Whether WCA was justified, under section 37(1) of the Act, in redacting certain information from a number of records relating to the applicant and whether it was justified, under section 15(1)(a) of the Act, in refusing access to any further records on the ground that no further relevant records exist or can be found
OIC-109248-F3Q6Z0
Background
The applicant, a service user of WCA, acted through his father in this FOI process and references to the applicant may be taken as references to his father, as appropriate. In a request WCA received on 9 December 2020, the applicant sought access to all records/files concerning him, including his care plan, from when he first started receiving services with WCA to date. In a decision dated 7 January 2021, WCA identified a large number of records (pages numbered 1 to 1051 in the Schedule of records provided by WCA), to which it granted access, with redactions made throughout the records under section 37(1) of the FOI Act. The applicant sought an internal review of that decision by letter dated 23 January 2021, wherein he argued that a range of additional records should have been released, including records relating to the budget since he began attending services.
In its internal review decision of 11 February 2021, WCA advised the applicant that he should make a fresh request for records relating to the budget. It affirmed the original decision on the request. On 22 June 2021, the applicant sought a review by this Office of WCA’s decision, wherein he stated that he was not satisfied that all records had been released and was seeking unredacted copies of the records that were released.
During the course of the review, WCA re-examined the records that had been redacted under section 37(1) and re-released approximately 330 of them to the applicant either in full, or with most of the original redactions removed. In its submissions to this Office, WCA stated that the following records remain part-granted with redactions made of certain information: 185, 212, 309, 370, 428, 477, 598, 599, 658, 959, 963, 972 & 973.
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 WCA and the applicant’s comments in his application for review and in further communications with this Office. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
Following the advice received by WCA, the applicant made a separate request for budgetary information. WCA’s decision on that request is the subject of a separate review by this Office in case no. OIC-109256. As such, this review will not consider any such records.
Accordingly, this review is concerned with whether WCA was justified, under section 37(1) of the Act, in redacting certain information from records 185, 212, 309, 370, 428, 477, 598, 599, 658, 959, 963, 972 & 973, and whether it was justified, under section 15(1)(a) of the Act, in refusing access to any further records on the grounds that no further relevant records exist or can be found.
Preliminary Issues
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office 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 Act requires a consideration of the public interest.
Secondly, 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.
Analysis and Findings
Section 37(1)
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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 or individuals other than the requester (commonly known as joint personal information).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members 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 that body as confidential”. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of (a) or (b), is personal information for the purposes of the Act, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
Having examined each of these records and the redacted information contained within them,
I am satisfied that the withheld information comprises personal information relating to children and families other than the applicant, and 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. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned.
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 information would be to the benefit of the person to whom the information relates. I find that section 37(5)(b) does not apply in this case.
As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the information redacted by WCA outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. 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.
In considering 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 also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. 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.
In his communications with this Office, the applicant explained that he wished for the whole file to be released without redactions so that he could read the records fully, including dates, times, doctor’s names etc. He emphasised the importance of protecting the rights of persons with disabilities who cannot advocate for themselves. As I have outlined in the background section of this decision, above, WCA subsequently released the vast majority of the records that had originally been part-granted in part only. The additional information released primarily comprised the names and details of various professionals and organisations involved in the applicant’s care and education over approximately 20 years.
It seems to me that by granting access to the majority of the information contained in the records at issue, the WCA has sought to strike a balance of providing the applicant with access to records relating to him while seeking to protect the privacy rights of third parties. It is also important to note that the release of records under FOI is, in effect, regarded to release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.
Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the third parties in this case.
In conclusion, therefore, I find that WCA was justified in its decision to refuse access to personal information of other parties contained in the records at issue, under section 37(1) of the Act.
Section 15(1)(a)
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner's role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.
The applicant stated that he believed further records must exist, referring in particular to minutes of internal meetings, incident reports, communications between WCA and the HSE (including with named HSE staff), and records of communication with the Minister with responsibility for disability (past and present).
In its submissions, WCA stated that no further records exist and that it had released all records relating to the applicant. It described the searches carried out, the details of which were sent to the applicant by the Investigator. In summary, WCA stated that it contacted its Records Management section and requested all electronic and paper records relating to the applicant. Each service user has an electronic folder where all documents relating to that individual are saved, and this folder was searched. In addition, searches were carried out on the broader IT systems, the Central Archive Unit, and all relevant managers were contacted. WCA stated that all minutes of meetings, records, incident reports, emails, letters and communications between WCA, the HSE and others regarding the applicant have been released. I note that some of the HSE staff named by the applicant in his communications with this Office had their names redacted in the records originally released by WCA, but that these records have since been released in full and include minutes of meetings and emails between WCA and the HSE.
Having regard to the nature and extent of the searches conducted by WCA, I find that it has taken all reasonable steps to locate relevant records. As such, I find that WCA was justified in refusing access to any further records under section 15(1)(a) of the FOI Act on the ground that no further records exist or can be found.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of WCA in this case. I find that WCA was justified, under section 37(1) of the Act, in withholding certain information from the records at issue. I find that it was justified, under section 15(1)(a) of the Act, in refusing access to further records on the grounds that no further records exist or can be found.
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