Whether the NMBI was justified in its decision to grant a request to which section 38 of the FOI Act applies, concerning access to a report commissioned by the Board of NMBI in 2015.
10 December 2019
Background
This review arises from a decision made by the Nursing and Midwifery Board of Ireland (NMBI) to grant a request to which section 38 of the FOI Act applies. Section 38 applies to cases where, at some stage in the decision making process, the public body has formed the view that the record(s) in question qualify for exemption under one or more of the relevant exemptions in the FOI Act (i.e. sections 35, 36 and 37 - relating to information that is confidential, commercially sensitive, or personal information relating to third parties, respectively) but that the record(s) should be released in the public interest.
Where section 38 applies, the public body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the public body, may apply directly for a review of that decision to this Office.
On 3 June 2019, the NMBI received a request seeking access to a report commissioned by its Board and carried out by a named individual in 2015 (the report). The report is entitled “Report of ‘Scoping Exercise’ Relating to a disclosure made under section 8 the Protected Disclosures Act 2014 at [NMBI]”.
On 7 June 2019, the NMBI wrote to the applicant, a former staff member of the NMBI, pursuant to the provisions of section 38. It informed her that the record included her personal information and that it was of the view that the public interest would be better served by the release of a redacted copy of the record.
The applicant made a submission to the NMBI on 27 June 2019, wherein she argued that the entire report should be withheld. On 12 July 2019, the NMBI notified both the original requester and applicant of its decision to grant the request subject to the redaction of certain information. The applicant sought a review by this Office of that decision on 26 July 2019, wherein she argued that the report was exempt from release under sections 35 and 37 of the Act.
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 the submissions made by the applicant and the original requester and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision. For convenience, submissions made by the applicant’s solicitors on her behalf are described in this decision as having been made by the applicant.
Scope of the Review
This review is concerned solely with whether the NMBI was justified in its decision to grant partial access to the record at issue. The information that the NMBI decided to redact from the report is not at issue and does not form part of my review.
Preliminary Matters
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
Second, under section 22(12)(a) of the FOI Act, a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. This means that the onus is on the applicant to satisfy this Office that the NMBI was not justified in its decision to grant partial access to the record at issue.
Analysis and Findings
Section 37
Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, 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 the body as confidential.
The definition also contains a list of 14 specific types of information that comprise personal information for the purposes of the Act, including information relating to the employment or employment history of the individual and information relating to the individual in a personnel record. The Act defines a personnel record as a record relating wholly or mainly to the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member.
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.
The report at issue was prepared as a direct result of a disclosure that was made to the Department of Health (the Department) in 2014 under the Protected Disclosures act 2014. According to the applicant, she was the subject of the disclosures. During their engagements on the matter, the Department informed the NMBI that it was not satisfied with the action the NMBI had taken on foot of the disclosure and suggested that it should appoint an independent third party to carry out a review of the complaint.
The NMBI subsequently asked a third party to carry out a scoping exercise which culminated in the preparation of the report at issue. The author stated in the report that he understood his task as making such enquiries as he deemed appropriate to establish what next steps, if any, might be necessary for the NMBI to consider to meet the requirements of the Department.
The applicant argued that the entire report comprises personal information relating to her. She also argued that the personal information exemption identified by the NMBI was applied to the entire report, thus accepting that the entire report comprises personal information relating to her.
Given the particular role the applicant held within the NMBI at the time, and in light of the nature of the allegations made that are discussed in the report, I accept that the release of the report as proposed by the NMBI would involve the disclosure of personal information relating to the applicant. I also accept that the NMBI did not identify specific parts of the report when notifying the applicant that it was considering release in the public interest.
However, in light of the de novo nature of reviews conducted by this Office, I believe it is appropriate for me to find that, given the reports’ purpose (to identify what steps the NMBI might take in respect of its consideration of the protected disclosure), a redacted version of the report could be released that would not involve the disclosure of personal information relating to the applicant.
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. While section 18(1) does not apply if the copy provided for thereby would be misleading, I do not consider that such concerns arise in this case.
Having carefully considered the contents of the redacted report that the NMBI proposes to release (i.e. not including the parts the NMBI has already decided to redact that are outside the scope of this review), I find that section 37 applies to the following parts only:
Page 2 – points 4 to 6 under the Heading Contents
Page 4 – the two numbered bullet points after the text “.. in the following terms:”
Pages 11 to 17 in their entirety
Page 19 – the bullet point numbered 3.
However, that is not the end of the matter. Section 37(5)(a) provides that a public body may grant a request to which section 37(1) applies where it considers that, on balance, the public interest in granting the request outweighs the public interest in upholding the right to privacy of the individual to whom the information relates. Accordingly, I must consider the public interest in granting access to the information I have identified above outweighs, on balance, the applicant’s privacy rights.
