Department. On 18 August 2018, she submitted a request to the Department for access to the following records: 

1. All records of any complaints against her in any capacity, including her work, since 2013;
2. All records from the third party and/or his business that refer to her, her farm or her partner;
3. All records of any meetings or phone calls between the third party and two named officials of the Department;
4. A copy of the three sets of documents submitted by the third party to one of the named Departmental officials and records and minutes from a meeting on or about 26 July 2017;
5. Records and minutes of meetings between the third party and one of the Departmental officials in mid-May 2017;
6. Records and emails sent between two Departmental officials regarding the third party, especially those dated mid to late May 2017, including the statement proposed by one of the Departmental officials. 

On 24 September 2018 the Department issued it decision wherein it refused access to all six records it identified as coming within the scope of the applicant's request, under sections 31(1)(a) and 37(1) of the FOI Act. On 20 October 2018 the applicant sought an internal review of that decision, following which the Department affirmed its original decision and also cited section 35(1) in support of its refusal of one of the records concerned. On 13 November 2018 the applicant sought a review by this Office of the Department's decision.

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Department's correspondence with the applicant as outlined above 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 records at issue.

Scope of Review

This review is solely concerned with solely whether the Department was justified in refusing to grant access to the relevant records it identified as coming within the scope of the applicant's request under sections 31, 35 and 37 of the FOI Act.

Preliminary Issues

There are a number of preliminary comments I wish to make before I address the substantive issues arising. 

Firstly, while I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the description I can give of the records at issue and of the reasons for my decision are somewhat limited in this case.

Secondly, 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). I take 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. 

Analysis and Findings

Having regard to the contents of the records at issue and the circumstances of this case, I find that section 37 of the FOI Act is the more relevant exemption to consider first.  

Records 1-4 & 6
The Department has refused access to records 1-4 and 6 under section 37(1) which provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI 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 known as joint personal information).

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 that body as confidential. 

In the schedule of records the Department prepared when processing the applicant's request, record 1 is described as "documents associated with meeting with [a named Department official]". Records 2 and 3 are described as notes of meetings and text messages between the third party and a named Department official. Record 4 is described as a request by the third party for a letter from the Department, while record 6 is described as an email from the third party to another official of the Department.

While I believe I am prohibited by section 25(3) from giving a more detailed description of the contents of the relevant records, I am satisfied that they contain both personal information relating solely to parties other than the applicant and personal information relating to the applicant that is inextricably linked with personal information relating to one or more third parties, i.e. joint personal information. I find, therefore, that section 37(1) of the Act applies to records 1-4 and 6. Having found that section 37(1) applies to the records, I must go on to consider if any of the additional elements of section 37 serve to disapply that exemption. 

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 those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (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 information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the third parties concerned and that section 37(5)(b) does not apply. 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.

In considering the public interest test at section 37(5)(a), it is important to have regard to the comments of the Supreme Court inThe 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.  

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act.  In the context of determining whether to grant a request in the public interest under section 37(5)(a) of the FOI Act, this means that the reasons given for the 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. 

The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Indeed, an FOI body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies (section 11(3) refers).

On the other hand, the Act also recognises the public interest in the protection of the right to privacy. This is evident 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. 

The question I must consider, therefore, is whether the public interest in enhancing the transparency and accountability of the Department outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties concerned. In relation to the information contained in the records that I have found to be personal information relating solely to third parties, I am satisfied that the public interest in granting access to such information does not, on balance, outweigh the privacy rights of the third parties concerned.

In relation to the information contained in the records that I have found to be joint personal information relating to the applicant and other third parties, I must have regard to the fact that the disclosure of the information to the applicant would also involve the disclosure of personal information relating to the third parties in question. This Office has acknowledged in previous decisions 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. In this case, there is a public interest in revealing information that would shed light on whether the Department carried out its functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. 

On the other hand, it is important to note that the release of records under FOI is, in effect, regarded as release to the world at large as the Act places no restriction on the uses to which records released under FOI may be put. Given also the significant public interest in the protection of privacy rights, I find that the public interest in granting access to the joint personal information contained in the records at issue does not, on balance, outweigh the privacy rights of the third parties concerned.

I find, therefore, that section 37(5)(a) does not apply and that the Department was justified in refusing access to the records under section 37(1).

While the Department also relied on section 35(1)(a) to refuse access to record 1, I do not consider it necessary to consider that exemption given my finding that section 37(1) applies to the record.

Record 5
The Department described record 5 as an email exchange between two Department officials. In its submission to this Office, it explained that one of the officials in question is an internal legal adviser and that advice was sought and received as to how to respond to a particular matter.

Section 31(1)(a) is a mandatory provision which provides for the refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. In deciding whether section 31(1)(a) applies, I must consider whether the records concerned would be withheld on the ground of legal professional privilege in court proceedings. 

Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and

(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

This office accepts that legal professional privilege may attach to in-house legal staff provided the ingredients of either advice privilege or litigation privilege are present in the case. Having reviewed the record I am satisfied that it can reasonably be considered to constitute a request for legal advice. I find, therefore, that the Department was justified in refusing access to record 5 under section 31(1)(a) of the Act.

In conclusion, therefore, I find that the Department was justified in refusing the applicant's request for certain records under sections 31(1)(a) and 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 in this case.

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