Whether the Council was justified, under section 37(1) of the Act, in refusing access, in whole or in part, to records relating to a road traffic accident that occurred at a named location on 30 November 2019, involving a hired vehicle belonging to the applicant’s company and another vehicle

12 January 2021

Background

In a request dated 12 August 2020, the applicant sought access to a report created by Dublin Fire Brigade and all other information relating to a road traffic accident that occurred at a named location on 30 November 2019, involving a hired vehicle belonging to the applicant’s company and another vehicle. In a decision dated 10 September 2020, the Council granted partial access to an Incident Report Form with certain information redacted under section 37 of the Act. It also refused access to an Incident Log Sheet and two Patient Care Reports under section 37.  The applicant sought an internal review of that decision, following which the Council affirmed its original decision. On 29 October 2020, the applicant sought a review by this Office of that 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 submissions made by the Council in support of its decision. I have also examined and have had regard to the contents of the records concerned.  The applicant was offered an opportunity to make submissions but did not do so.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified, under section 37(1) of the Act, in refusing access, in whole or in part, to records relating to a road traffic accident that occurred at a named location on 30 November 2019, involving a hired vehicle belonging to the applicant’s company and another vehicle.

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 member 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.

In its submissions to this Office, the Council said that upon receipt of the request, it contacted the applicant via email and asked him to provide identification and authorisation for the client(s) on whose behalf he was requesting the records. It said that as no such documentation was provided by the applicant, no authorisation was received to release the records pertaining to the individuals directly involved in the incident.

The Council said details of the date, time, place and reference to the vehicle registration provided by the applicant were released from the Incident Report Form and that all other third party details were redacted. It said the Incident Log Sheets and Patient care reports relate entirely to third parties. Having regard to the nature and contents of the records at issue, I am satisfied that their release would involve the disclosure of personal information relating to parties 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 other provisions of the section. Subection (2) sets out certain circumstances in which subsection (1) does not apply. I am satisfied that none of the circumstances in subsection (2) applies in 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 (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.

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. 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.

Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply

In conclusion, therefore, I find that the Council was justified, under section 37(1) of the Act, in refusing access, in whole or in part, to the records at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision to refuse access, in whole or in part, to records relating to a road traffic accident that occurred at a named location on 30 November 2019, involving a hired vehicle belonging to the applicant’s company and another vehicle, 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator