Whether the Authority was justified in refusing access to records relating to the applicant's bullying complaint and the manner in which it was dealt with by the Authority on the basis of various provisions of the FOI Act

22 December 2022

Background

In a request dated 27 November 2020 the applicant sought access, through his solicitor, to records relating to his bullying complaint and the manner in which it was dealt with by the Policing Authority. The request made reference to correspondence sent to the former Chairperson of the Authority and, in particular, correspondence dated 3 November 2017.  All references to communications with the applicant in this decision should be taken to include communications with his solicitor.

On 14 April 2021 the Authority part-granted the request. Of the 69 records it identified as falling within the scope of the request, it granted access to 12 records and refused access to the remaining records, in whole or in part, on the basis of sections 15(1)(d), 15(1)(i)(i), 15(3), 29(1) and 37(1) of the FOI Act.

On 24 June 2021 the applicant sought an internal review of the Authority's decision, following which the Authority varied its decision. While affirming the decision in relation to the records originally identified, it refused access, under section 15(1)(i)(i), to three further records it identified as relevant to the request. On 5 October 2021, the applicant applied to this Office for a review of the Authority'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 applicant's comments in his application for review and to the submissions made by the Authority in support of its decision.  I have also had regard to the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

During the course of the review, the Authority clarified its position with respect to a number of records. It indicated that in addition to the exemptions already cited, it was also relying on section 35(1)(a) to refuse access to records 36, 44, 61, 62 and 66. It also indicated that it was no longer relying on section 15(1)(d) to refuse access to record 60 and was instead relying on section 15(1)(i)(i), on the basis that the applicant had received the record as part of a separate subject access request (SAR) made under data protection legislation. With respect to the two records which it had refused on the basis of section 15(3) (records 36 and 44), the Authority indicated that it was no longer relying on that section to refuse access.   Instead it indicated that it was now relying on section 29(1) and 37(1).

Record 36 comprises a report prepared by a member of An Garda Síochána (AGS). In its submission to this Office, the Policing Authority also indicated for the first time that it considers it does not hold the record at issue for the purposes of the FOI Act. With regard to record 44, the copy of the record that was supplied to this Office and designated as the `clean' copy of the record, contained a number of redactions. When the Investigator queried this, the Authority explained that it received the record from the Chief Administrative Officer of AGS on 21 November 2017 in a redacted format as it had been agreed between the Authority and the Chief Administrative Officer that third party information should be removed from the record.  

With regard to records 35, 37, 38, 39, 43, 65 and 67 the Authority indicated that as it released those records to the applicant as part of a separate SAR, it wished to refuse access to the records under section 15(1)(i)(i). It also indicated that, in line with the requirements of the General Data Protection Regulation (GDPR), the records were released to the applicant with the personal information of third parties redacted. The Investigator contacted the applicant in relation to the records previously received as part of the SAR and asked if he wished to make any further comments on the matter. No such comments were received. Nevertheless, as the entirety of these records have not been released to the applicant I consider it appropriate to examine the applicability of section 37 to the information in these records that was not released as part of the SAR. 

In its submission to this Office, the Policing Authority also indicated that parts of records 28, 31-32, 47, 48 and 54 had been refused solely on the basis that information fell outside the scope of the applicant's request. I have examined the records and I am satisfied that this is indeed the case.  I have therefore excluded these records from the scope of this review.   

In addition, the Authority has indicated that with regard to record 27, it considers that parts of this record fall outside the scope of the applicant's request, and that the remaining information to which access was refused comprises personal information and is exempt under section 37. I have examined the record and am satisfied that those parts of the record which the Authority considers to fall outside the scope of the request do, indeed, fall outside the scope of the request. I will examine the remaining parts of record 27 which the Authority has withheld under section 37.  

Finally, the Authority said it has identified all relevant records it holds that fall within the scope of the applicant's request. This is, in essence, a refusal to grant access to any further relevant records under section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.

This review is therefore concerned with whether the Policing Authority was justified in refusing access the following records, in whole or in part, under the various sections cited:

• Records 1, 2, 5, 9, 10, 11, and 69 - section 15(1)(d)
• Records 6 to 8, 12, 14 to 25, 33, 34, 35(Part), 37(Part), 38 (Part), 39(Part), 43(Part), 46, 49, 51, 55 to 60, 63, 64, 65(Part), 67(Part), 68, and 70 to 72 - section 15(1)(i)(i)
• Record 36 - not held by body, sections 29(1), 35(1)(a), and/or 37(1)
• Record 44 - sections 29(1), 35(1)(a), and/or 37(1)
• Records 27(Part), 35(Part), 37(Part), 38(Part), 39(Part), 43(Part), 65(Part), 67(Part) - section 37(1)

The review will also consider whether the Authority was justified in refusing access, under section 15(1)(a) of the Act, to any further records falling within the scope of the request on the ground that no further relevant records exist or can be found.

Preliminary Matters                                                                                                         

Prior to addressing the substantive issues arising, I wish to make a number of preliminary points.

First, section 18 of the 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.

Secondly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records and certain arguments in some of my analysis and reasoning is limited.

Thirdly, it is important to note at the outset that a review by this Office is considered to be "de novo", which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the "de novo" nature of our reviews, I consider it appropriate to consider the applicability of the additional exemptions cited by the Policing Authority in its submissions to this Office, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the relevant records in its decisions on the request.

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

I will first examine whether or not record 36 is held by the Policing Authority before I consider the various exemptions claimed.  The record comprises a report prepared by a senior member of An Garda Síochána into various allegations made against another member of the force. 

Does the Policing Authority hold record 36?

Section 11(1) of the Act provides for a right of access to any record held by an FOI body. It is not in dispute that at the time of the applicant's request, the record at issue was in the possession of the Authority. Nevertheless, while the Act does not define "held", it is well settled that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. 

The Drogheda Review Case

The Supreme Court considered the meaning of "held" for the purposes of the Act inMinister for Health v Information Commissioner [2019] IESC 40(commonly known as the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, former High Court judge Justice T.C. Smyth, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda.

Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act.

In her judgment in the case, Finlay Geoghegan J. accepted that the equivalent provision of the Freedom of Information Act, 1997 (the Act of 1997), which provides for the right of access to records held by public bodies (section 6(1)), gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record "held" by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct.

On the meaning of held, Finlay Geoghegan J. found that for a record to be held within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

Section 11(1) of the Act of 2014 is the equivalent of section 6(1) of the Act of 1997.  As such, having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the record sought in this case to be deemed to be held by the Policing Authority, the Authority must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record.

The Policing Authority's Submission

In its submission, the Authority argued that it cannot be said that it holds the record at issue for the purposes of its business, or that it was entitled to access the information contained in the record. It argued that it received the record from a third party who believed the Authority held a file on him with regard to his promotion and wished to add the record to this file. However, the Authority indicated that it does not keep personnel files and therefore, the third party was informed that the record would be deleted. However, the Authority further indicated that a copy of the record was accidentally retained and was identified in the searches conducted following the applicant's request. The Authority stated that on the discovery of the record, the Office of the Data Protection Commission was informed as well as the third party to which the record related. In light of this, the Authority argued that it does not hold the record within the meaning of the FOI Act.  

My Analysis and Conclusions

As I have outlined above, the test outlined by Finlay Geoghegan J in the Drogheda Review case for determining when a record can be deemed to be held by a public body for the purposes of the Act comprises two elements;

• the body must be in lawful possession of the record in connection with, or for the purposes of, its business or functions,and
• it must be entitled to access the information in the record.  

