Whether the Agency was justified in its decision to refuse to grant access to records and parts of records concerning the applicant under sections 31, 35, 37 and 42(m) of the FOI Act

8 June 2020

Background

On 9 October 2019, the Agency received an FOI request from the applicant for access to social work records concerning him. The Agency identified a large number of records and issued three separate decisions on the request; on 16 October 2019, 23 October 2019 and on 27 November 2019. The Agency granted access to a number of records and refused access in full and in part to others under section 31(1)(a) (Legal Professional Privilege), section 35(1) (Information obtained in Confidence) and section 37(1) (Personal Information) of the FOI Act. Following a request for an internal review, the Agency issued a single decision on 16 January 2020. The Agency affirmed its original decision and also refused access to a small number of records under section 42(m)(i) and (ii) of the FOI Act on the basis that the Act did not apply to those records.

On 24 January 2020, this Office received an application for review from the applicant.

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

Scope of Review

I am conscious of the fact that the matters to which the records relate and the process of trying to access as much information as possible have caused upset and stress to the applicant. While I appreciate that it is very important to him that he would have access to the maximum possible number of records, my role is confined to making a legally binding decision on whether the FOI Act entitles him to have access to the withheld parts of the files.

This review is concerned solely with whether the Agency was justified in deciding to refuse access, in full and in part, to records on the basis of sections 31(1)(a), 35(1)(a), 37(1) and 42(m)(i) and (ii) of the FOI Act.

Preliminary Matters

The records contain sensitive information and 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 contents of the records is limited. However, for the purposes of this review it is necessary to identify the six groups of records as scheduled by the Agency. The records are identified as ‘Family Centre File of Complaint’, ‘Family Centre Confidential File Section 1’, ‘Family Centre Confidential File Section 2’, and three sets records from a specialist inquiry team (SIT), each accompanied by a separate cover letter dated 16 October 2019, 23 October 2019 and 22 January 2020.

I also draw attention to the extent to which it is feasible to provide access to parts of records while refusing access to the remaining parts. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record.  Section 18 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.  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

Are further records held?
In his application for review, the applicant referred to the Agency’s three original decisions and queried whether his original FOI request had been considered in full. 

The applicant did not state whether he believed that further records exist. However, during the review the applicant queried why a number of pages listed in one schedule were “missing”.  As such, the Investigator invited the Agency to make submissions on whether all the records the subject of the applicant’s request had been considered.

The records to which the applicant referred as “missing” are recorded in the decision schedule as ‘exempt’ and are refused by the Agency under sections 35 and 37 of the FOI Act.  In its submission, the Agency responded to the investigator’s detailed queries and explained why some records had come to light later than others in the process. It confirmed that all records had been examined and considered and that a decision had been made on all of the records within the scope of the applicant’s request.

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 he believes are held by the Agency, it is open to him 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 31(1)(a) - Legal Professional Privilege
The Agency refused access to a number of records under section 31. However, I consider that some of those records which, on the face of it do not contain legal advice or requests for legal advice can be considered under section 37; I will identify and consider these later in this decision.

The remaining records withheld under section 31 are records 11-22 inclusive in the SIT record with the cover letter dated 23 October 2019, and records 21 - 22 and 62- 68 in ‘Family Centre Confidential File Section 2’.

Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

The Agency stated that records are withheld on the basis of legal advice privilege.

Advice Privilege

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.

Having examined the records, I accept that they qualify for legal advice privilege and disclose legal advice sought or received from the Agency's professional legal adviser. Accordingly, I uphold the Agency's refusal of the records under section 31(1)(a) of the FOI Act. 

Section 37- Personal Information
Most of the records over which section 37 was claimed were also withheld under section 35 (Information obtained in confidence). However, given their content and the extent of personal information that appears in the records, I consider that section 37(1) is the most appropriate exemption to examine in relation to all of those records.

As mentioned above, the Agency refused access to some records on the basis of section 31(1)(a) which, I consider ought best be examined  in the context of section 37. They are records 94 and 95 in ‘Family Centre File of Complaint’ and records 47, 48, 52, 53, and 60 -61 in the ‘Family Centre Confidential File Section 2’.

Section 37(1)
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 definition,

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).

While I cannot discuss their content in any detail, I am satisfied that the information withheld from the records is personal information about individual identifiable parties or personal information concerning those persons that is inextricably linked to personal information about the applicant.

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.

Section 37(5)(a)
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).

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

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.

Generally, 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.

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 already released to him. 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 records.

Having found section 37 to apply, I have no need to consider the records refused under section 35.

Section 42(m)(i) and (ii) - Restricted records
Section 42(m)(i) and (ii) provide that the FOI Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal or lead to the revelation of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, any other source of such information provided in confidence to an FOI body, or where such information is otherwise in its possession. In essence, the section provides for the protection of the identity of persons who have given information to FOI bodies in confidence in relation to the enforcement or administration of the law to ensure that members of the public are not discouraged from co-operating with such bodies or agencies.

For section 42(m)(i) to apply, three specific requirements must be met. The first is that release of the withheld information could reasonably be expected to reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given in confidence, while the third is that the information must relate to the enforcement or administration of the law. As mentioned earlier, under section 25(3), the extent to which I can describe the contents of the records is limited.

First Requirement

Having examined the records, I am satisfied that release of the information could reasonably be expected to lead to the revelation of the identity of the person who supplied that information. I am satisfied, therefore, that the first condition has been met.

Second Requirement

The second requirement for section 42(m)(i) to apply is that the provider of information must have provided that information in confidence. In its submission to this Office, the Agency stated that information in the records clearly identifies the source and the nature of the information provided and that it was provided in confidence.

I accept that bodies such as the Agency act upon every report such as the type at issue in good faith. I also accept that the disclosure of the identity of providers of such information could reasonably be expected to prejudice the flow of information which the Agency relies upon to carry out its functions.

Having regard to the nature of the information at issue, I accept that the information was given in confidence in this case and I find that the second requirement has been met. 

Third Requirement

The third requirement is that the information provided to the FOI body relates to the enforcement or administration of the law. The Agency stated that it is charged with responsibility for the welfare and protection of children and that receipt of certain information is essential to enable it to carry out its child protection role in accordance with legislation including the Child Care Act, 1991, the Child and Family Act, 2013 and the Children First Act, 2015.

Accordingly, I am satisfied that the third requirement is met in this case.

Having found that each of the three requirements is met, I find that the Agency was justified in refusing the request under section 42(m)(i) of the FOI Act. Having found section 42(m)(i) to apply, I have no need to consider the exemption at section 42(m)(ii).

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.

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