Decision
Mr. X and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-147875-B5N6X6
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URL: http://www.bailii.org/ie/cases/IEIC/2024/147875.html
Cite as: [2024] IEIC 147875
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Whether the Department was justified in refusing access to further records relating to the applicant's Disability Allowance (DA) claim
4 November 2024
On 24 January 2024, the applicant made an FOI request for records on his DA file that had been created since his last FOI request for such records (which was dated 15 November 2023, and which is covered by my review in Case No. OIC-146638-V3W8F5). It appears that, on 29 January 2024 and 1 February 2024, the applicant also sought access to a list of all his disability allowance payments, a copy of his additional needs application dated 25 January 2024, and related documentation.
The Department's decision of 26 February 2024 concerned all three requests. It fully released the majority of the records it had identified as covered by the request, and refused access to parts of five records under section 37 of the FOI Act (third party personal information).
The applicant sought an internal review on 4 March 2024. He also described further records covered by his request which he said the Department should have identified for release.
The Department's internal review decision of 21 March 2024 granted partial access to one further record that it had located. It did not comment on the other records that the applicant had said it should hold. It affirmed its reliance on section 37(1) in relation to the various withheld details.
On 2 April 2024, the applicant applied to this Office for a review of the Department's decision. During the review, the Department fully released four of the six partially withheld records. It also released part of the details it had withheld from record FOI 2 i.e. the name of a person's employer. It also found and released a request to interview, and records of the applicant's telephone conversations with a particular staff member of the Department's Contact Centre.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges. I have also taken account of correspondence between this Office, the Department and the applicant, particularly my letters to the applicant of 20 August and 15 October 2024, to which I have received no reply. I have also had regard to the contents of various records covered by the request, and the provisions of the FOI Act.
My letters to the applicant of 20 August and 15 October 2024 explained that I have no powers under the FOI Act to examine many of the issues he raises. I explained that my review would be confined to examining:
(i) whether the Department was justified in relying on section 15(1)(a) of the FOI Act in relation to some of the further records he says it should hold. I explained here that the remaining such records either would post-date the requests to which this review relate, or were being considered in Case No. OIC-146638-V3W8F5.
(ii) whether the Department was justified in withholding the remainder of records FOI 2 and FOI 18 under section 37 of the FOI Act.
Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information.
Release of records under FOI is generally understood to have the same effect as publishing them to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
A review of an FOI body's refusal of records under section 15(1)(a) assesses whether it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. It is not normally the function of this Office to search for records.
The applicant says that the Department should hold should hold additional records, as follows:
● Further material relevant to records FOI 40-44 and 49.
Records 40-43 concern the applicant's appeal of the Department's suspension of his DA. Record 44 is a request to the applicant to attend for interview. Record 49 concerns various queries that the applicant, and others, made in relation to the matter.
The applicant appears to say that record 40 is incomplete because it does not contain certain information relevant to the suspension of his DA. While he also describes the other records as incomplete, he does not say why he believes this to be the case other than to refer to what I take to be pending, further appeals of the DA suspension.
The applicant may also contend that he was not given copies of requests to interview him, which are referred to throughout record 49.
● Further records of his contacts with a named contact centre staff member.
The Department's position is that it has taken all reasonable steps to locate records relevant to the three requests under review in this case. As noted earlier, the Department has now found and released the further records of the applicant's contacts with a named contact centre staff member, and also a request to interview. It maintains that it has already released all other requests to interview that it issued to the applicant (i.e. records FOI 20, 21 and 23).
I wrote to the applicant on 15 October 2024, outlining the Department's comments in relation to this review. I also referred him to my letter of the same date regarding Case No. OIC-146638-V3W8F5. I told him that the details in that letter, about the Department's description of its searches for his DA records generally, were also relevant to this review. I have received no comments from the applicant in response.
My decision in Case No. OIC-146638-V3W8F5 outlines the Department's description of its searches for the applicant's DA records. I do not intend to repeat the details here, other than to say I have adopted them for the purposes of my decision.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. What the FOI Act requires is that the FOI body concerned takes all reasonable steps to locate relevant records. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records should or might exist. Having regard to the Department's submissions, and in the absence of any evidence to the contrary, I am satisfied that the Department has taken all reasonable steps to locate records covered by the applicant's request, including the further records that he says should be held. I find that section 15(1)(a) of the FOI Act applies.
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. A record that is exempt under section 37(1) may be released further to sections 37(2) (exceptions) or 37(5)(a) (public interest) in particular.
Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (iii) information relating to the employment or employment history of the individual and (ii) information relating to the financial affairs of the individual.
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Section 37(1)
A third party's name has been withheld from record FOI 2. I note the released parts of this record include the name of the third party's employer. The details redacted from record FOI 18 identify an individual who gave financial assistance to another person. I have already considered these details in Case No. OIC-146638-V3W8F5 (i.e. the redaction to record FOI 49, which is a copy of record FOI 18 in this review). While it is open to me not to consider record FOI 18 further, I am nonetheless satisfied that the details redacted from records FOI 2 and 18 are covered by the above categories of what must be considered as personal information. I find that they are exempt under section 37(1) of the FOI Act.
Given that the details are contained on records on the applicant's file, they could be seen as also comprising personal information relating to him. However, if this is the case, I am satisfied that the applicant's personal information would be inextricably linked to that of the identifiable third parties (joint personal information). Therefore, section 37(7) would be relevant. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply in certain specified circumstances. In particular, section 37(2)(a) provides for the grant of access to personal information relating to the requester. As explained above, it could be argued that the details at issue comprise the joint personal information of the applicant and the identifiable third parties. However, I am satisfied that if this is the case, section 37(2)(a) would not apply in light of the provisions of section 37(7). I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) - the public interest
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I am satisfied that section 37(5)(b) does not apply.
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 inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57. 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.
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. 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).
The parties' arguments
The Department refers to the general principles of openness and transparency in relation to records held by FOI bodies. It maintains that these are outweighed by the public interest in protecting third party privacy rights.
The applicant makes no arguments specifically in relation to the public interest. However, many elements of his correspondence with this Office concern his dissatisfaction with the Department's handling of his DA claim and other matters. I do not believe it appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on such a basis. Neither do I have any remit to consider, or make findings on, the Department's performance of its functions.
That said, I accept that there is a public interest in revealing information concerning the Department's performance of its functions in relation to the applicant's DA claim. However, it seems to me that the Department has served this public interest to a considerable degree by releasing the vast majority of the records at issue. Furthermore, I am satisfied that disclosure of the third party personal information would provide little or no further insight into the Department's performance of its functions. In my view, there is little, if any, weight to the public interest in disclosure of the relevant details.
On the other hand, I accept that the details comprise sensitive personal information relating to identifiable third parties. In considering the weight of the public interest in withholding such information, it is relevant that its disclosure must be regarded as being effectively, or at least potentially, to the world at large. I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of the identifiable third parties.
In all of the circumstances, I do not accept that the public interest in releasing the details redacted from records FOI 2 and 18 outweighs, on balance, the privacy rights of the third parties to which they relate. I find, therefore, that section 37(5)(a) does not apply.
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Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision on the basis that sections 15(1)(a) and 37(1) of the FOI Act apply.
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.
Anne Lyons
Investigator