Case number: 98077
Whether public interest in releasing personal information about third party - application of section 28(5) - existence of records disputed - application of section 10 - obligation to provide requester with assistance - application of section 6(2) - whether allegation made against requester by third party given in confidence - application of section 26(1)(a).
The requester sought access to all "papers" in relation to his dealings with the Department of Social, Community and Family Affairs since 1981. An exemption was claimed under section 10 on the basis that some of the records no longer existed. An exemption from release of other documents was claimed on the basis that they contained information relating to third parties. An exemption was also claimed under section 26(1)(a) on the basis that an allegation about the requester contained in one of the records was given in confidence.
The Commissioner was satisfied that the Department's claim for exemption under section 10 was justified. The Commissioner affirmed the Department's decision to refuse access to personal information about third parties, in some of the records. However, he found that there was a public interest in the requester being made aware of an allegation made against him in order that he might have an opportunity to refute it. In this particular case, this required release of some third party information in one of the records. He did not accept that the records were exempt by virtue of section 26(1) on the grounds that the requirements of that section had not been met in this case. The Commissioner questioned the Department's decision to treat records held in electronic form as not being within the scope of the request and reminded public bodies of their obligations to assist requesters under section 6(2).
On 13 July 1998, Mr AAT made an application, through his solicitor, to the Department of Social, Community and Family Affairs, under the Freedom of Information Act, 1997, seeking access to copies of all papers held in relation to his dealings with the Department since 1981. The Department replied to Mr AAT's solicitor on 13 August stating that records relating to Mr AAT dated between 1981 and 24 October 1989 no longer exist. A number of documents created after 24 October 1989 were released to Mr AAT. However, access to other records was refused on the grounds that they contained personal information about parties other than the requester and that they did not contain personal information about Mr AAT. The Department claimed exemption under Section 10 of the FOI Act in respect of the records which it claimed no longer exist and under Section 28 in respect of those which it claimed did not contain personal information about Mr AAT. Mr AAT's solicitor sought an internal review of this decision on 13 August. The Department replied on 25 August, affirming the original decision.
Mr AAT's solicitor wrote to this Office on 27 August seeking a review of that decision. In his letter of application Mr AAT's solicitor stated that Mr AAT believed that Section 28 of the FOI Act did not apply in this case. He further stated that Mr AAT was not satisfied with the explanation that records created prior to 24 October 1989 did not exist as he would allege that certain named officials had advised him (Mr AAT) "that they would have seen copies of his social welfare records going back to 1983". Having considered the matter, I decided to grant Mr AAT's application for a review.
In reviewing this case I examined copies of all of the records to which Mr AAT has been granted access. I also examined copies of those records to which he has been refused full access and which are listed as follows :
In a submission dated 17 September, the Department stated that Mr AAT had claimed Unemployment Benefit/Assistance following the death of his wife, throughout the period 1981 to April 1989. It further stated that "...papers relating to these claims are routinely purged after 3 years and were therefore destroyed sometime around 1992/1993. As they no longer exist, section 10(1) of the FOI Act applies." The Department also submitted a statement from one of the officials named by Mr AAT as having indicated that he saw his records going back to 1983, denying that such a statement had ever been made. Referring to the records to which Mr AAT had been refused access, the Department reiterated its claim that the records related to persons other than Mr AAT and were therefore withheld on the basis of the provisions contained in section 28 of the Act. The Department also stated "As Mr AAT had received his full entitlements under the Social Welfare Acts, and the release of the documents would not disclose a greater entitlement, it is considered that there was no public interest factor requiring consultation under section 29 or release under section 28(5)".
In a submission dated 14 September, Mr AAT enclosed a photocopy of a note he had received from his local Social Welfare Office dated 1 September 1998. Referring to Mr AAT, that note stated "the above named made a claim for unemployment benefit at this office in December 1981. According to the computer he signed on on the 21 December 1981 and signed off again on 25 December 1981." On the basis of the content of this note Mr AAT contested the Department's claim that records created between 1981 and 1989 no longer exist.