It is important to note that both elements of the test must be met. Turning to the first element, it is clear from the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act 2015 that, amongst other functions, the Authority is tasked with appointing persons to the senior ranks of the Gardaí (section 12 refers). While I note that record 35 includes an email from a staff member of the Authority indicating that record 36 would be `associated with the file relating to your appointment', it is also clear from record 37 that the Authority subsequently reconsidered this position. More particularly, the Chief Executive of the Authority wrote to the third party to indicate that as the consideration of the third party's promotion had concluded, in line with GDPR requirements, the Authority had no legal basis to retain the relevant report and it would be deleted. As set out above, this ultimately did not occur. The Chief Executive also indicated that as the report was received after the promotion of the third party was approved, it did not consider that it formed part of the appointment file with respect to the individual. 

Previous decisions of this Office have made clear that the fact that a public body's function in respect of a record may have since concluded does not mean that it is not in lawful possession of the record in connection with, or for the purposes of, its business or functions.  

I accept that the Authority was provided with the record in an unsolicited manner by a third party, at a time when its particular functions with regard to this individual, namely the appointment of the individual to a senior position within An Garda Síochána, had concluded. Nevertheless, it seems to me that when it received the record, the Authority was in lawful possession of the record in connection with, or for the purposes of, its business or functions and was entitled to access the information in the record, notwithstanding the fact that its particular functions with regard to the individual had already concluded. Indeed, I note from the Authority's submissions that had the record been received in time, it would have been considered by the Authority as part of its deliberative process.

I note that the Authority had intended to delete the record at issue, that it was retained inadvertently, and that it says it is obliged to destroy the record in line with data protection legislation. However, this does not now mean that the Authority no longer holds the record for the purposes of the Act. If I was to find otherwise, it would be open to any FOI body to argue that it did not hold particular records for the purposes of the FOI Act as such records should have been deleted in line with the provisions of the GDPR. I find that the record at issue is held by the Authority for the purposes of the FOI Act. As the Authority has also sought to rely on a number of exemptions with regard to this record, I will consider them further below. 

Section 15(1)(a) - adequacy of searches

Section 15(1)(a) of the FOI 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. In such cases, the role of this Office 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 I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In his correspondence with this Office, the applicant argued that further records relevant to his request exist and should have been released to him. He provided details of the types of records which he believed existed. 

During the review process, this Office's Investigator asked the Authority about the steps it had taken to search for records within the scope of the review and its record-management practices. The Authority's response to these queries was provided to the applicant and is set out in summary here. It includes a statement of the offices to which the FOI request was circulated, the searching mechanisms utilised, and the types of locations and facilities of which searches were carried out for relevant records.  

The Authority indicated that that a significant and in-depth search took place following receipt of the applicant's original request.  It said six separate searches took place; including searches of the O-Drive; where all documents are stored except for confidential documents; searches of the confidential folder itself, searches of the correspondence database and searches of emails of former staff of the Authority.  In addition, it said the relevant decision maker contacted the CEO of the Authority and all other staff involved with a relevant Tribunal and requested that searches were undertaken of their email and electronic files.  Finally, the Authority indicated that all staff were contacted and asked to undertake searches of their emails and electronic files for any reference to the applicant. 

The Authority provided details of the keywords that were used for these searches. It said filing cabinets and desks were searched for any related paper files and staff were asked if they had any written notes relevant to the applicant's request. 

The Authority added that further searches were conducted following receipt of the applicant's request for internal review. It said the O-drive and confidential folder were once again searched as were the emails of former staff of the Authority. It said the internal reviewer contacted staff who had been involved with the relevant Tribunal and asked them to conduct searches for records relevant to the applicant's request. Following these searches three additional records (records 70, 71 and 72) were identified as relevant to the applicant's request and were included in the internal review decision.

The Investigator also sought details from the Authority with respect to a number of specific records which the applicant believes exist and had not been identified. As the full details of the Authority's responses in respect of those records have been supplied to the applicant, I will not repeat them here.

In sum, it is the Authority's position that in light of the searches undertaken, it is satisfied that all records falling within the scope of the applicant's request have been identified. 

It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have. The question I must consider is whether the Authority has taken all reasonable steps to ascertain the whereabouts of relevant records.

