Whether DETB was justified in its decision to refuse to grant access to records under sections 30, 35 and 37(1) of the FOI Act
28 January 2020
Background
On 14 May 2019, the applicant requested access to records of a final report of an investigation conducted by DETB. DETB refused access to the records under section 37(1) (Personal information) of the FOI Act. Following a request for an internal review DETB affirmed its original decision and also refused access under section 35 (Information obtained in confidence) of the Act. On 10 September 2019, this Office received an application for review from the applicant.
During the review DETB advised this Office that it was also relying on section 30(1)(b) (Functions and negotiations of FOI bodies).
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 DETB and to correspondence between the applicant, DETB 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. However, while the applicant spoke to the Investigator by telephone, a submission was not received.
Scope of Review
This review is concerned solely with whether DETB was justified in deciding to refuse access to the records on the basis of sections 30(1)(b), 35(1)(a) and 37(1) of the FOI Act.
Preliminary Matters
In her application to this Office, the applicant explained why she wanted access to the records. 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.
In its decision, DETB referred to parts of the applicant-s request as -A- to -L-. Part -A- refers to the request for access to records as detailed above. Parts -B- to -L- are questions or requests for -confirmation- of positions put to DETB by the applicant. While the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. The Act provides for a right of access to records held. However, it also places an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis).
I am satisfied that this review can be confined to the records identified and scheduled by DETB.
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. This was explained to the applicant in the course of the review.
Analysis and Findings
Having examined the records, I decided to consider section 37(1) first, as this appears to be the most relevant provision.
Section 37- Personal Information
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. 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, (v) information relating to the individual in a record falling within section 11(6)(a), i.e. personnel records of staff of FOI bodies, and (xiv) the views or opinions of another person about the individual.
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 limited.
I am satisfied that the information in the records comprises personal information relating to third parties and that such information is not captured by the exclusion at Paragraph (I). I find, therefore, that section 37(1) of the Act applies to the withheld information.
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. 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 individuals to whom the information relates, or (b) the grant of the information would be to the benefit of the persons 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.
The applicant said that there is considerable public interest in the records and that this matter alone merits their release.
Section 11(3) of the FOI Act requires an FOI body, when performing any function under the Act, to have regard to such matters as "achieving greater openness in the activities of FOI bodies"; "promoting adherence by them [i.e. FOI bodies] to the principle of transparency in government and public affairs"; to "the need to strengthen the accountability and improve the quality of decision making of FOI bodies"; and the need to inform comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the "role, responsibilities and performance of FOI bodies." The emphasis in section 11 is clearly on the activities of FOI bodies, not on the activities of identifiable public servants.
This is not to suggest that, in some instances, information relating to the performance of individual public servants or service providers should not be released in order to promote the openness and accountability of an FOI body. Different types of personal information about a public servant or service provider would have varying degrees of sensitivity. Furthermore, an FOI body would not necessarily be required to provide such a level of detail that would enable individual public servants to be identified.
In a previous decision, the Commissioner commented that -FOI is concerned with the activities of public bodies generally and is not necessarily a means by which all information about the activities of individual public servants is intended to be made known to the public at large-.
It is also important to appreciate that records released pursuant to the FOI Act are released without any restriction as to how they may be used. Such release is regarded, in effect, as release to the world at large.
As well as information about public servants, the records contain the personal and sensitive information of numerous identifiable third parties, some of whom at the time records were created may have been minors but have now reached the age of majority. If the Commissioner was considering release of those individuals- personal information in the public interest, it seems to me that fair procedures would oblige him in the interests of fairness to consult and consider the views of all those whose personal information appears in the records.
On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. in the Rotunda case [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, a link to which is available on www.oic.ie]. It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
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 DETB 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. 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.
Given their content, I cannot see how redacting names or other details from these records would be sufficient to prevent identification of those whose personal information appears throughout the records. Having regard to section 18 of the Act as explained above, I consider that the extent to which the records would have to be redacted in order to protect the privacy of individuals would render any resulting version misleading even if it were practicable to prepare one.
Accordingly, I find that section 37(1) of the Act applies to the records.
Having found the records to be exempt under section 37(1), I do not consider it necessary to consider the application of sections 30(1)(b), 35(1)(a) of the FOI Act to them.
Decision
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of DETB to refuse access to 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
