Whether the Defence Forces was justified in its decision to refuse access to records held in relation to the applicant under section 37(1) of the FOI Act

21 May 2019

Background

On 26 November 2018, the applicant submitted a request to the Defence Forces through her solicitors for access to records held in relation to her. On 15 January 2019, the Defence Forces issued a decision in which it refused the request under section 37(7) of the FOI Act. The applicant sought an internal review of that decision on 29 January 2019. The Defence Forces issued its internal review decision on 31 January 2019 in which it varied its original decision and refused access to all 21 records it identified as coming within the scope of the request under section 37(1) and 37(7). The applicant sought a review by this Office of that decision on 5 March 2019. 

I have decided to conclude this review by way of a formal, binding decision. In conducting this review, I have had regard to the correspondence between the Defence Forces and the applicant as outlined above, to the applicant's correspondence with this Office, and to communications between this Office and the Defence Forces on the matter. I have also had regard to the contents of the records at issue, copies of which were provided to this Office for the purpose of the review.

Scope of Review

This review is concerned solely with whether the Defence Forces was justified in its decision to refuse access to the 21 records it identified as coming within the scope of the applicant's request for records held relating to her under section 37 of the FOI Act.

Preliminary Matter

It is important to note that, while I am required by section 22(10) of the FOI Act to give reasons for 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 to disclosure of exempt material. This means that the description which I can give of the withheld records and of the reasons for my decision is somewhat limited. 

Analysis and Findings

The applicant's father was a member of the Defence Forces and her family resided in army accommodation. The family had dealings with the social work departments of the Health Service Executive and the Defence Forces. The records at issue relate to those dealings and contain only sporadic references to the applicant. 

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).

Having reviewed the records at issue, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals (i.e. joint personal information relating to both the applicant and a third party or third parties). Accordingly, I find that section 37(1) applies to such information.  

In her submission to this Office, the applicant suggested that it should be possible to separate information about her from information relating to other parties. In light of the fact that the references to the applicant also relate to third parties, such an exercise would result in little more than the release of the applicant's name. 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 FOI body concerned considers appropriate, of the record with the exempt information removed. However, section 18 shall not apply if the copy of the record provided would be misleading. Having regard to section 18 of the FOI Act, I am satisfied that to release redacted versions of the records would be misleading. 

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, namely (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.  

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 granting of the information would be to the benefit of the person to whom the information relates. 

As no evidence has been presented to this Office to suggest that the release of the records at issue would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates.  

In considering where the public interest lies, I have had regard to the comments of the Supreme Court in The 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. 

The applicant argued that there is a public interest in finding out how she and her family were treated by the Defence Forces. The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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 information at issue in this case is of a very sensitive and inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Defence Forces was justified in refusing access to the relevant records under section 37(1) of the FOI Act. 

For the sake of completeness, I note the applicant's contention that the Defence Forces should have consulted with the relevant third parties in accordance with the provisions of section 38 of the Act. Section 38 requires the FOI body to notify affected third parties where it has formed the view that the records sought qualify for exemption under one or more of the relevant provisions, including section 37, but that the record should be released in the public interest. As the Defence Forces did not consider that the records should be released in the public interest in this case, it was not required to consult the affected third parties under section 38.

Decision 

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces 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.