Whether the Department was justified in refusing access to records relating to correspondence exchanged between the current and previous Ministers for Justice, and/or their private offices, in which the applicant and/or a named District Court judge were mentioned
23 December 2021
Background
In a request dated 25 May 2021, the applicant sought access to all correspondence exchanged between the current Minister for Justice and her predecessor, and/or their private offices, that mentioned the applicant and/or a named District Court judge, for the period 2016 to the date of the request. In a decision dated 3 August 2021, the Department identified 18 records as coming within the scope of the request, releasing four and withholding 14 records pursuant to sections 31(1)(b), 35, 37 and 42(f) of the Act. On 5 August 2021, the applicant sought an Internal Review of the Department’s decision. On 23 August 2021, the Department issued its Internal Review decision, wherein it affirmed its original decision. On 2 September 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 exchanged between the parties and to the correspondence between this Office and both parties. 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
This review is solely concerned with whether the Department was justified in refusing access, under sections 31(1)(b), 35, 37 and 42(f) of the Act, to certain records sought by the applicant.
Analysis and Findings
Section 37
The Department cited section 37(1) of the Act as the basis for withholding access Records 1 to 5, 8, 10 to 12, and 15. It also cited section 37(3) as an additional basis for refusing to release Record 8. In my view, section 37(1) is also of relevance to records 13 and 14. While the Department refused access to those records under section 35, it is important to note that section 37 of the Act is a mandatory exemption that serves to protect the interests of third parties. As such, I consider it appropriate to consider the applicability of section 37 to records 13 and 14. This is in keeping with the de novo nature of a review by this Office, which means that that it is based on the circumstances and the law as they pertain at the time of the decision.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
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 or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including:
(i) information relating to the educational, medical, psychiatric or psychological history of the individual,
(ii) information relating to the financial affairs of the individual,
(iii) information relating to the employment or employment history of the individual, and
(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
In its submissions, the Department argued that section 37(1) applied to the aforementioned records because they contained various types of information that was personal for the purposes of the Act. In particular, the Department stated that the records contained the names, email address or other contact information of individuals, as well as information regarding their personal status, health, court proceedings in which they were involved, dates of birth or of retirement, and their personal circumstances. The Department stated that the information related to a number of different individuals as the broad nature of the request meant that a varied assortment of records fell within scope of the request. It stated that the information in the records was personal to the relevant individuals and was retained by the Department on a confidential basis.
Having examined the records at issue, I am satisfied that the release of the records would involve the disclosure of personal information relating to individuals other than the applicant and the 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) provides hat section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances 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 information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates.
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 Enet Case”), 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 relation to the issue of 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 (“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.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, 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.
Having examined the contents of the records at issue, and having regard to the fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure I this case. I find that, on balance, the public interest in granting the request does not outweigh the strong public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply in this case.
I find, therefore, that the Department was justified in refusing access, under section 37(1), to Records 1 to 5, 8, and 10 to 15.
I note that the Department cited a number of other provisions of the Act as additional grounds upon which the above records were exempt. As I have determined that Records 1 to 5, 8, and 10 to 15 are exempt from release under section 37(1), it is not necessary to examine the applicability of the other provisions cited by the Department to these records.
Section 42(f)
The Department refused access to Records 6 and 7 under section 42(f) of the Act. That section provides that the Act does not apply to a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Office of Director of Public Prosecutions, other than a record relating to general administration.
While the Act is silent on the meaning of general administration, this Office considers that it clearly refers to records which have to do with the management of the Office of the Attorney General such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office.
The records at issue comprise correspondence from the Attorney General to the Minister for Justice. In this case, I am satisfied that Records 6 and 7 were created by the Attorney General and that they are not records relating to the general administration of that Office. I find, therefore, that the Department was justified in refusing access to the records under section 42(f) of the FOI Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access, under sections 37(1) and 42(f) of the FOI Act, to various records sought by the applicant.
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