Case number: OIC-139933-J0C0S1

Whether the Defence Forces was justified in refusing access to personal information relating to a third party on the basis that section 37(1) of the FOI Act applies

 

26 October 2023

 

Background

This case relates to the theft of a weapon from an Army barracks in 1973. I understand that the applicant was serving in the Defence Forces at the time and was accused of taking the weapon. The applicant has consistently maintained that he was falsely accused. 

In a request dated 2 February 2023, the applicant sought access to all records held by the Defence Forces relating to the theft of a weapon in 1973. He listed particular areas of the Defence Forces which should hold records, including the Military Police, Military Intelligence and the particular area from where the weapon was stolen. He also listed the types of records he was seeking and set out his reasons for seeking the records concerned.

The Defence Forces failed to issue an original decision within the four-week timeframe set out in the FOI Act, which amounts to a deemed refusal of the request. On 2 June 2023, the applicant sought an internal review. On 13 June 2023, the Defence Forces issued an internal review decision wherein it released 13 records, some in part on the basis of section 37 of the FOI Act. The Defence Forces stated that it previously released other records to the applicant on foot of another FOI request and that those records were not considered as part of its decision.

On 26 June 2023, the applicant applied to this Office for a review of the Defence Forces decision, wherein he stated that he had a deep personal interest in the matters concerned. During the course of this review, the applicant confirmed that he was not seeking any of the records previously released to him in full or in part. He also indicated that the only information he sought was the information withheld from record 7, which comprised the name of a third party.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Defence Forces, as well as the applicant’s submissions to this Office and to the correspondence exchanged between the parties. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Defence Forces was justified in refusing, under section 37(1), to release the name of a third party contained in record 7.

Preliminary Matters

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. Therefore, although I am obliged to give reasons for my decision, the description which I can give of the record at issue and the material that I can refer to in the analysis is limited.

During the course of this review, as set out further below, the applicant argued that he knew the identity of the individual named in record 7, who he stated was deceased. Having regard to section 25(3), I am satisfied that I cannot not say anything that may be construed as either confirming or denying that the deceased individual referred to by the applicant is the individual named in record 7.

I note that the Defence Forces failed to issue its original decision on the applicant’s request within the timeframe set down in the FOI Act. The Defence Forces cannot but be well aware of its obligations in this regard. I have raised the issue of noncompliance with statutory deadlines with the Defence Forces on many occasions. It is incumbent on me to emphasise to the Defence Forces that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. I would expect it to take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes in future cases.

Finally, it is important to note that this Office has no role in examining the administrative actions of FOI bodies, nor does it allow us to act as an alternative dispute resolution mechanism. Our remit is confined to establishing whether decisions taken by public bodies on FOI requests were in accordance with the provisions of the FOI Act.

Analysis and Findings

Record 7 is a letter that was created in 2003, some thirty years after the theft of the weapon in question.

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.

Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

The information contained in the record that was released to the applicant by the Defence Forces clearly states that another individual formed part of the initial inquiry into the theft, but that he/she was not charged. The information released also reveals that the individual concerned was discharged from the Defence Forces. Having regard to the circumstances, I am satisfied that the name withheld clearly comes within the examples of what is considered personal information of a third party set out in section 2. However, the matter does not end there as 37(1) is subject to the other provisions of section 37.

I should say that it is not relevant to my finding that the applicant may be aware of the name of the individual concerned, as I must have regard to the fact that the release of records under FOI is generally understood to have the same effect as publishing them to the world at large.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arises in this case.

Section 37(8) – records relating to deceased persons

As set out above, I will neither confirm nor deny whether the information withheld relates to Mr X, whom the applicant states is deceased. However, I note that regulations made under section 37(8) of the FOI Act provide for the release of information about deceased persons to certain categories of requester (such as the next of kin) in certain circumstances. I am satisfied that the applicant is not in any of the categories listed. Accordingly, if the person named in the record were deceased, I need not consider the Regulations, other than to note that they recognise the public interest in the confidentiality of personal information relating to the deceased.

Section 37(5)

Section 37(5) 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 request would benefit the person to whom the information relates.”

No argument has been made by the parties concerned that the release of the information at issue would be to the benefit of the third party concerned. Accordingly, I find that section 37(5)(b) does not apply.

Public interest

In relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates.

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. That section recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, when considering where the balance of the public interest lies, I have had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57. In its judgment, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”.

Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act expressly recognises the public interest in the protection of the right to privacy, both in the language of section 37 and 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. In addition, the 37(8) Regulations recognise the public interest in maintaining the confidentiality of personal information relating to a deceased individual. 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.

In its submissions to this Office, the Defence Forces said that the information was withheld having regard to the overall context of the records concerned, which related to serious allegations concerning a stolen weapon, and the possible involvement of a particular organisation.

In his submissions to this Office, the applicant acknowledged that the information withheld would normally fall under section 37(1). However, he argued that the particular circumstances in this case were unique. He contended that he was wrongfully accused of a serious crime that was rightly attributable to [Mr X], that he knows the name of this person and that the information withheld should be released to him. Essentially, the applicant is of the view that Mr X is the same person named in the record as being suspected of stealing the weapon concerned. The applicant also contended that the individual’s reputation could not be damaged in any way at this time, and made various other arguments in support of his view that the record should be released in full. I do not consider it appropriate to set out the applicant’s arguments here, however, I can confirm that I have had regard to them for the purposes of arriving at this decision.

During the course of this review, the applicant also made a substantial and comprehensive submission to this Office which detailed the mechanisms he has pursued in an attempt to resolve this matter. He said that justice was long overdue in his case, which I take to be an argument that the public interest favours release of the information concerned. As outlined above, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record. For that reason, I cannot engage extensively with the arguments raised by the applicant as to why the information should be released under section 37(5).

However, I can state that I am satisfied that there is a strong public interest in maintaining the privacy of the individual named in record 7, as set out in section 37. I am also satisfied that this applies whether or not the person concerned is deceased. Clearly the release of the name of the individual concerned would breach that privacy and reveal that the individual had once been suspected of a serious crime. Furthermore, it seems to me that information relating to an individual being suspected of a crime is particularly sensitive personal information, which could reasonably be expected to cause harm to their reputation. I am satisfied that this is the case whether the individual concerned is deceased or living.

As set out above, there is a very strong public interest in protecting the right to privacy, which is recognised by the language of section 37 and also by the Long Title to the FOI Act. 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.

On the other hand, I am satisfied that there is a public interest in the administration of justice and in the applicant’s right to his good name. I acknowledge that the applicant has consistently maintained that he was not involved in the theft of the weapon at issue. I also note his position that he was let go from the Defence Forces due to his alleged involvement in the incident in question. I accept that he has pursed this matter over a number of decades and that it has great significance to him.

It seems to me that by releasing the majority of the record concerned, which demonstrates that another individual was suspected of being involved, the Defence Forces has sought to serve the public interest in release to a significant extent. It also seems to me that the disclosure of the identity of the individual would not serve to further that public interest to any significant degree. The disclosure of the identity of the individual would not, in my view, serve to further the applicant’s right to his good name. Having considered the matter carefully, I find that, on balance, the public interest in granting access to the name of an individual who was once suspected of involvement in the theft of the weapon concerned, but was not charged, does not outweigh the right to privacy of that same individual. I find, therefore, that the Defence Forces was justified in refusing access to the withheld information in record 7 under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Defence Force’s decision. I find that Defence Forces was justified in refusing to release the information withheld on the basis that section 37(1) of the FOI Act applies. I find that the public interest, on balance, does not favour the release of the information concerned.

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.

 

Sandra Murdiff
Investigator