Case number: 150228

Whether the Department was justified in its decision to redact certain information from records relating to a complaint made against the applicant

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 17 October 2014, the applicant made a request to the Department for records of all discussions and/or meetings retained about her. The Department issued two separate decisions on the request, one in respect of records held by its Parental Complaints/Child Protection section, and one in respect of records held by its Inspectorate section. In both cases, access was granted in part only.

On 17 December 2014, the applicant sought an internal review of the Department's decisions. In relation to the Inspectorate section, she stated that she was seeking full release of all material pertaining to a memo dated 13 December 2013 to which access had been refused by both sections, to include records 20, 21, and 29 as identified by the Inspectorate Section in the schedule of records it provided with its decision.

While access had been granted to the covering emails of records 20, 21, and 29, the following attachments were withheld:

Record 20 - a completed six page "Revised Standard Incident Report Form" dated 19 December 2013
Record 21 - a five page memorandum dated 19 December 2013
Record 29 - a four page memorandum dated 13 December 2013 and a completed five page "Revised Standard Incident Report Form" dated 13 December 2013

In its internal review decision of 30 January 2015, the Inspectorate section decided to grant partial access to the two Incident Report Forms but upheld the decision to refuse access to the two memoranda. On 25 July 2015, the applicant sought a review by this Office of the Inspectorate's decision.

In conducting this review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records at issue.

Scope of the Review

On 6 November 2015, Simon Noone, Investigator, wrote to the parties to state that the review was concerned with the Inspectorate's decision to partially refuse access to records 20, 21 and 29. Neither of the parties expressed disagreement with Mr Noone's description of the review. Accordingly, the scope of this review is concerned with whether the Department was justified in its decision to refuse access to the memoranda attached to records 21 and 29 and to grant only partial access to the completed Incident Report Forms attached to records 20 and 29.

Preliminary Matters

I should state at the outset that under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. This is of particular relevance where the question of the release of information relating to third parties is at issue.

Secondly, while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the contents of the records at issue is limited.

Thirdly, it should be noted that a review under section 22 of the FOI Act is de novo. This means that it is based on the circumstances and the law as they pertain at the time of the review by this Office.

Finally, while section 18(1) of the 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, the Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Findings

The four records at issue relate to a complaint made against the applicant. The memorandum dated 13 December 2013 (record 29) was prepared by the Department's Chief Inspector for forwarding to the School Governance Section following a complaint he received about the applicant by telephone some days earlier. The memo contains details of the identity of the complainant, the detailed allegations made, the response given to the complainant, and details of the author's observations and recommendations. The Incident Report Form of the same date (record 29) was also completed by the Chief Inspector and contains similar, but more general, details to those set out in the memorandum. The Form in question is used for reporting child protection concerns brought to the attention of departmental staff.

The memorandum dated 19 December 2013 (record 21) was prepared by the relevant Divisional Inspector following a subsequent telephone conversation with the complainant. As with the earlier memorandum, this one contains details of the identity of the complainant, the detailed allegations made and details of the author's conclusion and recommendations. The allegations are similar in nature to those set out in the earlier memorandum. As is clear from the covering email, the Incident Report Form dated 19 December 2013 (record 20) is described as an updated Incident Report Form. It contains more detail relating to the allegations made, as set out in the memorandum of 19 December 2013

As I have outlined above, the Department granted access in part to the two Incident Report Forms. It refused access to any details that might reveal the identity of the complainant and it refused access to the details of the specific allegations made against the applicant. It also refused access to the two memoranda and parts of the Incident Report Forms. The Department relied upon sections 29(1)(a), 30(1)(a), 30(1)(b), and 35(1)(a) of the FOI Act in support of its decision to refuse access. However, in my view, sections 37(1) and 42(m) are of greater relevance. While neither section was cited by the Department, I am cognisant that section 37(1) is a mandatory exemption and that section 42(m) provides for the exclusion of certain information from the provisions of the FOI Act. I am also cognisant of the fact that both sections are concerned with protecting third party information. Accordingly, I consider it appropriate to consider the applicability of each section to the information at issue.

Section 37(1)
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that 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 referred to as joint personal information.

While it is clear that the allegations contained in the records relate to the requester, the nature of the allegations is such that the disclosure of the vast majority of those allegations would, in my view, also disclose personal information relating to other parties. In some cases, disclosure would also lead to the revelation of the identity of the complainant, which I will address separately below under section 42(m). I am satisfied that the vast majority of the information contained in the records is joint personal information relating to the applicant and to various identifiable third parties. I find, therefore, that section 37(1) applies to such 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. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) 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) of the FOI Act 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.

In considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26, [2013] 1 I.R.1. In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in 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.

The information at issue in this case is of a private and personal nature relating not only to the applicant but also to the identifiable third parties. In the circumstances, it is important to recall that release under FOI is regarded, in effect, as release to the world at large. While there is a public interest in openness and transparency in the manner in which the Department performs its functions, I do not consider that the public interest in the release of the joint personal information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 42(m)
Section 42(m) provides that the Act does not apply to a record relating to information whose disclosure could reasonably be expected to reveal, or lead to the revelation of the identity of the identity of a person who has provided information in confidence in relation to the enforcement or administration of the law to an FOI body, or where such information is otherwise in its possession, or (ii) any other source of such information provided in confidence to an FOI body, or where such information is otherwise in its possession.

The Department argued that the complainant provided the information contained in the records in confidence. During the course of this review, Mr Noone of this Office contacted the complainant to determine whether he/she considered that he/she had done so. The complainant stated that he/she had. Having regard to the nature of the allegations, it seems to me that the complainant might reasonably have expected that his/her concerns could be considered without the need to disclose his/her identity. Accordingly, given the assertions of both the Department and the complainant, I am satisfied that the complainant provided the information to the Department in confidence in relation to the enforcement or administration of the law. While the disclosure of specific information relating to the complainant would clearly disclose the complainant's identity, I am also satisfied that the disclosure of certain details of the allegations would also lead to the revelation of his/her identity. Accordingly, I find that the Act does not apply to such information, under section 42(m) of the FOI Act.

Conclusion
In conclusion, and having regard to the provisions of section 18 of the FOI Act, I find that the Department was justified in refusing access to the two memoranda and in granting only partial access to the two Incident Report Forms. Having done so, it is not necessary for me to consider the applicability of sections 29, 30 or 35 to the records.

Decision

Having carried out a review under section 22(2) of the Act, I hereby uphold the decision of the Department.

Right of Appeal

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