Whether DDLETB was justified in refusing access to the name and email address of the author of an email it received on the basis that the information comprises personal information of a third party and that the public interest in release did not, on balance, outweigh the privacy rights of the third party

8 June 2020

Background

On 22 August 2019, the applicant submitted a request for all email communications from 2019 between the Chief Executive and Director of Schools with Roman Catholic clerics, Roman Catholic Diocesan Advisors and Roman Catholic Diocesan Bodies and for a range of other records from 2019 containing a variety of specified terms.

Following email correspondence with DDLETB, the applicant agreed that email searches could be restricted to those from the mail boxes of the Chief Executive and the Director of Schools involving or mentioning Archbishop Diarmuid Martin and containing the word ‘Catholic.’

As DDLETB did not issue an original decision within the required time frame, the applicant sought an internal review of the deemed refusal of his request on 5 October 2019. On 24 October 2019, DDLETB issued a decision in which it part granted the request. It withheld certain records under section 29(1) of the FOI Act. It also redacted information from some records under section 37 of the FOI Act on the ground that the redacted information comprised personal information relating to third parties. It withheld further information from some records on the basis that the withheld information was outside the scope of the request.

On 30 October 2019 the applicant sought a review by this Office of DDLETB’s decision solely in relation to records 342 and 343. Certain information from record 342 and all of record 343 was withheld on the basis that it fell outside the scope of the request as refined by the applicant. Further information was redacted from record 342 under section 37 of the FOI Act on the basis that it comprised personal information relating to a third party. During the course of the review, this Office invited submissions from that third party on the potential release of information relating to him. The third party made submissions arguing that his name and the identity of the body he represents should be refused.  

I have now completed my review in this case and have decided to conclude the review by way of a formal, binding decision. In conducting my review, I have had regard to DDLETB's correspondence with the applicant as outlined above and to the communications between this Office and the applicant, the third party and DDLETB during the review. I have also had regard to the contents of the records at issue.

Scope of the Review

Records 342 and 343 comprise an email string containing:

• An email from the third party mentioned above to a number of unidentified parties,
• A responding email from the Chief executive to that third party, and
• The third party’s response to the Chief Executive’s email.

DDLETB withheld the entirety of the first two emails on the ground that they fell outside the scope of the refined request. The emails do not mention Archbishop Diarmuid Martin or contain the word ‘Catholic”, I agree that they fall outside the scope of the applicant’s request and such, they do not form part of this review. DDLETB also redacted the third party’s name and email address from the email response to the Chief Executive under section 37 of the Act. Accordingly, this review is concerned solely with whether DDLETB was justified in redacting that information from the email in question.

Analysis and Findings

DDLETB refused access to the third party’s name and email address under section 37 of the Act, which provides for the protection of personal information. The body of the email was released. The redacted email address at issue is the third party’s work email address. The third party made a number of arguments against the release of the information at issue. As section 25(3) of the Act requires that I take all reasonable precautions during a review to prevent the disclosure of exempt information, I cannot repeat all of those arguments. However, I can say that I have considered all of the arguments raised, which include that;

• The release of the redacted information would involve the disclosure of personal information;
• The email was provided to DDLETB in confidence and the release of the information at issue would involve a breach of a duty of confidence;
• Releasing the information would not be in line with the purpose of the request; and
• The release of the information would not be in the public interest.

On the matter of whether releasing the information at issue would be in line with the purpose of the request, I note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question in this case.

Section 37

Section 37(1) provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to a third party. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act also contains fourteen separate categories of information that is personal information including (iii) information relating to the employment or employment history of the individual. The Act also provides that certain information is excluded from the definition of personal information.

In his application for review to this Office, the applicant argued that the content of the communications relates to the work of DDLETB rather than personal details of third parties. However, it is important to note that the contents of the email are not at issue here. Rather, the question I must consider is whether the disclosure of the name and email address of the author of the email would involve the disclosure of personal information relating to the author. I am satisfied that it would. For the sake of completeness, I should add that I am also satisfied that none of the exclusions to the definition of personal information apply. I find, therefore, that section 37(1) applies.

