Whether the Council was justified in refusing, under various provisions of the Act, access to an email chain relating to the applicant-�s housing needs

10 May 2021

Background

On 18 May 2020, the applicant submitted a request to the Council, through her legal representatives, for all records held by the Council in relation to her housing matters. All references to the applicant in this decision can be taken to refer to the applicant and/or her solicitors, as appropriate. 

On 29 June 2020, the Council decided to part-grant the request. It granted access to some records, either in whole or in part, redacting certain information on the basis that it related to third parties.  It also withheld a further unidentified number of records in full under sections 32(1)(a)(iii), 29(1)(b), and 35(1)(a) of the FOI Act. The schedule provided was sparse and gave no indication of the overall number of records considered for release. On 20 July 2020, the applicant sought an internal review of the Council-�s decision, in which she argued that she had not received all relevant records and that the Council was not justified in withholding the unidentified number of records under sections 32(1)(a)(iii), 29(1)(b), 35(1)(a).  

On 11 August 2020, the Council affirmed its original decision to part-grant the request but varied the basis on which it did so. It provided a more detailed schedule of records which indicated that 13 relevant records had been identified in light of the searches it had carried out. Of those records, it granted access to three in full and eight in part, redacting certain information under sections 35(1)(a) and 37. It refused access to two records in full, records 1 and 13, under section 35(1)(a) on the ground that record contained information that had been obtained in confidence.  On 28 October 2020, the applicant sought a review by this Office of the Council-�s decision to refuse access to Records 1 and 13 under section 35(1)(a).

During the course of the review, the Council released Record 1 to the applicant. The Investigating Officer notified the applicant of her view that certain information contained in Record 13 was exempt under section 37, which is concerned with the protection of personal information relating to third parties, and that the consent of another individual, which had been submitted, was not the type of consent required under the Act. The applicant provided further submissions to this Office in response. 

The Investigating Officer also notified An Garda Síochána (AGS) of the request and invited it to make a submission on the matter in light of arguments presented by the Council for withholding Record 13 under section 35(1)(a). In its correspondence with this Office AGS outlined that it was not in a position to make a submission on the matter. I comment further on this matter below.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting my review, I have had regard to the correspondence between the Council and the applicant as outlined above and to correspondence between this Office and both the Council and the applicant on the matter.  I have also had regard to the content of the record at issue.

Scope of this Review

Record 13 is an email chain that includes three emails in connection with the Council-�s vetting process as part of its housing allocation process, namely:

• an email from the Council to AGS dated 14 April 2020 (email 1)
• an email from AGS to the Council dated 24 April 2020 (email 2), and
• an internal Council email dated 24 April 2020 (email 3).

Record 13 also contains two emails dated 17 July 2020 and 21 July 2020 that simply forwarded the above listed emails within the Council. As these latter emails post-date the applicant-�s request, I have not considered them in this review.

During the course of the review, the Council argued that the email chain comprising the three emails dated between 14 April 2020 and 24 April 2020 is exempt from release under sections 32(1)(a)(i), 35(1)(a) and 37(1). Accordingly, this review is concerned solely with whether the Council was justified in refusing access to the email chain in question under the various provisions of the Act.

Preliminary Matters

Before I address the substantive issues arising, I wish to make a number of preliminary comments. First, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision. As such, I consider it appropriate to examine the applicability of exemptions that were not originally relied upon by the Council in its internal review decision.

Secondly, section 18(1) of the Act provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Thirdly, section 22(12)(b) of the Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the public body shows to the satisfaction of the Commissioner that the decision was justified. Therefore, the onus is on the Council to satisfy this Office that its decision to refuse to grant access to the record at issue was justified.

Analysis and Findings

Section 32(1)(a)(i)

Section 32(1)(a)(i) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. Where an FOI body relies on section 32(1)(a), it should identify the potential harm to the functions covered by the exemption that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. In doing this, the FOI body should show how or why releasing the particular record could reasonably be expected to cause the harm which it has identified.

