Whether GSOC was justified in refusing to release records relating to complaints made by the applicant on the ground that the records sought are exempt under sections 30 and 37 of the FOI Act or excluded from the scope of the Act, pursuant to Schedule 1, Part 1(y)
21 May 2019
On 14 January 2019 the applicant submitted a request to GSOC for records relating to two GSOC investigations of complaints he made against members of An Garda Síochána and for records relating to internal investigations of a number of complaints he made against several staff members of GSOC concerning the alleged use of abusive language towards him.
On 11 February 2019 GSOC issued its decision on the request. It refused access to all records relating to the GSOC investigations on the ground that GSOC is not a public body in so far as such records are concerned. It refused access to records relating to internal investigations under sections 30 and 37 of the FOI Act.
On 12 February 2019 the applicant sought an internal review of that decision, following which GSOC issued its internal review decision wherein it affirmed its original decision. On 5 March 2019 the applicant sought a review by this Office of that decision.
I have decided to conclude this review by way of a formal, binding decision. In conducting my review I have had regard to GSOC's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and GSOC. I have also had regard to the contents of the records at issue.
Scope of Review
This review is concerned with whether GSOC was justified in refusing to grant access to records relating to investigations of complaints made by the applicant in accordance with Schedule 1, Part 1(y) of the Act, and pursuant to sections 30 and 37.
Analysis and Findings
GSOC has identified 79 records as falling within the scope of the applicant's request, spread across four schedules. Schedules 1, 2 and 3 together comprise 40 records and relate to the internal investigation of complaints made against GSOC staff members. Schedule 4 comprises 39 records which relate to GSOC investigations of complaints made against members of An Garda Síochána.
GSOC as a partially included agency
GSOC refused access to the 39 schedule 4 records in accordance with Part 1(y) of Schedule 1 to the Act. In its submission to this Office it indicated that it had also refused access to three further records (records 3, 4 and 22 of schedule 2) on the same ground.
Section 6(2)(a) provides that an entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the descriptions of the exclusions in Part 1, then the Act does not apply and no right of access exists.
Part 1(y) provides that GSOC is not a public body for the purposes of the Act in relation to records concerning an examination or investigation carried out by it under Part 4 of the Garda Síochána Act 2005 (the 2005 Act).
Having regard to the nature and description of the records in schedule 1 and to the contents of records 3, 4 and 22 of schedule 2, I am satisfied that they are all captured by the exclusion in Part 1(y) of Schedule 1. Accordingly, I find that GSOC was justified in its decision to refuse access to those records on the ground that they are excluded from the scope of the FOI Act.
Internal Investigation Records
GSOC has refused access to the remaining 37 records contained in schedules 1 to 3 under sections 30(1)(b) and section 37(1). As I consider section 37(1) to be the most relevant I propose to deal with that exemption first.
Section 37(1) 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).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual, (v) information relating to the individual falling within section 11(6)(a) (i.e. personnel records) and (xiv) the views or opinions of others about the individual.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers). In addition, 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).
The exclusions at Paragraph I and II do not exclude all information relating to staff members or service providers. The exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally.
In its submission to this Office GSOC has argued that the withheld records contain information which is the personal information of both GSOC staff or contractors which it has engaged to provide security services. In particular GSOC has argued that the records contain allegations of misconduct or investigations into these allegations and such information does not fall within the exclusion to the definition of personal information set out in Paragraphs I and II. GSOC have further argued that in cases where the personal information of the applicant is contained in the records it cannot be separated from the personal information of other individuals and that the provisions of section 37(7) apply.
Having examined the records at issue, I am satisfied that, with the exception of record 1 of schedule 3 which I will deal with separately below, the release of the relevant records would involve the disclosure of personal information relating to named individuals and that sections 37(1) and 37(7) apply to the relevant records. I am satisfied that the qualifications on the definition of personal information contained in Paragraphs I and II of section 2 do not apply to the relevant records, which are concerned with alleged misconduct by named staff members and the investigation of those allegations.
I find therefore that section 37(1) applies to those records contained in schedules 1, 2 and 3, with the exception of records 3, 4 and 22 of schedule 2 which have been dealt with above, and record 1 of schedule 3, which I will deal with below.
Section 37(2) of the FOI Act 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 third parties 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.
In considering the public interest test at section 37(5)(a), it is 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 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.
Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act. In the context of determining whether to grant a request in the public interest under section 37(5)(a) of the FOI Act, this means that the reasons given for the request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Indeed, an FOI body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies (section 11(3) refers).
On the other hand, the Act also recognises the public interest in the protection of the right to privacy. This is evident both in the language of section 37 and in 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 question I must consider, therefore, is whether the public interest in enhancing the transparency and accountability of GSOC outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties concerned.
This Office has acknowledged in previous decisions that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. In this case, there is a public interest in revealing information that would shed light on how GSOC carried out investigations into complaints from members of the public.
On the other hand, it is important to note that the release of records under FOI is, in effect, regarded as release to the world at large as the Act places no restriction on the uses to which records released under FOI may be put. Given also the significant public interest in the protection of privacy rights, I find that the public interest in granting access to the personal information contained in the records at issue does not, on balance, outweigh the privacy rights of the third parties concerned.
I find, therefore, that section 37(5)(a) does not apply and that GSOC was justified in refusing access to the records contained in schedules 1, 2 and 3 under section 37(1), with the exception of records 3, 4 and 22 of schedule 2 to which the Act does not apply, and record 1 of schedule 3 which I will now deal with.
CCTV footage (record 1 of schedule 3)
Record 1 of schedule 3 is CCTV footage of the applicant's attendance at the GSOC offices during which time he alleges that certain inappropriate behaviour took place.
In its submission to this Office, GSOC stated that the CCTV footage in which the applicant appears runs to approximately 75 minutes and contains the images of other identifiable individuals, including members of GSOC staff, members of the security staff employed by GSOC, GSOC complainants and members of the public. It has argued that the images of these individuals is their personal information within the meaning of section 37. It has informed this Office that it does not have the ability in-house to undertake the pixilation of the footage to redact the identity of such individuals. GSOC further stated that it has sought quotations from external companies on the estimated cost of redacting the identities of third parties from this footage. Based on quotations received it estimates that redaction of the footage would cost at a minimum €750, excluding VAT.
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 to this record. I am also satisfied that none of the other provisions of section 37 serve to disapply section 37(1).
Finally, while the applicant has not made specific arguments on the matter, for the sake of completeness, I will also address whether GSOC should have considered the possibility of providing with applicant with 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, GSOC 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 GSOC to provide a redacted version of record 1 of schedule 3.
In conclusion, I find that GSOC was justified in refusing access to all schedule 4 records and to records 3, 4 and 22 of schedule 2 on the ground that they are excluded from the scope of the FOI Act, and that it was justified in refusing access to all remaining records under section 37(1). Having found section 37(1) to apply, I do not consider it necessary to consider the applicability of section 30 to those records.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of GSOC to refuse the applicant's request in accordance with Schedule 1, Part 1(y) of the Act, and pursuant to section 37(1).
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.