Whether the Department was justified in refusing access to parts of the records it holds relating to the applicant under section 37 of the FOI Act

4 September 2020

Background

In a request dated 7 May 2020, the applicant sought access to all records held on his file by the Department from February 2019 to the date of the request. On 8 June 2020, the Department part-granted the request. It released the applicant’s full file, comprising 34 records, with redactions to 16 of those records under section 37(1) of the FOI Act. On 12 June 2020, the applicant sought an internal review of the Department’s decision to redact certain information from the records. The Department affirmed its original decision on 25 June. In a letter received on 2 July 2020, the applicant applied to this Office for a review of the Department’s decision.

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 correspondence between the applicant and the Department relating to the FOI request and to the submissions made by the Department and the applicant to this Office in the course of the review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

This review is concerned solely with whether the Department was justified in redacting certain information from the records at issue under section 37(1) of the FOI Act.

Analysis and Findings

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).

Section 2 of the 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 the body as confidential. Section 2 goes on to list fourteen categories of personal information including 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.

Certain information is excluded from the definition of personal information. Where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual occupies or occupied 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 the functions of the position. Similarly, where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract, or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, does not comprise personal information.

The information withheld from the records at issue comprises the name and address of the applicant’s former landlord, the name of an adjudicator of the Residential Tenancies Board (RTB), and a small amount of information relating to another third party. In a submission to this Office, the Department argued that the redacted information constituted the personal information of third parties and was exempt under section 37(1).

Adjudicators are appointed by the RTB to adjudicate on disputes between landlords and tenants. I am satisfied that the name of the adjudicator redacted from the records at issue is captured by the exclusion to the definition of personal information on the ground that such adjudicators are providing a service for an FOI body, the RTB. As such, I find that the Department was not justified in refusing access to that information under section 37(1) of the Act and that it therefore falls for release.

I find that the remaining redactions, relating to the applicant’s former landlord, and another third party is personal information relating to those individuals and that section 37(1) applies to that information.

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 this information. That is to say, (a) the information at issue 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)

Section 37(5) of the FOI Act provides that access to personal information relating to a third party may be granted where (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 request would benefit the person to whom the information relates. It has not been argued that releasing the information would benefit the individuals to whom it relates and I find that section 37(5)(b) does not apply in the circumstances.

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. I also note that the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. It is noteworthy that unlike other public interest tests provided for in the FOI Act, section 37(5)(a) is discretionary, which is a further indication of the very strong public interest in the right to privacy. 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.

The question I must consider is whether the public interest in the promotion of transparency and accountability concerning the manner in which the Department carries out its functions is sufficiently strong to outweigh, on balance, the public interest in protecting the privacy rights of the individuals concerned. In my view, it is not. In the particular circumstances of the case, it seems to me that the release of the information at issue would do little or nothing to enhance the transparency or accountability of the Department. In forming this view, I note that the vast majority of the redacted information is contained in records that the applicant provided to the Department and is therefore already known to him.

Furthermore, regardless of the fact that the redacted information is contained in records provided by the applicant, I remain of the view that its release would comprise a breach of the privacy rights of the individuals concerned. The release of records under FOI is essentially regarded as release to the world at large given that the Act places no restrictions on the uses to which the information may subsequently be put. Having carefully considered the matter, I find that the public interest in the release of the information at issue does not, on balance, outweigh the privacy rights of the individuals to whom the records relate. I find that section 37(5)(a) does not apply.

In conclusion, I find that the Department was justified in reacting information relating to the applicant’s landlord and relating to another third party under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision in this case. I find that it was justified in redacting certain information from the records at issue under section 37(1), apart from the redactions comprising the identity of an RTB adjudicator that fall for release.

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