In its submissions to this Office, the Council argued that one of the emails at issue references ongoing investigations and alleged criminal offences. It argued that the disclosure of the emails may prejudice the prosecution of those investigations. However, the Council has not explained how the release of the emails might cause the harm identified, nor is it evident to me from the contents of the emails as to how such prejudice might arise. Accordingly, I find that section 32(1)(a)(i) does not apply to the email chain at issue.

Section 35(1)(a)

Email 1 is a request made by the Council to AGS for information relating to the applicant and a third party while email 2 comprises the response received from AGS. Email 3 is an internal Council email. It contains references to information provided by AGS.  It is apparent from the Council-�s submissions that it considers the information provided by AGS to be confidential.

Section 35(1)(a) provides for the protection of information given to an FOI body in confidence. Before I consider the applicability of section 35(1)(a), I must consider whether section 35(2) applies.  That section provides that subsection (1) does not apply to record that is prepared by a member of the staff of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or to a member of the staff of an FOI body or a service provider.

Email 2

Email 2 was prepared by AGS. In the circumstances of this particular case, I am satisfied that it cannot be regarded as a record that was prepared by a member of the staff of an FOI body. Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1(n) provides that AGS is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters. Email 2 is not an administrative record relating to human resources, or finance, or procurement matters. I find, therefore, that the email is not a record that was prepared by a member of the staff of an FOI body and that section 35(2) does not apply.

As such, I must proceed to consider whether section 35(1)(a) applies. For the exemption to apply, it is necessary to show the following -�

• That the information contained in the records was given to an FOI body in confidence,
• That it was given on the understanding that it would be treated as confidential,
• That the disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same or other persons, and
• That it is of importance to the body that such further similar information should continue to be given to it.

The essence of the Council-�s argument is that AGS provided the information in email 2 in confidence and that release of that information to the applicant would compromise the confidentiality of its relationship with AGS. In other words, it is concerned that the release of the email might result in AGS refusing to supply similar such information to it in the future.

As I have outlined above, in the course of the review the Investigating Officer notified the FOI Liaison Officer within AGS of the request and invited AGS to make a submission on the possible release of the three emails at issue. She explained that the emails were exchanged in connection with the Council-�s vetting process as part of its housing allocation process and she provided, in my view, a sufficiently detailed description of the contents of the email to allow AGS to make an informed submission on the matter.

The Liaison Officer asked this Office to provide a copy of the email so that it could consider the matter further. The Investigating Officer explained to AGS that this Office could not release a record to a third party in circumstances where the Council was arguing that the record was exempt from release. She informed AGS that it could seek to obtain a copy of the record from the Council if it wished to do so. In response, the Liaison Officer said he did not consider it appropriate to ask for a copy of the record and subsequently informed this Office that, in the absence of the record at issue, AGS would not be in a position to make an informed submission on the matter.

It seems to me that AGS had sufficient information, from the description of the records as provided by the Investigating Officer, to have allowed it to make internal enquiries to establish the contents of the email it sent to the Council. I also fail to understand why AGS would deem it inappropriate to contact the Council to establish a fuller understanding of the precise contents of the email in circumstances where it had provided the information to the Council in the first instance. However, for the purposes of this review, I have drawn no inferences from the refusal of AGS to make a submission and instead I have had regard to the contents of the email and to the Council-�s submission.

The Council-�s request for information was made under section 15(2) of the Housing (Miscellaneous Provisions) Act 1997, in connection with the performance of the Council-�s functions, namely the processing of an application for housing. The AGS response contains information relating to the criminal history of the housing applicants and relating to their past interactions with AGS, most all of which, if not all, would already be known to the individuals concerned. It seems to me that there is nothing inherently confidential about the information that would cause AGS to reconsider providing such information in the future if it was released to the applicants about whom the relates.

It is important to note that information provided by AGS has the potential to materially affect decisions taken by the Council on applications for housing and AGS clearly understands that this is the case. As such, I find it difficult to accept that AGS would consider that all such information is provided in confidence and on the basis that it would not be disclosed to housing applicants in any circumstances, regardless of the nature of the information provided. I fully accept that in certain circumstances, it might be necessary to treat information provided as confidential information; for example, if the disclosure of the information was likely to prejudice an ongoing criminal investigation or prejudice State security. However, no such circumstances arise in this case. Having regard to the contents of email 2, I find that the disclosure of the email would not would be likely to prejudice the giving of further similar information by AGS to the Council. I find, therefore, that section 35(1)(a) does not apply in this case.