In a further submission dated 10 December the Department confirmed that it had not included computer records within the scope of Mr AAT's original request which referred to "all papers" and that nothing in the subsequent appeals had indicated that he was dissatisfied with not receiving such records "or that they would supply information relevant to what he is seeking." In referring to the record relating to payments made to Mr AAT's late wife (record number 3), the Department states its understanding of section 28 of the FOI Act as being "that the records of a deceased person should also be protected, unless it is in the public interest to release them; that the release would be normally to the personal representative of deceased, except where no such person had been appointed and there was an immediate need to release (e.g. in relation to a social welfare entitlement due to the estate or to the next-of-kin)." It is also stated "Again in this case, the records relating to Mrs AAT are not within the terms of the request, do not appear to me to be relevant to the query, and at the moment there is no evidence before me that Mr AAT was appointed as personal representative. I therefore see no argument for overriding the basic principle of protection set out in S.28(1)."
Referring to a statement made in relation to Mr AAT contained in the hand written report of the social worker (Record number 12), the Department accepts that it is a statement made in the context of another claim for entitlement and not in the context of an investigation of Mr AAT's claim for entitlement. The Department claims that the statement is "joint personal information" relating to Mr AAT and his daughter. The Department claims that its understanding of the FOI Act is that "where there is such joint personal information, the right to privacy of one party should normally outweigh the right of access by the other party, unless there is a public interest override, or the third party agrees. In this particular case, I consider that the information was given in confidence in relation to a third party's social welfare claim, and that both the claimant and the daughter would have to be consulted if there was an intention to release the information. However, from the information itself I would consider that there are several public interest arguments strongly leaning in favour of protection, not least because the daughter, to whom it relates would appear to be a vulnerable party."
No indication has been provided to me as to the nature of the "several public interest arguments leaning strongly in favour of protection", or that any attempt has been made to consult with the person to whom the statement in the social worker's report also refers.
Section 10(1)(a) of the FOI Act provides as follows :
(1) A head to whom a request under section 7 is made may refuse to grant the request if -
(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"
Having considered the statement made by the Department in relation to the policy of its local office to purge papers relating to Unemployment Benefit/Assistance every three years, I find I must accept its statement that the records to which Mr AAT seeks access were destroyed sometime in 1992/1993. Therefore I must uphold the Department's claim for exemption under section 10 of the Act in so far as it relates to physical records created between 1981 and 24 October 1989. As Mr AAT's contention that certain officials had claimed to have seen his records dating back to 1981 has been denied by one of those persons, I do not consider it appropriate to comment further on this aspect of the matter. It is clear however from the evidence adduced by Mr AAT in the form of a note from his local social welfare office, that the Department holds at least some of these records in electronic form.
The Department has made it clear that it identified records as being the subject of Mr AAT's request based on the strict wording of his original correspondence which sought access to all "papers" relating to him. Thus, it only considered records which it held in paper form and ignored any records held electronically. One may question whether such an approach is within the letter, let alone the spirit, of the Freedom of Information Act given the obligation in section 6(2) on public bodies to give reasonable assistance in relation to the making of a request to a person seeking a record. Having examined the records in this case, I am satisfied to proceed on the basis that the Department's approach has not, in this particular instance, seriously disadvantaged the requester. However, for the guidance of public bodies generally, I should say that such narrow and literal readings of requests may be inappropriate and public bodies should bear in mind the requirements of section 6(2) of the Act.
Section 28 of the FOI Act refers to personal information. Section 28(1) states
28.-(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).
This section prohibits the release of personal information relating to a deceased individual. Section 28(5) provides for the release of such information where, in the opinion of the head, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates or the grant of the request would benefit the individual. Although the Department originally considered the record of payments made to the late Mrs AAT (record number 3) as coming within the ambit of Mr AAT's request, it has subsequently argued that the records relating to Mrs AAT are not within the terms of the request and do not appear to be relevant to the query.
Having considered the matter, I have decided to proceed on the basis that the record relating to the late Mrs AAT is not within the terms of Mr AAT's request. In coming to this view I have taken into account the fact that access to this particular record does not seem to be essential to Mr AAT's understanding of any other record to which he has already been granted access. Accordingly, I uphold the Department's decision to refuse to release this record.
My examination of an unabridged version of the hand written report of the social worker to which Mr AAT was granted partial access (record number 12) shows that with the exception of one particular comment, the deletions refer to the family and financial circumstances of parties other than Mr AAT and that the granting of access to Mr AAT of the deleted information would involve the disclosure of personal information relating to those claimants. I am satisfied that the exemption claimed by the Department under section 28 in respect of the deletions, with the exception of a particular comment to which I shall now refer, is justified. I am also satisfied that the release of the attachments to Mr AAT would involve the disclosure of personal information relating to others.
