Decision
Ms. X and An Bord Iascaigh Mhara
From Office of the Information Commissioner (OIC)
Case number: OIC-142189-V7Z8J1
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Cite as: [2024] IEIC 142189
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Whether BIM was justified in refusing access to a number of work-related records sought by the applicant
16 December 2024
In a request dated 10 March 2023, the applicant (a former BIM employee) sought access to eight categories of records relating to the period of her employment with the organisation. In a decision dated 9 May 2022, BIM part-granted the applicant's request, releasing certain records in full to the applicant and withholding others in part, and one record in full, under section 37(1) of the FOI Act. On 18 May 2023, the applicant sought an internal review of BIM's decision. In its internal review decision dated 7 June 2023, affirmed its original decision. On 8 September 2023, the applicant applied to this Office for a review of BIM's decision.
It should be noted that, in addition to section 37(1), BIM also initially sought to rely on section 31(4) of the FOI Act to refuse to confirm or deny whether certain records sought existed, which it also asserted where legally privileged and therefore exempt from release under section 31(1)(a). Subsequently, BIM indicated that it no longer sought to rely on section 31(4), but continued to cite section 31(1)(a) as a basis to withhold the relevant records. In an associated decision of this Office involving the same applicant (case number OIC-142194), I made a finding on records which BIM sought to withhold under section 31(1)(a). As the relevant records that BIM withheld under section 31(1)(a) in that previous decision are the same as those at issue in this case, the same finding applies to this case and I am not required to consider section 31(1)(a) further in the course of this review.
Furthermore, in the course of this review I sought information from BIM as to the basis on which it considered section37(1) applied to certain information relating to its bank account details (BIM/IBAN) in the records. In response, BIM indicated that, although it no longer sought to rely on section 37(1) in respect of this information, it now considered that section 36(1) of the FOI Act (relating to commercially sensitive information) applied. However, in subsequent correspondence with the applicant, she indicated that she did not require this information. Accordingly, the information in the records relating to BIM's bank account details can be excluded from the scope of this review and I need not consider the potential applicability of section 36(1).
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 parties. 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.
This review is concerned solely with whether BIM was justified under section 37(1) of the FOI Act in withholding access, in whole or part, to the records sought by the applicant.
Before I set out my analysis and findings, there are a number of preliminary points I wish to make. Firstly, I wish to note that section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an FOI request for access to records.
I should also note that it is apparent from her correspondence that the applicant believes she has been wrongfully treated by BIM, her former employer. In this regard, I should point out that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied by certain alleged actions on the part of BIM, this Office has no role in examining the appropriateness of those alleged actions or any alleged decisions taken on foot of same.
I also wish to note that, in her submissions to this Office, the applicant raised a number of issue which did not form part of her initial FOI request, and/or which fall outside the scope of this review. For example, she indicated that she wanted a number of specific questions answered. However, the FOI Act enables access by requesters to information contained in records, and does not provide a right to have questions answered by FOI bodies (except to the extent that such questions might be construed as an FOI request). In addition, the applicant alleged that records had been tampered with. However, there is no evidence before me to support this allegation. As these are matters that are outside the scope of this review, I did not consider it appropriate to follow up with BIM in relation to same.
Moreover, I wish to note that a number of the records that BIM purported to have released in full to the applicant (ie. the records were noted as "Granted" on the schedule of records provided by BIM) appear in fact to have been partly withheld. In addition, BIM marked one record on the schedule as "part-granted" which appears to have been released in full (ie. without any redactions). Details of the relevant records are outlined in my analysis below. As a matter of best practice, BIM should take steps to ensure that schedules of records issued in response to FOI requests accurately reflect the status (released, withheld fully or withheld in part) of each of the records at issue.
Finally, I wish to note that, in the analysis below, I identify certain email records by the date and time of their sending. Some emails in the records use the 12-hour clock format and others the 24-hour format. For the ease of reference of all parties, I have retained the formatting used in each particular record, so the following analysis contains references to both 12-hour and 24-hour time formats, as applicable.
In its decision on the applicant's FOI request, BIM divided the relevant records into eight categories that corresponded with each category of the request. For the ease of reference of all parties, I will refer to each record by category and record number (eg. Category 1, record 1, etc).