Emails 1 and 3

Emails 1 and 3 were prepared by Council staff members in the course of the performance of their functions. As such, I must consider whether disclosure of the information in those records would constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or to a member of the staff of an FOI body or a service provider. As such, I must consider whether the release of emails 1 and 3 would constitute a breach of a duty of confidence owed to AGS, which is not a public body in the particular circumstances of this case.

As email 1 is simply a request for information and contains no information provided by AGS, I am satisfied that its release would not constitute a breach of a duty of confidence owed to AGS. I also note that the Council has already informed the applicant that it sought information from AGS in this case.  As such, I find that section 35(2) applies to email 1 and that section 35(1) does not, therefore, apply.

Email 3 contains, in part, information that AGS provided to the Council in email 2. However, for essentially the same reasons as I have outlined in respect of email 2 above, I find that the release of email 3 would not constitute a breach of a duty of confidence owed to AGS. Accordingly, I find that section 35(2) applies to email 3 and that section 35(1)(a) does not, therefore, apply.

Section 37

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 (commonly known as joint personal information).

It is important to note that the fact that a requester may be aware of the identity of the third party does not mean that it cannot be withheld under section 37(1). 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.

Section 2 of the FOI Act defines the term -�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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, and (vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers). 

Having examined the three emails at issue, I am satisfied that certain information contained therein is either personal information relating to identifiable individual(s) other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other identifiable individual(s), i.e. joint personal information. 

 Accordingly, I find that section 37(1) applies to the following information:

Email 1:

• The details provided of the third party other than the applicant in the -�Details as follows-� section of the email, and
• the name and email address of the identified member of AGS. 

Email 2:

• The name of the third party other than the applicant in the subject line,
• all information in the first bullet point after -�-� 2020 respectively-�,
• all information in the second bullet point, and
• the name and email address of the identified member of AGS.

Email 3:

• The name of the third party other than the applicant in the subject line
• All text between -�..well-� and -�However-�-�
• All text between -�-�report!-� and -�I don-�t know-�-�
• All text between -�-�yet?-� and -�Speak-�-�

Section 37(2) sets out certain circumstances in which section 37(1) does not apply, including where the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester (section 37(2)(b) refers). In such cases, the FOI body must ensure, before granting the request, that the consent of the individual is established to its satisfaction. During the course of this review, the solicitors acting on behalf of the applicant provided this Office with a third party-�s consent for it to act on his/her behalf. This is not the type of consent that is required under section 37(2)(b). What is required is the consent of the individual to the release of his/her personal information to the applicant herself, rather than the release of his/her information to the solicitors acting on his/her own behalf.  In a subsequent submission, the solicitors firm explained that it was not in a position to provide the type of consent required under section 37(2)(b). 

Section 37(2) also outlines a number of other circumstances where section 37(1) does not apply. I am satisfied that no such circumstances arise 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 information would benefit the person to whom the information relates. As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the individual(s) concerned, I find that section 37(5)(b) does not apply.

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 individual(s) 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. 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.

The information at issue is of an inherently private nature. I am also cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large. Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the information at issue that, on balance, outweighs the right to privacy of the individual(s) to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply.

Consequently, I find that the Council was justified in refusing access to the information to which I have found section 37(1) to apply as outlined above.

Data Protection Act

Finally, for the sake of completeness, I would like to address an argument raised by the Council to the effect that some of the information in email 2 that I have found not to be exempt under section 37(1) is restricted under section 60 of the Data Protection Act 2018.

Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation.

Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request. Data protection legislation does not prohibit public bodies from releasing personal information on foot of an FOI request. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council in this case. I direct release of the three emails at issue, subject to the redaction of the personal information described in the body of the decision above under section 37(1) 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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty

Senior Investigator