Whether the Department was justified in refusing access, under section 35(1)(a) of the FOI Act, to certain correspondence relating to the applicant that was sent to the Department by a third party

11 February 2022

Background

This case has its background in an earlier OIC decision issued on 14 July 2021 (Case OIC-106888). In that case, the key issue arising was whether the Department was justified in refusing access to a letter the applicant believed to have been sent to the Department about her on the ground that no such letter existed or could be found. She believed that her Widows Contributory Pension (WCP) had been stopped as a result of that letter.

Having regard to the Department’s description of its procedures for managing correspondence of the type sought, I found that the Department had not taken all reasonable steps in an effort to ascertain the whereabouts of the record in light of its failure to consult with the Control Division to establish whether relevant correspondence had been referred to it. I annulled the decision of the Department and directed it to consider the request afresh.

On 5 August 2021, the Department issued a fresh decision on the request, wherein it informed the applicant that its Control Division had confirmed that it had not received any third party correspondence in relation to the applicant or her claim for WCP. On 17 August 2021, the applicant sought an internal review of that decision, wherein she said her son had confirmed to her that he was responsible for having his legal representative send a letter about her to the Department. She also alleged that a named staff member of the Department had confirmed to a named staff member in the HSE that her WCP had been suspended as a result of that letter.

On 6 September 2021, the Department issued its internal review decision wherein it refused the request under section 35(4) of the FOI Act. In essence, it refused to confirm or deny the existence of the record sought. The applicant sought a review of that decision by this Office on 21 September 2021. She stated that the Department’s decision of 6 September 2021 contained a totally different response to that of 5 August 2021, when the Department categorically stated that it had not received third-party correspondence. She described the Department’s approach as disingenuous.

During the review, and following communications between the Investigating Officer and the Department on the matter, the Department indicated that it was no longer relying on the refusal to confirm or deny provision and was prepared to acknowledge the existence of the record sought.

On 28 January 2022, the Department wrote to the applicant to confirm the existence of the record. It also indicated that it was refusing access to the record under section 35(1) of the Act, which is concerned with the protection of information given in confidence. At the same time, a copy of the record was provided to this Office for the purpose of progressing the review.

Following her consideration of the contents of the record, the Investigating Officer notified the Department and the applicant of her view that section 37, which is concerned with the protection of third party personal information, was also relevant to the review and she

invited both parties to make further comments or submissions in respect of its relevance and applicability. Neither party did so.

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 submissions made by the Department and the applicant’s comments in her application for both this review and the previous review, as well as the correspondence between the parties as outlined above. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The Department cited section 35(1)(a) of the Act as the basis for withholding access to the record at issue. In my view, section 37 is of relevance, and, like section 35, is a mandatory exemption that serves to protect the interests of third parties. As such, I consider it appropriate to also consider the applicability of section 37 to the record. This is in keeping with the de novo nature of a review by this Office, which means that that it is based on the circumstances and the law as they pertain at the time of the decision.

Preliminary Issues

Before I address the substantive issues arising, I would like to make a number of preliminary comments.

Firstly, it seems to me that the manner in which the Department first dealt with the applicant’s request and, indeed, the manner in which in engaged with this Office during the review in Case Number OIC-106888, was wholly unsatisfactory. It appears that the Department made little or no effort, when first processing the request, to go beyond conducting basic searches on the applicant’s WPC file. As set out in my decision on that case, it was apparent that a Social Welfare Inspector (SWI) had contacted the section that deals with the applicant’s WPC about the applicant on foot of a Carer’s enquiry. It appears the Department made no effort whatsoever, to clarify if the record might exist anywhere other than on the WPC file in circumstances where it had cause to suspect it might well be held elsewhere within the Department.

In essence, the Department’s response to this Office during the review was based on an assumption made that if the record sought existed, it would have been destroyed, in line with its processes for handling confidential reports received. The Act requires FOI bodies to take all reasonable steps to ascertain the whereabouts of records sought before it can refuse the request on the ground that the records sought cannot be found. The Department is well aware of these requirements and I expect it to take steps to ensure that the requirements are met when processing requests in the future.

The second comment I wish to make is in respect of the Department’s initial reliance on section 35(4) to refuse the request when processing it afresh. Section 35(1) provides for the refusal of a request where the record sought contains information given in confidence. The exemption is concerned with ensuring that the release of a record will not prejudice the future supply of such information and in ensuring that the release of a record would not constitute a breach of a duty of confidence. Section 35(4) allows the body to refuse to confirm or deny the existence of the record sought where doing so would have an effect specified in section 35(1).

In its correspondence with this Office, the Department said it was relying on section 35(4) to refuse the request in this case as the record is on a third party’s account and does not relate to the applicant’s claim for Widows Contributory Pension and that to confirm or deny its existence would give personal information about a third party. Reliance on a refusal to confirm or deny provision is not a measure that should be taken lightly. The applicant sought a letter that was submitted to the Department about her. I fail to see how the mere acknowledgement of the existence of such a record could possibly give rise to the disclosure of third party personal information. In any event, section 35(4) can be relied upon only where the confirmation of the existence or non-existence of the record would have the effect specified in section 35 and not section 37, which is concerned with the protection of third party personal information.

The third comment I wish to make is that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the record 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.

Fourthly, I wish to draw attention to section 18 of the FOI Act which provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, this Office takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, we are not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, the applicant may care to note that I am required by section 25(3) of the Act to take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. Therefore, while I am required by section 22(10) of the FOI Act to give reasons for decisions, the description I can give of the record at issue and of the reasons for my decision is somewhat limited in this case.

Analysis and Findings

I consider section 37 to be the most relevant exemption in this case and I will examine it in the first instance. 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).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, 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”. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary (within the meaning of the Social Welfare Acts) or required for the purpose of establishing whether the individual, being a claimant (within the meaning of those Acts), is such a beneficiary.

As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the record at issue. However, I do not believe that I am in breach of section 25(3) by providing the following description. The record is a letter sent to the Department by a solicitor in September 2020 on behalf of a third party. While the record contains personal information relating to the applicant, it is intertwined with personal information relating to third parties. Having regard to this Office’s approach to section 18 as described above, I find that section 37(1) applies to the entire record. However, that is not the end of the matter as section 37(1) is subject to the provisions of sections 37(2) and 37(5).

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. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.

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 information would be to the benefit of the person to whom the information relates. I find no evidence to suggest that section 37(5)(b) applies in this case.

As to whether section 37(5)(a) applies, the question I must consider is whether the public interest in releasing the record withheld by the Department outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. I have had 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. It is noted that a public interest (“a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.

In considering the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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 her communications with this Office in the course of this review and the earlier review, the applicant stated that she believed that her Widow’s Contributory Pension had been stopped on foot of the Department receiving the letter that is at issue. It is the Department’s position that the pension was suspended when it could not contact her to confirm her address. Regardless of what happened, this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally. While I appreciate that the applicant wishes to know what was said in the letter to the Department, I am bound to treat this as a private rather than a public interest.

The applicant also stated that she was already aware of the personal information of the third party. While this may be the case, the release of a record under FOI must, in effect, be regarded as release, or at least potential release, to the world at large given that the Act places no constraints on the uses to which a record released under the Act may 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 record that, on balance, outweighs the right to privacy of the individuals to whom the information relates. Having found that section 37(1) applies, I do not need to consider the applicability of section 35(1) to the record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the record at issue. I find that it was justified, under section 37(1) of the Act, in refusing access to the record.

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