Whether the Department was justified in its decision to refuse access to records relating to the applicant's daughter, under section 37(1) of the FOI Act

14 January 2019 

Background

On 19 September 2018, the applicant made a request to the Department for all records held in relation to his adult daughter, Ms. Y, who has an intellectual disability. On 16 October 2018, the Department issued a decision in which it refused the applicant's request under section 37(1) of the FOI Act. On 1 November 2018, the applicant sought an internal review of that decision in which he stated that the Department had not had regard to certain Regulations that he described as giving a parent the right to information about an intellectually disabled person. The Department issued its internal review decision on 21 November 2018, in which it affirmed its original decision to refuse the request. On 24 November 2018, the applicant sought a review by this Office of the Department's decision. 

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the content of the withheld records. 

Scope of the Review

This review is concerned solely with whether the Department was justified in refusing access to the records sought under section 37(1) of the FOI Act.  

Preliminary Matters

Before I address the substantive issues arising in this case, I would like to make a number of general comments that are of relevance to the review. Firstly, section 13(4) of the Act provides that, subject to the Act, any reason that the requester gives for the request shall be disregarded when deciding whether to grant or refuse a request. This means that this Office cannot have regard to the applicant's motives for seeking access to the records at issue in this case, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.

Secondly, section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been 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 the Department to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.

Finally, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the Department's arguments for refusing the request are limited in this case.

  
Analysis and Findings

Ms. Y is a resident within a community that provides residential facilities for people with intellectual disabilities. The records at issue relate to Ms. Y's disability allowance payments and include details relating to the applicant's concerns relating to the payment of her allowance. Section 37(1) of the FOI Act 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).

I am satisfied that the release of the records at issue would involve the disclosure of personal information relating to Ms. Y and I find, therefore, that section 37(1) of the Act applies to the records.

However, section 37(8) provides that notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). 

They provide for a right of access to records containing personal information relating to an individual who has attained full age by his/her parent or guardian where;

• at the time of the request, the individual has or is subject to a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which is certified by a registered medical practitioner, and 
• by reason of that condition, incapacity or disability, the individual is incapable of exercising his/her rights under the FOI Act, and 
• access to the individual's records would, in the opinion of the public body having regard to all the circumstances, be in his/her best interests.

The Minister for Public Expenditure and Reform has also published guidance on the application of the Regulations. The Guidance suggests that the factors to be considered in such cases include;

• the nature and duration of the disability,
• whether the individual would consent to the release of the information, and
• whether release of the information would be damaging to the individual in any way.

In this case, the applicant is the father of Ms. Y who is described as having an intellectual disability. On 18 December 2018, Ms Hannon of this Office invited the Department to make a submission in support of its refusal of the request, and she informed that Department of her view that it had failed to consider the 2016 Regulations. On 4 January 2019, the Department made a submission to this Office. It stated its belief that it was justified in refusing the request under section 37(1) and that the applicant does not meet the criteria of section 37(8). In support of that view, it referred to a copy of a court order regarding legal proceedings between the applicant, on behalf of Ms. Y, and the organisation providing residential services for Ms. Y concerning her finances, and to the contents of a number of the withheld records.

Having considered the Department's decisions on the applicant's request and its submission to this Office, I find that the Department failed to consider the applicability of the 2016 Regulations in this case and that it has not adequately explained why it considers that the applicant does not meet the relevant criteria. In the circumstances, I consider that the appropriate course of action is to annul the Department's decision and direct it to undertake a fresh decision-making process, having due regard to section 37(8) of the Act and the provisions of the 2016 Regulations. 

I wish to reiterate that the mere fact of a requester being the father of an individual who has an intellectual disability does not, of itself, mean that the requester is automatically entitled to access the records that contain personal information relating to the individual. As I have outlined above, when considering such a request, the public body must consider whether access to the individual's records would, having regard to all the circumstances, be in his/her best interests.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case. I direct it to undertake a fresh decision making process in respect of the applicant-™s request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.

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