Case number: 180137
10 July 2018
On 15 December 2017, the applicant submitted a request to the Department for access to a number of records, including access to an unredacted version of an email between the Department and the Department of Justice and Equality. The applicant specifically sought access to a name that was redacted from that email.
On 27 February 2018, the Department part granted the request. It provided a redacted version of the email at issue. On 9 March 2018, the applicant sought an internal review of the Department’s decision to redact the name of an individual identified in the email. On 29 March 2018, the Department issued its internal review decision, in which it affirmed its original decision to redact the individual's name from the record under section 37(1). On 3 April 2018, 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. In conducting my review, I have had regard to the correspondence between the Department and the applicant outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the record at issue.
This review is solely concerned with whether the Department was justified in its decision to redact the name of an individual from the record at issue under section 37(1) of the FOI Act.
While the applicant has outlined her reasons for seeking access to the identity of the individual whose name was redacted from the record at issue, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information.
The record at issue comprises an email from the Department to the Department of Justice and Equality. The email contains details of a telephone call the Department took from an individual who is identified in the email. The email describes the gist of the telephone conversation as the individual was claiming to have information pertaining to a review that was being undertaken at the time by a named Senior Counsel at the request of the then Minister for Justice.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where 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 FOI Act, personal information is defined 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 includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including “(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”.
I am satisfied that disclosing the name of the individual concerned would involve the disclosure of personal information relating to that individual and 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. Furthermore, 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.
I am satisfied that the release of the name of the individual would not be to the benefit of the individual concerned and 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.
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 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. In her application for review, the applicant argued that the email at issue relates to her as the telephone call was in relation to the review of her case. I accept that the telephone call related to the review and that the review concerned the applicant.
However, it is important to note that the vast majority of the record has been released. The email released reveals that the Department passed on details of the telephone call it received relating to the review to the appropriate Department. I fail to see how the release of the name of the individual who made the call would serve to further enhance the openness and accountability of the Department to the extent that the public interest in doing so would outweigh, on balance, the privacy rights of the individual concerned.
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.
The applicant also argued that the individual waived his/her privacy rights by identifying himself/herself in during the telephone conversation. There is nothing in the record to suggest that the individual concerned waived his/her right to privacy. It is also worth noting that the release of a record under FOI is, in effect, release to the world at large as the Act imposes no restrictions on the uses to which such records may be put. I find therefore, that section 37(5)(a) does not apply in this case.
Consequently, I find that the Department was justified in its decision to redact the name of the individual concerned from the record at issue 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 in this case.
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