Whether the Council was justified in refusing access, under section 37(1) of the FOI Act, to redacted information in records relating to the applicant’s job performance, her position and commentaries on files handled by her

16 February 2021

Background

It appears that the applicant in this case is involved in a dispute with the Council as her employer. On 7 May 2020, she sought access to “all records including advices sought or received from the 1st April 2011 to date held by the County Solicitor or [a named individual] whether in soft or hard format including sealed or otherwise protected files which relate to my performance, my position and commentaries on files handled by me”. In a decision dated 4 June 2020, the Council part granted the request. It redacted some information from a number of the records released under section 37(1) of the FOI Act on the ground that its disclosure would involve the disclosure of third party personal information. On 30 June 2020, the applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 11 January 2021, the applicant sought a review by this Office of the Council’s decision.

I have now completed my review in accordance with section 22(2) of the Act. In carrying out my review, I have had regard to the submissions made by the parties to this review and to communications between both the Council and the applicant, as outlined above. I have also examined the contents of the relevant records.

Scope of Review

This review is concerned solely with whether the Council was justified, under section 37(1) of the Act, in redacting information from the records it released to the applicant on the ground that release of the redacted information would disclose personal information relating to individuals others than the applicant.

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. As such, the fact that the applicant may be aware of the identity of the individuals about whom the information in the record relates does not mean that the information cannot be withheld under section 37.

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. The information redacted from the records at issue in this case comprises the names and email addresses of various individuals including staff members of external Solicitors acting for their clients who had dealings with the Council, and the names and address of those clients.

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. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (xiii) information relating to property of the individual (including the nature of the individual's title to any property). 

Certain information is excluded from the definition of personal information. The definition does not include the names of staff members of FOI bodies or service providers. In its submissions to this Office, the Council said that none of the redacted details concern staff members or service providers.

Having examined the redacted information, I am satisfied that it comprises personal information relating to individuals other than the applicant. I am satisfied that the release of the information would involve the disclosure of personal information relating to individuals other than the applicant. In the circumstances, I find that section 37(1) applies to the information redacted in the records at issue.

However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5). 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) applies in this case. Section 37(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 (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 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. 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.

The applicant said that the Council had erred in consideration of the public interest factors but she did not specify what exact part she took issue with. She indicated that she requires full access to the records in order to defend allegations made against her and what she describes as breaches of the rule of natural justice. She said that the redactions were not an appropriate use of section 37. In my view, pursuit of legal redress or settlement of a human resources matter 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 know of no public interest factors in favour of the release of the redacted information, that would, on balance, outweigh the privacy rights of individuals involved. I find, therefore, that the public interest in granting the request does not outweigh the right to privacy of the individuals to whom the information relates.

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 personal information of third parties contained in the records sought by the applicant on the basis that the redacted 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