Case number: 000391
Records of an individual's FOI request - whether details of a FOI request are personal information - whether an individual's address is personal information - section 2 - section 28
Following the awarding of a contract to a private company an individual made a number of FOI requests to the Department for records relating to the awarding of the contact. Subsequently, the private company made an FOI request to the Department for copies of the FOI requests made by the named individual. Following consultations under section 29 of the FOI Act, the Department decided to grant access to copies of the individual's FOI requests including his address. The individual applied to the Commissioner for a review of the decision of the Department.
As the identity of the individual had already been revealed, the only issue the Commissioner considered was whether the contents and related correspondence of the individual's FOI request constituted personal information as defined in section 2 of the FOI Act. In finding that most of the records relating to the FOI request should be released the Commissioner commented on the relevant practice of public bodies generally. He observed that generally speaking, public bodies seem to accept that, where requesters seek records which relate to personal information about them, the information that the FOI request was made by such persons is personal information about them. Where requests are made for 'official' information i.e. information which is not personal information about the requester, public bodies seem to assume that the information that the request was made by a particular individual is not personal information about that person. The decision also found that the individual's address met the definition of personal information as set out under (a) of that definition and was not required to be released in the public interest in this case.
Our Reference: 000391
Addressed to Applicant's Solicitor
Addressed to Applicant's Solicitor
I refer to your application on behalf of Mr X for a review of the decision of the Department of Arts, Heritage, Gaeltacht and the Islands ("the Department") to grant access to certain records relating to Mr X's requests under the Freedom of Information (FOI) Act, 1997.
I note that Mr Nutley wrote to you on 12 September 2001 outlining his preliminary views on the matter and offering you a period of three weeks in which to bring any comments which you believe are relevant, to my attention. As that period has now passed and as I have not heard from you, I have decided to conclude my review by issuing a binding decision. In carrying out my review I have had regard to your letter to the Department of 4 August 2000, the Department's decision to you of 16 August 2000 and your application for review to my Office. I have also examined the records to which the Department has decided to grant access.
In making my decision I have attached a great deal of importance to the fact that the records involved relate to Mr X's FOI request for 'official' information as opposed to his personal information. As explained below I believe that different considerations would arise if Mr X's request contained personal information relating to him.
Although the Department decided to grant access to all records requested not all records relate to Mr X. Accordingly I have instructed the Department to release those records which do not relate to Mr X. In order to avoid any confusion I have listed the remaining records which are the subject of this review in the attached schedule. Accordingly my review is concerned solely with the question of whether the decision of the Department to grant access to Mr X's FOI requests and related correspondence, as listed in the attached schedule, is justified.
Before setting out my findings I believe it would be useful to recall the background to this case and the general practice of public bodies in dealing with consultations under section 29 of the FOI Act.
Generally speaking, public bodies seem to accept that, where requesters seek records which relate to personal information about them, the information that the FOI request was made by such persons is information held by the public body in confidence, and, by extension is personal information about them. Such information would not be released unless the public interest in doing so outweighed the requester's right to privacy - something which I think would only arise in unusual circumstances.
Where requests are made for 'official' information i.e. information which is not personal information about the requester, public bodies seem to assume that the information that the request was made by a particular individual is not personal information about that person. This is in line with the advice issued by the Department of Finance in CPU Notice 13 which advises that public bodies may use discretion when deciding whether to disclose the name of the requester during a consultation under section 29 of the Act.
I should point out that in most cases the identity of an individual making a request under the FOI Act for official information is irrelevant. A public body's decision to grant or refuse access to a request for official information will not be influenced by the identity of the person making the request. In this particular case, the records originally requested by Mr X in his FOI requests would be released to any person making the same request.
When Mr X sought access under the FOI Act to records relating to the contract for a ferry service awarded to XYZ Ltd, the Department consulted with XYZ Ltd. During this consultation the Department revealed to XYZ Ltd that it was Mr X who had made the FOI request. All records covered by Mr X's FOI request were released to Mr X. Subsequently, XYZ Ltd made an FOI request for all correspondence received by the Department from Mr X. The only records involved were Mr X's FOI requests and related correspondence. On this occasion the Department consulted with Mr X under section 29 of the FOI Act, which is required when a public body forms the view that personal, confidential or commercially sensitive information should be released in the public interest, and informed him that the FOI request had been made by XYZ Ltd. The Department decided to release the records in question and Mr X has appealed that decision to my Office.
