Whether the Department was justified in refusing access to parts of a Designated Person’s report under sections 30(1)(a)/(b), 35(1)(a) or 37(1) of the FOI Act

30 November 2020

Background

On 9 August 2019, the applicant made an FOI request to the Department for a copy of all records which refer to a complaint she made under the Department’s Dignity at Work policy. On 4 October 2019, the Department granted her request in part. It identified 66 records that fall within the scope of the applicant’s request. It granted access to two records in full. It granted access to 20 records in part and it refused access to the remaining 44 records on the basis of the exemptions provided for in sections 30(1)(a)/(b), 35(1)(a) or 37(1) of the FOI Act.

The applicant raised a number of issues in her internal review request of 15 October 2019, including the decision to redact her complaint, errors made on the schedule of records provided to her and the Department’s refusal to provide her with a copy of the Designated Person’s report into her complaint. On 30 October 2019, the Department affirmed its original decision.  The internal reviewer stated that the applicant’s complaint was redacted as it contains personal information in relation to persons other than the applicant, which is exempt under section 37(1) of the FOI Act. He stated that the original decision maker had acknowledged errors made in dating records on the schedule and had provided the applicant with an amended schedule. Finally, the internal reviewer stated that the Designated Person’s report contains information that was provided in confidence.

On 23 April 2020, the applicant applied to this Office for a review of the Department’s decision. Following communications with this Office, the applicant agreed to limit the scope of her request to the Designated Person’s report. This Office informed the Department of the narrowed scope of the request and sought submissions in relation to its decision. In its submissions, the Department said it had decided to release the final section of the report, which contains the Designated Persons Comments and Recommendations with names redacted.  The Department argued that the remainder of the report is exempt under sections 30(1)(a)/(b), 35(1)(a) or 37(1) of the FOI Act. The applicant confirmed to this Office that she had received the Designated Persons Comments and Recommendations and she stated that she wished to proceed to a formal written decision in relation to whether the Department was justified in refusing access to the remainder of the report.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date, I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the review

The scope of this review is confined to whether the Department was justified in refusing access to parts of the Designated Person’s report under sections 30(1)(a)/(b), 35(1)(a), or 37(1) of the FOI Act.

Preliminary Matters

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, except insofar as such reasons are relevant to consideration of the public interest or other provisions of the FOI Act.

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.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records at issue and the material that I can refer to in the analysis is limited.

Analysis and Findings

Section 37 - Personal Information

I am limited in the description of the Designated Person’s report that I can give as a result of section 25(3) of the FOI Act. I can say that it contains summaries of the complaint and response, summaries of the Designated Person’s meetings with the complainant and respondent and the impact of the incidents on both parties. The report includes a section on attempts at informal resolution and it concludes with the Designated Person’s Comments and Recommendations. The Comments and Recommendations section was released to the applicant with names redacted. I have examined the parts of the report that the Department has withheld. I am satisfied that section 37 of the FOI Act, which is a mandatory exemption provision, is the appropriate provision to consider first.

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. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

Section 2 of the FOI Act defines "personal information" as information about an identifiable individual that, either - (a) would, in the ordinary course of events, 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. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include:

• (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. a personnel record);
• (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual; and
• (xiv) the views or opinions of another person about the individual.

The applicant states that she made a complaint to the Department under its Dignity at Work Policy and the final stage of the policy is the appointment of a Designated Person who interviews the complainant and respondent and submits a report to HR. She states that she was informed by HR that her complaint was not upheld. In her application to OIC, the applicant states that the Department based a very serious decision on a report which they refuse to show to her, the person making the complaint. She argues that this means that the report could contain inaccuracies and she has no way of knowing why or how the Department reached their decision.

The Department states that the record is composed largely of reported accounts of incidents that occurred in the workplace. It states that the report was based on the Designated Person’s views of events based on interviews with the parties. The Department considers this personal information as the views or opinions of another person about an individual and that it had been given to the FOI body on the understanding that it would be treated confidentially.

The parts of the report at issue contain personal information in relation to the applicant and also in relation to a named individual, including information in relation to the employment of the individual and the views of another person about the individual. As the individual concerned is a staff member of an FOI body, paragraph I of section 2 is relevant. This paragraph 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. The exclusion at (I) does not provide for the exclusion of all information relating to staff members of FOI bodies. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The Commissioner takes the view that it does not exclude personnel records relating to the "competence or ability of the individual in his or her capacity as a member of staff of an FOI body".

The report at issue here contains allegations concerning a staff member. I do not accept that any allegations against an individual could be characterised as being for the purpose of the performance of the staff member's functions. Accordingly, the qualification on the definition of "personal information" cited above does not apply to the information withheld from this report. In a number of instances, personal information relating to that staff member is intertwined with personal information relating to the applicant. Having regard to the content of the report, in my view it is not feasible to separate the personal information of the applicant from that of the staff member concerned. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I am satisfied that extracting the occasional word or sentence is not practicable and would result in a report which is misleading. I find that section 37(1) applies to the parts of the report which were withheld. However, that is not the end of the matter as section 37(1) is subject to the provisions of sections 37(2) and 37(5).

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individual to whom the information relates has 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)

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 do not consider that the release of the information at issue would benefit the third party to whom it relates, as envisaged by section 37(5)(b) of the FOI Act.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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] 1 IR 729, [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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

I note that in her internal review request to the Department, the applicant stated that she wished to know the facts, as viewed by the Designated Person, on which the outcome of the process was based and that the entire matter had been a considerable source of stress for her. While I acknowledge that the applicant wishes to have access to the entire report, the above judgments make it clear that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interest in the grant of access to the withheld information.

It seems to me, that in this case the public interest in transparency has been met, at least to some degree, by the release of the Designated Persons Comment’s and Recommendations. I accept that granting access to the entire report would add to the applicant’s understanding of how the Department dealt with her complaint. I also see that there may be a public interest in seeing how the Department dealt with a matter under its Dignity at Work policy. However, this would result in a very significant breach of another person’s privacy. Disclosure under FOI means disclosure to the world at large and there is no restriction on what a person can do with the information they obtain under FOI. I find that, in the circumstances of this case, the right to privacy of the person(s) whose personal information is in the record outweighs the public interest in granting the applicant’s request.

Given my findings, it is not necessary for me to consider the other exemptions cited by the Department in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I affirm the Department’s decision in this case. I find that the parts of report at issue are exempt under section 37(1) of the FOI Act and I find that the public interest in granting the request does not outweigh the public interest in refusing it and in protecting the privacy of individuals other than the applicant.

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.

 

Deirdre McGoldrick

Senior Investigator