Whether the Agency was justified in its decision to refuse to grant access in full to records under section 37(1) of the FOI Act

30 January 2020

Background

In September 2018, the applicant submitted an FOI request to the Agency for access to records of -�statements-� given by her to the Agency. The Agency identified two records and in its original decision it granted access to them in part but refused access to large parts by redacting information about persons other than the applicant under section 37(1) of the FOI Act. On 26 October 2018, the Agency received a request for an internal review from the applicant who stated that information relating to her -�was not disclosed-�.

An internal review decision was issued by the Agency on 30 July 2019. The Agency granted access to further information and affirmed its original decision to refuse access to the remaining withheld information on the basis of section 37(1) of the Act.

On 7 August 2019, this Office received an application for a review of the decision of the Agency.

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 applicant and the Agency and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

This review is concerned with whether the Agency was justified in deciding to refuse access in part to the records under section 37(1) of the FOI Act.

Preliminary Matters

I want to draw attention to how long it took the Agency to reply to the applicant-�s request for an internal review. As indicated above, the Agency did not make its internal review decision until nine months after receipt of the request. In a reply to this Office on the matter, the Agency acknowledged that a decision should have issued to the applicant by 16 November 2018. The Agency did not provide any detail on the circumstances of the delay other than to say that it was -�unable to adhere to this date due to a shortage of resources-�-�. I accept that the significant delay in responding to the applicant on this occasion is not typical of the Agency. However, previously the Commissioner noted that an increased demand for FOI services did not appear to have been matched by a corresponding increase in the allocation of resources by public bodies to the processing of FOI requests. The Commissioner urged public bodies to make every effort to ensure that the resources afforded to the processing of FOI requests are sufficient to deal with the demand levels.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

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.

Section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.   

Analysis and Findings

Are further records held?
In her application to this Office the applicant stated that photographs were taken but were not released to her. She did not refer to this specifically in her request for an internal review. However, as mentioned above, she did say that information -�was not disclosed-�. The Investigator invited the applicant to provide further information on any matter she considered relevant but no additional information on the matter was provided.

The Agency was informed of the applicant's reference to further records. In reply, the Agency said that there is no reference to photographs in the records and confirmed with relevant staff that at no stage were photographs taken and that there are no photographs on file.

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records.

I do not consider that this Office has any basis on which to find that the Agency holds further records falling within the scope of the request which it has withheld. If the applicant has identified specific additional records which she believes are held by the Agency, it is open to her to consider making a fresh request for access to those. 

Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps.

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 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

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 in this decision I am unable to describe the contents of the records in any detail.

However, having examined the records I am satisfied that the withheld information is personal information relating to individuals other than the applicant, including members of her family and others known to her, who must for FOI purposes be treated as any other identifiable individual would be in relation to their personal information.

Accordingly, I find the records to be exempt under section 37(1) of the FOI Act.

Section 37(2)
There are some further 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 these are relevant in this case.

Section 37(5)

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.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.

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. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Agency 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.

I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the information in the records relate. As regards section 37(5)(a), as mentioned earlier, the public interest in openness and transparency in how the Agency dealt with the applicant has been served to some extent by the release of information in the records to her. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved.

Accordingly, I find that section 37(1) of the Act applies to the withheld information in the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Agency to refuse access to the withheld information in the records under section 37(1) 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