Case number: 170497
On 5 September 2017, the applicant sought access to a copy of CCTV footage of himself in a particular office of the Department on a specified time and date. In its decision of 28 September 2017, the Department refused the request under section 37 on the ground that granting the request would involve the disclosure of personal information relating to individuals other than the applicant.
It appears the applicant did not receive the Department's original decision and on 5 October 2017 he sought an internal review of what he considered to be a deemed refusal of his request. On 20 October 2017, the Department affirmed its original decision to refuse the request under section 37, following which the applicant sought a review by this Office of that decision.
I have decided to bring this review to a close by way of a formal binding decision. In conducting the review, I have had regard to the correspondence between the Department and the applicant as outlined above and to the correspondence between this Office and both the Department and the applicant on the matter.
This review is concerned solely with whether the Department was justified in refusing to grant access to the CCTV footage sought under section 37 of the FOI Act.
Section 37 - 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. 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).
In a submission to this Office, the Department stated that the CCTV footage in which the applicant appears is almost one hour long, and that 60 to 70 members of the public appear in it. It stated that the applicant appears in all of the footage. Having regard to the nature of the request and the description of the footage sought, I am satisfied that the release of the footage would involve the disclosure of personal information relating to individuals other than the requester and that section 37(1) applies.
The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.
Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise 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.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider 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.
The question I must consider is whether the public interest in further enhancing the transparency and accountability of the Department is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view it is not, given the inherently private nature of the information that would be disclosed relating to individuals other than the applicant. It is also noteworthy 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. I therefore find that section 37(5)(a) does not apply in the circumstances and that the CCTV footage is exempt under section 37(1) of the FOI Act.
For the sake of completeness, I should address the applicant's argument, as set out in his application for review, that he sought only his personal information and that he was not offered the option of redacted CCTV footage.
Section 2 of the Act defines “record” as including “a copy or part” of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. However, this Office has previously taken the view that being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
I do not accept that the fact that it might be possible to redact a record means that the public body must always do so. The FOI Act recognises that there are limitations on the resources, both financial and non-financial, a public body must expend in processing requests. In this case, the Department simply does not have the necessary facilities required to allow it to prepare a copy of the record with the exempt information removed in order to grant the request.
It is noteworthy that section 17(4) of the Act, which is concerned with the release of electronically held information contained in a number of records, requires a body to take reasonable steps to extract that information, but only in so far as those steps involve the use of any facility for search or extraction that existed on the date of the request and was ordinarily used by the body. In other words, the body is not required to extract the data if a facility that it does not ordinarily use is needed in order to do so.
In all of the circumstances, I am satisfied that section 18(1) does not require the Department to provide a redacted version of the record sought in this case.
I note, nevertheless, that the Department has since received an estimate of the cost involved in pixelating the CCTV footage required and that it has informed the applicant that it is willing to release it if he is prepared to pay the cost of preparing the footage for release. While I am satisfied that the Department was justified in refusing the applicant's FOI request, it remains open to him to accept the Department's offer, albeit within the limited time frame specified by the Department.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Department's decision to refuse access to the CCTV footage sought under section 37(1) 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.