Whether the LWETB was justified in refusing access under section 37 of the FOI Act to records held on the applicant’s file or pertaining to her, in whole or in part, on the basis the withheld information comprises personal information relating to third parties

25 November 2019

Background

The applicant in this case is a teacher in an LWETB school. In January 2019, she submitted a request under the FOI Act for access to her file with all correspondence pertaining to herself as held in the LWETB offices. On 7 February 2019, the LWETB part granted the request. It withheld certain information and records under section 37 of the FOI Act.

The applicant sought an internal review of that decision. On 27 February 2019, the LWETB issued its internal review decision in which it stated that it had identified a number of additional relevant records but had decided to refuse access under section 37 on the basis that they contained personal information relating to third parties. It did not release any further records. The applicant sought a review by this Office of the LWETB’s decision on 4 July 2019. In referring to the records at issue, I have adopted the numbering system used by the LWETB in the schedules it prepared when processing the applicant’s request.

During the course of the review the LWETB agreed to release further information within records 119, 120, 121, 123, 124, 166, 167, 170, 179, 184, 187, 191, 193, 194, 199, 200, 201, 244, 279, and 286. The information released primarily consists of the names of permanent and substitute staff members of the LWETB within email correspondence, along with the name of a landlord and non-personal information contained with a letter.

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the LWETB's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the LWETB on the matter. I have also had regard to the contents of the records at issue.

Scope of Review

This review is concerned with solely whether the LWETB was justified in refusing to grant access to the information withheld from the records it identified as coming within the scope of the applicant's request under section 37(1) of the FOI Act.

Preliminary Matters

Section 18(1) of the Act 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 body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that neither the definition of a record under section 2 of the Act 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, I am 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. 

Analysis and Findings

Section 37(1)

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).

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a), i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

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 nature of the information at issue is somewhat limited. I can say, however, that it comprises, among other things, the following: score sheets, reports, schedules and other information concerning third parties attending job interviews; payroll information of third parties; the names and details of LWETB staff on sick leave; correspondence from third parties expressing comments, concerns and opinions relating to the applicant and other third parties; and correspondence from the applicant concerning third parties.

Having reviewed the relevant records and redactions, I am satisfied that all of the remaining 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 personal information relating to other individuals. Accordingly I find that section 37(1) applies.

I will now consider the applicability of section 37(2) and section 37(5) to the information to which I have found section 37(1) to apply.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of those circumstances arise in this case.

Section 37(5)

Section 37(5) 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. 

As no evidence has been presented to this Office to suggest that the release of the information at issue would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply in the circumstances. 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 individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), 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] 1 IR 729, [2011] IESC 26) (''the Rotunda case''). In that 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).

In relation to where the balance of the public interest lies, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. Section 11(3) of the Act provides that FOI bodies shall, in performing any function under the Act, have regard to a number of matters including the need to achieve greater openness in their activities, to promote adherence by them to the principles of transparency in government and public affairs, and to strengthen the accountability and improve the quality of their decision making.

On the other hand, however, the language of section 37 and the Long Title to the 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 seems to me that the public interest in the enhancement of transparency and accountability in relation to the LWETB’s functions as the applicant’s employer has been served to some extent by the release of a significant amount of information concerning the applicant. The question I must consider is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the privacy rights of the staff members and other third parties concerned. In light of the nature of the records and the context in which they were created, I find that it does not. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the LWETB was justified in refusing access to the relevant records under section 37 of the FOI Act.

Section 42(m)

During the course of this review, the LWETB sought to also rely on section 42(m) to refuse access to record 289. However, having found record 289 to be exempt from release under section 37, it is not necessary for me to consider the applicability of section 42(m).

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the LWETB to refuse access to the remaining records at issue, in whole or in part, under section 37.

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