Case number: OIC-127677-T1F0X5
10 March 2023
On 13 January 2022, the Department commenced a review of, and adherence to, the public health advice, relevant workplace protocols, and arrangements in place in Iveagh House on 17 June 2020 for the vote on Ireland’s candidature for a non-permanent seat on the United Nations Security Council. The Department published its report on the matter on 31 January 2022. For the purposes of this decision, it is relevant to note that the review team comprised two senior officials from the Department’s Human Resources Division and that one of the conclusions of the Report was that a serious breach of social distancing guidance occurred in the period immediately following the outcome of the vote.
In a request dated 3 February 2022, the applicant sought access to “copies of all texts and emails received and sent by ambassadors Niall Burgess and Brendan Rogers in relation to public health breaches at Iveagh House on 17 June 2020; the gathering that occurred following Ireland's election to the UN Security Council on the same date; and an internal inquiry into related issues between December 20, 2021 and the present date”.
In a decision dated 15 July 2022, the Department identified 22 records as falling within the scope of the request. It granted access to six records in full, granted partial access to three, and refused access to the remaining 13, citing sections 29(1), 30(1)(a) & (b), 35(1)(a) and 37(1) of the FOI Act as grounds for refusing access in whole or in part. On 20 July 2022, the applicant sought an internal review of that decision, following which he Department affirmed its original decision.
On 29 August 2022, the applicant applied to this Office for a review of The Department’s decision. During the review, the Department identified and released a number of further records that it considered to fall within the scope of the request, including links to publicly available documents attached to one of the records. In referring to the records at issue, I have adopted the numbering system used by the Department when processing the request.t.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review and to the submissions made by the Department in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the Department was justified in refusing access, under sections 29(1), 30(1)(a) & (b), 35(1)(a) and 37(1) of the FOI Act, to records 2, 2a, 3, 4, 5, 6, 7, 12, 13, 16, 17, and 18 in full, and 1, 1a, 15, and 19 in part.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records at issue in this case is limited.
As the Department cited section 37 as a basis for refusing access to all of the records at issue, I will examine its applicability first.
Section 37(1) – Personal information
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 a third party. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
In its submissions to this Office, the Department said that information provided by the individuals interviewed was given on the understanding that the Department would treat the information in a confidential manner. It said details in the records relate to Human Resources matters about identifiable individuals and contain information of a personal nature including the personal arrangements made by officials so that they could execute their professional duties and the personal views of officials reflecting and advising upon their senior roles and the depth of responsibility invested therein.
Section 2 of the FOI 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 that body as confidential. Furthermore the act details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 of the FOI Act provides that where the individual holds a position as a member of the staff of an FOI body, the definition does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual occupies that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member in an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive staff members of FOI bodies of the right to privacy generally.
While section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record, I can say that the records in question comprise communications with certain Departmental staff members in connection with the review that was undertaken. As I have outlined above, the terms of reference of the review included a review of adherence to the public health advice, relevant workplace protocols, and arrangements in place on the date in question.
I am satisfied that the release of the records at issue would involve the disclosure of personal information relating to the individuals in question as it would involve the disclosure of information relating to their employment and information relating to their engagements with the review. I am also satisfied that the exclusion in paragraph I does not apply. The disclosure of the records would, in my view, disclose more than merely the names of the individuals or information relating to the positions held or their functions or the terms upon and subject to which the individuals occupy those positions. It would also disclose information relating to their engagements with a review of their adherence to public health advice, relevant workplace protocols etc.
I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arises in this case. Section 37(5) 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 benefit the person to whom the information relates. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.
In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. Nevertheless, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57 (“the eNet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, it is also important to have 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. It is noted that a public interest should be distinguished from a private interest.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). Furthermore, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 seems to me that by publishing the report of its review of the events of 17 June 2020 and by releasing a number of records coming within the scope of the request, the Department has endeavoured to strike a balance between making available as much information as possible with a view to enhancing transparency in what occurred and how the Department dealt with the matter, whilst seeking to protect the privacy rights of the individuals in question.
In considering where the balance of the public interest lies, I have also had regard to the fact that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. Having examined the records at issue, I cannot identify any sufficiently specific, cogent and fact-based reason for finding that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the Department justified in refusing access, under section 37(1) of the Act, to the records at issue. Having found section 37(1) to apply, I do not need to consider the other exemptions cited.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access, under section 37(1) of the Act, to certain records relating to the gathering that occurred at Iveagh House on 17 June 2020 following Ireland's election to the UN Security Council and relating to the subsequent review.
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.