Whether the Council was justified in refusing access to records relating to a particular investigation file

14 October 2022

Background

The applicant-�s FOI request of 20 October 2021 sought access to (1) a particular file referred to in a 2008 Local Government Audit Service (LGAS) report; (2) a copy of a particular letter referred to in the 2008 LGAS report; and (3) all records concerning an investigation referred to in a 2019 LGAS report. The Council refused the applicant-�s request, and he sought a review by this Office of that decision. In a decision dated 20 June 2022 (under reference number OIC-118731), this Office annulled the Council-�s decision and remitted the matter back to the Council for fresh consideration. 

Subsequently, in the course of correspondence between the parties, the applicant agreed to limit his request to three categories of records, namely: correspondence with legal advisors and internal memos relating to the investigation; private investigation reports; and records relating to disciplinary proceedings.

The Council issued a fresh decision on the applicant-�s request on 28 July 2022. In this decision, the Council part-granted the applicant-�s request, identifying 29 records as falling within the scope of the applicant-�s request, granting access in part to record 27 and in full to records 28 and 29. The Council cited sections 37(1), 35(1) and 31(1) of the FOI Act as grounds for withholding the remaining 26 records. On 3 August 2022, the applicant sought an internal review of the Council-�s decision. In its internal review decision dated 15 August 2022, the Council varied its original decision, part-granting access to records 20 and 21 and affirming the remainder of its original decision. On 25 August 2022, the applicant sought a review by this Office of the Council-�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 Council 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.

Preliminary Matters

It is relevant to note a number of preliminary matters.

Firstly, section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

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 in my analysis and reasoning is limited.

Scope of Review

This review is solely concerned with whether the Council was justified in withholding in whole or part, under sections 37(1), 35(1) and 31(1) of the FOI Act, 27 records sought by the applicant.

Analysis and Findings

Section 37(1)

The Council relied on section 37(1) of the FOI Act as a basis for withholding, wholly or in part, each of the records at issue. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. 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 individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.

In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, 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 the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.

In its submissions regarding section 37(1), the Council stated that the information in the records that it had identified as personal for the purposes of section 2 of the FOI Act included: the name, address, details of employment and details of leave taken during employment of an individual who was subject to the investigation at issue; information relating to the investigation; the name of a private investigator; and the car registrations of individuals.

I have examined the material at issue and I accept that the information identified as personal by the Council does indeed fall within the definition of same in section 2 of the FOI Act. Accordingly, it comes within the scope of the exemption provided for by section 37(1). I should note that, in relation to the material withheld by the Council that relates to the employment of the individual in question, although this employment was in an FOI body, I do not consider that the withheld material falls within the exclusion from the definition of personal information in paragraph (I) of section 2 of the FOI Act. I take this view on the basis that the majority of the employment-related information that appears in the records is not, in my opinion, information relating to the office, position, functions or terms upon and subject to which the individual held that position. Neither, in my view, does it relate to anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. Rather, it is information relating to acts of alleged wrongdoing carried out by the individual in the course of this employment.

In addition, there are certain records in respect of which it might be argued that the employment-related information contained therein could be said to fall within the exclusion in paragraph (I) of section 2. For example record 27, which was released in redacted form by the Council and which is an agreement for obtaining a purchasing card signed by the individual, would appear to be a fairly standard document clearly related to the performance of the individual-�s legitimate functions. However, in the context of the terms of the applicant-�s request I do not consider that the exclusion in paragraph (I) of section 2 applies to any such records. The applicant-�s request was for access to records concerning the investigation. It follows that to release the name or other personal details of the individual where it appears in employment-related records, and which otherwise might fall within the exclusion from the definition of personal information in paragraph (I), would necessarily confirm the identity of the individual who was the subject of the investigation. This would entail the disclosure of personal information for the purposes of section 2. Accordingly, I am satisfied that these records come within the scope of section 37(1) of the Act.

However, that is not the end of the matter as 37(1) is subject to the other provisions of section 37. 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.

