Whether the Council was justified in refusing, under section 37(1) of the Act, the applicant-�s request for Instructor training certificates of a number of named instructors on two training courses attended by the applicant, on the ground that release of the records would involve the disclosure of personal information relating to the individuals concerned

3 October 2022

Background

This decision is a composite decision relating to two requests the applicant made to the Council. Both requests sought access to the certifications of instructors on two training courses attended by the applicant. The first request was dated 1 April 2022 wherein the applicant sought copies of the training certificates of five named instructors on the breathing apparatus course he attended between 3-16 October 2016. The second request was dated 22 April 2022 wherein the applicant sought copies of the training certificates of four named instructors on the hazardous materials course he attended between 20-�22 September 2017. In its decisions, both dated 22 April 2022, the Council refused both requests under section 37(1) of the Act. Following the applicant-�s request for an internal review in respect of each refusal, the Council affirmed both original decisions. On 2 June 2022, the applicant applied to this Office for a review of the Council-�s decision in each case.

I have now completed my review in accordance with section 22(2) of the FOI Act. Having regard to the overlapping nature of the two requests, I have decided to conclude the reviews by way of a formal, binding composite decision. In carrying out my reviews, I have had regard to the correspondence between the applicant and the Council as outlined above and to the correspondence between this Office and both parties on the matter.

Scope of Review

During the course of the review, the Council clarified that it did not hold Instructor training certificates for one named instructor on the breathing apparatus course and two named instructors on the hazardous materials course. It explained that it does not receive training certificates directly from the training body but that in some cases it may receive the certificates from the course participants themselves. It refused access to all other certificates held, under section 37(1)

This review is concerned solely with whether the Council was justified in its decision to refuse access, under section 37(1) of the Act, to certain Instructor training certificates on the ground that release of the records would involve the disclosure of personal information relating to third parties.

Analysis and Findings

Section 37(1) of the Act provides that, subject to other provisions of the section, an FOI body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 

Section 2 of the FOI Act defines the term -�personal information-� as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. 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 (v) information relating to the individual in a record falling within section 11(6)(a) (personnel records).

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph (I) refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

In its submissions to this Office, the Council said certificates of successful completion of the breathing apparatus and hazardous materials instructor courses are sent by the training body to the course participants directly. However, the Council said it retains other course records which confirm successful completion of the breathing apparatus and hazardous materials courses, for example, assessment results. It said as the applicant specifically requested copies of the training certificates of named instructors, all other course records were deemed to be outside the scope of the requests. It said the content of the certificates is personal information relating to the educational history of the individuals concerned.

I am satisfied that release of the records sought would involve the disclosure of personal information of the individuals concerned, including, but not limited to, various details concerning their education and employment. I am also satisfied that the exclusion to the definition of personal information does not apply. Accordingly, I find that section 37(1) applies to the information at issue.

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 that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.

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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply. On the matter of 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, however, that in The 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 weighing 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 (-�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.

Having regard to the nature of the information at issue, I am not aware of any relevant public interest in granting access to the records sought that outweighs, on balance, the public interest in upholding the privacy rights of the individuals to whom the information relates. In the circumstances, I find that section 37(5)(a) does not apply.

In conclusion, I find that the Council was justified in refusing access, under section 37(1) of the Act, to the records sought by the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision to refuse access, under section 37(1) of the Act, to the Instructor training certificates of a number of named individuals.

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