Decision
Mr. Y and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-144642-K2Z6X1
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and Irish Legal Information Institute
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Cite as: [2024] IEIC 144642
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Whether the Department was justified in refusing access to certain information in records relating to the applicant on the basis that it comprised the personal information of other individuals
3 September 2024
In a request dated 27 July 2023 the applicant sought access to all records containing his name from 2013 to the date of his request.
The Department issued its decision on 21 August 2023. A total of 49 records were identified as falling within the scope of the applicant's request. The records were part-granted to the applicant with certain information refused on the basis that it contained personal information or joint personal information, within the meaning of sections 37(1) and 37(7) of the FOI respectively.
On 21 November 2023 the applicant sought an internal review of this decision. The internal reviewer issued her decision on 7 December 2023 and as part of this granted access to further records, or parts of records, which had previously been refused on the basis of section 37.
On 13 December 2023 the applicant appealed the matter to this Office.
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 Department 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.
In the course of its submissions to this Office, the Department said that with regard to record numbered FOI-22, which is a copy of a marriage certificate, as this record is publically available it should have been refused on the basis of section 15(1)(d). Having examined this record, I am satisfied that this is indeed the case and I do not need to consider this record further as part of my review.
This review is therefore concerned solely with whether the Department was justified in refusing access to information contained in the remaining records on the basis of section 37(1) of the FOI Act.
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. Our review is confined to a consideration of the decision made by the Department on the applicant's FOI request.
Section 37(1) 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).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, (ix) a number, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose and (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.
The records at issue comprise applications for various allowances administered by the Department including an application for Carer's Allowance, applications for Child Benefit, an application for the Household Benefits Package and an application for Habitual Residence Condition. The records also include supporting documents in relation to these claims. The information which has been refused on the basis of section 37(1) comprises the names of individuals other than the applicant, as well as information such as PPSN numbers, dates of birth, employment details and financial information relating to such individuals.
In its submissions to this Office, the Department said it considers that such information is personal to the individuals concerned and it is satisfied that section 37(1) applies to this information. The Department also specifically highlighted its comments to the applicant in acknowledging his FOI request wherein it said that records relating to the application for Carer's Allowance may include records in respect of third parties including information relating to the caree in question. The Department further said that the applicant was required to forward authorisation from the caree, or any third party, that their records, including medical records, can be released to the applicant. The Department indicated that no such authorisation had been received. The Department also said that in certain cases the applicant may be aware of the information but this does not serve to disapply section 37(1).
The Department further indicated that in certain cases, the information which has been refused comprises information relating to the applicant which is closely intertwined with information relating to other individuals. The Department said that it is not possible to separate the information relating to the applicant from the information relating to the respective third parties and as such this information comprises joint personal information within the meaning of section 37(7).
I have carefully considered the records at issue and the information withheld. I am satisfied that the withheld information relates to individuals other than the requester and comprises personal information in accordance with the definition at section 2. The fact that the applicant may be aware of the contents of the records or may have been involved in matters detailed therein does not serve to disapply the exemption. I am satisfied that the information relations to third parties and that section 37(1) therefore applies.
In addition, I note that in certain cases information has been refused on the basis of section 37(7). The net effect of section 37(7) as set out above, is that, where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party or parties, and where it is not feasible to separate the personal information relating to the requester from that relating to the other party or parties, it can be described as joint personal information and section 37(7) must be considered. Having carefully considered the matter, I take the view that it is not practicable to separate the personal information relating to the applicant from that relating to the relevant third party individuals. As such, I consider that such information is joint personal information for the purposes of section 37(7) of the FOI Act.
As section 37(1) of the Act is subject to the other provisions of the section, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the above information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 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 am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
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.
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 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 Act, 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.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the 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 Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("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 his appeal to this Office the applicant said that he was seeking access to the information at issue so as to understand the manner in which the application for Carer's Allowance was made. It would appear from the submissions made by the applicant that he disputes the manner and circumstances around the submission of this application in his name. More particularly, the applicant would appear to be of the view that the application for Carer's Allowance, whilst made in this name, was not in fact submitted by him and he is therefore seeking greater information in relation to the submission of the application.
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 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.
The records at issue relate to an application for Carer's Allowance in respect of a family member of the applicant as well as applications for certain other allowances administered by the Department. I have considered the argument of the applicant above and on the whole take the view that, while he is seeking the release of the records in pursuance of what I believe to be largely a private interest, nonetheless he has identified a valid public interest in ensuring that the Department's administration of the Carer's Allowance scheme is appropriate and in keeping with the statutory framework. Having said that, having reviewed the records at issue, it seems to me that the release of the information at issue in this case would provide quite limited information on such administration.
On the other hand, the information which has been refused in the relevant records is of an inherently private and sensitive nature and I must regard its release as being effectively, or at least potentially, to the world at large. Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the relevant third parties. In particular, I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse access to the information at issue on the basis of section 37(1).
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.
Mary Connery
Investigator