Record number 12 contains a comment to the effect that a third party made a certain allegation in relation to Mr AAT. The Department deleted this statement and in its submission of 10 December stated that it is a statement made in the context of another claim for entitlement and not in the context of an investigation of Mr AAT's claim for entitlement. It has however claimed that the statement is "joint personal information" relating to Mr AAT and his daughter and on this basis argued that "the right to privacy of one party should normally outweigh the right of access by the other party, unless there is a public interest override, or the third party agrees." Although the Department has not said so explicitly, it seems to me that this argument is based on section 28(5). There could also be an argument that releasing the comment would disclose personal information about the third party, although the Department, once again, did not argue this point explicitly. I accept that in the normal course of events it would not be proper to release personal information about a third party to a requester but that this can be done where the public interest that the request should be granted outweighs the public interest that the right to privacy of the other party should be upheld.
The Department has argued that there are several public interest arguments strongly leaning in favour of protection of the information which contains the allegation, not least because the person who is referred to in the allegation may be a vulnerable party. Other than the contention that a person referred to in the allegation may be a vulnerable party, the Department has not outlined any public interest argument which might prohibit release. In my view there is a significant public interest in the protection of any individual who may be vulnerable. However, there can also be a public interest in an individual against whom allegations are made, knowing about these allegations and being given an opportunity to refute them. In the present case the contents of the allegation appear to have been relevant to the Department's decision whether to pay child allowance to Mr AAT or to another party with whom the child then resided. Having considered the circumstances of this particular case and having regard to the nature of the allegation made, I am satisfied that the Department has failed to show any adverse effect that might arise as a consequence of the release of the information containing the allegation and that, on balance, the public interest in Mr AAT being aware of this allegation and being given an opportunity to refute it outweighs the right to privacy of his daughter.
I have considered whether, although I am not required to do so by the Act, I should consult the third party and Mr AAT's daughter prior to releasing the information to Mr AAT. On balance, I have decided not to consult the parties. In so deciding I have taken into account the fact that the substance of the information in question is a view or opinion about Mr AAT, which is personal information about him. It is also clear to me, given the relationships between the parties and the nature of the comment, that the degree of intrusion on the privacy of the third party and Mr AAT's daughter is minimal compared to the public interest in Mr AAT being given an opportunity to refute an allegation made against him.
The Department also suggested that the information was given in confidence and should not be released for that reason. It seems that the Department may have in mind the provisions of section 26(1)(a) (information given in confidence).
Section 26(1)(a) of the Act provides as follows :
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if
(a) the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, ........
For section 26(1)(a) to apply it would be necessary for the Department to demonstrate four things, viz.
It seems to me that the third of these requirements is not met in this case. In the normal course of events I would accept that if information about a person making an allegation in relation to social welfare matters, which might identify that person, is disclosed, that this is likely to prejudice the giving of similar information in the future. However, in this particular case the allegation was made in support of a claim which would result in a greater entitlement to benefit on the part of the person making it and a lesser entitlement on the part of Mr AAT. I accept that it is important for the Department to continue to receive information in order that the entitlement of claimants may be properly assessed. However, I do not accept that the release of the information contained in this allegation is likely to deter future claimants from providing similar information. As a result I find that release is unlikely to result in the withholding of similar information from either the same person, or persons generally, in the future. I do not accept, therefore, that the requirements of section 26(1)(a) have been met.
Having examined the deletions made by the Department on the remaining three records which are the subject of this review, I am satisfied that the claim for exemption in respect of those deletions is justified. The names and details deleted from the schedule of Lone Parents arrears (record number 26) relate to persons who have no apparent connection with Mr AAT. I am satisfied that the right to privacy of those individuals should be upheld and again as no argument has been put to me that the release of this information is essential to Mr AAT's understanding of the records to which he has already been granted access, I am satisfied that the public interest in favour of release has not been shown and I uphold the Department's decision to refuse to release this information. The position in relation to the deletion of the private address of a Department official from the "Statement of Witness" (record number 27) and "Notice of Witness Order" (record number 29) is similar.
Having carried out a full review of this case and having considered the arguments put to me both by the Department and Mr AAT, I am satisfied that the Department was justified in its claims for exemption under section 10 and section 28 of the FOI Act. I am also satisfied however that Mr AAT has a right to be aware of the allegation made against him in order that he may have an opportunity to refute it.
Accordingly, I hereby vary the decision of the Department notified to Mr AAT on 25 August 1998, to the extent that the comment containing an allegation in relation to Mr AAT on the third page of record number 12, starting with the words "Please note" and finishing with the word "father", now be released to Mr AAT.