Case number: 180490

Whether the Department was justified in refusing the applicant’s request for access to records relating to the former Minister for Justice and Equality and a company

15 May 2019

Background

On 21 August 2018, the applicant made a request for access to records of all communications between the former Minister for Justice and Equality and a private company between 1 May and 29 May 2015. A similar but not identical request and review application is being dealt with in my decision in case no. 180517. The Department identified ten records within the scope of the request. It released five records in full and refused access to the remaining records in full and in part on the basis of section 36(1)(b) (Commercially sensitive information) and section 37(1) (Personal information) of the FOI Act. The applicant applied for an internal review and stated that he believed further records may exist and queried whether "all relevant private email addresses and/or messaging services" had been considered by the Department. In its internal review decision the Department affirmed its decision on the basis of sections 36 and 37. The Department also referred to records which had been identified in searches but it said were not referenced in its original decision. It stated that it did not identify any of those records as coming within the scope of the applicant's request owing to the dates specified. On 21 November 2018, this Office received an application for review from the applicant.

In conducting this review I have had regard to the submissions of the Department and to correspondence between the applicant, the Department and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision. The applicant was invited to make submissions but none were received by this Office.


Scope of Review

In his application to this Office the applicant stated that "other communications ... [were] not supplied and refused". I take this to mean that the applicant also wishes me to review whether further records covered by his request are held, i.e. a refusal of access on the basis of section 15(1)(a) of the FOI Act.  

Consequently, this review is solely concerned with whether the decision of the Department to refuse the applicant's request under sections 15(1)(a), 36(1) and 37(1) of the FOI Act was justified.


Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of my Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.


Adequacy of search
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.  However, it is not normally the function of my Office to search for records that a requester believes are in existence.

As mentioned earlier, the applicant was invited to provide further details that might assist in determining whether further records might be held. However, no other communication was received by this Office from the applicant during this review. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. 

In its submission the Department said that a mailmeter electronic search was conducted for all electronic records between all departmental emails and the company. It said that the search included words associated with names and addresses, and it supplied this Office with the search parameters used. The Department also said that it conducted searches of mobile devices and messaging apps and Departmental phones. It said that the former Minister verified that no records within the scope of this request were held on her Departmental phone. It also said that a named special advisor's phone was reset, wiped of data and recirculated when the advisor left the Department in 2017. This apparently is standard practice when a staff member who has use of an "official" phone leaves the Department. The Department said that it had issued a revised notice to its staff on "FOI procedures reminding staff of all relevant records which should be considered and including a template for an updated electronic search facility to include email, databases, applications and files"

As regards the wiping of data from official phones once a staff member leaves a public body, this seems reasonable unless, of course, the business needs of the body were such that classes of records held on the phone were specified for retention. Clearly, where email accounts or messaging on mobile devices are used to transact official business, such records should be filed as part of the records management process. I note that, while the applicant is of the view that more records may be held by the Department, he has provided no supporting evidence to suggest that other relevant records are held. In light of the above, I do not consider that I would now be justified under section 15(1)(a) in requiring the Department to take further search steps on the basis of the applicant's belief that contacts on Departmental business additional to those already identified may have taken place and that records of these ought to be held.

Having considered the submissions of the Department and the measures it has described in its efforts to locate the records, I am satisfied that the Department has taken all reasonable steps to locate any further records and that section 15(1)(a) of the FOI Act applies. 

Section 37(1) (Personal information)

The Department refused access to one record on the basis of section 36(1)(b) (Commercially sensitive information). However, given that the redacted part of the records appears to be personal information, I consider that section 37(1) is the most appropriate exemption to examine in relation to that record and all the remaining records the subject of this review.
Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined 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 a public body on the understanding that it would be treated by it as confidential. 

While I cannot discuss the content in any detail, I can state that the information withheld contains relatively small pieces of information relating to identifiable individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the record.

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of these are relevant in this case. 

Section 37(5) of the FOI Act 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 be to the benefit of the person to whom the information relates.

It has not been argued that releasing the records would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to paragraph (a), the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The FOI Act itself recognises the public interest in ensuring the transparency and accountability of public bodies. On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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. 

In my view, the public interest in openness and transparency in how the Department dealt with the applicant has been served to some extent by the release of some of the information in records to the applicant. The question I must consider is whether the public interest in further enhancing that transparency and accountability is sufficiently strong to outweigh, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates. In my view, it is not. In holding that view, I have had regard to the fact that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records released may be put.

On balance, I do not see how in this case the public interest that access to the records should be granted outweighs the public interest that the right to privacy of the third parties should be upheld. Accordingly, I find that section 37(1) of the Act applies to the withheld information in the records.

Decision

Having carried out a review under section 34(2) of the Act, I hereby affirm the Department’s decision. I affirm its decision to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I affirm its decision to refuse access to the withheld information in the records under section 37(1) on the basis that they contain the personal information of individuals other than the applicant. I find that the public interest in granting the request in relation to those records does not outweigh the public interest in upholding the privacy rights of other individuals.


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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator