Case number: 190123
10 May 2019
On 11 January 2019, the applicant sought access to the six submissions made to the Department on foot of the public consultation process undertaken as part of the statutory review of the Defamation Act 2009 that had not been published. In its decision of 14 February 2019, the Department stated that five of the six submission had since been published on its website in redacted format and it refused access to those submissions under section 15(1)(d) of the FOI Act on the ground that the information is already in the public domain. It refused access to the sixth submission under sections 18(2) and 37 on the ground that it contained personal information relating to identifiable individuals.
On 15 February 2019, the applicant sought an internal review of the decision to refuse access to the sixth submission on the ground that it should be released in the public interest. The Department issued its internal review decision on 8 March 2019 in which it varied its original decision and released a heavily redacted version of the submission. On 13 March 2019, the applicant sought a review by this Office of that decision.
I have decided to conclude this review by way of a formal, binding decision. In conducting this review, I have had regard to correspondence between the Department and the applicant as outlined above, to the applicant's correspondence with this Office, and to communications between this Office and the Department on the matter. I have also had regard to the contents of the record at issue, a copy of which was provided to this Office for the purpose of conducting the review.
This review is concerned solely with whether the Department was justified, under section 37(1) of the FOI Act, in its decision to redact certain information from a submission made to it on foot of the public consultation process undertaken as part of the statutory review of the Defamation Act 2009.
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 relating to an individual or individuals other than the requester. The 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 an FOI body on the understanding that it would be treated by the body as confidential.
While I believe I am prohibited by section 25(3) from giving a more detailed description of the contents of the relevant record, I am satisfied that the disclosure of the redacted information would involve the disclosure of personal information relating solely to parties other than the applicant. I find, therefore, that section 37(1) applies to all of the information redacted from the record at issue.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply, namely where;
(a) the information contained in the record relates solely to the requester,
(b) any individual to whom the information relates consents to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally or a class of individuals of significant size is available to the general public,
(d) the information was given to the body concerned by the individual to whom it relates and was informed beforehand that the information belongs to a class of information that would or might be made available to the general public, and
(e) the disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that subsections (a), (b), (c) and (e) do not apply. On the matter of whether subsection (d) applies, the applicant argued that as the letter is a submission to a departmental review, it should be released like the other submissions.
The published Invitation for Submissions stated that the Department would publish any submissions received on its website in due course and that it may receive requests for their disclosure under the FOI Act. It also stated that it was therefore in the interests of respondents to highlight at the time of submission any information which they consider to be commercially sensitive, or to contain private or confidential material, and to specify the reasons for its sensitivity, and that the Department would consult with respondents regarding information identified by them as sensitive, before making a decision on any request.
In correspondence with this Office, the Department noted that the author of the submission expressly indicated in his submission that he had read and considered the Invitation for Submissions and it acknowledged that section 37(2)(d) was of relevance in so far as the redacted information related to the author. It argued, however, that the disclosure of the redacted information would also involve the disclosure of individuals other than the author.
The purpose of section 37(2)(d) is to ensure that the protection afforded by section 37(1) to personal information relating to an individual does not extend to personal information the individual has given to a public body having been informed beforehand that it might be made publicly available. However, this does not mean that personal information relating to other individuals cannot be protected. Having examined the redacted information, I am satisfied that the disclosure of the information would involve the disclosure of personal information relating to individuals other than the author. I find, therefore, that section 37(2)(d) does not apply.
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 of the information would be to the benefit of the person to whom the information relates. It has not been argued that releasing the record at issue would benefit the third parties to whom the information relates, nor do I believe that this would be the case. I am therefore satisfied that section 37(5)(b) does not apply to the relevant record.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the persons to whom the information relates. In considering where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 (the Rotunda case). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
In correspondence with this Office, the applicant argued that the full contents of the submission should be released in the interests of transparency and in the public interest. The FOI Act acknowledges that there is a public interest in promoting the transparency and accountability of public bodies in the manner in which they perform their functions. On the other hand, the Act 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.
It is apparent that the consultation process undertaken as part of the statutory review of the Defamation Act was intended to be as transparent as possible. However, it is also apparent from the Invitation for Submissions that the general intention to publish submissions might be necessarily subject to restriction/redaction in the interests of protecting commercially sensitive, private, or confidential material. The question I must consider is whether the public interest in further enhancing the transparency of the review process outweighs, on balance, the privacy rights of the individuals to whom the information at issue in this case relates.
In my view, it does not. In holding this view, I am cognisant that the information at issue in this case is of a very sensitive and inherently private nature and that the release of information under the FOI Act is, in effect, release to the world at large. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the Department was justified in its decision to redact certain information from the submission at issue under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department in this case.
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.