Case number: OIC-53495-S1V9F3 (190226)
22 August 2019
To put the request and my decision on this review into some context, it is necessary to give some background to this case.
According to the Department’s website, it maintains a roster of election observers that may participate in international election observation missions. In 2018, the Department sought volunteers for a new five year roster. Volunteers were required to submit an application form setting out details of essential requirements such as whether they had stood for parliamentary or local elections or had demonstrable knowledge of and/or experience of democratisation, governance and human rights.
Applicants were asked to give details of ICT and language skills, education and qualifications, region and country experience, career history and references. They were also required to give a self-assessment of how they met particular competencies such as leadership and team work, decision making etc. Security clearance is required. An appeal process is provided for. Participation on a mission is not guaranteed. Observers are not paid remuneration but receive a daily stipend to cover out-of-pocket expenses while abroad as well as a pre-departure expenses payment. The process of security vetting and training those shortlisted to the new roster is ongoing. The Department does not intend to release the names of the new roster (i.e. in the normal course, outside of FOI) until the security vetting process is complete.
On 1 February 2019, the applicant submitted a request to the Department for access to all correspondence between the election observation desk in Irish Aid and all elected officials regarding the 2019 election observation roster, including those which address the appeals process. The Department’s decision dated 22 March 2019 refused the request under sections 29(1) (deliberative process), 35(1)(a) (confidential information) and 37(1) (personal information) of the FOI Act. The applicant subsequently confirmed that she was requesting correspondence with sitting Senators and TDs, and not the application forms of any applicants or correspondence from elected officials concerning the selection process more broadly. She sought an internal review of the Department’s decision on 27 March 2019.
In its internal review decision of 25 April 2019, the Department refused access to 21 records it identified as coming within the scope of the applicant’s request under section 30(1)(a) (tests and examinations by FOI bodies), 35(1)(a) and 37(1) of the FOI Act. On 13 May 2019, the applicant sought a review by this Office of the Department’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, the Department and the applicant. I have also examined the records at issue and had regard to the provisions of the FOI Act.
The review is confined to whether the Department was justified in refusing access to the 21 records it identified as coming within the scope of the applicant’s request under various provisions of the FOI Act.
Having regard to the contents of the records at issue, section 37 seems to me to be the most appropriate exemption provision to consider in this case. It is relevant that the release of a record under the FOI Act is understood to be equivalent to its release to the world at large.
Section 37 - personal information
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 relating to an individual or individuals other than the requester.
Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. This means that I am somewhat limited in the level of detail I can give in describing the records at issue. However, I am satisfied that I am not in breach of section 25(3) by explaining that the records relate to two elected officials. One batch of correspondence relates to the application of an unsuccessful applicant while the second batch relates to a successful applicant and concerns various matters relating to the selection process such as security vetting and training.
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 a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (i) information relating to the educational history of the individual, (iii) information relating to the employment or employment history of the individual and (vi) information relating to any criminal history of … the individual. Having examined the records, I am satisfied that they contain information of a type that is captured by the various examples of what comprises personal information about identifiable individuals.
The FOI Act provides that personal information does not include certain information about individuals that hold or held an office or position remunerated from public funds. However, these exclusions are quite narrow and I do not consider them to be relevant in this case. I am satisfied, in particular, that the records concern matters that do not arise in the performance of any individual’s functions as an elected official.
While the applicant argued that the records should be released in full, she also suggested that they could be released without revealing the names of the individuals concerned.
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 public 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, generally, neither the definition of a record 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.
It would not be sufficient to simply redact names from the records. I am satisfied that the elected officials would be identifiable from other information in the records, such as references to particular events, qualifications and education, employment history, etc. In any event, if all of this information was redacted, the ensuing copies of the records would be likely to be misleading. Having considered the matter, I do not consider that this is a case in which it would be appropriate to consider directing that partial access be granted to the records. Accordingly, I find that section 37(1) of the FOI Act applies to them in full.
Section 37(5)(a) - the public interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual(s) to whom the information relates should be upheld.
On the matter of where the public interest lies, I have had regard to the comment by 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) that a public interest is "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law". Although this comment was made in relation to another provision of the FOI Act, I consider it to be relevant to consideration of public interest tests generally.
There is a public interest, recognised by the FOI Act, in promoting openness and accountability regarding how FOI bodies perform their functions. On the other hand, both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution).
The applicant stated that the selection process was carried out by a body that is funded by taxpayer money. She argued that elected officials are not entitled to the same level of privacy as a private citizen applying for the same role. She argued that elected officials would have been conscious that they are public representatives and that corresponding with such a body would be subject to FOI. She argued that by referring to their positions as elected officials in their application, any such applicants could not have been applying in a private capacity. She also argued that there is a legitimate public interest in the activity of elected officials, especially when it involves being part of an international election observation panel as a representative of this country.
The Department accepts says that there may be cases where an elected official could be deemed to have a lesser right to privacy than an ordinary citizen. It argued, however, that this is not such a case, which involves an application process for a voluntary unpaid position that is not connected with the day to day role of any elected officials. Its position is, essentially, that the FOI Act does not entirely negate a public representative’s right to privacy regarding personal information.
It seems to me that a degree of transparency and accountability exists in relation to the establishment of the election observation roster. I note, for example that all applicants were offered feedback following the shortlisting process and that the Department intends to publish details of the names of roster members when the process is complete (albeit with the consent of the individuals concerned). The question I must consider is whether the public interest in further enhancing the transparency and accountability of the Department by releasing the records at issue outweighs, on balance, the privacy rights of the individuals to whom the information relates.
In my view, it does not. Given that the records at issue concern the specific applications of two individuals, it seems to me that the disclosure of the records would do little to further enhance the transparency or accountability of the Department in relation to the selection process for the establishment of the election roster.
On the other hand, I am also satisfied that placing the records in the public domain would reveal personal information about the elected officials concerned thereby breaching their rights to privacy. I do not accept that the elected officials are entitled to less privacy than private individuals in relation to the matters the subject of these records. I find that the public interest in favour of granting access to the records does not outweigh the public interest that the rights to privacy of the elected officials should be upheld.
In conclusion, therefore, I find that the Department was justified in refusing access to the records in question under section 37(1) of the FOI Act. Having found section 37(1) to apply, I do not consider it necessary to examine the remaining exemptions cited by the Department.
Finally, for the benefit of the Department, I would like to make the following comments in relation to the interplay between data protection legislation and the FOI Act as the Department specifically sought guidance on the matter.
Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation.
Section 44 of the Data Protection Act provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request
Data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.
Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal of the request under section 37(1) of the FOI Act.
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.