Mr X's request was for 'official' information. The identity of the requester has already been revealed so what is at issue here is not access to the contents of an FOI request made by an unknown individual but access to the contents and related correspondence of Mr X's FOI requests. In other words, access to the records sought would result in the requester knowing the exact wording of Mr X's FOI request and the Department's response to Mr X's FOI request.
As a separate issue, I should remind you that section 34(12)(a) of the FOI Act provides that I must accept that the decision made by the Department to release the records concerned was justified unless you, as the applicant for a review of that decision, can show to my satisfaction that the decision was not justified.
You have claimed that release of the records would involve the disclosure of "personal information" about Mr X and that access should be refused in accordance with the provisions of section 28(1) of the FOI Act which protects the disclosure of personal information.
Personal information is defined in section 2(1) of the FOI Act as :
"... information about an identifiable individual that -
(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 a public body on the understanding that it would be treated by it as confidential,"
Subsections (i) to (xii) of section 2(1) go on to list categories of information which could be considered as being personal information. This list includes information relating to an individual's financial affairs, medical history, employment history, age, sex, property, tax affairs, etc. However these categories of information must also satisfy the requirements of either (a) or (b) above in order to meet the definition of personal information set out in the Act.
In relation to (a) I do not believe that the information in this case, i.e. details of Mr X's FOI requests and related information, can be said to be information about Mr X that would, in the ordinary course of events, be known only to Mr X, his family members or his friends. This is because I believe that section 2(a) is concerned with the type of information about an individual covered, although not exclusively, by subsection 2(1)(i) to (xii). What is at issue here involves an FOI request for the circumstances behind and the details of a contract awarded to a private company. It is not the type of information listed at (i) to (xii) in section 2(1) and apart from his address does not contain 'personal' details relating to Mr X.
While I accept that, in some circumstances the contents of a request for official information may also contain information which would meet the definition at (a), I find that this is not the case in this instance and that section 2(1)(a) does not apply.
In relation to 2(1)(b) I must consider whether, in this case, the information is held by the Department on the understanding that it would be treated by it as confidential. Section 2(1)(b) is designed to cover situations where an individual discloses private or secret matters to a public body. However, I do not accept that all information given to a public body by an individual is held by a public body on the understanding that it would be treated by it as confidential.
For section 2(1)(b) to apply there must be a mutual understanding of confidentiality. While you have mentioned that Mr X's FOI request was made in confidence, the fact that the Department does not consider the information concerned to be the personal information of Mr X and has decided to grant access to the records concerned, indicates that it does not accept that there was an understanding on its part that the information would be treated as confidential.
I have already outlined the general approach adopted by public bodies in relation to their treatment of FOI requests. In this particular case I believe that the Department was correct in not treating the information concerned in this request as confidential.
In relation to Mr X's address I find that this is information about Mr X which, in the ordinary course of events, would be known only to him or to his family or friends and that it is therefore "personal information" as defined in section 2 of the Act. There is no public interest in releasing this information in this case.
In the absence of any other personal information of Mr X contained in the details of the FOI requests I am not satisfied that (a) or (b) above applies and with the exception of Mr X's address, that release of the records would not involve the disclosure of personal information of Mr X.
In your letter to the Department you have also expressed the view that some of the letters contain commercially sensitive information and should not be disclosed in accordance with section 27(1) of the FOI Act on the grounds that Mr X "could suffer material and financial loss" arising from release. I take this to be an argument that section 27(1)(b) applies.
I have examined the contents of the records concerned. In describing my findings and bearing in mind that my decision is subject to appeal to the High Court on a point of law, I must have regard to section 43(3) of the Act which requires me to take all reasonable precautions to prevent disclosure of information in an exempt record. However, for the reasons set out in Mr Nutley's preliminary view letter I do not consider that disclosure of the information concerned could reasonably be expected to result in a material financial loss to Mr X and you have not shown how this could occur. Having regard to section 34(12)(a), I find that section 27(1)(b) does not apply.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 I hereby vary the decision of the Department in that access should be refused to Mr X's address.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.