Whether the Department was justified in refusing access, under section 37 of the FOI Act, to records relating to a named child and his attendance at a named preschool facility
10 June 2020
In a request dated 4 February 2019 and clarified on 12 February 2019, the applicant sought access to all correspondence relating to the issue of a named child and his attendance at a named preschool facility. No decision was issued by the Department. On 26 August 2019, the applicant sought an internal review of the deemed refusal of his request. Despite further correspondence from the applicant, no internal review decision issued. Following the applicant’s application for review to this Office, the Department issued an effective decision on 13 February 2020, in which it identified ten records as falling within the scope of the request and refused access in full on the basis that section 37 applied. On 28 February 2020, the applicant applied to this Office for a review of the Department’s effective decision.
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 applicant and to the submissions made by the FOI body in support of its decision. 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 the question of whether the Department was justified, under section 37 of the Act, in refusing access to records it holds relating to a named child and his attendance at a named preschool facility.
The handling of this request fell short of what would be expected of a FOI body subject to the FOI Act for many years. The available evidence indicates that the Department did not deal with the original request or internal review request in accordance with the provisions of the FOI Act. There were long delays in processing the request and no decisions were issued by the Department. Despite an acknowledgement by the Department of delays on 28 August 2019, no decision had been issued by 22 November 2019. An effective decision was only issued following an application for a review to this Office. While not within the remit of this Office, I note that the Department does not appear to have met the requirements of the Official Languages Act in its response to the internal review request.
In its submission to this Office, the Department acknowledged that the statutory timeframe for processing the request was not met and that the requester did not receive the high standard of service which the Department applies to processing of FOI requests. It has apologised to the requester.
Section 18(1) of the Act 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). This Office takes the view that the provisions of section 18 do not 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, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Analysis and Findings
In its effective decision, the Department identified ten records as covered by the request and refused access in full under section 37. The records comprise correspondence between the Department and other relevant parties, and within the Department, regarding arrangements and requirements for the attendance by the named child at the named preschool facility.
Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. The FOI Act defines the term "personal information" as information about an identifiable individual that either (a) would, in the ordinary course of events, 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 the body as confidential. The definition also contains a list of 14 specific types of information that is personal information, without prejudice to the foregoing definition, including information relating to the educational and medical history of an individual. Having examined the records at issue, I am satisfied that they contain personal information relating to the named child and that section 37(1) applies.
Mindful of the provisions of section 18 set out above and the applicant’s statement that he would be happy to receive the information with personal information redacted, I am also satisfied that it would not be possible to redact the records so as to remove the personal information they contain.
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.
Section 37(5) of the 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 benefit the person to whom the information relates.
On the matter of whether section 37(5)(b) applies, no argument has been made, nor is it evident from the records, that the grant of the request would benefit the individual to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
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. In considering where the public interest lies, I have had 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.
The FOI Act recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they carry out their functions. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - 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.
It is important to note that the release of records under the FOI is regarded, in effect, as release to the world at large, given that the Act imposes no constraints on the uses to which information released under the Act may be put. In the circumstances, and in light of the inherently sensitive nature of the information concerned, I find that section 37(5)(a) does not apply in this case.
For the sake of completeness, I have considered whether the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016) might apply in this case. The Regulations provide for a right of access by a parent or guardian to personal information of individuals who, at the time of the request, have not attained full age, and where the release of the information would, in the opinion of the public body and having regard to all the circumstances, be in the child’s best interests.
However, the requester must be a parent or a guardian of the individual. The applicant is not the parent or guardian of the minor to whom the information relates. In the circumstances, I find that the applicant does not have a right of access to the records at issue under the Regulations.
In conclusion, therefore, I find that the Department was justified in refusing the applicant’s request under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse access, under section 37(1) of the FOI Act, to records held by the Department relating to the named child and his attendance at a named preschool facility.
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.