BIM identified a total of 186 relevant records across the eight categories of the applicant's FOI request. Category 1 comprises records 1-130, category 2 records 131-157, category 3 records 158 and 159, category 4 record 160, category 5 record 161, category 6 records 162-167, category 7 records 168-173, and category 8 records 174-186.
The records at issue in this case largely comprise internal BIM emails, some but not all of which include correspondence sent and received by the applicant to and from other BIM employees. The relevant records in categories 4 and 5 are text messages exchanged between the applicant and other BIM employees.
BIM released a number of records in full to the applicant, and accordingly these require no further examination as part of this review. The records released in full are category 1 records 1-11, 27, 35, 38, 46, 55, 58, 70, 74, 77-78, 81, 93, 108, 110, 118, 119, 124-126, and 130; category 2 records 131, 140, 142-144 and 153; category 4 record 160; category 6 records 162; and category 8 records 77 and 185. As referred to above, one of the records released in full by BIM, namely category 1, record 38, is marked on the schedule of records as having been part-granted.
As also mentioned above, with the applicant's agreement the information in category 6, record 163 that relates to the details of BIM's bank account can be excluded from the scope of this review and I am not required to consider it further.
BIM withheld in part Category 1 records 12-22, 24-26, 28-34, 36-45, 47-54, 56-57, 59-70, 72-73, 75-76 and 79-80, 82-92, 94-107, 109, 111-118, 120-123, and 127-129; category 2 records 132-139, 141, 145-152 and 154-157; category 3 records 158-159; category 5 record 161; category 6 record 163 164 165 166 167; category 7 records 168-173; and category 8 records 174-176, 178-184 and 186.
As alluded to above, I note that BIM appears to have erroneously marked as granted on the schedule of records numerous records which, in fact, were only partly granted. These are as follows:
-¢ Category 1, records 13-21, 24, 26, 28-34, 36-37, 41-45, 47-51, 53-54, 56-57, 59-60, 62-65, 68-69, 71, 75-76, 79-80, 82-92, 94-107, 109, 111-118, 120-123, and 127-129
-¢ category 2 record 133-137, 139, 141, 145, 146-152, 154 and 156-157
-¢ category 6 record 163-167
-¢ category 7 record 168 and 170-173
-¢ category 8 records 174, 176 and 184.
BIM withheld two records in full, namely category 1 records 23 and 112.
As outlined above, BIM relied on section 37(1) of the FOI Act to withhold in part a number of the records that were sought by the applicant, and one record in full. 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 Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
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, including at point (iii) of section 2, information relating to the employment or employment history of the individual.
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, BIM stated that the basis on which it had redacted information from the records or withheld records in full was that the withheld material comprised the personal information of third parties, including the names and contact details of both BIM staff and other third parties. In respect of certain records, BIM advised that it had redacted the names of individuals in order to prevent the release of sensitive personal information concerning the relevant individuals, and provided specific examples of such redactions. It also stated that it had taken a cautious approach to the release of names and contact details, stating that, where in doubt, it had withheld personal information under section 37(1). BIM also stated that in deciding whether or not to withhold information, it had also taken into account its obligations under the General Data Protection Regulation (GDPR). It stated that it had also taken into account the fact that the applicant had sought quite specific information relating to communications relating to her between particular individuals and, therefore, if other parties were cc'd on those communications, and were not senior managers in BIM, it did not consider it relevant for the requester to obtain that personal information, especially if it was not relevant to the applicant's understanding of the record as a whole. BIM stated that it considered that the redactions it had made to the records were extremely limited, and were intended to protect individuals (more junior members of staff and staff who had since left BIM) while still providing the applicant with the full substance of the records she sought.
