Case number: 180149
24 September 2018
The applicant was represented by his solicitors. On 20 October 2017, he made an FOI request to the Department for all records relating to him. He said that these should include four reports with particular dates.
The Department's decision of 10 November 2017 partially granted the request. It relied on various provisions of the FOI Act in relation to the refused records, including section 32(1)(a)(i) which is concerned with matters relating to offences and their prosecution. The Department's schedule indicated that this provision had been applied to five records. On 16 November 2017, the applicant sought an internal review of the Department's application of section 32(1)(a)(i) to what he said were six records. He repeated that he wanted access to four reports with particular dates. On 29 November 2017, the Department issued its internal review decision, which clarified that only records 11, 17, 24, 44 and 54 had been refused under section 32(1)(a)(i). It gave a description of those records, including their dates. Only records 24 and 44 were created on dates specified in the request. The Department granted access to record 17 and affirmed its refusal of the others under section 32(1)(a)(i).
On 13 April 2018, the applicant sought a review by this Office of the Department's reliance on section 32(1)(a)(i). During the review, the Department granted access to records 24, 44 and 54.
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 details of the above exchanges and to correspondence between this Office, the Department, and the applicant. I note that the applicant did not reply to this Office's letter to him of 24 August 2018. I have had regard also to the record under review and to the provisions of the FOI Act.
As outlined in this Office's letter to the applicant of 24 August 2018, my review is confined to whether the Department has justified its refusal of record 11. It will not consider whether the Department holds records created on the two other dates specified in his request. The applicant did not raise this issue in his application for review. In any event, he is aware that records 11 and 17, while not created on the dates concerned, are stamped with the relevant dates.
The Department now argues that section 37 applies to record 11. The Commissioner's review is de novo so that the circumstances and the law as they pertain at the time of the Commissioner's decision may be taken into account. Thus, I am obliged to consider whether section 37 applies to record 11. I would have considered this in any event given the contents of the record and the mandatory nature of the provision.
Section 37 - personal information
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.
I can give only a very limited description of record 11 lest I disclose exempt information. However, record 17, which has been granted, is a copy of part of record 11 in so far as it contains only information about the applicant. I am satisfied that the remainder of record 11 mainly comprises personal information about other identifiable individuals. Some small amounts comprise personal information about other identifiable individuals that is inextricably linked to personal information about the applicant (joint personal information).
I find record 11 (i.e. those parts that have not been granted to the applicant further to record 17) to be exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, section 37(7) provides for refusal of a record that would, in addition to disclosing personal information relating to the requester, disclose joint personal information. I find that the applicant is not entitled to record 11 under section 37(2)(a). I am also satisfied that the remaining circumstances set out in section 37(2) do not arise in this case.
Section 37(5) provides that a record that is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I have no basis for considering that the release of the record would benefit the third parties and I find that section 37(5)(b) does not apply.
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 1 I.R. 729,  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. 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.
Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case"), said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.” Thus, I cannot take into account any private interests that the applicant may have in the grant of access to the requested email.
In any event, it would not be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of any assertions that may be made to the effect that an FOI body's processes may have been inadequate or that it did not comply with fair procedures. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement 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. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
In the case at hand, there is a public interest, recognised by the FOI Act, in establishing that the Department carried out its functions in relation to the applicant in a way that was consistent with the principles of natural and constitutional justice. While this public interest may be entitled to significant weight in the context of the applicant's dealings with the Department, it has been served to some extent by the other records granted to the applicant. It seems to me that the disclosure of the third party and joint personal information would further serve this public interest to a limited extent.
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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. In addition I believe that the particularly sensitive content of the withheld information weighs in favour of refusal of access. I am satisfied that placing record 11 in the public domain would significantly breach the right to privacy of the various third parties.
I find that the public interest in favour of granting access to record 11 does not outweigh the public interest that the right to privacy of the third parties should be upheld.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to refuse access to record 11.
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.