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual or 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, which 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 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 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 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. 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 its submissions regarding section 37(5)(a), the Council stated that, as public interest factors in favour of the release of the relevant information, it had identified the public interest in knowing how it performed its functions in relation to the matter at issue; the public interest in knowing what disciplinary proceedings were taken against the individual in question; and the public interest in members of the public being able to exercise their rights under the FOI Act. Against this, it identified the public interest in upholding the right to privacy of the individual and his family; the public interest in members of staff being able to communicate in confidence with it without fear of disclosure of personal or sensitive information; and the public interest in public bodies being able to perform their duties effectively. The Council concluded that the public interest in protecting the privacy rights of the individuals involved outweighed the public interest in releasing the records.

In submissions made to the Council (at internal review stage in the previous, related case that ultimately resulted in the decision of this Office under reference number OIC-118731), the applicant argued that the greater public interest in this instance was in the release of the records. He submitted that this Office had repeatedly recognised that the openness and accountability of a public body in the expenditure of public monies represented a very strong public interest argument in favour of the release of records. In particular, he referenced a previous decision of this Office (case references 98049, 98056 and 98057) and referred to the following passage of that decision in support of his argument:

"Such openness is a significant aid to ensuring effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption and to preventing the waste or misuse of public funds-�I do not accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against fraud, waste and misuse of funds. I consider that the public interest in openness about public expenditure is of very great significance."       

I would make the following points in relation to the applicant-�s argument. Firstly, the comments of this Office quoted above, regarding the public interest in in safeguarding against fraud, misuse of public funds etc, were made in slightly different circumstances to those at issue in this case. In particular, at issue in that previous case was the potential release of commercially sensitive information, and not personal information relating to an individual. Upholding the right to privacy is itself a very strong public interest argument, particularly in circumstances where -� as outlined above -� the public interest in doing so is acknowledged in the long title to the FOI Act. It must also be reiterated that the right to privacy has a constitutional dimension and thus will only be set aside in circumstances where the public interest in doing so is compelling.

In addition, the previous decision of this Office cited by the applicant in support of his position pre-dates the judgment of the Supreme Court in the above-mentioned case ofThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors. As outlined above, in that judgment the Supreme Court made a number of findings in relation to the public interest, of which this Office must be cognisant. Among these, the Supreme Court found that:

• The public interest is normally served by the operation of the exemption itself (albeit in respect of section 36),
• The public interest engaged therefore cannot be the general public interest in disclosure and transparency in public undertakings
• There must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

It is also worth noting that, in the same judgment, the Supreme Court found that a decision that reflected a view that is desirable in the public interest to require disclosure of information regarding large public expenditure in strategically important State assets and infrastructure would -�-�improperly rely on the general principle of openness as the decision to order release must be one that emerges from a consideration of the particular records and not from a general policy-�.

I have considered the matter carefully and, in the circumstances, find that the greater public interest is in upholding the right to privacy of the individual in question. I make this finding in cognisance of the comments of the Supreme Court in the above-referenced judgment, and recognising that the previous decision of this Office cited by the applicant pre-dated that judgment and did not have at issue the disclosure of personal information of individuals. In addition, I note that the existence, generally, of the issues that gave rise to the Council investigation in question is already a matter of public knowledge (having been the subject of a number of media reports), while the identity of the individual is not. It would therefore seem to me to be possible for any interested parties to interrogate the actions of the Council in this instance without compromising the privacy rights of the individual involved by way of the release of the records at issue.

The information that I have identified in the records as falling within the scope of section 37(1) of the Act is of an inherently private nature. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the information at issue does not, on balance, outweigh the right to privacy of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find the Council was justified in refusing access, under section 37(1) of the Act, to records 1-19 and 22-26 in their entirety, and to records 20, 21, 27 and 28 in part.

Sections 31(1) and 35(1)

In circumstances where I have determined that information in each of the records that the Council sought to withhold is exempt from release under section 37(1) of the FOI Act, it is not necessary for me to examine the extent to which sections 31(1) and 35(1) might also apply to exempt the records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Council. I find that the Council was justified, under section 37(1) of the FOI Act, in withhold access in full  to records 1-19 and 22-26 in their entirety, and to records 20, 21 and 27 in part.

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.

Neill Dougan
Investigator