Whether the Department was justified in redacting, under section 37(1) of the FOI Act, certain information from records relating to a Parliamentary Question and in refusing access to further records relating to those Parliamentary Questions under section 15(1)(a) on the basis that no further records exist or can be found

14 November 2022

Background

On 18 March 2022, the applicant submitted an 11-part request to the Department for records relating to three specified Parliamentary Questions (PQs) and for a range of other records relating to him.

The Department issues two separate decisions on the request. On 7 April 2022, it purported to grant the request in relation to two of the PQs. On 26 April 2022, it granted partial access to three records relating to the remaining PQ, with certain information redacted under section 37(1) of the FOI Act.

On 8 May 2022 the applicant sought an internal review of both decisions, following which the Department affirmed both decisions. On 15 June 2022, the applicant applied to this Office for a review of the Department-�s decisions.

In his communications with this Office, the applicant argued that further relevant records should exist and he also requested that the redacted records be released in full.  During the course of the review, the Investigating Officer provided the applicant with details of the Department-�s submission wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no additional records exist.  In response, the applicant again stated that he wanted the review to consider the redacted records but he did not comment on the details of the searches undertaken by the Department for other relevant records.

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 between the department and the applicant as outlined above, and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

In its correspondence with this Office, the Department said that the information redacted from the first two pages of record 2 was redacted on the ground that it did not come within the scope of the request. Having examined the record, I accept this to be the case. I will not consider those redactions any further.

This review is concerned with whether the Department was justified in redacting, under section 37 of the FOI Act, certain information from the three records it released to the applicant, and whether it was justified in refusing access, under section 15(1)(a) of the Act, to any further relevant records on the ground that no further records exist or can be found.

Analysis and Findings

Section 37

Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of third party personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual.

Having examined the records, I am satisfied that the release of the redacted information that falls within the scope of the request would involve the disclosure of personal information relating to identifiable individuals, apart from the final three sentences redacted from record 1. The release of those three sentences would not involve the disclosure of personal information and should therefore be released. I find that section 37(1) applies to the remaining redactions.  

However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) 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 access to the personal information of a third party may be granted where (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 see no basis for finding that the release of the relevant information would benefit the third parties to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. 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 relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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 in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, 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-�.

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 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 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. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them relevant to the consideration of public interest tests generally.

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 relevant 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 that might be applied to the information contained in those records.

Having considered he matter, I am aware of no relevant public interest in granting access to the withheld information in this case that, on balance, outweighs the public interest in upholding the right to privacy of the third parties concerned. I find that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Department was justified in redacting, under section 37(1) of the Act, the information that falls within the scope of the request, apart from the final three sentences redacted from record 1.

Section 15(1)(a)

Section 15(1)(a) of the 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. Our role in a case such as this 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 as well as assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

As I have outlined above, the Department provided this Office with details of the searches it undertook in an effort to locate further relevant records and of its reasons for concluding that no further records exist or can be found. While I do not propose to repeat those details in full here, I confirm that I have had regard to them for the purpose of this review.

In his communications with the Investigating Officer, the applicant requested clarification on why did not receive a full copy of one of the PQs as it was published on the Oireachtas website. On this point, the Department said the reply released to the applicant was the reply saved within its PQ archive system. It said that the full reply as published on the Oireachtas website is not a record held by the Department. The Department also said that the creation of a PQ file is not a core function of a Department of State and that the key record of a PQ is the record already published and freely available in the proceedings of the Dáil.

The Department provided this Office with details of the searches carried out electronically as well as physical searches in different locations for all three PQ-�s. It said that searches for records were carried out within the School of Governance Unit and the Teacher/SNA Terms and Conditions Unit. The Department provided details of the relevant individuals who were consulted and the locations that were searched. The Department said that no further records were located.

As outlined above, the entirety of the search details submitted by the Department were provided to the applicant by the Investigating Officer and he made no comment on the details provided. It is important to note that where an FOI body refuses a request for records under section 15(1)(a) of the Act, the question we must consider is whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. The Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found, or, indeed, may have been destroyed in line with the body-�s records management policies.

It is also important to note that we do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether the body has taken all reasonable steps to locate the record sought.

I appreciate that the applicant may be disappointed that additional relevant records cannot be found. Nevertheless, having regard to the Department-�s explanation of its records management practices, to the details of the searches undertaken, and in the absence of evidence to suggest that other relevant searches should have been undertaken, I am satisfied that the Department has taken all reasonable steps to ascertain the whereabouts of relevant records in this case. Accordingly, I find that the Department was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for additional relevant records on the ground that no further relevant records exist or can be found.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find that it was not justified in redacting the final three sentences of the information that was redacted form record 1 and I direct their release.

I affirm its decision to redact, under section 37(1) of the Act, the remaining information falling within the scope of the request and in refusing access, under section 15(1)(a) to any additional records on the ground that no further records exist or can be found.

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