Whether the Department of Agriculture, Food and the Marine (the Department) was justified in refusing access to the name and contact details of an individual contained in an exchange of emails between the individual and the Department relating to the active substance glyphosate
28 June 2019
On 30 July 2018 the applicant made a request to the Department (that was subsequently refined) for certain records including, at relevant part, any correspondence between the Department and glyphosate manufacturers including lobby groups for the past five years. The Department granted access to a number of records relating to that part of the applicant's request, with the redaction of the identifying information relating to two individuals under section 37 of the FOI Act on the ground that it was personal information relating to those individuals.
On 20 September 2018 the applicant sought an internal review of the Department's decision to redact the name and contact details of one of the individuals from two emails. On 8 October 2018 the Department affirmed its original decision to refuse access to that information. On 7 March 2019 the applicant sought a review by this Office of the Department's decision.
I have decided to conclude this review by way of a formal, binding decision. In carrying out my review, I have had regard to the correspondence between the Department and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and the Department on the matter, and to the contents of the records at issue.
Scope of Review
This review is concerned solely with whether the Department was justified, under section 37(1) of the FOI Act, in redacting the name and contact details of an individual contained in an email exchange between the individual and the Department relating to the active substance glyphosate.
Analysis and Findings
Section 37(1) 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 (including personal information relating to a deceased individual). This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.
The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (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.
I am satisfied that the withheld information at issue in this case, namely the name and contact details of a third party, is personal information relating to that third party. I find, therefore, that section 37 (1) applies.
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 arise in this case, namely (a) the information contained in the records does not relate solely 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 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.
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 of the information would be to the benefit of the person to whom the information relates.
It has not been argued that releasing the record at issue would benefit the third parties to whom the information relates, nor do I believe that this would be the case. I am therefore satisfied that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.
One of the records at issue comprises an email from the individual concerned to the Department. In that email the individual states that s/he had been providing regulatory advice to the Glyphosate Task Force over the last number of years. S/he states that s/he has been asked by a named company to raise a number of issues with the Department relating to the renewal of product authorisations in connection with the pending approval of the active substance glyphosate. The second email comprises the Department’s response wherein it states that it is not in a position to hold a meeting until after the EU regulatory decision-making process has concluded.
The applicant argued that the individual in question was a lobbyist acting on behalf of the named company. He argued that there is a public interest in the Department being open and transparent about who is lobbying on behalf of the named company in relation to a decision that he believes to be of the utmost importance for environmental and public health matters in Ireland.
In its submission to this Office, the Department stated that the redacted information related to a consultant acting on behalf of a company, and who was relatively recently deceased. It stated that it concluded that the general public interest to release this information was not significant considering that the requested meeting by the deceased individual was refused by the Department.
The FOI Act acknowledges that there is a public interest in promoting the openness and accountability of public bodies in the manner in which they perform their functions. Indeed, section 11(3) of the Act provides that an FOI body, in performing any function under the act, must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs.
On the other hand, the FOI Act 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. 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.
It seems to me that the public interest in promoting the openness and accountability of the Department has been served to a large extent by the release of the vast majority of the information contained in the records at issue. The question I must consider is whether the public interest in further enhancing that transparency and accountability by releasing the redacted information outweighs, on balance, the privacy rights of the third party to whom that information relates.
In my view, it does not. In forming that view, I have had regard to the fact that the Department has already disclosed the identity of the company on whose behalf the individual concerned wished to meet with the Department. I have also had regard to the fact that the Department's response clarified that it was not in a position to hold a meeting until after the EU regulatory decision-making process has concluded. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the Department was justified in refusing access to the withheld information under section 37(1) of the FOI 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, under section 37(1) of the Act, to the name and contact details of an individual contained in an exchange of emails between the individual and the Department relating to the active substance glyphosate.
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.