Whether the Department was justified in refusing access to a copy of an incident report regarding an accident involving the passenger vessel "Rose of Aran" under sections 30, 32, 35 and 37 of the FOI Act.
31 January 2019
On 24 May 2018, the applicant made a request for access to records relating to an investigation carried out into an accident involving passenger vessel "Rose of Aran" at Inis Oirr pier on 6 June 2016. The Department identified one record coming within the scope of the applicant's request, namely an incident report, but refused access to this record on the basis of section 30(1)(a) (functions and negotiations of FOI bodies) of the FOI Act. The applicant sought an internal review but the original decision was upheld by the Department. The applicant applied for a review to this Office on 17 August 2018.
I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the Department and the applicant as described above. I have also had regard to the correspondence between this Office and both the Department and the applicant on the matter and to the contents of the record at issue.
Scope of the Review
The Department, in submissions to this Office, relied on a number of other exemptions in addition to section 30(1)(a). It submitted that sections 32(1)(a) (law enforcement and public safety), 35(1)(a) (information obtained in confidence) and 37(1) (personal information) also applied to the record. The applicant was provided with an opportunity to comment on the potential applicability of these additional exemptions during the course of the review.
This review is therefore concerned with whether or not the Department was justified in refusing access to an incident report on the basis of sections 30(1)(a), 32(1)(a), 35(1)(a) and 37(1) of the FOI Act.
It should be noted that, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. This constraint means that the detail that I can give about the content of the record and the extent to which I can describe certain matters in my analysis is limited.
Further, section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records
Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large.
Analysis and Findings
The record is a report from the Department's Marine Survey Office (MSO) into the circumstances surrounding an incident where passengers fell overboard. It contains an amount of personal information that relates to private individuals and section 37 is a mandatory exemption that relates to such information. I propose to deal with that in the first instance.
Section 37 - personal information
The report contains an analysis of the circumstances surrounding the incident and its aftermath. It identifies crew members, witnesses and passengers. The movements of various individuals are described and photographs of various individuals are included, as well as conclusions and recommendations.
Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal information, without prejudice to the generality of the foregoing definition. I consider the following categories to be relevant in this instance; that is not to say that other categories might not also apply:
(i) information relating to the educational, medical, psychiatric or psychological history of the individual,
(iii) information relating to the employment or employment history of the individual,
(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual and
(xiv) the views or opinions of another person about the individual.
Having regard to the definition of personal information as set out above, I am satisfied that large elements of the record contain information that is personal information. I find, therefore, that section 37(1) applies to any reference to an individual in the record who is not a staff member, or contractor, of the Department or another FOI body.
Having found that section 37(1) applies to the above information, I must go on to consider if any of the additional elements of section 37 serve to disapply that exemption.
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 parties have 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.
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 the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
The Department noted that there is a public interest in transparency, accountability and objectivity in the decision making process. The FOI Act itself recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. I note that a separate report from the Marine Casualty Investigation Board (MCIB), which does not contain any personal identifying information in relation to this incident, is already in the public domain. To some extent, the public interest is therefore already satisfied as many details of the incident and the MCIB's subsequent investigation are already available.
Release of the report in this case would further this public interest to an extent, in that it would disclose some details and recommendations made by the MSO that are not contained in the publically available MCIB report. However, many of the details that are not contained in the publically available report relate to private individuals. FOI is concerned with the activities of public bodies generally. It is not generally a means by which information about the activities of private individuals is intended to be released to the public at large. In my view, the personal information which this record contains is inherently private. As regards any actions to be taken on foot of the report, the submission of the Department indicated that this was still under consideration.
The FOI Act recognises the public interest in the protection of the right to privacy. This is evident 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.
On balance, I consider that the weight of the public interest in granting access is not such that it outweighs the public interest that the right to privacy of the private individuals should be upheld. I find that section 37(5)(a) does not apply and the Department was justified in refusing access to the personal information contained in the record.
Having found that section 37(1) applies to the personal information in the record, I then considered whether or not it would be feasible to redact that information from the report and release the balance. However, there is little in the report that is not in some way connected to the personal information of identifiable individuals and, given the nature of the record, I am of the view that it would not be practicable to release occasional parts or paragraphs as the result would be misleading. (Section 18(2) refers). I find therefore that the Department was justified in refusing access to the record as a whole.
Having found that section 37(1) applies to the record, I do not find it necessary to consider the other exemptions relied upon by the Department.
Having carried out a review under section 22(2) of the Act, I hereby affirm the Department's decision to refuse access to the record under section 37(1) of the FOI Act.
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.