Whether the Department was justified in refusing access to the names and citizenship of members of the Rapid Response Roster under section 37(1) of the Act

27 September 2022

Background

As part of Ireland-�s overseas humanitarian assistance programme, the Department manages a Roster of humanitarian experts, the Rapid Response Corps, who deploy at short notice to Ireland-�s UN partners as part of their humanitarian and emergency response efforts. From time to time, the Department undertakes a recruitment of experts with relevant skills to the Rapid Response Corps Roster.

Separately, the European External Action Service (EEAS) has introduced Goalkeeper Registrar, an online platform which allows Member States to establish a database of experts who are interested in being seconded to Civilian Common Security and Defence Policy (CSDP) missions. The Department advertises opportunities for secondment to EU Civilian CSDP missions through this online platform. Candidates interested in being notified of such vacancies at CSDP missions are required to register as experts on the Goalkeeper Registrar in advance.

In a request dated 14 February 2021, the applicant sought access to records relating to the CSPD (sic) Roster and Rapid Response Roster providing:

1. The names and citizenship of the members;
2. How they were selected for the rosters;
3. Whether existing members had to reapply to remain on the roster;
4. The benefits they enjoy as part of the roster in particular remuneration and training.

On 12 March 2021, the Department refused the request under section 15(1)(g) of the Act on the grounds that it was vexatious and formed part of a pattern of manifestly unreasonable requests submitted by the applicant over a sustained and prolonged period that amounts to an abuse of process of the right to access records. On 18 March 2021, the applicant sought an internal review of that decision. On 22 February 2022, the Department affirmed its refusal of the request under section 15(1)(g). On 31 March 2022, the applicant applied to this Office for a review of the Department-�s decision.

During the course of the review, the Department revised its position on the request and wrote to the applicant on 10 June 2022. It refused access to records relating to the CSDP roster under section 15(1)(a) of the Act on the ground that there is no CSDP roster and that no relevant records exist. It provided the applicant with a link to the Goalkeeper platform referred to above. It also provided him with a number of records relating to the Rapid Response Roster. The records released included the advertisement for the 2018 recruitment campaign, the information booklet for that campaign, a copy of the application form, a hyperlink to the Rapid Response strategy and a five-page document detailing the benefits available to members of the roster. It refused access to a record containing the names and citizenship of the members on the 2022 roster under sections 37(1), 35(1)(a) and 32(1)(b) of the Act.

In submissions to this Office, the applicant argued that the Department-�s decision to withhold the names/citizenship of roster members is not warranted. He also argued that -�records on the selection for the rosters have not been disclosed-�, citing the marking sheets for the assessment of applicants as an example, and suggested that the searches conducted by the Department were inadequate.

During the course of the review, the Investigator provided the applicant with details of the Department-�s submissions wherein it explained its position on the scope of the applicant-�s request and outlined the searches undertaken to locate the records sought. The Investigator explained the Department-�s view that the scope of the applicant-�s request does not extend to all records relating to the selection of roster members, but rather to records which explain how members of the roster were selected. The Investigator invited the applicant to make further submissions on the matter.  While the applicant sought a copy of the Department-�s submissions, he made no comments on the substance of the Investigator-�s letter.

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 outlined above and the submissions made by both parties. 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

As noted from his correspondence with this Office as outlined above, the applicant appears to be of the view that his request encompasses a request for all records relating to the selection of members for the Rapid Response Roster, including, for example, marking sheets used to assess those who applied to become members of the roster. The Department said that in relation to the rosters, the applicant asked, at part 2 of his request, -�how (members) were selected for the rosters-�. The Department said that the Information Booklet released during the review explains the selection process. Accordingly, the Department took the view that the -�marking sheets-�, and other records related to the selection of individuals who applied to become members of the roster, do not come within the scope of the applicant-�s request.

As the applicant well knows given his significant use of the Act, under section 12(1)(b) of the Act, a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps. He asked for records that explain how the members were selected for the rosters. In response, the Department provided the Information Booklet which contains a section entitled -�Format of the Selection Process for the Rapid Response Roster-�. I am satisfied that the Department-�s interpretation of the relevant part of the request was both reasonable and appropriate. Accordingly, I am satisfied that the Department has granted the relevant part of the request and I do not propose to consider the matter further in this review.

Accordingly, this review is concerned solely with whether the Department was justified in refusing access to the names and citizenship of members of the Rapid Response Roster under sections 37(1), 35(1)(a) and 32(1)(b) of the Act.

Preliminary Matters

As noted above, the Investigator provided the applicant with details of the Department-�s submissions and invited him to make his own submissions. The applicant subsequently requested a copy of the Department-�s submissions. The applicant is well aware of this Office-�s policy that submissions to this Office will not generally be exchanged between parties to a review, yet he continues to persist in requesting same. Indeed, as the applicant well knows, the very issue was recently considered by the Court of Appeal inGrange v the Information Commissioner[2022] IECA 153. In its judgment, the Court found that the Oireachtas has expressly conferred on the Commissioner the power to determine the procedure for conducting a review under section 22 as he considers appropriate in all the circumstances of the case. The Court also found that Quirke J., inNational Maternity Hospital v Information Commissioner[2007] 3 IR 643, was correct to conclude that the non-furnishing of the notice party-�s submissions did not breach any constitutional right of the appellant, or breach fair procedures. I am satisfied that all material points raised by the Department in this case have been provided to the applicant in this case.

Separately, the applicant suggested that the Commissioner use his powers under section 23 of the Act to ask the Department to furnish a statement of the search steps it had undertaken to locate the records sought, presumably in connection with records relating to how the members of the roster were selected. As I have found that the Department took a reasonable interpretation of, and granted, that part of the request, I am satisfied that a formal statutory notice under section 23 was not required in this case

Analysis and Findings

Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record 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 individuals other than the requester. Under section 37(1), third party personal information cannot be released unless one of the other relevant provisions of section 37 applies.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (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.

The information at issue comprises the names and citizenship of the members on the Roster. I am satisfied that the release of this information would involve the disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.

Section 37(5) provides that a request that would fall to be refused under subsection (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 request would benefit the person to whom the information relates. No argument has been made that the release of the information at issue in this case would benefit the individuals to whom it relates. I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person 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 inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57, 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 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 his correspondence with this Office, the applicant suggested that the Department had released comparable information in the past under FOI in respect of a similar roster. In response, the Department said it is not aware of any FOI decision where names of roster members were released. The Department said it understands that some years ago roster initials and surnames may have been released in answer to a Parliamentary Question. Regardless of whether or not similar information may have been released in the past, the fact remains that section 37(1) applies. The applicant-�s argument does not amount to a public interest factor in support of the release of the information.

I am mindful of the fact that the release of information under the FOI Act is, in effect, release to the world at large, given that the Act places no constraints in the uses to which information released under FOFI can 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 individual members of the roster. I find, therefore, that section 37(5)(a) does not apply.

In circumstances where I have determined that the record at issue is exempt under section 37(1) of the Act, it is not necessary for me to consider the applicability of sections 32(1)(b) or 35(1)(a).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department-�s decision. I find that Department was justified in refusing, under section 37(1) of the FOI Act, the applicant-�s request for the names and citizenship of the members of the Rapid Response Roster.

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