Whether the Department was justified in refusing, under section 37(1) of the FOI Act, the applicant’s request for information relating to benefits, allowances, or grants granted or paid to individuals for a specified period relating to the care of her late mother

26 May 2021

Background

In a request dated 25 November 2020, the applicant made a request to the Department for (1) confirmation of whether any Carer’s Benefit, Allowance or Grant, or any other benefits were granted or paid to any individuals over the period of November 2017 to October 2020 in relation to the care of the applicant’s late mother, and (2) a copy of total monies paid out to any individuals in respect of Carer’s Benefit/Allowance and Carer’s Grant over the period of November 2017 to October 2020 in relation to the care of the applicant’s late mother. She also asked, at part (3), whether a Carer’s Benefit/Allowance/Grant application can be deemed valid for payment if the sick person to be cared for has not signed the application form or does not have the legal capacity to sign the application form. She said she understood that the name of the relevant individuals may be redacted. She said she needed the information in order to correctly finalise her late mother’s estate.

In a decision dated 23 December 2020, the Department refused the request under section 37 of the FOI Act. It said access to Carer’s Allowance details was being refused on the ground that they relate solely to personal information about other persons.

The applicant sought an internal review of that decision on 7 January 2021. Among other things, she said she was the executor of her mother’s will and that she needed the information to ensure the Estate has been properly administered. On 29 January 2021, the Department affirmed its refusal of the request under section 37(1). On 2 February 2021, 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 outlined above and to the correspondence between this Office and both the applicant and the Department on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In its submissions to this Office, the Department explained that part 3 of the applicant’s request, which was essentially a query concerning the manner in which the relevant applications are processed in particular circumstances, was passed to its Carer’s Section for direct response to the applicant outside of the FOI process.

This review is concerned solely with the question of whether the Department was justified in refusing, under section 37(1) of the FOI Act, the applicant’s request for information relating to benefits, allowances, or grants granted or paid to individuals for a specified period relating to the care of her late mother.

Preliminary Matters

Before I consider the substantive issues arising, I would like to make a number of preliminary comments. First, section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record. As a consequence, the descriptions I can give of the reasons for my findings in this case are necessarily limited.

Second, section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker and the Information Commissioner. This means that an applicant’s motivation cannot be considered except insofar as such reasons are relevant to consideration of the public interest or other provisions of the FOI Act. The public interest factors considered in this review are set out below.

Third, in her submissions to this Office, the applicant expressed concerns that Carer’s Allowance may have been improperly allocated by the Department and she said she required the records in order to be able to prove this. It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Finally, it is important to note that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.

Analysis and Findings

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 of an individual or individuals other than the applicant, including personal information relating to a deceased individual.

It is worth noting that an application for Carer’s Allowance is made by the carer and that any such records primarily relate to the carer. It is clear, therefore, that the information sought by the applicant would relate not just to her late mother, but also to the applicant for a Carer’s Allowance. Given the nature of such records, I am satisfied that their release would involve the disclosure of either personal information relating to a third party or third parties or personal information relating to the applicant’s late mother that is inextricably linked with the personal information of a third party or third parties (commonly known as joint personal information). I find, therefore, that section 37(1) applies. For the avoidance of doubt, I would add that I am also satisfied that even if the identity of any third parties was to be redacted from the records, their nature is such that their disclosure would, in my view, result in the disclosure of personal information relating to an identifiable individual or individuals.

At this stage I should note that under section 37(8), regulations have been made by the Minister for Public Expenditure and Reform (the Minister) which provide for access by certain third parties to records of a deceased individual. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016, as amended (S.I. 218 of 2016). At the relevant part, they provide, notwithstanding section 37(1), for the grant of access to the records of a deceased individual to certain classes of individuals, including a personal representative of the individual acting in due course of administration of the individual's estate.

The regulations do not, however, provide for the release of personal information relating to any other third party. Accordingly, in circumstances where the information sought is joint personal information relating to the deceased and a third party other than the applicant, I find that the regulations do not provide for a right of access to the information sought in this case.

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that those circumstances do not 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 records would benefit the person to whom the information relates. It is not apparent to me that the release of the records at issue would benefit any third parties concerned. I find, therefore, that section 37(5)(b) does not apply.

On the matter of whether the public interest in granting access to the records 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.

Noting the provisions of section 13(4) as set out above, it is clear that, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. In relation to the question of the public interest, the reasons for a request are only relevant insofar as they reflect or overlap with what may be regarded as a "true" public interest.

On the matter of the type of public interest factors that might be considered in support of the release of the records at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors (the enet judgment). 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.

While the applicant has made numerous arguments in her submissions to this Office in support of her request for the information at issue, they relate primarily to her role as executor of her late mother’s estate. While I do not propose to address each and every one, I can confirm that I have had regard to them in making my decision. Among other things, she said she was looking for financial data in relation to her late mother so that she can administer her estate correctly and without the threat of being sued by beneficiaries. She said she needed it to ensure the law is properly administered both in terms of probate and in terms of aiding the detection of potential offences such as elder abuse, and financial abuse in relation to her mother and public funds.

Apart from the applicant’s private interest in accessing the information at issue, she has essentially argued that there is a significant public interest in enhancing the transparency of the administration of the Carer’s Allowance to prevent fraud and abuse. In the enet judgment I have mentioned above, Baker J. found that the public interest is not a simple re-statement of the overall statutory aim of the Act of fostering transparency.

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 bear in mind that the release of records under FOI is regarded, in essence, as release to the world at large, given that the Act imposes no constraints on the uses to which information released under FOI may be put.

As I have outlined above, the Supreme Court held that the public interest in disclosure must be found from the scrutiny of the contents of the records at issue and there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of those records. In the circumstances, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the third party or third parties to whom the information sought would relate. I find therefore, that section 37(5)(a) does not apply.

Consequently, I find that the Department was justified in refusing the applicant’s request under section 37(1) of the Act.

Decision

Having carried out a review under section 22(2), I hereby affirm the decision of the Department to refuse access, under section 37 of the FOI Act, to records containing details of Carer’s Allowance relating to the applicant’s late mother under section 37 of the FOI Act on the ground that they contain personal information of third parties.

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 no later than four weeks after notice of the decision was given to the person bringing the appeal.

 

Stephen Rafferty

Senior Investigator