Whether the NMI was justified under sections 30 and 37 of the FOI Act in refusing access to records relating to a review carried out in connection with the NMI’s programme on the Spanish Flu
23 December 2019
On 13 March 2019 the applicant made an FOI request to the NMI for records relating to a review carried out in connection with the NMI’s programme on “The Spanish Flu, the Enemy Within” and specified additional correspondence which he sought. On 28 April 2019, the NMI granted access to certain information and refused access to the remaining records on the ground that they were exempt under sections 30(1)(a) and (b) and section 37 of the FOI Act. On 3 May 2019, the applicant applied for an internal review in respect of the information withheld under section 30 of the FOI Act. On 13 June 2019, the NMI issued its internal review decision, in which it affirmed its original decision under section 30. On 11 July 2019, the applicant applied to this Office for a review of the NMI’s decision.
In conducting my review, I have had regard to the correspondence between the applicant and the NMI as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the NMI for the purposes of this review.
Scope of the Review
The applicant’s internal review concerned the records which the NMI withheld under section 30. Accordingly, this review is solely concerned with whether the NMI was justified in refusing access to the records withheld in whole or part under sections 30(1)(a) and (b) of the FOI Act: Records 3, 7, 13, 17, 20, 23, 25, 28, 30, 31, 32, 34, 37, 38, 40, 41, 42, 43, 44, 45, 46, 49 and 53.
Before considering the exemptions claimed, I would like to note the following: First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Thirdly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner  IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Finally, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
Analysis and Findings
Section 37 – Personal Information
As I have noted, the records which the NMI withheld under section 37 fall outside the scope of this review on the basis that the applicant confined his internal review request to the records withheld under section 30. However, on examining the records which the NMI withheld under section 30, I believe that it is appropriate for me to consider in the first place whether some of them are exempt under section 37, which is a mandatory exemption.
Section 37(1) provides that access to a record shall be refused if it would involve disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: “(xiv) the views or opinions of another person about the individual,”.
Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, as this Office observed in Case 090045 (Mr X and University College Cork)
, this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally".
During the review process, the Investigator notified the applicant that she was considering whether certain information comprised the personal information of NMI staff. She invited his submissions on the point. The applicant submits that if the records relate to the normal functioning of their jobs, then the identities of the individuals concerned should not be kept private unless a reasonable justification is provided. I must first consider whether these records contain personal information within the meaning of the FOI Act. If they do, I must then consider whether sections 37(2) or (5) apply. As noted above, I accept that section 37 does not exempt the identity of a public servant while carrying out their official functions.
Records 13, 30, 31, 32, 34, 37, 38, 40, 41, 42, 43, 49 and 53 comprise correspondence to and from NMI staff. This contains the opinions and concerns of and about staff of FOI bodies and the review process as it relates to and concerns staff. I believe that I can take it from the candid tone and content of these records that their authors expressed such opinions and concerns about themselves and other staff of FOI bodies on the understanding that they would remain confidential. Having regard to the particular nature of this information, I do not believe that it falls within the exclusion to personal information outlined in paragraph I of section 2 of the FOI Act. I consider that section 37(1) of the FOI Act applies to it. In theory, one could extract certain parts from the records which do not relate to the members of staff concerned. I have considered whether this would be practicable in the circumstances. However, those parts appear in the context of information relating to the staff. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of the records would be to provide misleading records. My finding under section 37(1) is subject to other provisions of section 37, which I examine below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies to the records. That is to say: (a) they do not relate to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.
In relation to the issue of the public interest, 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.
The FOI Act itself recognises the public interest in ensuring the openness 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. I must also bear in mind that release under FOI is effectively release to the world at large. I am not certain that disclosing the information concerned would serve the public interest in transparency around the NMI to any real extent. Insofar as any of it might, I do not consider that the public interest in transparency outweighs the public interest in protecting the privacy of the staff concerned. I find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.
I find that the NMI was justified in refusing access to the following records under section 37 of the FOI Act: Records 13, 30, 31, 32, 34, 37, 38, 40, 41, 42, 43, 49 and 53. I will now turn to consider the exemptions claimed under section 30 in relation to the remaining records.
Section 30 – Functions and Negotiations of FOI Bodies
The NMI claims section 30(1)(a) in whole or part over Records 3, 17, 20, 23, 28, 44, 45 and 46. Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations etc. conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1) is subject to a public interest test under section 30(2).
