Case number: OIC-106183-G1T9X9
The applicant in this case is a prison officer. In a request dated 20 February 2021, he sought a copy of a report that was prepared following the investigation of a complaint made against him by a prisoner. On 19 March 2021, the IPS refused access to the report under sections 32(1)(a)(v) and 35(1)(a) of the FOI Act. The applicant sought an internal review of that decision following which the IPS affirmed its original decision. On 12 April 2021, the applicant sought a review by this Office of the refusal of his request.
During the course of the review, the IPS indicated that it also wished to rely on sections 32(1)(b) and 37(1) of the Act in support of its refusal of the request. Following her consideration of the submission, the Investigating Officer informed the applicant of her view that the IPS was justified in refusing access to the record under section 37(1), which is concerned with the protection of personal information relating to third parties.
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 correspondence between the IPS and the applicant as set out above and to the correspondence between this Office and both the IPS and the applicant on the matter. I have also had regard to the contents of the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with the question of whether the Council was justified, under various provisions of the Act, in refusing access to the record sought.
It is important to note at the outset that a review by this Office is considered to be “de novo”, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of the additional exemptions cited by the IPS in its submissions to this Office, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the report in its decisions on the request.
The record at issue is a report of an investigation carried out into a complaint made by a prisoner against the applicant. Having regard to the nature and content of the record, I consider section 37 of the Act to be of most relevance in this case. Section 37(1) provides that an FOI body shall refuse to grant 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. Furthermore, 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.
Having carefully examined the contents of the investigation report, I am satisfied that the entire report comprises personal information relating to a third party, i.e. the prisoner who made the complaint. The report also contains what I accept to be personal information relating to the applicant and, indeed, other parties. However, where the report contains personal information relating to the applicant, I am satisfied that such information is inextricably linked to personal information relating to the prisoner, i.e. it is joint personal information relating to the applicant and a third party. I find, therefore, that section 37(1) applies to the report in its entirety.
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) do not apply. I am satisfied that none of the circumstances identified at section 37(2) 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 their 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 information.
Having found that section 37(1) applies to certain of the withheld information, I must also consider section 37(5). That section provides that a request which would fall to be refused under section 37(1) may still be granted where the FOI body considers that, 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 concerned.
In my view, the release of the report would not benefit the third parties to whom the information relates. I am satisfied that section 37(5)(b) does not apply. In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), 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”.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 his correspondence with this Office, the applicant argued that he is entitled to a copy of the report, pursuant to rule 57(b) of the Prison Rules 2007 to 2013. I should explain at this stage that it is not within the remit of this Office to examine the administrative actions of the IPS in relation to the manner in which the investigation was conducted. Nevertheless, I note that the applicant was informed of the outcome of the complaint.
In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. I have also had regard to the fact that the release of the report would involve the disclosure of third party personal information of an inherently private and sensitive nature. In the circumstances, I find no relevant public interest in granting access to the record that, on balance, outweighs the public interest in upholding the right to privacy of the third party individual concerned. I find that section 37(5)(a) does not apply in this case.
In conclusion, therefore, I find that the IPS was justified in refusing access to the report under section 37(1) of the Act. As I have found that the IPS was justified in refusing to grant the request under section 37, I do not need to proceed to considering the other exemptions cited.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the IPS to refuse, under section 37(1), the report sought.
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.
31 August 2021