Whether the Service was justified in refusing access to certain email correspondence under sections 35(1)(a) and 37(1) of the FOI Act

19 February 2021

Background

On 25 August 2020, the applicant made an FOI request to the Service for correspondence relating to him and five named staff between specified time periods. On 24 September 2020, he amended his request to exclude certain records which he had sent himself. On 25 October 2020, the Service issued a decision. It granted access to some records and refused access to the remaining records on the ground that they were exempt under sections 35(1)(a) and 37(1) of the FOI Act. On 19 October 2020, the applicant sought a review of that decision. The Service issued its internal review decision on 6 November 2020. It affirmed its original decision. On 13 November 2020, the applicant applied to this Office for a review of the Service's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Service as outlined above and to the correspondence between this Office and both parties, and to the content of the records that were provided to this Office by the Service for the purposes of this review.

Scope of this Review

The records under review in this case are scheduled as Records 2 and 4. The question for me is whether they are exempt under sections 35(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I 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 FOI Act requires a consideration of the public interest. I consider the public interest under section 37 below.

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record 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. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. 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.

Analysis and Findings

Having examined the content of the records and the submissions, I believe it is appropriate to consider section 37 of the FOI Act first.

Section 37 - Personal information

Sections 37(1) and 37(7)

Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include “(iii) information relating to the employment or employment history of the individual” and “(xiv) the views or opinions of another person about the individual”.

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, the exclusion at Paragraph I does not exclude all information relating to staff members. It is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the position held while carrying out his or her official functions. It does not deprive public servants of the right to privacy generally.

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records concern workplace disagreements and complaints. They contain the names, and information relating to the employment history, of individuals other than the applicant. Although they contain references to the applicant, they also disclose personal information relating to other individuals, including opinions expressed about individuals other than the applicant. I believe that I can take it from the content and context of the records that the information was given on the understanding that it was confidential.

On this basis, I consider that access to the records would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. Although these individuals are staff members of FOI bodies, given the content of the information concerned, which relates to workplace disagreements and complaints, I do not consider that the exclusion in Paragraph I of section 2 applies.

In theory, one could extract certain words and phrases from the records which relate to the applicant and not to the other individuals. I have considered whether this would be practicable in the circumstances. However, those words and phrases appear in the context of information relating to the third parties concerned. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of the records would be to provide misleading records. I find that section 37(1) applies to the records. This finding is subject to other provisions of section 37, which I examine below.

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 the information concerned. That is to say, (a) it 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) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of 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 records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In weighing the public interest, it is also 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 (“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.

As noted above, I am required to disregard the applicant's motives for seeking access to the records. Therefore, I can only take into account the purpose for which he seeks the information in so far as it reflects a true public interest factor in favour of releasing the information. The applicant says that he is disappointed that the Service refused access to information citing confidentiality and that individuals could write to the HR section about him. He says that if information is untrue, he should be able to correct it. I am satisfied that the applicant has expressed a private interest in release of the records. I can appreciate the importance the applicant may attach to accessing correspondence which contains references to him. However, the above judgments make clear that in making this decision on the right of access under FOI, I cannot take into account the applicant’s private interests in the grant of access to the records.

On the other hand, 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. Also, 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, there is a discretionary element to section 37(5)(a), 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. It is also relevant to note that release of the information must effectively be regarded as release to the world at large.

I find no relevant public interest in granting access to the records that on balance outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing the records. In the circumstances, I find that section 37(5)(a) does not apply. I find that the Service was justified in refusing access to the records under section 37(1) of the FOI Act. Given this finding, I do not need to consider the exemption claimed under section 35(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Service's decision under section 37(1) of the FOI Act, as outlined above.

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.

 

Deirdre McGoldrick

Senior Investigator