Whether the Department was justified in refusing access to records relating to the High Park Magdalene(sic) Laundry and personal records relating to the applicant on the basis that some parts of records were outside scope of the request and that sections 15(1)(d), 28 and 37 of the FOI Act applied to withheld information.

11 October 2022

Background

This review arises from a previous decision of the Information Commissioner in Case OIC-53487. The applicant is a survivor of a Mother and Baby Home, an Industrial School and a Magdalen Laundry. She has been represented by her solicitors from the time she first submitted the FOI request that is the subject of this review. Accordingly, all references to engagements and exchanges of correspondence with the applicant should be taken to include engagements and correspondence with her solicitors.

The request was originally made to the Department of the Taoiseach on 11 September 2018, as the applicant understood the Department to hold the relevant records as part of the State papers produced by the Inter-departmental Committee that was charged with establishing the facts of State involvement with the Magdalen Laundries (the IDC). The request was for records and correspondence relating to the High Park Magdalene(sic) Laundry, and all personal records relating to her. The Department refused the request on the basis that while the records of the archive of the IDC (the archive) were stored in the Department for the purpose of safekeeping in a central location, they were not held by, or within the control of, the Department for the purposes of the FOI Act. On 24 January 2020, the Information Commissioner annulled the decision of the Department and directed it to undertake a fresh decision making process.

The Department subsequently wrote to the applicant, providing some information on the volume of records to be examined and inviting the applicant to refine her request. She decided not to refine her request. The Department issued a fresh decision on the request on 2 February 2021 in which it identified 144 records as relevant to the request. Access was granted to 88 records in full, while 47 were granted in part and nine were refused in full on the basis that some parts of records were outside scope of the request and that sections 15(1)(d), 28 and 37 applied to withheld information in the records.

On 24 February 2021, the applicant sought an internal review of the decision to withhold, in full or in part, the records at issue. In its internal review decision, the Department released some additional information from records 22, 47, 61, and 136 and affirmed its decision on the remaining records. On 21 September 2021, the applicant sought a review by this Office of the Department-�s decision.

During the course of the review, it emerged that responsibility for the archive had transferred to the Department of Children, Equality, Disability, Integration and Youth following the General Election in 2020. The Department of the Taoiseach continued to liaise with this Office in relation to the early stages of the review. However, as it no longer had responsibility for the records at issue, the Department of Children, Equality, Disability, Integration and Youth took responsibility for engaging with the review as any formal decision is issued to the Department that holds the relevant records. Unfortunately, this led to considerable delays in progressing the review due to the lack of familiarity of the part of the Department with the records and the previous decision making as well as the demands placed on the Department in relation to other aspects of its functions.

During the course of the review, the Department further revised its position on some of the withheld information and additional information was released.

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 applicant and the submissions made by the Department of An Taoiseach, and the Department in support of its decision. 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

In her application for review to this Office, the applicant argued that certain additional records had not been included in the schedule of records that had been identified as coming within the scope of the request. However, as the applicant clearly confined the scope of her request for internal review to those records that the Department had withheld in full or in part, I am not in a position to broaden the scope of my review, which is confined to a review of the decision taken by the Department. Accordingly, I have not considered whether further relevant records might be held by the Department.

Access was granted to parts of records 5, 17, 28, 47, 74, 76, 77, 78, 102 and 128 and the remainder of the information in the records was refused on the basis that it was outside the scope of the request. Having examined each of these records, I am satisfied that the material in scope has been released to the applicant and that the remainder of the records is outside the scope of the request. Accordingly, I have not considered these records further. Parts of records 136, 138 and 143 were also refused on the basis that they were outside scope. Having examined these records, I am satisfied that the relevant parts fall outside the scope of the request and should be excluded.

During the course of the review, the Department further revised its position on some of the withheld information and released additional information from some records such that six further records were released in full, more information was released from five records to which access had been granted in part and from two records which had been refused in full. Any records or parts of records which have been released are no longer within scope of this review.

Accordingly, this review is solely concerned with whether the Department was justified in its decision to refuse access to the withheld records or parts of records under sections 15(1)(d), 28 and 37(1) of the FOI Act, namely records 59, 62, 65, 66, 69, 72, 75, which were refused in full; the withheld parts of records 11, 12, 22, 23, 24, 25, 27, 51, 52, 54, 57, 60, 61, 63, 64, 67, 68, 81, 82, 86, 87, 88, 89, 90, 91, 94, 97, 98, 126 and 129, and the redacted information in those parts of 136, 138 and 143 which are in scope.

