Case number: 170465
26 March 2018
On 24 June 2017, the applicant made an FOI request to the Department for copies of any correspondence that it or the Minister had received from former Gardaí in relation to a named party and any responses sent by the Department. He asked for records from 2016 onwards.
The Department's decision of 24 July 2017 refused to grant the request, citing various provisions of the FOI Act, including section 37 (personal information). The applicant sought an internal review on 9 August 2017. The Department's internal review decision of 14 September 2017 granted partial access to one record and affirmed its refusal to grant access to the rest, again relying on various provisions in the Act including section 37. The applicant applied for a review by this Office of the Department's decision on 26 September 2017.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Department, and the applicant. I have had regard also to the provisions of the FOI Act and to copies of the records, which were provided to this Office for the purposes of this review.
This review is confined to whether or not the Department has justified its refusal to grant access to the withheld records.
In making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I am constrained in the description I can give of the information to which the Department has refused access and in the detail that I can give in my analysis.
I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large.
While the Department has relied on a number of exemptions, I will consider section 37 first.
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information.
"Personal information" is defined at section 2 of the FOI Act as
"information about an identifiable individual that -
(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 a public body on the understanding that it would be treated by it as confidential" ...
Section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information. It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met.
The Department has relied on section 37 in relation to all of the records, except for records 1(ii) and 1(v), which it withheld at internal review stage under section 15(1)(d) (information in the public domain). Record 1(i) is described on the Department's internal review schedule as correspondence from a member of the public. It included various attachments (records 1(ii) to 1(vii)), while record 1(viii) is the acknowledgment of record 1(i).
I accept that the Department's consideration of records 1(ii) to 1(vii) individually was done in the spirit of the FOI Act. While records 1(ii) to (vii) may well be subject to the provisions of the FOI Act in their own right, in the particular circumstances of this case I consider it more appropriate to treat them and record 1(i) as a composite record.
I am satisfied that this composite record, and all of the other records under review, are about an identifiable individual or individuals and meet one or both of the definitions of personal information. Although not necessary to go further, I am also satisfied that they fall into a number of examples of what section 2 requires to be considered as personal information.
The applicant says that he understands that former Gardaí have complained to the Department about certain matters relating to the named party, and that "these records relate to issues about the performance of public servants in their professional duties and have nothing to do with their private lives." I take this to be an argument that the records contain the sort of information about FOI body employees that, further to section 2, cannot be considered to be their personal information.
It is not appropriate for me to describe the content of the records. However, even if they contain complaints about, or views on, the performance of public servants in their professional duties, I would not consider such information to be covered by the exclusions in section 2. The information excluded is:
- the name of the individual,
- information relating to the office or position or its functions,
- the terms upon and subject to which the individual holds/held that office or occupies/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.
The exclusion does not provide for the exclusion of all information relating to staff, directors or office holders of FOI bodies. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out his or her official functions. The exclusion to the definition of personal information does not deprive staff members or directors of, or office/position holders in, FOI bodies of the right to privacy generally.
I find the records to be exempt under section 37(1) of the FOI Act.
Section 37(5) - The Public Interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of where the public interest lies, 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 IESC 26 ("the Rotunda judgment"). 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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The applicant's argument as referred to earlier can be taken as reflecting the public interest, recognised by the FOI Act, in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. He also says that there is a "public interest in the concerns outlined in the withheld correspondence being released to further public debate on this matter." Again, I cannot comment on the content of the records. However, I am prepared to accept that the public interest would be served, even if only to a limited extent, by granting access to the records.
On the other hand, 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). 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. I accept that the grant of access to the records would result in a significant invasion of the privacy of the third party or parties to whom the records relate. I find that the weight of the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the rights to privacy of the third party or parties should be upheld.
There is no need for me to consider the other exemptions relied on by the Department in light of my finding.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal, under section 37(1) of the FOI Act, to fully grant the applicant's request.
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.