Whether the Department was justified in its decision to refuse part of a request for access to records concerning the applicant, his children and a third party under section 37(1) and section 37(6) of the FOI Act

27 August 2019

Background

On 6 June 2018, the applicant requested access to records held by the Department relating to himself and his children and to other records relating to social welfare claims made by a third party. The applicant clarified that he was not seeking access to personal information of the third party; neither was he seeking access to any records supplied by himself to the Department.

On 4 July 2018, the Department granted access in part to the request and refused access to other records on the basis of section 37(1) (personal information) of the FOI Act. Following a request for an internal review, the Department affirmed the original decision and also relied on section 37(6) of the FOI Act in refusing to confirm or deny the existence of records on the ground that doing so would involve the disclosure of personal information relating to a third party.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to correspondence received from the applicant and the Department. I have decided to conclude this review by way of a formal, binding decision. The Department and the applicant were invited to make submissions.

Scope of Review

This review is concerned with whether the Department was justified in deciding to refuse access to the records sought on the basis of sections 37(1) and 37(6) of the FOI Act.

Preliminary Matters

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.

In his application to this Office the applicant stated that the Department is holding information about him which is incorrect. Section 9 of the Act provides for the right of amendment of incomplete, incorrect, or misleading personal information contained in a record held by a public body. While section 9 may arguably be regarded as recognising a public interest in ensuring that personal information held by public bodies being accurate, complete, and not misleading, it does not give a right of access to an otherwise exempt record in order to make an application for amendment under that section.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of records is limited.

I also draw attention to the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record.  Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed.  This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 37- Personal Information
Section 37(1)
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. 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.

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 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.

For section 37(6) to apply, the following requirements must be satisfied:

• 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);
• none of the exceptions to section 37, namely subsections (2) or (5), apply or in the case where relevant records do not exist, would apply if such records did exist; and
• the body considers that disclosing whether or not relevant records exist would, of itself, disclose the personal information relating to a third party.

The applicant is of the view that records may exist. He requested access to any records held in connection with claims to include One-Parent Family Payment, Child Benefit and Disability Allowance made by a third party. The qualification criteria for certain Social Welfare schemes can include a means test based on a declaration of personal financial resources. Other criteria, for example in the case of Disability Allowance, include the declaration of a disability.

I am satisfied that if such records existed, their disclosure would involve the disclosure of personal information relating to a third party and that section 37(1) would apply to such records subject to examining the exceptions below.

Section 37(2) provides that section 37(1) does not apply to a record if (a) the information concerned relates to the requester; (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.

I find that the applicant would not be entitled to the requested records, if they existed, further to section 37(2) of the FOI Act.

It may be the applicant's position that the records, if they exist, relate to him as well as the third party and that he would be entitled to them further to section 37(2)(a). However, even if any records that exist could be said to also contain personal information relating to the requester, section 37(7) would be relevant. Section 37(7) provides that, notwithstanding section 37(2)(a), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester ("joint personal information"). Section 37(7) is also subject to sections 37(2(b) to (e). I am satisfied that none of sections 37(2(b) to (e) would have relevance in the present case.

Sections 37(5)(a) and (b) provide that a record, which is otherwise exempt under section 37(1), may be released in certain limited circumstances. The effect of section 37(5)(b) is that such an exempt record may be released if it can be demonstrated that the grant of the request would benefit the third party whose personal information is contained in the records. I find that section 37(5)(b) would not apply in this case, if the requested records existed.

Section 37(5) The public interest

Section 37(5)(a) 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, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.

In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law” must be distinguished from a private interest for the purpose of section 37(5)(a).

I consider the applicant’s reason why he wants access to the information sought, if it exists, to be essentially a private interest.

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.

It is 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. I note the applicant’s submission that other public bodies released information about the third party to him either under FOI or Data Protection legislation. This, of itself, does not mean that I must disregard the provisions of the FOI Act. Neither do I accept the proposition that redacting the name of an individual from any record always equates to protecting privacy in FOI decision making.

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 an identifiable 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.

Section 37(8) - Access to the personal information of minors
Section 37(8) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access to that person's personal information. 

The FOI Act 2014 (Section 37(8)) Regulations, 2016 (S.I. No. 218 of 2016) provide for a right of access by parents or guardians to records containing personal information relating to minors in certain circumstances.  The regulations provide that a request for records relating to personal information about a minor shall be granted where the requester is the minor's parent or guardian and where, having regard to all the circumstances and to any relevant guidelines published by the Minister, access to the records by the parent/guardian would be in the minor's best interests. 

In the particular circumstances of this case, I have considered whether, if records are held, there could be any personal information of the applicant's children which could possibly be considered for release under this provision.

Taking into consideration sections 18, section 37(6) and section 37(7) as set out above, I am satisfied that it is not possible to consider for release under this provision any personal information of the applicant's children which would be inextricably linked with the personal information (if held) of the third party. 

Accordingly, I find that section 37(6) of the Act applies to the records which, if held, would be exempt under section 37(1).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse access to the records under section 37 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