I should take this opportunity to note that in its submissions, the NMI stated that it did not consider the public interest factors in its initial decision. It felt that it had justified its decision under sections 30(1)(a) and (b), as the records pertain to an ongoing review. I draw all FOI bodies’ attention to the fact that sections 13(2) and 21(5) of the FOI Act require them to give full reasons for their decisions, including on the public interest balancing test under section 30(2).
Record 28 contains a draft report by the review panel. It discloses detailed findings and recommendations. The NMI has advised this Office that the final report will include the final version of the draft report following staff input, a report of actions taken by NMI, and updated policies and procedures. It submits that disclosing Record 28 would prejudice the investigation, as it contains findings and outcomes which remain under consideration as part of the final review. It says that the final report has been scheduled for the board’s next meeting in January 2020. I accept that this record relates to an investigation for the purposes of section 30(1)(a). In the circumstances, I accept that it is reasonable to expect that disclosing it now, before the review process has completed, could prejudice the effectiveness of the investigation process as a whole, as it includes the NMI’s staff feedback and actions and updated policies and procedures. I therefore find that section 30(1)(a) applies to Record 28.
Given this finding, I am required to apply the public interest balancing test under section 30(2) of the FOI Act. On the one hand, section 30(1)(a) itself reflects the public interest in FOI bodies conducting investigations effectively. On the other hand, there is a public interest in transparency around the way in which the NMI carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making.
In circumstances where the process is ongoing, I consider that the public interest in completing an effective investigation outweighs the public interest in transparency around the way in which the NMI carries out its functions. I therefore find that on balance, the public interest would not be better served by granting access to Record 28 at this point in time.
Records 3, 17, 20, 23, 44, 45 and 46
I will now turn to the other records. These comprise correspondence between NMI staff. They concern the matter which gave rise to the review, the composition of the review panel, the scope and structure of the review and the NMI’s handing of it. In summary, the NMI submits that releasing these records would prejudice the effectiveness of the investigation and have an impact on its outcome. It says that disclosing them would identify the make-up of the review panel and reveal aspects of its findings, as well as recommendations that are still being considered. However, it seems to me that rather than disclosing the review panel’s findings and recommendations, these records disclose the review process and how the NMI handled it. Furthermore, it is important to note that much information, including the names of staff, have already been disclosed in records released on foot of the NMI’s decision. For example, the cover email in Record 17 has already been released in Record 20. In many instances, only small redactions remain at issue.
I am not satisfied that it is reasonable to expect that disclosing these records could impact on the review or its outcome or otherwise result in the alleged harms. Having examined these records in light of the NMI’s submissions, I find that section 30(1)(a) of the FOI Act does not apply to them. Given this finding, I am not required to consider the public interest balancing test under section 30(2) of the FOI Act. I find that the NMI was not justified in refusing access to these records under section 30(1)(a).
As I have found Record 28 to be exempt under section 30(1)(a), I do not need to consider it here.
The NMI claims section 30(1)(b) in whole or part over Records 3, 7, 17, 20, 23, 25, 44, 45 and 46. These records contain the information described above under section 30(1)(a), as well as further detail about the handling of the review. Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(1) is subject to a public interest test under section 30(2).
In summary, the NMI submits that releasing the records could have an adverse effect on the management of its staff and the relationship between the executive and its staff, lead to potential industrial relations issues and pre-empt organisational or staff issues. It says that sensitive information could be revealed and misunderstood. However, the NMI does not demonstrate how releasing the particular content of these records (i.e. those remaining after I have applied the section 37 personal information exemption as above) is expected to cause the harm identified or why the harm could reasonably be expected to occur. Neither is this apparent to me having examined the content of the records. Moreover, the possibility of information being misunderstood is not a good reason to refuse access to records. It would be open to the NMI to clarify information if necessary.
Having examined these records in light of the NMI’s submissions, I find that section 30(1)(b) of the FOI Act does not apply to them. Given this finding, I am not required to consider the public interest balancing test under section 30(2) of the FOI Act. I find that the NMI was not justified in refusing access to these records under section 30(1)(b).
Having carried out a review under section 22(2) of the FOI Act, I vary the NMI’s decision as follows. I affirm its decision on certain records under section 37 of the FOI Act, as outlined above. I affirm its decision on Record 28, under section 30(1)(a) of the FOI Act. I annul its decision on the remaining records and direct their release. For the avoidance of doubt, the records which fall for release comprise the information in Records 3, 7, 17, 20, 23, 25, 44, 45 and 46 which was withheld under section 30.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.