Decision
Ms X. and Office of the Revenue Commissioners
From Office of the Information Commissioner (OIC)
Case number: OIC-145400-M6F1F2
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URL: http://www.bailii.org/ie/cases/IEIC/2024/145400.html
Cite as: [2024] IEIC 145400
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Whether Revenue was justified in redacting certain information from a number of records held by its Personal Division relating to the applicant under section 37(1) of the FOI Act
8 October 2024
In a request dated 27 October 2023, the applicant sought access to all records held by Revenue that mention or refer to her for the period 19 May 2022 to 27 October 2023. She said she wanted, in particular, all documentation between thirteen named Revenue officials. Following an exchange of correspondence between the parties, the applicant amended her request to the documentation between the thirteen named officials about her.
Revenue issued its decision on the request in three parts. Revenue's Business Division issued its decision on 27 November 2023. Of the 110 records it identified as coming within the scope of the request, it released 98 in full and the remaining 12 in part, with certain information redacted under section 41(1)(a) of the FOI Act, on the ground that the disclosure of the redacted information is prohibited under section 851A of the Taxes Consolidation Act 1997.
Revenue's Training Branch, Corporate Services Division, issued its decision on the same date. It refused access to the two relevant records it located, comprising 44 pages, under section 15(1)(i) of the Act on the basis that they were already in the applicant's possession.
Revenue's Personal Division issued its decision on 28 November 2023. Of the 461 relevant records located, 11 records were released in full, 54 records were partially released with redactions made under section 37(1) of the Act, one was withheld under sections 41(1)(a) and 37(1), while access was refused to the remaining 395 records under section 15(1)(i).
On 4 December 2023, the applicant sought an internal review of all three decisions. On 18 December 2023 and 20 December 2023, Revenue affirmed all three decisions. Revenue's Personnel Division noted that the 395 records refused under section 15(1)(i) were previously released to the applicant under a number of Data Subject Access Requests made under data protection legislation. On 16 January 2024, the applicant applied to this Office for a review of Revenue's decision.
In the course of engagements with the applicant during the review, the applicant indicated, in an email dated 18 July 2024, that the review could be confined to 36 specific records and any relevant attachments, namely records 180, 182, 194, 195, 196, 197, 198, 199, 200, 201, 224, 230, 231, 232, 257, 262, 276, 326, 386, 388, 397, 398, 399, 400, 401, 403, 405, 411, 412, 413, 424, 425, 427, 428, 432 and 447.
In the course of subsequent engagements with this Office, Revenue agreed that redactions made to a number of the 36 records released to the applicant were inconsistent with information released in email threads or in attachments accompanying the records. Revenue agreed to review the 36 records to ensure that all redacted / released information was consistent throughout the body of the 36 records. On 6 September 2024, as a result of that cross-checking exercise, Revenue reissued copies of the 36 records within the scope of the review to the applicant with consistent redactions throughout the body of the 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 outlined above and to the correspondence between this Office and both parties on the matter. I have also examined the relevant records at issue. I have decided to conclude this review by way of a formal, binding decision.
As record 400 was released in full to the applicant, I have excluded it from the scope of this review. Revenue granted partial access to all remaining records, with redactions made under sections 37(1) and 41(1)(a). The information redacted from records 182, 194, 195, 196, 197, 198, 199, 200, 201, 230, 231, 232 and 257 comprises third-party taxpayer information. As the applicant indicated, in an email sent to this Office on 8 May 2024, that she did not require such information, I have also excluded these records from the scope of this review.
Revenue also referenced record 386 as being refused under section 15(1)(i) in the schedule of records it provided to the applicant on 6 September 2024. Section 15(1)(i) of the FOI Act provides, insofar as is relevant, that access to information may be refused where the request relates to records already released to the requester. In a response from Revenue to this Office on 26 September 2024, it was confirmed that record 386 is being refused in part with redactions under section 37(1) only. Consequently, I intend to review Record 386 under section 37(1) below.
Accordingly, this review is concerned solely with whether Revenue was justified in redacting certain information from records 180, 224, 262, 276, 326, 386, 388, 397, 398, 399, 401, 403, 405, 411, 412, 413, 424, 425, 427, 428, 432 and 447 under section 37(1).
Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, in the course of this review, the applicant made submissions expressing concerns about the manner in which her request has been processed by Revenue. She has also voiced her upset with the negative way in which she has believes she has been treated by Revenue during the course of her employment. While I accept that the applicant is frustrated with what she believes to be the piecemeal release of information, it seems to me that the processing of the request was not straightforward, in light of the broad nature of the request made and the large number of records involved, and due to the fact that the applicant had made a previous related, and somewhat overlapping, subject access request under data protection legislation. Moreover, with regard to her views as to the nature of her treatment by Revenue as a staff member, 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. This review has been undertaken in accordance with the provisions of section 22(2) of the Act and is concerned solely with a review of the decision taken by Revenue on her FOI request as outlined above.
Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the redacted information at issue is somewhat limited.
Thirdly, section 18 of the FOI Act 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 parts of sentences from records for the purpose of granting access to those particular sentences. Generally speaking, therefore, the Commissioner is 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.
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 / individuals other than the requester. This is 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 the 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 definition provided for under section 2, constitute personal information. These categories include information relating to the employment or employment history of the individual, information relating to the individual in a personnel record, and the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual 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 of the position.
The exclusion at paragraph (I) does not provide for the exclusion of all information relating to staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or office holder in an FOI body in the context of the particular position held or any records created by that staff member or office holder while carrying out his or her official functions. The exclusion does not deprive such individuals of the right to privacy generally.
Having examined the information at issue, I am satisfied that it comprises a mix of third-party personal information relating to the applicant's former colleagues and joint personal information relating to the applicant and former colleagues. Much of the information concerns the applicant's working relationship with her former colleagues. I am satisfied that such information is not captured by the exclusion to the definition of personal information described above. It does not, in my view, comprise information written or recorded by the individuals concerned in the course of and for the purpose of the performance of their functions. Where the information concerns the applicant, it is intertwined with personal information relating to her former colleagues. Having regard to the content of the records, it is not feasible, in my view, to separate the applicant's personal information from that of the relevant staff members. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I am satisfied that extracting the occasional word or sentence is not practicable. I find that section 37(1) applies to all of the information at issue. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply in this case. That is to say, third-parties to which information relates have not consented to the release of their information; the information is not of a kind available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
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 subsection (b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to make. Firstly, 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 genuine public interest factors in favour of the 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 which are not relevant here, FOI is not about granting access to information to particular individuals only. Furthermore, 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 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 individual(s) concerned.
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 comments of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ('the eNet judgment'). 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, Revenue said that the right to privacy of the individuals to whom the information relates is a significant public interest factor against release. It said that in light of the inherently sensitive nature of the information concerned, it is not in the public interest for the information to be released. Revenue have also noted that because of its sensitivity, the request was dealt with in the strictest confidence by a very limited number of nominated decision-makers.
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 it clear that the release of records under Freedom of Information 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).
On the matter of the release of the information that I consider to be personal information relating wholly to individuals other than the applicant and that does not relate to her, I note that the applicant is seeking access to information about her. She has identified no public interest factors in favour of the release of such information that might outweigh the privacy rights of those individuals, nor am I aware of any such factors that might do so.
On the matter of the release of joint personal information relating to the applicant and other parties, I note that in her correspondence with this Office, the applicant expressed concerns about how she was treated by her colleagues. She indicated that she required all of the records coming within the scope of her request in connection with her pursuit of complaints through various fora, and that she wanted to see what was written about her in the various emails. It seems to me that the applicant has, in effect, expressed a private interest in seeking access to the information at issue. Nevertheless, in my view, that private interest is arguably reflective of a wider public interest in ensuring that employees are treated fairly and are afforded fair procedures and natural justice in respect of their pursuit of a compliant such as that at issue in this case. However, this does not mean that there should be no protection of the privacy rights of third-parties. Having regard to the volume of information already released, it seems to me that Revenue has, in essence, attempted to strike a balance between providing the applicant with as much information as it can about the applicant in respect of the matters that are the subject of the records at issue whilst seeking to protect the privacy rights of the third-parties concerned. While I accept that the release of the entirety of the records would further enhance the transparency of Revenue in relation to its dealings with the applicant, I am not persuaded that the public interest in release is sufficient to outweigh, on balance, the privacy rights of the third-parties concerned. I make this finding based on the inherently private nature of the information at issue which, in my view, increases the significance of the fact that the release of a record under the FOI must be regarded effectively as release to the world at large. In the circumstances, I find that the public interest in releasing the information at issue does not, on balance, outweigh the privacy rights of the individuals to whom the information relates. 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 Revenue's decision to redact certain information from the records at issue under section 37(1) of the FOI Act.
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