Whether the Department was justified in refusing, under section 37(6) of the FOI Act, the applicant’s request for all information relating to the DCA history of his son

15 January 2021

Background

In a request dated 31 August 2020, the applicant sought access to all information relating to the Domiciliary Care Allowance (DCA) history of his son, including any medical assessor accounts, applications, payment dates and amounts, and any supporting documents. On 3 September 2020, the Department informed the applicant that the relevant FOI regulations provide for the disclosure of personal information relating to a minor where the requester is the minor’s parent or guardian and where, having regard to all the circumstances, access to the records would be in the minor’s best interests. Among other things, it asked him to explain how the release of any relevant records, if they exist, would be in his son’s best interests. The applicant provided a response on 8 September 2020.

In a decision dated 25 September 2020, the Department refused the request under section 37(6). This provision allows a body to refuse to disclose whether or not records exist where doing so would involve the disclosure of third party personal information. The applicant sought an internal review of that decision, following which the Department affirmed its original decision. On 7 November 2020, the applicant sought a review by this Office of the Department’s 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 correspondence between the applicant and the Department as set out above and to correspondence between this Office and both the applicant and the Department on the matter. I have decided to conclude my review by way of a formal, binding decision.

Scope of the Review

The scope of this review is concerned solely with whether the Department was justified in refusing, under section 37(6) of the FOI Act, the applicant’s request for all information relating to the DCA history of his son.

Preliminary Matter

Before I address the substantive issues arising in this case, it is important to note that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. Accordingly, in the analysis which follows, I must be careful not to disclose whether or not records of the type sought by the applicant exist.

Analysis and Findings

Section 37(1) is a mandatory exemption which requires the FOI body to refuse a request, subject to the other provisions of section 37, where it considers that access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. Furthermore, section 37(7) provides for the refusal of a request where the body considers that 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 an individual other than the requester (commonly known as joint personal information).

Under section 37(6), where a body considers that disclosure of the existence or non-existence of a record would involve the disclosure of personal information relating to an individual or individuals other than the requester, the body shall refuse to grant the request and shall refuse to disclose to the requester whether or not the record exists. This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information.

The usefulness of section 37(6) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist.

In short, for section 37(6) to apply, the following requirements must be satisfied:

1. the record sought must be of a type whose release, if it existed, would disclose personal information of a third party and would be exempt from release by virtue of section 37(1),
2. none of the exceptions to the section 37(1) exemption, contained at sub-sections (2) or (5) of section 37 would apply, and
3. the FOI body must be of the opinion that to state whether or not relevant records exist would, of itself, involve the disclosure of personal information of a third party.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual of his/her family or friends or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary or required for the purpose of establishing whether the individual, being a claimant, is such a beneficiary.

DCA is a monthly payment for a child with a severe disability who requires ongoing care and attention, substantially over and above the care and attention usually required by a child of the same age. While the child is the subject of a DCA claim, the actual application is made by a parent/guardian of that child and if awarded, payments are made to the applicant and not directly to the child. To qualify for a payment, the child must generally reside with the applicant for five or more days a week. The person claiming the allowance must provide for the care of the child.

In its submissions to this Office, the Department said that no DCA claim was found under the applicant’s name or PPSN and as such, it holds no relevant records that contain personal information relating to the applicant.

Having regard to the definition of personal information as outlined above, I am satisfied that if the records sought existed, their disclosure would reveal personal information relating not only to the applicant’s son but also to the individual who submitted the DCA application. The release of any or all of the records would disclose that the individual had made such an application. I am therefore satisfied that section 37(1) would apply to such records.

The Act also provides for certain circumstances where section 37(1) does not apply.  Section 37(2) provides that section 37(1) does not apply to a record if (a) the information concerned relates to the requester; (b) the third party has consented to the release of their personal information; (c) the information is of a kind that is available to the general public; (d) the information at issue belongs to a class of information which would or might be made available to the general public; and (e) disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. While I consider that I am restricted by section 25(3) from explaining why, I am satisfied that none of the circumstances set out in section 37(2) would arise in this case if the records sought existed.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still 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. No evidence has been presented to this Office to suggest that the grant of the records sought, if they existed, would benefit the individual who submitted the DCA application. As such, I find that section 37(5)(b) would not apply.

On the matter of whether section 37(5)(a) would apply, I must consider whether, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates.

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 important to note that the release of information under FOI is, in effect, regarded as release to the world at large as the Act does not make any provision for restricting the use of information released pursuant to an FOI request.

While the release of the records, if they existed, would disclose information relating to the applicant’s son, it would also involve the disclosure of inherently private information relating to the person who submitted the DCA application. I am aware of no public interest in favour of granting access to the records sought if they existed, that would, on balance, outweigh the right to privacy of the individual who would have submitted the DCA application.

I am satisfied, therefore, that the disclosure of the records sought, if they existed, would be exempt from release under section 37(1) of the FOI Act.

The final issue I must consider is whether the disclosure of whether or not relevant records exist would, of itself, disclose personal information relating to a third party. Given the nature and of the DCA allowance and the manner in which it operates, I am satisfied that disclosure of the existence or non-existence of records in this case would disclose information relating to the entitlements of an identifiable individual under the Social Welfare Acts as a beneficiary or required for the purpose of establishing whether the individual, being a claimant, is such a beneficiary. As such, I find that the disclosure of whether or not relevant records exist would, of itself, disclose personal information relating to an identifiable individual that would be exempt from release under section 37(1).

I find, therefore, that the Department was justified in refusing the request under section 37(6).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse the applicant’s request for records containing all information relating to the DCA history of his son under section 37(6) 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