Whether the Council was justified in refusing access, under section 37 of the FOI Act, to the current address of a former tenant that had rented the applicant’s property

18 December 2020

Background

In a request dated 13 August 2020, the applicant sought access to the current address of a former tenant that had rented her property. She said that she required the information in order to open a case with the Residential Tenancies Board (the RTB) to resolve a complaint she has against the former tenant. In a decision dated 10 September 2020, the Council refused her request under section 37(1) on the ground that access to the record would involve the disclosure of personal information. The applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 19 November 2020, this Office received an application for review of the Council’s decision from the applicant.

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 applicant’s comments in her application for review and to the submissions made by the FOI body in support of its decision. 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 Council was justified, under section 37(1) of the Act, in refusing the applicant’s request for the current address of her former tenant.

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, 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 be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. I will address the public interest balancing test contained in section 37 later in this decision.

Secondly, it is important to note that the release of a record under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25(3). This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis is limited.

Analysis and Findings

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to individuals other than the applicant. 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 his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.

I am satisfied that the disclosure of the information sought, namely the current address of a third party, would involve the disclosure of personal information relating to individuals other than the applicant. I find, therefore, that section 37(1) applies.

However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5). Subsection (2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in subsection (2) apply in this case. Subsection (5) 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 request would benefit the person to whom the information relates. I am satisfied that subsection (5)(b) does not apply in the circumstances of this case.

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.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. v 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.”

On the matter of the consideration of the public interest, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. 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. Furthermore, as noted above, it is relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large.

In essence, the applicant has indicated that she requires access to the information in order to pursue her case with the RTB. In my view, this is essentially a private interest. It is clear from the above judgments that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interests in the grant of access to the records withheld.

I find no relevant public interest in granting access to the address of a third party that, on balance, outweighs the public interest in upholding the right to privacy of the third party individual(s) concerned. I find, therefore, that the Council was justified in refusing access to the withheld information under section 37(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access to the current address of a former tenant that had rented the applicant’s property on the basis that the information is exempt from release 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