The effect of section 37(1) is that a record disclosing personal information of a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies - in this case, section 37(2) or 37(5).

Section 37(2) sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that a request which falls 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 record at issue would be to the benefit of the third party concerned, I find that section 37(5)(b) does not apply. 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 person to whom the information relates.

The applicant argued that it is in the public interest to provide the identity of the person providing details such as those contained in the email to DDLETB. The FOI Act recognises a public interest in ensuring the openness and accountability of FOI bodies in how they carry out their functions. On the other hand, the FOI Act also recognises a strong public interest in protecting privacy rights. 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.

It seems to me that the public interest has been served to a significant extent in this case by the decision of DDLETB to release the contents of the email at issue. The question I must consider is whether the public interest in further enhancing the accountability and transparency of DDLETB by the release of the identity of the author of the email outweighs, on balance, the privacy rights of the individual concerned.

In its submission to this Office, DDLETB said that releasing the name of the third party may provide the applicant with additional information on how it performs its functions and makes decisions and might provide clarity as to the basis of certain decisions made by the organisation or positions taken by the organisation on matters of policy. On the other hand, it argued that the third party should feel free to communicate their opinion on complex matters of policy for the ETB sector without fear of disclosure.

Having examined the email at issue, it is apparent that the views expressed are those of the entity the third party represents and not solely of the individual who issued the email. I note, for example that the email was issued through the individual’s work email address and that the contents of the email purport to outline the entity’s position on a particular policy matter. It is important to note that section 37 does not provide for the protection of the identity of the entity that communicated with DDLETB. In the circumstances, it seems to me that the extent to which the release of the information at issue would impinge on the privacy rights of the individual concerned is minimal. I note, for example, that the fact that the individual is employed by the entity is publicly available.

In the circumstances, I consider that the public interest in further enhancing the accountability and transparency of DDLETB by the release of the identity of the author of the email in this case outweighs, on balance, the privacy rights of the individual concerned. I find, therefore, that section 37(5)(a) serves to disapply section 37(1) in this case.

Section 35

As I have outlined above, the third party argued that the email at issue was provided to DDLETB in confidence and the release of the withheld information would involve a breach of a duty of confidence. Section 35(1)(b) provides for the refusal of a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law.

While I am constrained by section 25(3) from setting out the entirety of the third party’s arguments, I can say that it has been argued that the disclosure of the source of the email would undermine an intended confidential exchange.

The third party did not point to any agreement or enactment that might apply in this case. Nevertheless, a duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In the Supreme Court decision in the case of Mahon v Post Publications Ltd [2007] 3 IR 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial

setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers)

Ltd. [1969] R.P.C. 41, at 47:

“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

Fennelly J summarised or restated the requirements of what he called “the contours” of the equitable doctrine of confidence as follows:

“1. the information must in fact be confidential or secret: it must ... “have the necessary

quality of confidence about it”;

2. it must have been communicated by the possessor of the information in circumstances

which impose an obligation of confidence or trust on the person receiving it;

3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”

Given the nature of the relationship between the parties, I find it difficult to accept that the information at issue (i.e. the source of the email) was communicated in circumstances which impose an obligation or confidence or trust on DDLETB in this case or that its disclosure could reasonably be regarded as a wrongful communication. Indeed, DDLETB expressed no such understanding of the basis on which the information at issue was communicated to it. I find that section 35(1)(b) does not apply.

In conclusion, therefore, I find that DDLETB was not justified in withholding the name and email address of the author of the relevant email in record 342 and I direct its release.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of DDLETB to withhold the name and email address from the email contained in record 342 under section 37(1) of the FOI Act and I direct its release to the applicant.

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 eight weeks after notice of the decision was given to the person bringing the appeal.

 

 

Stephen Rafferty

Senior Investigator