Case number: OIC-99827-Y3Z2K1
30 April 2021
In a request dated 10 August 2020, the applicant sought access to records relating to him. On 9 September 2020, the Department issued a decision. It granted access to certain information and refused access to the remaining records under section 35(1)(a) of the FOI Act. On 14 September 2020, the applicant applied for an internal review. On 15 October 2020, the Department issued a decision in two parts. It affirmed its original decision under section 35(1)(a) of the FOI Act. It granted access to certain information and refused access to the remaining information under section 15(1)(i) of the FOI Act. On 17 November 2020, the applicant applied to this Office for a review of the Department's decision.
In conducting my 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 parties, as well as the content of the records that were provided to this Office by the Department for the purposes of this review.
I note that the applicant provided this Office with much detail about his residence status and the Department’s decision-making in this regard. I must emphasise that the Information Commissioner has no role in relation to the Department's functions as regards residence and citizenship etc. The scope of this review is confined to whether the Department was justified in refusing access to the records under section 15(1)(i) and section 35(1)(a) of the FOI Act.
Section 15(1)(i) – Refusal on administrative grounds
Section 15(1)(i)(i) of the FOI Act allows an FOI body to refuse to grant a request where the request relates to records already released to the same or a previous requester, where the records are available to the requester concerned. The Department refused access to Records 1-23 and 26-27 under section 15(1)(i). It says that these records are already available to the applicant, as they are in his possession or in the possession of his legal representative.
During this review, the Investigator contacted the applicant and outlined the Department’s position on those records. The Investigator asked the applicant to confirm whether he said that the information concerned was not available to him. In reply, the applicant said that while he acknowledged the constraints of section 15(1)(i), he insisted on gaining access to particular letters, the nature of which he described. The letters which the applicant described are contained in Record 16 (Pages 122-138), which I consider below. They are not the records over which the Department claims section 15(1)(i). Moreover, on examining the contents of Records 1-23 and 26-27, I see that they primarily comprise correspondence between the applicant (or his solicitor) and the Department. In the circumstances, I find that the Department was justified in refusing access to Records 1-23 and 26-27 under section 15(1)(i).
Section 37(1) – Personal Information
The Department refused access to Record 16 (Pages 122-138) under section 35(1)(a). Having examined the content of these records, I consider it appropriate to address section 37 first.
Sections 37(1) and (7)
Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. Those categories include: “(i) information relating to the educational, medical, psychiatric or psychological history of the individual” and “(viii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2 (1) of the Civil Registration Act 2004) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual”.
Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester.
As well as containing information relating to the applicant, the records contain information relating to an individual other than the applicant, including information relating to that individual’s medical history and marital status. I am satisfied that the release of the records would involve the disclosure of personal information relating to identifiable individuals other than the applicant. I find that section 37(1) of the FOI Act applies to the records.
However, section 37(8) of the FOI Act provides that notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) (“2016 Regulations”). The 2016 Regulations provide for the grant of access to the records of a deceased individual if the requester is the spouse or the next of kin of the individual and having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing the request. The Minister for Public Expenditure and Reform has published guidance on the application of the 2016 Regulations (“Minister’s Guidance”), in accordance with section 48(1) of the FOI Act. Section 48(3) of the FOI Act requires FOI bodies to have regard to guidelines published by the Minister in the performance of their functions.
It appears that the applicant is the spouse of the individual concerned in the records, who is deceased. Accordingly, during the review, the Investigator asked the Department whether it had considered section 37(8). The Department replied that it had. It said it applied a public interest test and on balance it was decided that the factors against releasing the record outweighed the factors in favour of release. It referred to its submission under section 35.
Neither the Department’s original or internal review decision refers to section 37(8), nor does its original submission to this Office. The Department’s reply to the Investigator’s query about section 37(8) does not refer to the Minister’s Guidance. I therefore have no evidence before me that the Department applied the factors set out in the Minister’s Guidance. In summary, I am not satisfied that the Department properly considered the applicability of section 37(8) in this case. I consider that the appropriate course of action is to annul the Department's decision and direct it to undertake a fresh decision-making process, having due regard to section 37(8), the 2016 Regulations and the Minister’s Guidance.
I must emphasise that the fact that the applicant is the spouse of the deceased individual concerned does not mean that he is automatically entitled to access any of the records. I make no finding on this. It is for the Department to apply the 2016 Regulations and the Minister’s Guidance, including consideration of the public interest in the confidentiality of personal information.
I will direct the Department to make a fresh decision no later than four weeks after the appeal period has expired. If it is necessary for the applicant to return to this Office on an application for review, I undertake to expedite any such review.
Having carried out a review under section 22(2) of the FOI Act, I vary the Department’s decision as follows. I affirm its decision to refuse access to Records 1-23 and 26-27 under section 15(1)(i). I annul its decision on Record 16 (Pages 122-138) and direct it to undertake a fresh decision-making process in respect of those records, having due regard to the 2016 Regulations and the Minister’s Guidance. I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Department to my decision within 20 working days of the expiration of the time for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) 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.