Case number: 180454
10 April 2019
On 23 August 2018, the applicant made a request for access to records created between August 2014 and August 2018, held by the Department relating to an 'Increase for a Qualified Adult' (IQA) in respect of payment of a disability allowance. The Department refused the request on the basis of section 37(1) (Personal information) of the FOI Act. The applicant applied for an internal review and stated that he was requesting access to information relating to himself and was not requesting any documentation or information about third parties. The Department affirmed its decision. On 24 October 2018, this Office received an application for review from the applicant.
In conducting this review I have had regard to the submissions of the Department and to correspondence between the applicant, the Department and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision. The applicant was invited to make submissions but none was received by this Office.
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.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records in my analysis is limited.
This review is solely concerned with whether the decision of the Department to refuse the applicant's request under section 37(1) of the FOI Act was justified.
Section 37 - Personal information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. "Personal information" is defined in section 2 of Act as follows:
"Personal information means information about an identifiable individual that, either –
(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 an FOI body on the understanding that it would be treated by that body as confidential,
and, without prejudice to the generality of the foregoing, includes –
"(ii) information relating to the financial affairs of the person,
(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification ...,
(x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary (within the meaning of the Social Welfare Acts) or required for the purpose of establishing whether the individual, being a claimant (within the meaning of those Acts), is such a beneficiary."
Section 37(7) provides that 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 referred to as joint personal information.
The Department refused access to the information in the records under section 37(1) of the Act, on the basis they contained the personal information of persons other than the applicant. It is clear from my examination that release of the withheld information in the records would disclose the personal information of parties other than the applicant.
Having carefully examined the records, I am satisfied that the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. I am also satisfied that withheld information falls into a number of examples (set out above) of what section 2 requires to be considered as personal information. Accordingly, I find that section 37(1) of the FOI Act applies to the records.
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) of the FOI Act provides for a number of circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2)(a), (c), (d), or (e) arise in this case. As regards section 37(2)(b) which dis-applies the exemption if an individual to whom the information relates consents to its disclosure to the requester, it is the case that the Department has some doubts about the consent letter supplied with the request. At the suggestion of this Office, it made efforts to verify the letter of consent. It was unable to do so.
Consequently, I find that section 37(2) does not apply to the details at issue.
Section 37(5) - the Public Interest
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 any of the individuals concerned and that section 37(5)(b) does not apply.
In considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie. In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law” must be distinguished from a private interest for the purpose of section 37(5)(a).
The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the Department carried out its functions.
On the other hand, the FOI Act recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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 is whether the public interest in the release of the third party personal information or joint personal information contained in the records outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties to whom the information relates. In my view, it does not.
I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. I find that, in the circumstances of this case and having regard to the judgment of the Supreme Court in the Rotunda case, the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.
I am satisfied that all of the withheld information is personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) of the Act applies to the records.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse access to the records under section 37(1) on the basis that they contain the personal information of individuals other than the applicant. I find that the public interest in granting the request in relation to those records does not outweigh the public interest in upholding the privacy rights of other individuals.
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.