Whether the Department was justified in refusing, under section 37(6) of the FOI Act, to confirm or deny the existence of records relating to an application made by a third party for a One-Parent Family Payment

2 April 2019 

Background

On 9 November 2018 the Department received a request from the applicant for the release of records relating to a One-Parent Family Payment application made in 2013 by a third party. The applicant stated that he was in a relationship with the individual in question at the time. On the same day, the Department informed the applicant that if he would like to access such records he would need the consent of the third party. It did not issue a formal decision on the request. 

The applicant essentially treated the Department's letter as a refusal of his request and he sought an internal review of that refusal. On 23 November 2018 the Department informed the applicant that it had decided to refuse the request under section 37(6) of the FOI Act. That provision allows a public body to refuse to confirm or deny the existence of a record where doing so would, of itself, disclose personal information relating to a party other than the requester. On 30 January 2019, the applicant sought a review by this Office 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 the correspondence between the applicant and the Department as set out above and to correspondence between this Office and both the applicant and the Department on the matter. 

Scope of the Review

This review is confined to whether or not the Department was justified in its decision to refuse the applicant's request for records relating to a One-Parent Family Payment application made in 2013 by a third party under section 37(6) of the FOI Act.

Preliminary Matter

Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Analysis and Findings

Section 37(1) is a mandatory exemption which requires a public body to refuse a request, subject to the other provisions of section 37, where the body considers that access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides for the refusal of a request where the body considers that 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 an individual other than the requester (commonly known as joint personal information). 

Section 37(6) provides that where a body considers that disclosure of the existence or non-existence of a record would involve the disclosure of personal information relating to an individual other than the requester that would be exempt from release under section 37(1), the body must refuse to grant the request and must not disclose to the requester whether or not the record exists. This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence or non-existence of particular records would effectively disclose that party's personal information. The usefulness of the section 37(6) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist. 

In short, for section 37(6) to apply, the following requirements must be satisfied:

1. the record sought must be of a type whose disclosure, if it existed, would involve the disclosure of personal information relating to a third party and which would be exempt from release under section 37(1);
2. none of the exceptions to section 37(1), namely subsections (2) or (5), apply or in the case where relevant records do not exist, would apply if such records did exist; and
3. the body considers that disclosing whether or not relevant records exist would, of itself, disclose the personal information relating to a third party.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary or required for the purpose of establishing whether the individual, being a claimant is such a beneficiary. 

In this case, the applicant has sought records relating to an application made by a third party for a One-Parent Family Payment. I am satisfied that if such records existed, their disclosure would involve the disclosure of personal information relating to the third party concerned. I note that the applicant is of the view that records do indeed exist and that he was discussed during interviews with the applicant. If the records in question existed and contained information relating to the applicant, it seems to me that such information must reasonably be considered to comprise joint personal information relating to the applicant and the third party, given the context in which the information would be held. I am satisfied, therefore, that if the records sought existed, section 37(1) would apply to such records.

Section 37(2) provides that section 37(1) does not apply to a record if (a) the details concerned relate solely to the applicant; (b) the third party has consented to the release of their personal information; (c) the information is of a kind that is available to the general public; (d) the information at issue belongs to a class of information which would or might be made available to the general public; and (e) disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. Given the nature of the records sought, I am satisfied that none of these provisions would 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, on balance, 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. The applicant has not explained how the release of the records sought, if they existed, would benefit the third party concerned. As such I am satisfied that section 37(5)(b) would not apply in this case.

On the matter of where the balance of the public interest would lie in such circumstances, I have had 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] 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. 

In his submissions to this Office, the applicant stated that he wishes to obtain the information sought, if it exists, in order to support the pursuit of his rights of guardianship to his child. While this is essentially a private interest, the Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by FOI bodies, provided that it is consistent with the right to privacy. Indeed, section 11(3) of the Act provides that an FOI, in performing its functions under the Act, shall have regard to, amongst other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. 

I accept 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 FOI bodies. On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected 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"). The right to privacy also has a constitutional dimension in Ireland. 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 the constitutionally recognised right to privacy. 

With certain limited exceptions not applicable in this case, the Oireachtas has determined that personal information should be given strong protection in response to an FOI request.  Even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). Having regard to the constitutional right to privacy, Article 8 of the European Convention on Human Rights, and the judgment of the Supreme Court in theRotunda Hospital case, this Office takes the view that even in exceptional circumstances, the amount of sensitive personal information about a third party individual that could properly be released under FOI without consent may be quite limited. It is also of some significance that release of information under FOI is, in effect release to the world at large as the Act does not make any provision for restricting the use of information released pursuant to an FOI request.

It seems to me that records of the type sought by the applicant in this case are of an inherently private nature, and that their disclosure, if they existed, would involve the disclosure of sensitive personal information relating to a third party. As such, I am satisfied that the public interest in granting the request would not, on balance, outweigh the right to privacy of the individual to whom the information relates.

In summary, therefore, I am satisfied that if the records sought existed, they would be exempt from release under section 37(1) of the FOI Act. The final issue I must consider is whether the disclosure of whether or not relevant records exist would, of itself, disclose personal information relating to a third party. In my view, it would. It seems to me that it is not possible to disclose whether or not the records sought exist without disclosing personal information relating to the third party in question. If the Department was to confirm that it holds records, it would be confirming that an application for the payment in question had been made. Similarly, if it was to confirm that it does not hold records, it would be confirming that no such application had been made by the third party. In the circumstances, I find that the disclosure of the existence or non-existence of the records sought would have the effect of disclosing personal information relating to a third party that is exempt from release under section 37(1) and that section 37(6) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse the applicant's request for records relating to a One-Parent Family Payment application made by a third party under section 37(6) 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. 

Stephen Rafferty 
Senior Investigator