Case number: OIC-106097-S2V5V8

Whether the Department was justified, under section 37(1) of the FOI Act, in refusing access to certain information contained in carer’s allowance documents relating to the applicant

4 August 2021

Background

On 12 October 2020, the Department received a request from the applicant for access to all of his files held by the Department. On 9 November 2020, the Department decided to part-grant the request. It granted access to 42 documents held on a Carer’s Allowance file either in full or in part, redacting certain information under section 37(1) on the ground that release of the redacted information would involve the disclosure of personal information relating to third parties. It also refused access to two documents in full under section 37(1). On 23 December 2020, the applicant sought an internal review of that decision. On 19 January 2021, the Department issued its internal review decision, wherein it affirmed its original decision. On 9 April 2021, the applicant sought a review by this Office of the Department’s decision. 

During the course of the review, the Department notified this Office that following its consideration of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 as amended (the 2016 Regulations), it administratively released some of the previously redacted information to the applicant on ground that it concerned his late mother and he was her next of kin.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting the review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the documents at issue. In referring to the documents at issue, I have adopted the numbering system used by the Department when processing the applicant’s request.

Scope of Review

The scope of this review is concerned solely with whether the Department was justified, under section 37(1) of the Act, in redacting information from documents 12, 19, 26, 29, 37, and 42 and in refusing access to documents 16A and 32. 

Preliminary Matters

Before I consider the substantive issue arising in this case, I wish to make a number of preliminary comments.

In his submissions to this Office, the applicant explained that his carer’s allowance payment had been suspended for a period and that he wants his case to be re-examined. He also expressed concerns about the actions of a social welfare inspector. It is important to note that this Office has no role in examining the appropriateness, or otherwise, of the administrative actions of public bodies, nor is it the role of this Office to comment on how an FOI body performs its functions generally.

Furthermore, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the records and information at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest (see below).

Analysis and Findings

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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 of the FOI Act defines the term “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. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (xiv) the views or opinions of another person about the individual.

Certain information is excluded from the definition of personal information. Where the individual is or was a service provider, the definition does not include his or her name or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service (Paragraph II refers). This Office takes the view that while the exclusion applies to the names of the service providers themselves, it does not, however, apply to the names of employees of those service providers.

Having examined the documents at issue, I find that the name, address, and contact details of the medical centre on pages 5 and 7 of document 16A and page 2 of document 32 is not personal information for the purposes of the Act and that section 37 does not apply to that information.

I am, however, satisfied that all of the remaining withheld information is either personal information relating to identifiable individuals other than the applicant (including personal information relating to the applicant’s late mother, or joint personal information relating to the applicant and other identifiable individuals (including joint personal information relating solely to the applicant and his late mother, and joint personal information relating to the applicant, his late mother, and other parties). Accordingly, I find that section 37(1) applies to such information.  However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section.

Section 37(2)

Section 37(2) sets out certain circumstances in which section 37(1) does not apply, including where the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester (section 37(2)(b) refers).  In such cases, the FOI body must ensure, before granting the request, that the consent of the individual is established to its satisfaction.  No such consent was given to the Department in this case and I am satisfied that section 37(2)(b) does not apply. 

I would, however, note that the majority of the information at issue in documents 16A and 32 comprises letters prepared by individuals known to the applicant and that the applicant presumably sent to the Department in support of his carer’s allowance application. While those letters contain personal information relating to the applicant and his mother, I find that they also contain personal information relating to the individuals who prepared the letters (i.e. they contain joint personal information relating to the applicant, his late mother, and other parties). In light of the applicant’s submissions to this Office, it appears to me that the information contained in the letters is most likely already known to him.

I also note that it should be apparent to the applicant that the information at issue in documents 29, 37, and 42 comprises personal information relating a third party that he provided to the Department as part of three Carer’s Allowance application forms. It appears to me that such information is also most likely already known to the applicant. However, if he still wishes to obtain access to the relevant letters in records 16A and 32 and the relevant information in records 29, 37, and 42, it remains open to him to provide the Department with the relevant consents of the third parties to the release of the information at issue.

Section 37(2) also outlines a number of other circumstances where section 37(1) does not apply. I am satisfied that no such circumstances arise in this case.

Section 37(5)

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. As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the individual(s) concerned, I find that section 37(5)(b) does not apply.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, 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 [2011] 1 I.R. 729, [2011] 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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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 is also important to note at this stage that the release of information under the FOI Act is, in effect, regarded as release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put. Therefore, while I can take account of the applicant’s status as the next of kin of the deceased when considering the applicability of the regulations made under section 37(8) of the FOI Act (examined below), I cannot do so when considering the applicability of section 37(5)(a).