Having considered the details of the searches undertaken and its explanation as to why no further records exist or can be found, I am satisfied that it has. I find, therefore, that the Authority was justified in refusing access to further records apart from those already identified as relevant to the review on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 15(1)(d) - Information in the public domain

The Authority has refused access to records 1, 2, 5, 9-11 and 50 and 69 on the basis of section 15(1)(d).

Section 15(1)(d) of the FOI Act provides that an FOI body may refuse to grant a request where the information is already in the public domain. Records 1, 5 and 9-11 are newspaper articles and the Authority provided the applicant with the date, publication and headline of each article in the schedule of records.  Record 2 comprises a response to a parliamentary question addressed to the Minister for Justice and Equality and the Authority has provided this Office with the relevant link to the website of Dáil Éireann.  Record 50 comprises the opening statement to the relevant Tribunal by the applicant's counsel.   The Authority indicated that this is a publically available document and has provided this Office with the relevant internet link. 

Record 69 is the transcript from days 145 to 149 of the Tribunal.  The Authority indicated that this record was released in a redacted format to the applicant as part of his SAR.  In the matter currently before me, the Authority refused access to the record on the basis of section 15(1)(d); that it is publically available information. Having examined record 69 I am satisfied that the redacted information falls outside the scope of the applicant's request and I do not need to consider it any further.  In any event, as record 69 comprises extracts from the transcripts of the relevant Tribunal and is therefore publically available information, I am satisfied that section 15(1)(d) applies.

Having examined the relevant links provided I am satisfied that records 1, 2, 5, 9-11 and 50 are already in the public domain. I therefore find that the Authority was justified in refusing access to this information under section 15(1)(d).

Section 15(1)(i)(i) - records already available to the requester

The Authority has refused access to records 6-8, 12, 14-25, 33-35, 37-39, 43, 46, 49, 51, 55-60, 63-65, 67-68 and 70-72 on the basis of section 15(1)(i)(i). As set out above, records 35, 37-39, 43, 65 and 67 were released in a redacted manner to the applicant. 

Section 15(1)(i)(i) provides for the refusal of a request where it relates to records already released, either to the same or a previous requester where the records are available to the requester concerned.

Records 6-8, 12, 14-16, 18, 20, 22-25, 33-34, 46, 49, 51, 55-56, 63-64 and 70-72 comprise correspondence to/from the applicant and/or his legal representatives.  The Authority argued that these records are therefore available to the applicant. Records 17 and 19 comprise a statement of the applicant and associated appendices. Record 21 is an affidavit of the applicant and record 58 is a certificate of consent signed by the applicant relating to proceedings at the relevant Tribunal. Having examined these records I am satisfied that these records are available to the applicant and that section 15(1)(i)(i) applies to these records. 

With regard to records 35, 37-39, 43, 57, 59-60, 65 and 67-68, the Authority stated that a separate Subject Access Request (SAR) was made by the applicant under the General Data Protection Regulation. It said these records were released to the applicant following receipt of this request and therefore it considers that they are available to the applicant and that the provisions of section 15(1)(i)(i) apply. In correspondence with the applicant, the Investigator invited the applicant to comment on the Authority's position with regard to these records but no substantive comments were received.   As the applicant has not disputed the Authority's position and I have nothing before me that calls into question this position, I am satisfied that section 15(1)(i)(i) applies to those parts of the records that were previously released to the applicant.  However, as set out above, records 35, 37-39, 43, 65 and 67 were released in a redacted manner to the applicant and as such, section 15(1)(i) cannot apply to the redacted parts.

I find that the Authority was justified in refusing access to records 6-8, 12, 14-25, 33-34, 46, 49, 51, 55-60, 63-64, 67-68 and 70-72 on the basis of section 15(1)(i)(i).  With regard to records 35, 37-39, 43, 65 and 67, I am satisfied that redacted versions of these records have been supplied to the applicant and that therefore the Authority was justified in refusing access to the information in these records which has been provided to the applicant on the basis of section 15(1)(i)(i). I will consider the remaining information in these records further below. 

