Whether the Department was justified in refusing access to records relating to a previous application for review by the applicant, under sections 30(1)(a) and 35(1)(a) of the FOI Act

28 June 2021

Background

The background to this review is a previous application for review by the applicant. This Office’s decision on that review can be found at www.oic.ie, Case OIC-96537-J0R5T9.

On 8 October 2020 the applicant made an FOI request to the Department for records relating to the previous review. He sought access to the Department’s letters or emails in reply to this Office; documents relied on by the Department in making three specified assertions to this Office; and specified correspondence between the Department and a named bank (the bank). On 2 November 2020, the Department refused access to the records on the ground that they were exempt under sections 30(1)(a) and 35(1)(a) of the FOI Act. On 12 November 2020, the applicant applied for an internal review. On 30 November 2020, the Department issued its internal review decision, in which it affirmed its original decision under sections 30(1)(a) and 35(1)(a). On 14 December 2020, the applicant applied to this Office for a review of the Department’s decision.

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

Scope of the Review

In correspondence with this Office, the applicant said that the Department did not appear to have addressed point 1 of his FOI request. During the review, the Investigator confirmed for the applicant that the records contain records sought by him at point 1 of his FOI request. The applicant also said that he regards this as a request for personal information, as he is requesting records that name him specifically. However, he has since confirmed that his request concerns all the records he originally sought.

This review is concerned with whether the Department was justified in refusing access to the records under sections 30(1)(a) and 35(1)(a) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review.  The Courts have endorsed this approach.

Secondly, 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.

Thirdly, and 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.

Finally, with certain limited exceptions (e.g. section 37(2), which I consider below), 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.

Analysis and Findings

Having examined the content of the records, I consider it appropriate to address section 37 of the FOI Act first. The investigator drew the applicant’s attention to this exemption during the review and invited his submission. The applicant says that if the records contain personal information relating to individuals other than him, redacted copies could be provided to him.

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”. The Commissioner accepts that an individual may not be named in a record, yet may still be identifiable.

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.

Record 1 comprises correspondence between the Department and the bank. Records 2 and 3 comprise correspondence from the Department to this Office, in connection with the previous review. Pages 5 – 6 of Record 1 contain detailed information about certain allegations and complaints made about individuals other than the applicant. They disclose the names of third parties, the nature of allegations made, and details of employment histories. Pages 1 – 2 (until “request.”) of Record 2 disclose further information about the allegations made by the applicant, as well as a personal email address and a mobile telephone number. I am satisfied that section 37(1) applies to this information. In theory, one could extract certain words and phrases which relate solely to the applicant. 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 this information would be to provide misleading records. I find that section 37(1) applies to this information. 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 solely relate 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).

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 and the Information Commissioner & Ors [2020] IESC 57. There, 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.

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 and the Information Commissioner [2011] IESC 26. 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 the applicant seeks the information insofar as it reflects a true public interest factor in favour of releasing the information. The applicant says that an unsubstantiated claim has been made about him and he wishes to know who has made it. I am satisfied that the applicant has expressed a private interest in release of the information. I can appreciate the importance he may attach to accessing the records. However, the judgments cited above set out that in making this decision on the right of access under FOI, I cannot take into account the applicant’s private interests.

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. Also, the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. 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. 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 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 this information that, on balance, outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing this information. In the circumstances, I find that section 37(5)(a) does not apply. I find that the Department is justified in refusing access to Pages 5 – 6 of Record 1 and Pages 1 – 2 (until “request.”) of Record 2 under section 37(1) of the FOI Act.

Section 35 – Information obtained in confidence

The Department claims that the records are exempt under section 35(1) of the FOI Act. Section 35(1)(a) applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): the information was given to an FOI body in confidence; the information was given on the understanding that it would be treated by the FOI body as confidential; disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and it is important to the body that such further similar information should continue to be given to the body. Section 35(1)(b) provides that an FOI body shall refuse to grant an FOI request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column 3 in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. 

Section 35(2) disapplies section 35(1) to a record which is prepared by a head or any other person (being a director, or 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 that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. Record 1 comprises correspondence between the Department and the bank, which is not an FOI body. The Department says that Records 2 and 3 were prepared by the Department but contain information given to the Department in confidence by the bank. I will therefore consider whether disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.

The Department says that the records contain information which was marked “Confidential” and given to it by the bank for the sole purpose of assisting it in replying to questions from this Office about its searches for records in the previous review. It says that disclosing this information would compromise the secure flow of information between the Department and financial institutions.

A duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity. The Commissioner accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b). In Mahon v Post Publications Ltd [2007] 3 IR 338, the Supreme Court summarised the requirements of the equitable duty of confidence as follows: the information must have the necessary quality of confidence about it; it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it; it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.

As noted above, Record 1 comprises correspondence between the Department and the bank. Records 2 and 3 comprise correspondence from the Department to this Office, in connection with the previous review. The following pages disclose information relating to a review conducted by the bank into complaints and allegations about individuals other than the applicant: Pages 1-4 and 7-9 of Record 1, Page 3 (from “The following”) to Page 6 (until “of 2018.”) of Record 2, and Record 3. I accept that the only reason for which the bank gave this particular information to the Department was in response to questions relating to the previous review by this Office. Having regard to the particular circumstances in, and limited purpose for which, the bank gave this information to the Department, I am satisfied that it has the necessary quality of confidence about it and that it was communicated in circumstances imposing an obligation of confidence. Finally, I believe that it would be an unauthorised use of the information for it to be circulated further, in view of the circumstances. I therefore find that section 35(1)(b) applies. I have applied section 18 of the FOI Act in reaching my conclusion. As the public interest balancing test under section 35(3) does not apply to section 35(1)(b), I am not required to consider it. I find that the Department was justified in refusing access to this information under section 35(1).

I will consider the remaining information under section 30(1)(a) of the FOI Act.

Section 30(1)(a) – Functions and Negotiations of FOI Bodies

The Department claims that the records are exempt under section 30(1)(a). Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1) is subject to a public interest test under section 30(2).

The Department says that the records contain details of allegations and names of people to whom the allegations relate, which is highly confidential. It says that disclosure would harm the reputation of the individuals, the bank, and the Department’s relationship with the bank. However, the remaining information does not disclose the details referred to by the Department. I have found that information to be exempt above. The remaining information is a general description of the way in which the Department stores certain records, in response to this Office’s questions in the previous case. I therefore do not accept the Department’s submission on section 30(1)(a) as it relates to this particular content. Neither is it apparent to me on my own examination of this information how disclosing it could reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of the Department or the procedures or methods employed for the conduct thereof. I find that section 30(1)(a) does not apply and the Department was not justified in refusing access to the remaining information under section 30(1)(a). Given this finding, I am not required to consider the public interest test under section 30(2).

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department’s decision as follows. I affirm its decision on certain information under sections 35(1)(b) and 37(1), as outlined above. I annul its decision on the remaining information and direct its release. For the avoidance of doubt, the information that falls for release is as follows: Page 2 (from “Background Information”) to Page 3 (to “physical files.”) and Page 6 (from “I attended”) to Page 7 of Record 2.

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.

 

Deirdre McGoldrick

Senior Investigator