Records partly withheld
In relation to the material redacted from the records that BIM withheld in part, I find as follows. Firstly, I would accept that certain material that BIM redacted from the records is personal information for the purposes of section 2 of the FOI Act, and therefore is within the scope of section 37(1). In particular, I make this finding in relation to the names and email addresses of individuals unaffiliated with BIM, and/or with other FOI bodies, that appear in the "From", "To" or "Cc" fields of the email records at issue, as well as the names and any other identifying information of any such individuals that appear in the text of the bodies of the emails, in addition to information regarding the employment or medical history of any such individuals. I make the same finding in relation to information such as names, email addresses and mobile phone numbers of individuals who are not BIM employees that appears in records such as reports and Whatsapp messages. Where information relating to the employment or medical history of BIM employees (such as sick leave, annual leave or bereavement leave, or references to the employee leaving BIM) appears in the records, I am satisfied that this is the personal information of the relevant individuals. Similarly, the records contain other information relating to BIM employees that was not created by, or does not relate to, them in the course of their formal duties within BIM (such as, for example, references to BIM employees being bereaved or passing away, or references to certain alleged behaviours and actions of BIM staff not connected with their official duties), and I am satisfied that this is also personal information. Furthermore, I am satisfied that instances in the records of the email address and name of a specific individual who is a BIM employee but who, in the context in which the records were created, was acting in her capacity as a union representative, also constitute personal information.
Furthermore, it should be noted that, while (as outlined above) information relating to staff of FOI bodies, or service providers to FOI bodies, in the performance of their official functions is excluded from the definition of personal information, this exclusion does not deprive public servants, or individual contractors, of the right to privacy generally. Taking into account the nature of the information in the records that relates to individuals who appear to be service providers to BIM, I am satisfied that it is of a nature that brings it within the scope of the definition of personal information. In particular, it seems to me to relate to such matters as the medical and employment histories of the individuals.
For the avoidance of doubt, I am also satisfied that some specific information in certain records, which may not be captured by the above descriptions, is personal for the purposes of section 2 of the FOI Act. This is as follows:
-¢ the information redacted from the third paragraph onwards (sentence beginning "In relation to our last meeting-¦") in the email of 3 February 2021 (sent at 11:51) that forms part of category 1, record 17
-¢ the last redaction (name of an individual immediately preceding the words "-¦would never question-¦") made to the email of 17 January 2023 (sent at 18:41) that forms part of category 1, record 33
-¢ the two redactions made to the third paragraph (sentence beginning "I did not have similar-¦" in the email of 11 August 2022 (sent at 12:18) that forms part of category 1, record 37)
-¢ all of the material from the sentence "Then I received an email-¦" onwards that has been redacted from the email of 6 July 2022 (sent at 09:39) that forms part of category 1, record 39
-¢ all of the redactions made to the text in the body of the email of 18 July 2022 (sent at14:42) that forms part of category 1, record 63
-¢ the two redactions in the sentence beginning "I did not have similar issues-¦" made to the email of 11 August 2022 (sent at 12:18) that forms part of category 1, record 64
-¢ the three redactions made to the sentence beginning "There's a lot more-¦", and the redaction made to the sentence beginning "There were issues with-¦", in the email of 8 July 2022 (sent at 13:02) that forms part of category 1, record 66
-¢ the redaction of three names in the fifth paragraph of the email of 22 December 2022 (sent at 12:55) which forms part of category 1, record 85; and the two names redacted from point 5, as well as the name redacted at point 8, of the email of 21 December 2022 (sent at 14:32) that forms part of the same record
-¢ the name redacted immediately following the words "-¦endured at work." in the email of 12 January 2023 that forms part of category 1, record 86
-¢ the names redacted from the paragraph beginning "As you are aware, I am-¦" in the email of 26 January 2023 (sent at 2:37PM) that forms part of category 1, record 90
-¢ the nine words immediately following the words "BIM made-¦" in the email of 29 July 2022 (sent at 21:50) that forms part of category 1, record 100
-¢ the name redacted from the body of the text of the email of 20 January 2023 (sent at 13:11) that forms part of category 1, record 102.
However, I am less satisfied that this is the case in respect of all the redactions. Some of the redacted material does not, in my view, comprise personal information and therefore does not come within the scope of section 37(1). Specifically, I find that certain information relates to employees of BIM in the context of the performance of their official functions, and accordingly it falls within the scope of the exclusion from the definition of personal information contained in Paragraph (I) of section 2. In particular, I make this finding in relation to the names and email addresses of BIM employees in the "From", "To" or "Cc" fields of the email records at issue, as well as the names of any such employees in the text of the bodies of the emails. In addition, I note that the exclusion from the definition of personal information in section 2 of the FOI Act provides that the relevant information relating to the performance of official functions in "a public body" (and not only in the specific FOI body to which the request was made) is excluded. I therefore find that any information in the records relating to employees of other FOI bodies (such as specific universities and county councils) in the performance of their functions within such bodies is similarly not personal information.