In her application for review, the applicant argued that the NMBI gave no consideration to the mandatory nature of section 37. On this point, she sought to rely on two recent court judgments involving this Office. She described the Courts as having found that where a record comes within the terms of one of the statutory exemptions, then no additional justification for non-disclosure is required to be demonstrated.
In the cases in question the Courts were considering the presumption in section 22(12)(b) which concerns refusals of requests by public bodies. Section 22(12)(b) is of no relevance in this case. As I have outlined above, the relevant presumption in the case of requests to which section 38 of the Act applies is set out in section 22(12)(a), i.e. a decision to grant a request to which section 38 applies shall be presumed to have been justified unless the person to whom the information relates shows to the satisfaction of the Commissioner that the decision was not justified. The applicant argued that as section 37(1) provides for a mandatory exemption the NMBI was obliged to refuse the request. However, this argument overlooks the fact that subsection 37(5)(a) expressly provides for the release of information that falls to be refused under section 37(1).
The applicant also argued that the NMBI did not conduct a weighing or balancing exercise in terms of where the balance of the public interest lay. I accept that the NMBI’s correspondence with the applicant on the request was deficient in that it did not identify the relevant public interest factors it considered in its decision, nor did it adequately explain why it decided that the public interest in granting the request outweighed, on balance, the privacy rights of the applicant. Nevertheless, this does not mean that it did not conduct such an exercise. In any event, given the de novo nature of reviews, I have considered where the balance of the public interest lies for the purposes of this review.
In her submission to this office, the original requester argued that the proper management and governance of the NMBI is a matter of public interest. On the other hand, the applicant essentially argued that the release of the report would have a significant detrimental impact on her and on her right to privacy. She also argued that the issues arising were appropriately managed through due process at the time and she noted that several independent reviews were conducted and made publicly available.
The FOI Act itself recognises a public interest in ensuring the openness and accountability of FOI bodies, regarding how they conduct their business. Indeed, under section 11(3), in performing any function under the Act, public bodies must have regard to, among other things, the need to achieve greater openness in their activities and to promote adherence by them to the principle of transparency in government and public affairs, and the need to strengthen their accountability and improve the quality of their decision making.
On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in 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 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.
As I have explained above, the report at issue was prepared to advise the NMBI as to what steps, if any, it might take to meet the requirements of the Department in addressing the relevant protected disclosure. It seems to me that the release of the report with the redaction of the information I have identified above as personal information relating to the applicant will serve, to some extent, the public interest in the promotion of transparency and accountability of the NMBI in connection with those issues. The question I must consider is whether the public interest in further enhancing that transparency and accountability by releasing the personal information at issue is sufficiently strong to outweigh, on balance, the privacy rights of the applicant. In my view, it is not, given the nature of the report and the reason for its creation.
I find, therefore, that section 37(5)(a) does not apply to the information I have identified above as personal information relating to the applicant. For the sake of completeness, I should add that even if I had found the entire report to comprise personal information relating to the applicant, I would have found that the public interest in granting access to the report in the manner I have outlined above outweighed, on balance, the privacy rights of the applicant. The release of the information in question would disclose nothing of an intrinsically sensitive or private nature about the applicant.
Section 35
The applicant argued that the entire report is exempt from release pursuant to section 35(1) of the Act. That section provides for the protection of confidential information. She argued that the report was compiled arising from a report the applicant prepared on the basis of information having been provided to her in confidence.
The NMBI has not argued that the disclosure of the report would involve the disclosure of confidential information. In any event, as the report was prepared for the NMBI by a service provider, the provisions of section 35(2) are relevant.
Section 35(2) provides that subsection (1) does not apply to a record prepared by a staff member of an FOI body or a service provider "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider”. The record at issue was prepared by a service provider to the NMBI and the applicant was a member of staff of the NMBI. She has not identified any appropriate person to whom a duty of confidence is owed. In the circumstances, and having regard to the provisions of section 22(12)(a), I am satisfied that section 35 cannot apply as the relevant conditions are not met and I find accordingly.
In conclusion, therefore, I find that the redacted report is not exempt from release, apart from the following information that I find to be exempt under section 37(1):
Page 2 – points 4 to 6 under the Heading Contents
Page 4 – the two numbered bullet points after the text “.. in the following terms:”
Pages 11 to 17 in their entirety
Page 19 – the bullet point numbered 3.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the NMBI. I find that section 37(1) applies to the information identified above and that the remainder of the relevant parts of the report should be released.
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