Whether the Department was justified in refusing access to records relating to the applicant’s daughter under sections 15(1)(a) and 37(1) and 37(8) of the FOI Act

28 August 2019

Background

The background to this case is a previous review by the Information Commissioner, Case 180494. The decision in this case can be found on our website at Mr P & the Department of Employment Affairs and Social Protection.

On 19 September 2018, the applicant made an FOI request to the Department for records relating to his adult daughter, who has an intellectual disability. On 16 October 2018, the Department refused access to the records on the ground that they were exempt under section 37 of the FOI Act. On 1 November 2018, the applicant applied for an internal review decision.  On 21 November 2018, the Department issued its internal review decision, in which it affirmed its original decision. The applicant applied to this Office for a review of the Department’s decision on 26 November 2018. On 14 January 2019, this Office found that the Department had not justified its decision to refuse the request, as it had failed to consider the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 S.I. No. 218 of 2016 (“Regulations”). The Senior Investigator annulled the decision and directed the Department to undertake a fresh decision-making process on the applicant’s FOI request, having regard to the Regulations.

This review application is concerned with the Department's second decision-making process. On 12 February 2019, the Department refused access to the records, on the ground that they were exempt under sections 15(1)(a) and 37(1) and (8) of the FOI Act.  On 17 February 2019, the applicant applied for an internal review decision. On 8 March 2019, the Department issued an internal review decision, in which it affirmed its original decision. On 13 March 2019, the applicant applied to this Office for a review of the Department's decision.

On 15 February 2019 the applicant made a second FOI request to the Department, for “the record of all sums received and all transactions made in relation to my daughter’s benefit payment for the financial year ending 31 December 2017”. On 15 March 2019, the Department refused access to the records on the ground that they were exempt under sections 37(1) and (8) of the FOI Act. On 25 March 2019, the applicant applied for an internal review decision. On 12 April 2019, the Department issued its internal review decision, in which it affirmed its original decision. On 29 May 2019, the applicant applied to this Office for a review of the Department’s decision on his second FOI request.

Both FOI requests concern the same applicant and subject matter. I have therefore decided that it is appropriate to deal with both matters in the same 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, as well as to the content of the withheld records that were provided to this Office by the Department for the purposes of this review.

Scope of the Review

This review is concerned with whether the Department was justified in refusing access to the records under sections 15(1)(a) and 37 of the FOI Act. The records scheduled by the Department are numbered as Records 1-37. The Department identified an additional two-page record in response to the applicant’s second FOI request, which also falls under this review.

In each of his FOI requests, the applicant specifically sought information relating to his daughter. I should note that the records contain small pieces of information relating to individuals other than the applicant and his daughter; e.g. names and mobile telephone numbers of third parties in Records 21 etc. I consider that such information falls outside the scope of the applicant’s FOI request and therefore this review. For the avoidance of doubt, I would have found such information to be exempt under section 37 of the FOI Act. My references to “the records” below should be taken to exclude such information.

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Handling of the case by the Department

The Department’s handling of this case was unsatisfactory and resulted in an unnecessarily prolonged process for the applicant. As noted above, the Department failed to have regard to the Regulations in its decision of October 2018. It compounded this omission in its decision of February 2019, by failing to have regard to the guidance published by the Minister for Public Expenditure and Reform under the Regulations (“the Guidance”). Rather than protract matters by remitting the case again, the Investigator invited the Department to make submissions on the Guidance during the review. It was only when this Office indicated its intention to issue a statutory notice requiring it to address certain issues that the Department finally made such submissions.

The Department has since acknowledged that its replies fell short of the standards required and apologised for this. I urge FOI bodies to put the necessary resources in place to ensure that they handle FOI requests properly. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions. I encourage them to make use of the tools available on the website of the Central Policy Unit at the Department of Public Expenditure and Reform at www.foi.gov.ie and on our website at www.oic.ie.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

In response to the applicant’s first FOI request, the Department said that the original paper file registered by the relevant welfare benefit section for the applicant’s daughter was missing. It said that any records from that file which had not been scanned or copied were missing. It refused access to this information under section 15(1)(a) of the FOI Act. In response to the applicant’s second FOI request, the Department initially scheduled the same records as it had for his first FOI request (Records 1-37). However, the applicant said that additional records should exist. The Investigator put this point to the Department and asked questions about its record-management practices and the steps which it had taken to search for records. The Investigator also informed the Department that the applicant claimed that the records he sought were held by a service provider acting as an agent for, and appointed by, the Department.

In response, the Department provided this Office with details of the steps it had taken to search for records relating to the relevant welfare benefit file for the applicant’s daughter. It said that the information sought by the applicant in his second FOI request was available electronically and provided this Office with a two-page hard copy of it. It confirmed that it was refusing access to this hard copy record under sections 37(1) and (8) of the FOI Act. Finally, it advised this Office that the residential community of the applicant’s daughter is not a service provider under the FOI Act. The Investigator outlined the Department’s position for the applicant and invited his comments. The applicant has confirmed that he has no further comments to make on this matter.