Having regard to the nature of the information at issue, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply. 

Section 37(8) and the 2016 Regulations

As outlined above, some of the withheld information comprises personal information relating solely to the applicant’s late mother and joint personal information relating solely to the applicant and his late mother. 

Section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform ("the Minister") may make regulations to provide for the grant of a request where the individual to whom the information relates is dead and the requester concerned is a member of a class specified in the regulations. The relevant regulations are the 2016 Regulations.

Among other things, the 2016 Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the Act, be granted, where the requester is the spouse or the next of kin of the individual and, having regard to all the circumstances, the public interest would, on balance, be better served by granting than by refusing to grant the request.

It is not disputed that the applicant is the son of the deceased, and is considered to be the next of kin for the purposes of the Regulations. The issue to be considered, therefore, is whether, 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 to grant the request.

In May 2017, pursuant to section 48(1) of the FOI Act, the Minister for Public Expenditure and Reform published revised guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased, including:

  • the confidentiality of personal information as set out in section 37(1),
  • whether the deceased would have consented to the release of the records to the requester when living,
  • whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records,
  • whether release would damage the good name and character of the deceased,
  • the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death,
  • the nature of the records to be released,
  • whether the requester can obtain the information they seek without accessing the records of the deceased, and
  • any other relevant circumstances that the requester may set out.

Furthermore, in considering the nature and confidentiality of records to be released, the Guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. In relation to medical records in particular, it states that due regard should be had to the confidentiality of medical records in accordance with the relevant Irish Medical Council guidance (currently the Guide to Professional Conduct and Ethics for Registered Medical Practitioners - 8th edition published May 2016 (the Medical Council Guide)) and that records containing joint personal information of both the requester and the deceased might, subject to other considerations, fall to be released.  The Medical Council Guide states that patient information remains confidential even after death and suggests that, if unclear whether the patient consented to disclosure of information after their death, it should be considered how disclosure of the information might benefit or cause distress to the deceased family or carers, along with the effect of disclosure on the reputation of the deceased and the purpose of the disclosure. 

It is plain from the Regulations, which refer to “all the circumstances” and from the factors specified in the Guidance published by the Minister, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors.  

As outlined above, during the course of the review the Department released some of the previously redacted information. In its submissions to this Office, it said it accepts that the applicant is the next of kin and that there is no dispute about whether he cared for his mother. It said most of the records which relate to the applicant’s late mother were part of information which the applicant himself provided to the Department as part of his application for carer’s allowance. It said that as the applicant was the primary carer for his mother, it is reasonable to expect that she would have consented to the release of the records in question. It said that having taken account of all of these factors, it decided to release all records which relate to the applicant’s late mother.  

However, the Department also argued that the remaining information at issue falls to be refused under section 37(1). Having examined the documents in question, it appears to me that, given its statement that it decided to release all records which relate to the applicant’s late mother, the Department simply failed to consider a small amount of joint personal information relating solely to the applicant and his late mother in document 26, as well as personal information relating only to the applicant’s late mother and/or joint personal information relating solely to the applicant and his late mother on pages 3, 5, and 7 of document 16A and page 2 of document 32.

Having regard to the Department’s intention to release all records which relate to the applicant’s late mother, the nature of the relevant information referred to above, and the nature of the relationship between the applicant and his mother, I am satisfied that, in all the circumstances of this particular case, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to access to the information at issue that comprises personal information relating only to the applicant’s late mother and/or joint personal information relating solely to the applicant and his late mother. 

Conclusion

Consequently, I find that the Department was justified in its decision to refuse access to all of the withheld information at issue under section 37(1) of the FOI Act, apart from the following information contained in documents 16A, 26, and 32:

Document 16A:

  • Page 3 – all information excluding the stamp and the sentence above the stamp,
  • Page 5 – the medical centre’s name, address, and contact details,
  • Page 5 – all text between “1st February 2016” and “future”,
  • Page 7 – the medical centre’s name, address, and contact details, and
  • Page 7 – all information from “Medical Information” to the end of the page, apart from the signature block.

Document 26:

  • Record A – the first two words of the deleted text.

Document 32:

  • Page 2 – the medical centre’s name, address, and contact details, and
  • Page 2 – all text between “16th September 2014” and “future”.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department in this case.  I find that the Department was justified in refusing access to the information at issue under section 37(1) of the FOI Act, apart from the information identified above.  I direct release of that information.

Right of Appeal

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty

Senior Investigator