Case number: OIC-113205-F0P2Y2
23 August 2022
In an undated request received by the NAS on 25 June 2021, the applicant sought access to the audio recording of a specified call that he had made to the emergency services on 24 September 2018. In a decision dated 16 August 2021, the NAS refused the application, citing section 37(1) of the Act as the basis for its decision. The NAS also stated that the applicant had not provided sufficient particulars to allow it to identify the record by the taking of reasonable steps, as required by section 12 of the Act. In particular, the NAS was dissatisfied with the proof of identity provided by the applicant.
On 19 August 2021, the applicant sought an internal review of that decision. On 14 September 2021, the NAS issued its internal review decision, wherein it affirmed its original decision to withhold the record sought by the applicant. On 20 September 2021, the applicant applied to this Office for a review of the decision of the NAS.
In the course of carrying out this review, the Investigator assigned to the case explored the possibility of settling the matter by arranging for the applicant to attend in person at the offices of the NAS to present an ID document, thus satisfying the NAS of his identity. The NAS indicated that, having been so satisfied, it would be prepared to release a typed transcript of the recording in question, with certain redactions made pursuant to section 37(1) of the Act. However, it stated that would not be in a position to release the actual audio recording, and that it considered that it would meet its obligations under the Act by releasing the transcript with redactions. It cited section 17 of the Act as a basis for its view in this regard. The applicant subsequently attended at the NAS’s offices as arranged, presented his ID document and was provided with a typed transcript of the call in question. However, he subsequently indicated that the transcript by itself was insufficient in his view to settle the matter, and that he still wished to obtain the actual audio recording of the call.
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 submissions made by the applicant and by the NAS. I have also had regard to the contents of the records at issue. In circumstances where it has not been possible to reach a settlement in the matter, I have decided to conclude this review by way of a formal, binding decision.
This review is concerned with whether the NAS was justified in refusing access to the record in the format sought by the applicant, and whether the decision to withhold certain sections of the record under section 37(1) of the Act was justified.
The NAS argued that it had provided a redacted transcript of the call in question, as opposed to the audio recording, in order to protect information relating to third parties other than the applicant, pursuant to section 37(1) of the Act. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. 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.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
In addition, Paragraph (I) of section 2 of the Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied 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 ...".
In its submissions to this Office, the NAS noted that the applicant had referred to a third party by name and that the audio recording contains voices of third parties that would be known to the applicant. It is this information that the NAS sought to withhold under section 37(1). Having listened to the audio recording at issue, I note that the voice of a third party can be heard for the first seven seconds of the recording and again from seconds 34 to 38 and that the applicant refers to a third party by name in those parts.
Given the particular contents of the record at issue, I am satisfied that the release of the record in its entirety would involve the disclosure of personal information relating to an identifiable individual other than the applicant. I find, therefore, that section 37(1) applies to that information. However, and for the avoidance of doubt, the disclosure of information in the record concerning the NAS staff member concerned is not, in my view, personal information relating to that staff member having regard to the exclusion to the definition of personal information in paragraph (I) as described above. I find that such calls are taken and recorded in the course of the performance by NAS staff members of their functions.
The fact that I have found section 37(1) to apply to certain third party information is not the end of the matter as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.
In relation to the applicability of section 37(5)(a), 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 or individuals to whom the information relates. 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, which 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57, 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 ("the Rotunda case"). It is noted that a true 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). 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.
The NAS argued that it was not clear that a public interest (in accordance with section 37(5)(a) of the Act), as opposed to a private interest, was being pursued in the case at hand, and that the public interest had been substantially served by the partial release of the record in transcript format.
It seems to me that having regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act, the NAS has attempted to strike a balance in this case by releasing a redacted version of the record whilst seeking to protect third party privacy rights. It is important to note that the release of a record under FOI is regarded, in essence, 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. I am aware of no compelling public interest in favour of the release of the relevant third party personal information that would, on balance, outweigh the privacy rights of the individuals concerned. I find, therefore, that section 37(5) (a) does not apply
Accordingly, I find that NAS was justified in redacting, under section 37(1) of the Act, certain third party personal information from the transcript of the record released.
It remains for me to consider whether the NAS was justified in refusing to provide a copy of the audio recording and instead providing a transcript of the redacted record.
Section 17(1) of the Act provides that an FOI body may grant access to a record by providing the requester with access in any one of a number of formats, including (b) a transcript of the record sought. The NAS argued that the Act does not require a public body to provide a requester with the original format of the record requested and it argued that it was in full compliance of its obligations pursuant to the Act in respect of the format of the record released and that there is no requirement for the actual recording of the call to be released.
Section 17(1) simply describes the various formats available when providing a record under the Act. It does not, of itself, entitle an FOI body to decide on the particular format for release. Subsection (1) must be read in conjunction with the remainder of the section. Subsection 2 provides that where an FOI body decides to grant a request and the request is for access in a particular form or manner to a record, such access shall be given in that form or manner unless the body is satisfied (a) that such access in another form or manner specified in or determined under subsection (1) would be significantly more efficient, or (b) that the giving of access in the form or manner requested would give rise to any one of a number of specified harms.
In its submissions to this Office, the NAS argued that subsection (2)(b)(iii) applies. In order for that section to apply, the FOI body must be able to satisfy this Office that the giving of access in the manner requested would conflict with a legal duty or obligation of an FOI body. While the NAS did not explicitly state the specific legal obligation(s) in place to apply section 17(2)(b)(iii), it is clear that it was concerned about the release of third party personal information. However, given my findings re the applicability of section 37(1) to some of the information in the record, the possible release of that information is no longer at issue. What I must consider is whether the NAS was justified in refusing to provide a copy of a redacted version of the audio recording.
Section 17(2)(a) entitles an FOI body to grant access in an alternative format to that requested where access in the alternative format is significantly more efficient. However, the NAS has not argued that section 17(2)(a) applies in this case. I am also aware that under section 18 of the Act, where a request would fall to be granted but for the fact that it relates to a record that is an exempt record, by reason of the inclusion in it, with other matter, of particular matter, the FOI body shall, if it is practicable to do so, prepare a copy, in such form as it considers appropriate, of so much of the record as does not consist of the particular matter aforesaid and the request shall be granted by offering the requester access to the copy. This raises the question as to whether or not it is practicable to release of a redacted version of the audio recording. Again, the NAS has not argued that it is not.
Section 22(12)(b) of the Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the FOI body satisfies the Information Commissioner that the decision was justified. Having regard to the provisions of section 22(12)(b), I find that the NAS has not justified its refusal of a redacted version of the audio recording in this case.
In conclusion, therefore, I find that while the NAS was justified in withholding certain third party personal information from the record, it was not justified in refusing access to a redacted version of the record in the format sought, namely a copy of the audio recording. I direct the NAS to provide the applicant with a redacted version of the audio recording.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the NAS. I find that the NAS was justified in withholding, under section 37(1) of the Act, certain third party personal information from the record, but that it was not justified in refusing access to a redacted version of the record in the format sought, namely a copy of the audio recording. I direct the NAS to provide the applicant with a redacted version of the audio recording.
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.