Whether the Department was justified in refusing access to certain correspondence under sections 15(1)(i) and 37 of the FOI Act

20 April 2020

Background

On 23 May 2019, the applicant made an FOI request to the Department for a list of particular correspondence concerning himself, between named people and on specified dates. The Department issued a decision on 19 July 2019. It granted access to some information and refused access to the remaining records on the grounds that they were exempt under sections 15(1)(i), 29 and 37 of the FOI Act. On 20 August 2019, the applicant applied for an internal review. On 11 September 2019, the Department issued an internal review decision, in which it affirmed its original decision. On 17 September 2019, the applicant applied to this Office for a review of the Department's decision.

In conducting my review, I have had regard to the correspondence between the Department and the applicant as described above, as well to correspondence between this Office and the Department.  I have also had regard to the contents of the records at issue and the provisions of the FOI Act. 

Scope of the Review

During the review process, the Department released further information to the applicant, including the information withheld under section 29. The released information now falls outside the scope of this review. Furthermore, Pages 209-322 are duplicates of other records and do not need to be considered separately. This review is concerned with whether the Department was justified in refusing access to the withheld information under sections 15(1)(i) or 37 of the FOI Act. I also consider Pages 573-806 below.

Preliminary Matters

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, with certain limited exceptions (e.g. section 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

Finally, 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.

Analysis and Findings

Pages 573-806

The Department did not claim an exemption over Pages 573-806. It advised that those pages do not fall within the scope of the applicant’s FOI request, because either they do not relate to him or they fall outside the time-frames specified by him. However, at least some of the information concerned appears to relate to the applicant and fall within the time-frame specified. I therefore cannot be satisfied that all these pages fall outside the scope of the applicant’s FOI request. It is not this Office’s function to make a first-instance decision. I consider it appropriate to annul the Department’s decision on Pages 573-806 and require it to make a fresh decision on them in accordance with the provisions of the FOI Act.

Section 15(1)(i) – Refusal on administrative grounds

Section 15(1)(i)(i) of the FOI Act allows an FOI body to refuse to grant a request where the request relates to records already released to the same or a previous requester, where the records are available to the requester concerned. It seems to me that the purpose of section 15(1)(i) is to allow an FOI body to refuse a request where it has already released the record the subject of the request and it is available to the requester. The Department refused access to Pages 323-572 under section 15(1)(i). However, it acknowledges that it released redacted copies of these pages. As the Department did not release all of the information, I do not consider that section 15(1)(i) applies. The Department was unable to provide redacted copies of the records concerned, so it was not possible for me to examine the withheld information within those records. I find that the Department was not justified in refusing access to the information concerned under section 15(1)(i). In the circumstances, I consider that the most appropriate course of action is to annul the Department’s decision on this information and remit it for a fresh decision.

Section 37 - Personal information

Sections 37(1) and 37(7)

The Department claims section 37 of the FOI Act over the other records. 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” and “(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose”.

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, the exclusion at Paragraph I does not exclude all information relating to staff members. It 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 position held while carrying out his or her official functions. It does not deprive public servants of the right to privacy generally.

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 majority of the withheld information comprises information relating to individuals other than the applicant; for example their names, PPS numbers, addresses, annual and sick leave details. Some of this information relates to members of staff of FOI bodies. Having regard to its content, which relates to matters such as sick leave, I do not believe it is captured by the exclusion at Paragraph I of section 2. In theory, one could extract certain words and phrases from certain pages which relate to the applicant. I have considered whether this would be practicable in the circumstances. However, those words and phrases appear in the context of information relating to the third parties concerned. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of those records would be to provide misleading records. In summary, I find that section 37(1) applies to the withheld information. 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) apply to the information which I have found to be exempt under section 37(1) above. That is to say, (a) it does not relate solely to the applicant; (b) the third parties have 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(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

In relation to the issue of the public interest, it is important to have 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] IESC 26 ("the Rotunda case"). 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 recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI 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. I must also bear in mind that release under FOI is effectively release to the world at large.

As noted above, I am required to disregard the applicant's reasons for his FOI request. Therefore I can only take into account the purpose for which he seeks this information to the extent that he identifies a public interest. The applicant says that he requests the information to confirm that his managers acted in a fair and appropriate manner. He says that as an employee of the Department, he has a right to see personal comments about him and refers to the employer’s duty of care towards him. The applicant provided this Office with some background to his FOI request. I do not consider that it is appropriate or necessary for me to set out the details here. I believe that the applicant’s interest is more properly viewed as a private rather than a public interest.

Having regard to the content of the withheld information, I do not consider that releasing it would serve a public interest in transparency. I am not satisfied that the public interest in granting the request outweighs the right to privacy of the individuals other than the applicant. I find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that the Department was justified in refusing access to the information withheld under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department’s decision as follows. I affirm its decision under section 37(1) of the FOI Act. I annul its decision on Pages 323-572 under section 15(1)(i) of the FOI Act and direct the Department to make a fresh decision on this information, in accordance with the provisions of the FOI Act. I also direct the Department to make a fresh decision on Pages 573-806, in accordance with the provisions of the FOI Act.

I am conscious of the demands on the Department at this time and have taken these circumstances into account in making the following direction. I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within eight weeks of the expiration of the time for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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