Whether NMBI was justified in refusing access to a statement submitted by the applicant’s line manager in response to a complaint made by the applicant

27 February 2020

Background

This case has its background in a complaint the applicant made to NMBI against his line manager, who is a HSE staff member. Having been notified of the compliant, the line manager submitted a statement to NMBI in response. NMBI did not proceed with an examination of the applicant’s complaint as it deemed the complaint to be outside remit.

On 9 July 2019, the applicant sought a copy of the statement his line manager submitted to NMBI.  On 31 July 2019, NMBI refused access to the record sought under sections 30(1)(a) and 37(1) of the FOI Act. On 25 October 2019, the applicant sought an internal review of that decision, following which NMBI affirmed its original decision.  The applicant sought a review by this Office of NMBI’s decision on 16 November 2019.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between NMBI and the applicant as outlined above and to correspondence between this Office and both NMBI and the applicant on the matter. I have also had regard to the content of the record at issue.

Scope of Review

This review is solely concerned with whether NMBI was justified in refusing access, under sections 30 and 37 of the FOI Act, to the statement submitted by the applicant’s line manager in response to a complaint made by the applicant.

Preliminary Matter

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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

Having carefully examined the record at issue, it appears to me that section 37 is of most relevance in this case.  Accordingly, I will consider the applicability of section 37 in the first instance. 

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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

For the purposes of the Act, personal information is defined under section 2 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.

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. 

Given the nature of the matter to which the record at issue relates, I find that it cannot be said to have been prepared by the applicant’s line manager for the purpose of the performance of her functions.  Rather, it was prepared in connection with a complaint made about her to the independent body that is charged with examining complaints about the behaviour, conduct, practice or health of registered nurses or registered midwives.

I accept that the record at issue contains personal information about the applicant. However, having regard to the definition of personal information as outlined above, I am satisfied that it also contains personal information relating to the applicant’s line manager. Indeed, given the nature of the complaint made, it is unsurprising that the vast majority of the record can reasonably be describes as joint personal information relating to both parties. It also contains joint personal information relating to the applicant and other third parties. In the circumstances, I find that section 37(1) applies to the record.

Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Furthermore, 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.

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 parties 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.

In considering where the public interest lies, I have had 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 acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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 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.

There is a public interest in enhancing the transparency and accountability of NMBI in relation to the manner in which it dealt with the applicant’s complaint. On this point, I understand NMBI informed the applicant it would not be proceeding with an examination of the complaint as it found that the complaint relaters to a human resources issue and was not suitable for professional regulation. As such, the public interest in enhancing the transparency and accountability of NMBI has been served to some extent.

I also accept that there is a public interest in the applicant accessing personal information relating to him. However, the release of the record at issue in this case would also involve the disclosure of personal information relating to third parties. Therefore, the question I must consider is whether the public interest in support of release of the information outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates.

Having regard to the nature of the record concerned, I am satisfied that it does not. In holding this view, I am cognisant of the fact that the public interest has been served to some extent by NMBI’s explanation as to why it did not proceed with an examination of the applicant’s complaint. I am also particularly cognisant of the fact that release under FOI is, in effect, release to the world at large given that the Act places no constraints on the uses to which information released under FOI may be put. I find therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that NMBI was justified in its decision to refuse access to the statement sought under section 37(1) of the FOI Act.  Given my findings regarding section 37, it is not necessary for me to consider the applicability of section 30 in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of NMBI to refuse access to the record at issue under section 37 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.

 

 

Stephen Rafferty

Senior Investigator