Case number: 170142
On 13 October 2016, the applicant sought access to the following information:
"The number of WTO/AIS/Catering staff [of the IPS] that have been afforded annualised hours to attend the Professional Cookery Course during the following academic years: September 2013/May 2014; September 2014/May 2015; September 2015/May 2016; September 2016/May 2017".
The IPS refused the request on 19 January 2017, citing sections 15(1)(c), 15(1)(g) and 15(2)(3) of the FOI Act. On 16 February 2017, the applicant sought an internal review. On 8 March 2017, the IPS affirmed its original decision, citing sections 15(1)(c) and 15(1)(g). On 24 March 2017, the applicant applied for a review by this Office of that decision.
I have decided to bring this matter to a close by way of a formal, binding decision. In conducting this review I have had regard to the relevant correspondence between the applicant and the IPS and to the communications between this Office and both the applicant and the IPS on the matter.
I wish to make a number of comments before addressing the substantive points arising. As outlined above, the applicant's request was for information, rather than records. While the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. Moreover, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. As such, I have interpreted the applicant's request as one for access to any records containing the information sought.
Furthermore, during the course of this review, it became apparent that section 37(1) of the FOI Act, relating to the protection of personal information, was relevant. My jurisdiction under section 22 of the Act is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Therefore, it is appropriate for me to consider the applicability of section 37(1), notwithstanding the fact that the IPS did not rely upon this provision in refusing access.
Accordingly, this review is concerned with the question of whether the IPS was justified in refusing access to records containing the number of WTO/AIS/Catering staff afforded annualised hours to attend the course in question, during the periods specified, under sections 15(1)(c), 15(1)(g), and 37(1).
During the course of this review, the IPS submitted that, while it does not hold a central record of who attended the course on annualised hours, it believes it would be possible to determine the number who did, by comparing their hardcopy availability sheets with other details, such as the relevant course dates. However, the IPS has contended that fulfilling the request would involve the disclosure of personal information exempt under section 37(1). Given the nature of the request, I consider section 37(1) to be the most relevant provision in this case.
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the records concerned would involve the disclosure of personal information of third parties. For the purposes of the FOI Act, "personal information" is defined under section 2 as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. Section 2 details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including names and details regarding educational history and employment.
The information requested concerns the educational history and employment of the course participants. I note that, according to the IPS, the number of relevant participants is small and, furthermore, the applicant has submitted that he knows their identities. As such, I accept that granting the request would disclose personal information of third parties, and that section 37(1) applies.
There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that a record which is otherwise exempt under section 37(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the parties concerned. Therefore, I find that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the 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. The right to privacy has a constitutional dimension. 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.
Having considered the matter carefully, in my view, the public interest in release of the withheld information in this instance does not outweigh the public interest in protecting the privacy rights of the individual(s) to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the IPS was justified in refusing access on the basis of section 37(1). Given my finding, it is not necessary for me to consider the applicability of the other provisions relied upon by the IPS.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the IPS. I find that the IPS was justified in refusing access on the basis of section 37(1) of the FOI Act.
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.