Whether the Council was justified in its decision to refuse a request under section 37 of the FOI Act, for access to a record relating to a special interest group

21 June 2019

Background

On 20 August 2018, the applicant requested access to records held by the Council relating to the cancellation of a meeting of the Council's Disability Linkage Group. On 6 September 2018, the Council refused the request on the basis of section 42(m) of the FOI Act. Section 42(m) provides that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person or other source of information provided in confidence in relation to the enforcement or administration of the law.

Following an internal review, the Council granted access to one record. The Council refused access to a further record (which it identified as 'record 2') which contained 11 emails, on the basis of section 35 (Information obtained in confidence) and section 37 (Personal information) of the FOI Act. On 5 April 2019, this Office received an application for review of the Council's decision from the applicant.

During the review the Council granted access to four of the emails in record 2. 

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the Council and to correspondence between the applicant, the Council and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. The applicant was invited to make a submission but none was received.

Scope of Review

The Council originally said that the remaining withheld information in record 2, i.e. seven emails, was refused on the basis of section 37 of the FOI Act. However, the Council later stated that three of the remaining emails in record 2 were withheld on the basis that they are not within the scope of the FOI request as made. The Council stated that the emails were created after the date on which the applicant made his request.

Having carefully examined those emails in record 2, it is clear that they were created after 20 August 2018. It is unfortunate that in its decision, the Council associated those emails with the record at issue. However, they are not within the scope of this review. 

Consequently, my review is concerned solely with whether the Council was justified in deciding to refuse access to the withheld information in the remaining four emails on the basis of section 37(1) of the FOI Act.

Preliminary Matters

The applicant explained why he wanted access to the records. It would not be appropriate here to go into those details in this decision. However, 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 applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. 
It should be noted that, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.  This constraint means that the detail that I can give about the content of the records and the extent to which I can describe certain matters in my analysis is limited. 

Findings

Section 37- Personal information
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual". 

Section 25(3) of the Act provides that I must take care not to disclose exempt information, so I cannot describe the content of the remaining withheld information, other than to say that it consists of four emails created between 19 and 20 August 2018. Having examined the record, I am satisfied that the withheld information is the personal information of individuals other than the applicant, who are not staff members or service providers of the Council performing their functions or providing services. Accordingly, I find the remaining withheld information in the record to be exempt under section 37(1) of the FOI Act. 

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of these are relevant in this case. 

Section 37(5) (the Public Interest)
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.

It has not been argued that releasing the records would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to section 37(5)(a), the question I must consider is 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 his application to this Office the applicant refers to the Public Participation Network (PPN) and accountability and transparency. 
The Council's website states that the PPN promotes an active formal role for Linkage groups with policy making and oversight committees within the Council. The Council says that the Disability Linkage Group and the Secretariat of the PPN are voluntary entities comprised of members of the public. The Council also says that the withheld information is of an inherently private nature and that the public interest in granting the request is outweighed, on balance, by the public interest in protecting the right of privacy of the individuals 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).

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. I accept in this case that there is a general public interest in openness and accountability as to the manner in which the Council carried out its functions.

On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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.

It is important to note that the disclosure of a record under FOI is understood, effectively, to be equivalent to its disclosure to the world at large. Given the content of the record, I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the record relates. I find that, in the circumstances of this case and having regard to the judgment of the Supreme Court in the Rotunda case, the right to privacy of the individuals whose personal information is in the record outweighs the public interest in granting the applicant's request.

Accordingly, I find that section 37(1) of the Act applies to the record.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Council to refuse access to the withheld information in the record 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