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision-maker and the reasoning used by the decision-maker in arriving at his decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision-maker was justified in coming to the decision that the records sought do not exist or cannot be found.

I have considered the steps which the Department has now taken to search for the records in this case. I am satisfied that it has now taken all reasonable steps to ascertain their whereabouts and is therefore justified in refusing access to any further records under section 15(1)(a) of the FOI Act. I note that the applicant had no further comments to make in response to the Department’s position.

However, I do not understand why the Department did not schedule the record which was available electronically in the first place. As noted above, I have added this record to the records under review in this case.

Section 37 - Personal information

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: “(i) information relating to the educational, medical, psychiatric or psychological history of the individual”, “(ii) information relating to the financial affairs of the individual”, “(viii) information relating to the age (etc.) of the individual”, “(ix) a number, letter etc. assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose” and “(x) information relating to the entitlements of the individual under the Social Welfare Acts etc.” .

Section 37(7) provides that access to a record which relates to the requester shall be refused if 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 people other than the requester. This is subject to certain exceptions, which I consider below.

The records relate to the applicant’s daughter. They consist of welfare benefit forms, bank statements, correspondence between the applicant and the Department, correspondence between the applicant and her residential community, expenditure forms, and a court order about proceedings taken by the applicant against the residential community. The records contain information such as the name, date of birth, PPS, nationality, address, medical history, financial history and welfare history of the applicant’s daughter. Accordingly, their release would involve disclosing personal information relating to an identifiable individual other than the applicant.

Some of the records also disclose personal information about the applicant. In theory, one could extract certain words or phrases from the records which relate solely to him. However, those words and phrases appear in the context of other information which relates to his daughter. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. I therefore find that the records are exempt from release under section 37(1) of the FOI Act. This finding is subject to other provisions of section 37, which I examine below.

Section 37(2)

Section 37(2) of the FOI Act 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) applies to the records. That is to say: (a) they do not relate solely to the applicant; (b) the applicant’s daughter has 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 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(8)

Section 37(8) of the FOI Act provides that notwithstanding subsection (1), the Minister for Public Expenditure and Reform may make regulations for the grant of an FOI request where the individual to whom the record relates belongs to a class specified in the Regulations and the requester is the parent or guardian of the individual to whom the record relates.

Regulations

Regulation 4 of the Regulations provides that notwithstanding section 37(1), an FOI request may be made for records which involves the disclosure of personal information and shall, subject to the other provisions of the FOI Act, be granted if the case falls within a case to which Regulation 5 applies and the condition specified in Regulation 6 is satisfied.

Regulation 5(b) of the Regulations provides for a right of access by parents or guardians to personal information of individuals who have attained full age and at the time of the request, have or are subject to, a psychiatric condition, mental incapacity or severe physical disability, the incidence and nature of which are certified by a registered medical practitioner, and by reason of that condition, incapacity or disability, are incapable of exercising their rights under the FOI Act.

Under Regulation 6, for such a right of access to apply, the FOI body must be of the view that having regard to all the circumstances, access to the individual’s personal information would be in that individual’s best interests.

Guidance

The Minister has published Guidance relating to section 37(8) and the Regulations titled “Freedom of Information Access to records/guardians Access to records relating to deceased persons prepared under section 37(8) of the Freedom of Information Act 2014” and dated May 2017. As noted above, section 48(3) provides that FOI bodies shall have regard to any guidelines in the performance of their functions under the FOI Act.

The Guidance details factors to be considered where records relate to persons with a disability. These include: the nature and duration of the disability; whether the person would consent to release of the material; and whether release of the material would be damaging to the person in any way. I will summarise the parties’ respective submissions on each factor.

The nature and duration of the disability

The Department says that its Social Welfare Inspector is of the opinion that the applicant’s daughter would not be capable of living on her own and needs to be living in a supported environment. It says that the applicant’s daughter’s incapacity is continuing and she is unable to manage her affairs independently. She has lived in the residential community for a very long time.

The applicant says that his daughter’s disability is ongoing and lifelong. He says that she is verbal and is a very independent person who is able to make her wishes known.

The Guidance says that in cases where incapacity is continuing, it is more likely that release to third parties may be in the person’s best interests where such third parties are caring for the person on an ongoing basis, but that this may not always be the case. During this review process, the applicant advised this Office that he has been caring for his daughter four days a week since March 2019 and her residential community facilitates this by arranging transport for her. The Investigator invited the Department’s submissions on this point. The Department says that it understands that since March, the applicant has been caring for his daughter for at least three or four nights a week. It says that this does not indicate a long-term pattern of care and does not change its original decision. It says that from 13 March to 6 August 2019, the applicant’s daughter has spent more nights with the applicant than she spent in her residential community. It says that up to 2019, the applicant took his daughter once a month for 2-6 nights. The Department acknowledges the possibility of the applicant’s daughter continuing to spend the majority of her time with her father, but also says that the applicant has not indicated that the current care pattern will continue long-term.

Would the person consent to release of the material?