I am also not satisfied that identifying details in relation to a limited company, which have been redacted from category 1 record 20, comprise personal information, albeit that the name of the company incorporates the name of an individual. I make the same finding in relation to the reference to the name of a firm of solicitors that has been redacted from the email of 19 July 2022 (sent at 11:39) that forms part of category 1 record 106, and from point 5 of the email of 6 August 2021 (sent at 17:01) that forms part of category 8, record 183, as well as in relation to three references to a second firm of solicitors that have been redacted from the email of 28 September 2022 (sent at 7:35PM) that forms part of category 2, record 156. In the recent High Court case of Industrial Development Agency (Ireland) v The Information Commissioner [2024] IEHC 649, Phelan J. stated as follows:
"I am satisfied that s. 37 read together with s. 2 does not preclude disclosure of a company name-¦simply because the company name is the same as an individual's-¦ Furthermore, even if information was considered to constitute personal information within the meaning of s. 37(1) by disclosing the identity of a natural person as opposed to a company, the fact that the information is publicly available triggers the operation of s. 37(2) to permit disclosure of the information in question. I do not read ss. 2 and 37 of the 2014 Act as precluding the disclosure of information already in the public domain and a matter of public record".
Applying the reasoning of the Court to category 1, records 20 and 106, category 2, record 156, and category 8, record 183, I find that information relating to a private company and to two firms of solicitors is not personal information for the purposes of section 2.
Moreover, I am not satisfied that a number of references to the Services, Industrial, Professional and Technical Union (SIPTU) which have been redacted from the subject field of the emails comprising category 1, record 57 are personal information. These are references to an organisation and do not relate to an individual. In the same record, another reference to SIPTU which has been redacted from the text in the body of the email dated 17 November 2022 (sent at 1:51PM) is similarly not personal information.
Furthermore, I do not consider that the majority of the heavily-redacted document that comprises category 2, record 132 is personal information. This record appears to be a document compiled by the applicant setting out a summary of her various duties and roles in BIM from the beginning to the end of her employment there. Besides isolated references in this record to third party individuals, which I accept comprise personal information, my view is that the vast majority of the redacted information in this record relates solely to the applicant and her duties within BIM, and is not subject to section 37(1). Additionally, I do not accept as personal information a generic health and safety BIM email address which has been redacted from (i) the "Cc" field of the email of 9 March 2022 (sent at 13:49) that forms part of category 7, record 168; (ii) from the "To" field of the email of 10 February 2022 (sent at 08:16) which forms part of category 7, record 173; and (iii) from the "To" field of the email of 9 February 2022 (sent at 6:14pm) that also forms part of category 7 record 173. By the same token, redacted references to the name and/or the email address of BIM's HR department that appear in category 7, record 171 -“ in the emails of 5 April 2022 (sent at 09:56), the email of 4 April 2022 (sent at 17:42) and in the "Cc" field of the email of 4 April 2022 (sent at 11:51) -“ do not comprise personal information.
Indeed, in addition to the information I have identified above which appears across the records generally which is not personal, category 7, records 171 and 172 in particular contain numerous other redactions that, to my mind, clearly do not relate to personal information, as they refer either to the names of organisations, or to a particular service available to BIM employees, or a particular job title within an organisation. This finding applies to the following information in the records:
-¢ email of 12 April 2022 (sent at 13:49) -“ three references to a particular organisation
-¢ email of 6 April 2022 (sent at 16:51) -“ three references to the same organisation
-¢ email of 5 April 2022 (sent at 09:56) -“ 10 references to the same organisation, as well as two references to a particular job title immediately following the text "-¦whereby they contact the-¦" and the text "My understanding is that BIM were not contacted by the-¦"
-¢ email of 4 April 2022 (sent at 5:56PM) -“ a reference to the same organisation and a reference to the employee service
-¢ email of 4 April 2022 (sent at 17:42) -“ a reference to the same organisation
-¢ email of 4 April 2022 (sent at :51) -“ a reference to the employee service
-¢ email of 5 April 2022 (sent at 11:18AM) -“ two references to the same organisation, as well as the name of a separate organisation redacted immediately following the text "-¦stating that they had referred me to-¦" and the name of the employee service redacted immediately following the text "It is my understanding, in some cases, the-¦".