Preliminary Matters

Section 18

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 25(3)

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Analysis and Findings

Section 15(1)(d)

The Department refused access to record 62 in full on the basis that section 15(1)(d) applied. Section 15(1)(d) of the Act provides that an FOI body may refuse to grant a request if the information requested is already in the public domain. The record at issue was described by the Department of the Taoiseach as an email and attached committal list from the Irish Prison Service. The email message describes the attachment as being the result of a search of prison records from 15 Aug 1927 to 31 Dec 1946 containing any reference to female inmates and the Magdalene(sic) Laundries or other homes. There are approximately 170 entries on the attachment all of a personal nature.

According to the Department of the Taoiseach, its understanding is that any individual can request a search of their own information from the National Archives but will not receive information about others. In other words, an individual-�s information is -�publicly-� available in the sense that they can access it but the complete list with the information of others who are not the applicant, would not be available. The fact that an individual, whose details are recorded on the list, can access his or her own personal information, does not make the list itself a publicly available record. For the list to be publicly available, it would have to be available, in its entirety, to the general public. This is clearly not the case in this instance. I find that section 15(1)(d) does not apply to the record. However, given the nature of its content, I am satisfied that it is appropriate to consider the application of section 37 to the record (see below).

Section 28

Access to record 11 was initially refused in full on the basis that section 28(1) and (2) applied. Record 11 is a draft memorandum for Government regarding the establishment of the IDC, dated June 2011. The Department reviewed its positon and decided to release the

record with the exception of sections 8 and 10, for which it claimed that section 28(2)(a) applied.

Section 28(2) provides that a head shall refuse to grant an FOI request if the record concerned-

(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and

(b) is not a record -�

(i) referred to in paragraph (a) or (c) of subsection (1), or

(ii) by which a decision of the Government is published to the general public by or on behalf of the Government.
 

Section 28 (1) provides that a head may refuse to grant an FOI request if the record concerned -

(a) has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose

According to the Department, the relevant sections contain the views of Ministers on the draft Memorandum and should be withheld under Section 28(2)(a) of the FOI Act as they contain "information that reveals, or from which may be inferred, the substance of the whole or part of -� a statement" made at a meeting of the Government. The Department also argued that the provisions of Article 28.4.3 of the Constitution, which deals with Cabinet confidentiality, apply to these records.

As set out above, in order for the exemption provided for at section 28(2)(a) to apply, the record concerned must not fall within section 28(2)(b). In this instance, the record concerned is a draft memorandum for government and as such falls within section 28(1)(a). Therefore, section 28(2)(a) cannot apply.

Moreover, a record to which section 28(1) applies is releasable in certain circumstances set out in section 28(3) of the FOI Act.

Section 28(3) provides that subject to this Act, subsection (1) does not apply to a record referred to in that subsection -�

(a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or

(b) if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned.

In this instance, the record relates to a decision of the Government made in June 2011, more than five years before the FOI request was made. Accordingly, I find that section 28(1)(a) does not apply to the record and I direct its release in full.

Section 37

The Department refused access in full to records 59, 65, 66, 69, 72 and 75; to the withheld parts of records 12, 22, 23, 24, 25, 27, 51, 52, 54, 57, 60, 61, 63, 64, 67, 68, 81, 82, 86, 87, 88, 89, 90, 91, 94, 97, 98, 126 and 129, and the redacted information in those parts of 136, 138 and 143 which are in scope, under section 37 of the FOI Act. Section 37 is a mandatory exemption and as such it is appropriate for me to consider it even when not claimed by the Department. Having reviewed the records, I am satisfied that it is appropriate to consider the application of section 37 to record 62 also.

Section 37(1) 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. The section does not apply where the information involved relates to the requester (subsection (2)(a) refers). However, section 37(7) provides that, notwithstanding subsection (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). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) 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, (iii) information relating to the employment or employment history of the individual, and (viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status -�-� of the individual.

The records at issue here include information relating to individuals who were in Magdalen laundries, or individuals who worked in them or individuals who dealt with Magdalen laundries in the course of their work. Having examined the records, I am satisfied that the release of the records would involve the disclosure of personal information relating to individuals other than the applicant, and that some records contain joint personal information of the applicant and other individuals which is inextricably linked, and that section 37(1) applies.

Section 37(2) There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) the information contained in

the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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. I find that section 37(2) does not apply to the withheld information.

Section 37(5)

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 and that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), 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. It is noted that a true public interest 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.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the records at issue in this case, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that section 37(1) of the Act applies to records 59, 62, 65, 66, 69, 72, and 75; and to the withheld information in records 12, 22, 23, 24, 25, 27, 51, 52, 54, 57, 60, 61, 63, 64, 67, 68, 81, 82, 86, 87, 88, 89, 90, 91, 94, 97, 98, 126 and 129, and the redacted information in those parts of 136, 138 and 143 which are in scope.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find that the Department was justified in refusing access under section 37 to withheld information, as detailed above. I find that the Department was not justified in refusing access to information under sections 15(1)(d) and 28. I direct the release of record 11 in full as no exemption was found to apply to it.

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.

Stephen Rafferty
Senior Investigator