Section 37 - Personal Information

The Policing Authority relied on section 37 to refuse access to records 36, 44, 61, 62 and 66 as well as to parts of records 27, 35, 37-39, 43, 65 and 67.

Records 27 comprises correspondence between officials of the Policing Authority. Records 35, 37 and 38 comprise correspondence from a third party relation to their promotion. As set out above, record 36 is a report prepared by a senior member of An Garda Síochána into various allegations made against another member of the force. Record 39 comprises correspondence between officials of An Garda Síochána and the Policing Authority regarding the bullying allegations made by the applicant. Records 43 and 66 comprise correspondence relating to the promotion of a member of An Garda Síochána. Record 44 comprises various documents relating to a separate investigation. Records 61, 62 and 65 comprise correspondence from the Tribunal of Inquiry. Finally, record 67 is a schedule of records supplied to the relevant Tribunal by the Policing Authority detailing correspondence between the applicant and/or his solicitor and the Authority. 

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Moreover, section 37(7) specifies that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (commonly known as joint personal information).

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing 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, (v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record of a member of staff of an FOI body), (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual and (xiv) the views or opinions of another person about the individual. 

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.

Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. This Office takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.  

Having examined the information to which access has been refused in records 27, 35-39, 43-44, 61-62 and 65-66 I am satisfied that the release of this information would involve the disclosure of personal information relating to individuals other than the requester and that section 37 applies.  More particularly, I am satisfied that the information in the main relates to sensitive issues such as complaints, allegations and disciplinary issues in the workplace as well as the promotion of individuals which is personal information under section 37 of the Act. I am also satisfied that personal information of the applicant is so closely intertwined with the personal information of other parties in certain records that it is not feasible to separate the two.

Record 67 is a list of correspondence received by the Policing Authority from the applicant or his solicitors as well as responses to this correspondence.  As set out above, this record was partially released to the applicant following his SAR under the GDPR, with certain information redacted on the basis that it contained the personal information of other individuals.  Having examined the record, and bearing in mind the exclusion at Paragraph I as outlined above, I am satisfied that section 37(1) does not apply to the remaining information in the record, with the exception of the surnames at point 15 and 25 of the record.  In so finding, I accept that these details are clearly known to the applicant and/or his solicitor as authors of the correspondence and as such the additional release of information can serve no useful purpose. 

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates 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) of the FOI Act 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 would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.  

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.

However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a "sufficiently specific, cogent and fact-based reason" is required "to tip the balance in favour of disclosure". While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

Moreover, while the Court stated that the public interest balancing test involves a "weighing of the respective private and public interests in the analysis of the records in issue", it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

On the matter of the applicability of section 37(5)(a), 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 records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates.

Accordingly, I am satisfied that the Policing Authority's decision to refuse access to records 36, 44, 61, 62 and 66 as well as to the remaining parts of records 27, 35, 37-39, 43 and 65 was justified under section 37(1) of the FOI Act.   However, I am not satisfied that the Authority was justified under section 37(1) in refusing access to the remaining parts of record 67, with the exception of the surnames of individuals named at points 15 and 25 of the record. 

In light of my findings, I do not consider it necessary to consider the applicability of sections 29(1) or 35(1)(a) in this case. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Policing Authority's decision.  I affirm its decision to refuse access to information in the relevant records on the basis of sections 15(1)(d), 15(1)(i)(i) and 37(1) of the FOI Act with the exception of record 67.  With regard to this record, I annul the Authority's decision to refuse access to the remaining information in this record, with the exception of the surnames of individuals named at points 15 and 25 of the record.  I also affirm its decision to refuse access to further records apart from those already identified as relevant to the review on the ground that no further relevant records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

I direct that the remaining information in record 67 be released to the applicant, with the exception of the surnames of individuals named at points 15 and 25 of the record.    

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 requester 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