Case number: 180488
15 March 2019
The applicant in this case is a solicitor who is a joint personal representative of a deceased client's estate. On 26 March 2018 he submitted a request to the Department for records containing any information about the deceased, including any information held in relation to applications for Single Farm Payments made during a specified period. The Department issued two separate decisions on the request, in which it granted access to some records in full, granted partial access to a number of records with the deletion of information relating to third parties, and refused access to a number of records.
On 14 May 2018 the applicant sought an internal review of the Department’s decisions, in which he noted that the records provided did not identify any individual(s) who made a dual claim during the period of time specified in the request. Following internal review, the Department affirmed its original decisions. In doing so, it confirmed that when processing the Single Payment Scheme applications submitted under the deceased's herd number, dual claims were identified on a number of parcels of land for four of the years for which information was sought. It provided some explanatory information on how it treats dual claims. It refused access to the information sought relating to the other claimant(s) under section 37 of the FOI Act. The applicant sought a review by this Office of the Department’s decisions on 16 November 2018.
During the course of the review, both parties made submissions to this Office on the matter. Having regard to those submissions, I have decided to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue.
This review is concerned solely with the question of whether the Department's decision to withhold certain records, whether in whole or in part, under section 37 was in accordance with the provisions of the Act.
In his correspondence with this Office, the applicant explained that the Department declined to make payments either fully or partially in respect of lands in the estate of the deceased on the basis that a dual claim had been made. He stated that the beneficiary in the estate has made a complaint to the Solicitors' Disciplinary Tribunal about the applicant in his capacity as one of the Executors in the Estate, in connection with the refused payments. The applicant argued that he requires details of the identity of the other dual claimant(s) in order to establish the proper claimant so that he can defend his case.
On this point, it is important to note that under section 13(4) of the Act, any reason that the requester gives for the request shall be disregarded in deciding whether to grant or refuse to grant a request. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), 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 known as joint personal information).
For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily 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. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiii) information relating to the property of the individual, including the nature of the individual's title to any property.
Having examined the withheld information, I am satisfied that it comprises both personal information relating solely to an individual or individuals other than the deceased, and joint personal information relating to the deceased and another individual or individuals. I find, therefore, that section 37(1) applies to the information that was redacted from certain records and to the entirety of the records to which access was refused.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third party has not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue 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. I find that section 37(2) does not apply to the withheld records.
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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual aforesaid. As no evidence has been presented to this Office to suggest that the release of the records sought would benefit the third parties involved, I find that section 37(5)(b) does not apply.
In relation to the issue of the public interest as set out in section 37(5)(a), 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.
As I have explained above, the applicant requires access to the information at issue for what is essentially a private interest, i.e. to allow him to determine who, in his view, should have received the relevant payments under the Scheme and to defend his position in connection with the complaint made against him. Nevertheless, the FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. In this case, there is a public interest in enhancing the transparency and accountability of the Department in relation to the manner in which it has dealt with the dual claims concerned.
On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in 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. 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 submission to this Office the Department stated that land disputes can often be emotive issues for individuals. It argued that disclosing information on the identities of individuals who claim on individual land parcels could potentially give rise to inappropriate communication or contact between claimants on a land parcel. It explained that where a dual claim on a land parcel is identified, it processes the dual claim in accordance with established procedures. Applicants who are claiming on the relevant land parcels are written to and are requested to confirm if they have the right to declare the relevant land parcels and to submit supporting documentation in respect of such declarations. The Department then reviews the information returned and makes a decision on which claimant has the right to receive payment on the land parcels in question based on that information.
Having regard to the Department's submission, it seems to me that the public interest in strengthening transparency and accountability has been served to some extent by the Department's description of the process it follows when dealing with dual claims. The question I must consider is whether the public interest in further enhancing that transparency and accountability by releasing the information at issue outweighs, on balance, the public interest in upholding the privacy rights of the individual(s) to whom the information relates.
In my view, it does not. In forming that view, I have had regard to the fact that the release of information under the FOI Act is regarded, in effect, as release to the world at large, as the Act places no constraints on the uses to which information released under the Act may be put. I find that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the Department's decision to refuse access to the information at issue under section 37(1) of the Act was in accordance with the provisions of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to certain information relating to Single Farm Payment applications made in connection with the estate of the applicant's deceased client under section 37(1).
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.