-¢ email of 6 April 2022 (sent at 6:31PM) -“ the redaction of the employee service immediately after the text "There are issues with self-referral to the-¦".
As outlined above, in its submissions BIM advised that certain information relating to employees had been redacted on the basis that the relevant individuals were "junior", and/or had left the employment of BIM. However, seniority in an organisation is not relevant to the issue of whether or not information falls within the exclusion from the definition of personal information in section 2. Similarly, the exclusion from the definition of personal information relates to current and former employees in the context of the performance of their official functions, and accordingly the fact of staff no longer working in BIM is not relevant where the references to such staff appear in the context of the performance of their official functions.
I also wish to address BIM's reference to its obligations under the GDPR. Article 86 of the GDPR provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.
In short, data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue.
Records fully withheld
In relation to the records that BIM withheld in full, namely category 1, records 23 and 112, I find as follows. In respect of category 1, record 23, I do not accept that all of the information in the withheld record is personal. While I accept that the names and email addresses of individuals that appear in the "Cc" field, and in the text in the body of, the email of 7 April 2022 (sent at 18:31) that forms part of the record are personal information, this is not the case for the remaining information in the email. Similarly, the first attachment to the email (a table relating to training courses and providers) is not personal information. On the other hand, I accept that the second and third attachments do comprise personal information and are therefore within the scope of section 37(1). In respect of category 1, record 112, again I do not accept that all of the information in the withheld record is personal. While I accept that the names of individuals that appear in the emails that make up the record are personal, this is not the case for the remainder of the material in the emails.
Other provisions of section 37
In relation to the information in the records that I have found to fall within the scope of section 37(1) of the FOI Act, the matter does not end there as section 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. No argument has been made that the release of the records to the applicant would benefit the third parties shown in the records concerned, nor is it apparent to me how release would do so. I am satisfied that subsection (b) does not apply in the circumstances of this case.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, 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, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a), and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) which provides that, in performing any functions under the FOI Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in the Enet case. In that case, 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 its submissions, BIM stated made a number of arguments pursuant to section 37(5) that relate to information that I have found above not to constitute personal information for the purposes of the FOI Act (ie. information relating to current or former BIM employees in the performance of their official functions), and therefore I need not consider those arguments further. BIM also that it identified, as a public interest factor in favour of withholding certain other information in the records that I have accepted as personal for the purposes of the FOI Act, that the information was sensitive and so clearly personal relating to the relevant individual that there was no potential justification for its release. This was especially the case, according to BIM, where that information would not add to the requester's understanding of the record itself. BIM did not specifically identify any public interest factors in favour of releasing the personal information in the records.
In her submissions, the applicant did not specifically address section 37(5)(a). However, in her application for a review by this Office she stated her belief that BIM had been non-compliant in relation to matters such as health and safety regulations and EU directives, and also made various allegations relating to the exploitation and bullying of staff. While I consider that the applicant made her FOI request for reasons that essentially reflect a private interest, I am also of the view that she has effectively identified a valid public interest in the release of the records, namely the public interest in ensuring that FOI bodies such as BIM comply with relevant regulations, directives, etc, as well as the public interest in identifying such issues as exploitation and bullying of staff if and when it occurs in FOI bodies.
On the other hand, 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 FOI 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). I also take the view that, while a public interest exists in the release of the relevant information, the release of the specific information that BIM withheld would further this public interest only very slightly.
Having regard to the above, and in light of the strong protection afforded to privacy rights under the FOI Act, I cannot discern a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information in this case that I have found to comprise personal information for the purposes of section 2 of the FOI Act. Accordingly, I find that the public interest in the release of the information does not outweigh the right to privacy of the individuals concerned. I find, therefore, that section 37(5)(a) does not apply in this case.
Accordingly, I find that the BIM was justified in refusing access, under section 37(1) of the Act, to the information in the records that I have identified as personal information relating to individuals other than the applicant.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary BIM's decision. I find that BIM was entitled, under section 37(1) of the FOI Act, in withholding from release the information in the records that I have identified above as personal. However, I find that it was not entitled to withhold from release the information that I have found not to constitute personal information, and I direct the release of that information.
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.
Neill Dougan
Investigator