Whether the Defence Forces was justified in refusing access, under sections 32(1)(b) and/or 37(1) of the FOI Act, to records relating to a decision taken in relation to his attendance at the celebration of the 100-year anniversary of the Air Corps in Baldonnel

29 August 2022

Background

In a request dated 5 May 2022, the applicant sought access to any correspondence with his name in relation to the celebration of the 100-year anniversary of the Air Corps in Baldonnel. He provided a number of email addresses that he believed should be included in the search for records. On 11 May 2022, the Defence Forces asked for clarification on the specific type of correspondence sought e.g. emails. In response, the applicant referenced an email he said he received outlining reasons for a decision taken in relation to his attendance at the ceremony, and he said he wanted any correspondence from the parties involved in the relevant discussion.

On 27 May 2022, the Defence Forces issued its decision. Of the seven relevant records it identified as falling within the scope of the request, comprising emails, it granted access to four records and refused access to three records under section 32(1)(b) of the FOI Act. The applicant sought an internal review of that decision on the same day, following which the Defence Forces affirmed its original decision. On 16 June 2022, the applicant applied to this Office for a review of the decision of the Defence Forces.

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 correspondence between the applicant and the Defence Forces as outlined above, and to communications between this Office and both parties on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Defence Forces when processing the request.

Scope of Review

The Defence Forces refused access to the three records at issue under section 32(1)(b), which provides for the refusal of a request where access to the records sought could reasonably be expected to endanger the life or safety of any person. During the course of the review, the Investigating Officer deemed section 37 of the Act to be of relevance to the records at issue. Section 37 provides for the protection of third party personal information.

The Investigating Officer informed both parties of her views on the applicability of section 37 and she invited them to make further submissions on the matter. The Defence Forces agreed that section 37 was of relevance and it made further relevant submissions. The applicant said he was not seeking names of persons, but rather what was said about him in the withheld emails.

I agree with the Investigating Officer-�s views concerning the relevance of section 37 to the records at issue. It is important to note 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 section 37 to the records at issue in this case, notwithstanding the fact that the provision was not initially relied upon by the Defence Forces as a ground for withholding the records.

Accordingly, this review is concerned with whether the Defence Forces was justified in its decision to withhold records 2, 3 and 4 under section 37 and/or section 32(1)(b) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising, I wish to make the following comments. First, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for making a request. This means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

Secondly, while 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. This means that the description I can give of the contents of the records at issue and the details of the reasons for my decision are quite limited in this case.

Analysis and Findings

Section 37(1) of the FOI Act 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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(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 other words, if the record contains personal information relating to the requester that is inextricably linked with personal information relating to a third party, access must be refused under section 37(7).

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.

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 of FOI bodies. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a staff member 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 staff members of the right to privacy generally.

The records at issue comprise a number of emails. While they contain personal information relating to the applicant, I am satisfied that they also contain personal information relating to a number of third parties.

I note that when the applicant was put on notice of the applicability of section 37, he indicated in his response that he was not interested in the names of other parties and was instead interested in what was said about him. I am satisfied that it is not possible to release redacted versions of the records at issue without disclosing third party personal information. The disclosure of even redacted versions of the records would, in my view, involve the disclosure of joint personal information relating to the applicant that is inextricably linked to the personal information of other identifiable individuals. For the sake of completeness, I should add that I also find that the exclusion in Paragraph (I) of the definition of personal information does not apply in this case, having regard to the contents of the records. I find, therefore, that section 37(1) applies to all three records.

Sections 37(2) and 37(5) of the FOI Act set out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances set out in section 37(2) arise in this case. Section 37(5) 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. I will therefore consider 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 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 weighing the public interest, it is also important to have regard to the comments of the Supreme Court inThe 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 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.

It is also important to note 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 noted above that I am required to disregard the applicant's motives for seeking access to the records. Therefore, I can only consider the purpose for which he seeks the information in so far as it reflects a true public interest factor in favour of releasing the information. The applicant has not put forward any reasons as to why the public interest in releasing third party personal information would, on balance, outweigh the privacy rights of the individuals concerned, nor am I aware of any such public interest factors. It seems to me that the applicant has essentially expressed a private interest in release of the records. While I can appreciate the importance the applicant may attach to accessing the information, the Supreme Court judgments referenced above make clear that in making this decision on the right of access under FOI, I cannot take into account the applicant-�s private interests in the grant of access to the records. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Defence Forces was justified in its decision to withhold records 2, 3 and 4 under section 37(1) of the FOI Act. Having found section 37(1) to apply, I do not need to consider the applicability of section 32(1)(b) to the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Defence Forces to refuse access, under section 37(1) of the Act, to records 2, 3 and 4.

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