The Department says that the details of her disability would indicate that the applicant’s daughter is a vulnerable person who may not have capacity to understand what is involved in providing consent. The Department says that it did not consider it appropriate to examine this option. The applicant says that his daughter has a very inquisitive mind and she would be very interested to know what information her file contained. Neither party appears to contend that the applicant’s daughter has capacity which would make her capable of exercising her rights under the FOI Act.

Would release of the material be damaging to the person in any way?

The Department says that releasing the records may contribute to further conflict between the applicant and his daughter’s residential community and may cause damage to the applicant’s daughter. It refers to concerns of the residential community about the applicant and his daughter’s finances. It says that the evidence available does not support a view that the quality of care being provided to the applicant’s daughter would improve if the records were released to the applicant. It concludes that it is not in the best interests of the applicant’s daughter for the records to be released to the applicant and that its key concern is that the applicant’s daughter is a vulnerable person.

The applicant says that release would not be damaging to his daughter and if the records contained anything damaging, he would advise her of her right under the FOI Act to have it removed.

Analysis and Finding

On the basis of the parties’ submissions and the content of the records, I am satisfied that the applicant’s daughter meets the requirements of Regulation 5(b).

I must therefore consider whether release of the records would be in her best interests, under Regulation 6. In reaching my conclusion, I will consider the factors outlined in the Guidance and the parties’ submissions on those factors.

The parties agree that the applicant’s incapacity is continuing. As noted above, I am required to make my decision on the basis of the current circumstances. In that regard, I consider it relevant that since March of this year, the applicant has been caring for his daughter for at least three or four days a week.

The parties disagree as to whether the applicant’s daughter would have consented to release of the material. The Guidance says that in forming an opinion on this matter, it may be helpful to consider the following issues: whether access to the records may be of benefit to the requester (e.g. whether access to the records may help to improve the quality of care being provided to the person); whether the information is of a particularly private and sensitive nature; and whether it also relates to the person’s parents/guardians or includes details on family background.

• The Department says there is no evidence to suggest that there is any question regarding the care of the applicant’s daughter. However, it says that the evidence does not support a view that the quality of care to her would improve if access to records were released to her. I have no basis upon which to conclude that access to the records would either improve or disimprove the quality of care being provided to the applicant’s daughter.
• The information is private insofar as it relates to the applicant’s financial history and this follows from my finding that it qualifies as personal information. I do not consider that it is of a “particularly private and sensitive nature”, as illustrated in the Guidance.
• The information relates to the applicant insofar as it includes correspondence between him and the residential community and concerns a disagreement between those parties about the management of the finances of the applicant’s daughter.

The parties also disagree as to whether releasing the records would be damaging to the applicant’s daughter. The Department considers that on balance, releasing the records may contribute to the dispute between the applicant and his daughter’s residential community and may cause damage to his daughter. However, it does not explain how or why this damage would occur. I am proceeding on the basis that the release of these particular records would not cause the residential community to stop providing the same quality of care to the applicant. I believe I am supported in this view by the Department itself, which says that there is no evidence to suggest that there is any question or issue regarding the daughter’s care. I note that the applicant says that concerns regarding his daughter’s care were raised in a meeting between him and the residential community in March of this year. However, the question for me is whether releasing the records would be damaging to the applicant’s daughter and I have no basis upon which to conclude that this would be the case.

In providing background to the conflict between the applicant and the residential community, the Department outlines certain concerns expressed by the residential community about the applicant and his daughter’s finances/welfare benefits. Its submissions indicate that it has attached weight to those concerns in reaching its decision. It is clear from the parties’ submissions and the content of the records that there has been a dispute between the applicant and his daughter’s residential community. I must emphasise that my sole remit is to decide whether the applicant has a right of access to the records under the FOI Act. I have no role in determining who should have access to welfare benefits or bank accounts.

On the first relevant factor, this is a case of ongoing incapacity and the applicant is now caring for his daughter for at least three or four days a week. On the second relevant factor, the content of the records does not lead me to believe that the applicant’s daughter would object to their release to her father, although clearly I cannot make a definitive finding on whether she would have consented. In this respect, I note that the applicant suggested that this Office could meet his daughter and obtain her consent. In the circumstances of this review, I am not certain that this Office could properly “obtain consent” and do not consider that it would be appropriate for me to meet with the individual concerned. On the third relevant factor, neither the content of the records nor the parties’ submissions lead me to believe that releasing the records to the applicant would be damaging to his daughter.

Having regard to all the circumstances, where the applicant is the parent of a daughter with an ongoing mental incapacity and is now caring for that daughter for at least three or four days a week, I consider that it would be in the best interests of the individual for access to the records to be granted to the applicant. As I have found both Regulations 5(b) and 6 to apply, it follows that the applicant has a right of access to the records under Regulation 4. Given this finding, it is not necessary for me to consider section 37(5) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I find that the Department was not justified in refusing access to the records under section 37 of the FOI Act. I annul its decision and direct the release of the records to the applicant. The release of the records is subject to the redaction of information which falls outside the scope of this review, as noted on page 3 above. I find that the Department was justified in refusing access to any further records under section 15(1)(a) 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