Case number: 190015
26 April 2019
This review arises from a decision made by the Council under Reference FOI 15918 to refuse access to a record relating to a request to which section 38 of the FOI Act applies. Section 38 applies to cases where the FOI body has formed a view that the record(s) in question are exempt under section 35 (confidential information) and/or section 36 (commercially sensitive information) and/or section 37 (personal information) but that the record(s) should be released in the public interest.
Where section 38 applies, the FOI body is required to notify an affected third party before making a final decision on whether or not the exemption(s), otherwise found to apply, should be overridden in the public interest. The requester, or an affected third party, on receiving notice of the final decision of the FOI body, may apply directly to this Office for a review of that decision.
On 22 November 2018, the applicant made an FOI request to the Council for a copy of an application for a licence for the exhumation of a family member (the record). On 4 December 2018, the Council consulted under section 38 of the FOI Act with a third party whose rights would be affected by granting the request. Having considered the third party's submissions, the Council decided on 20 December 2018 to refuse the applicant's request under section 37 of the FOI Act (personal information). On 8 January 2019, this Office received an application from the applicant seeking a review of the Council's decision.
I have now decided to conclude my review 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 Council, the applicant and the third party. I have had regard also to the requested record and to the provisions of the FOI Act.
This review is confined to whether the Council has justified its refusal to grant the applicant's request for the record. For avoidance of any doubt on the matter, the review cannot examine matters such as the accuracy of the details in the record, whether the Council's decision to grant the licence was appropriate or whether the exhumation should have proceeded.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the record and give reasons for my decision is limited.
At the outset, I will address the third party's apparent view that this application for review should not have been accepted, or that the review should be discontinued, on the basis that the application is vexatious. While the third party is clearly unhappy that the FOI request was made, this does not of itself render it or the application to this Office vexatious. I have not formed the opinion that this is the case.
I should add here that while I appreciate that the background to the records is distressing and that the handling of the matter has been confusing for the third party, I reject entirely any assertion that this Office was prejudiced, biased or negligent in carrying out this review.
Section 37 - personal information
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information, including personal information relating to a deceased individual.
The applicant says that the record cannot contain personal or medical details.
"Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(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 a public body on the understanding that it would be treated by it as confidential"
Section 2 also lists 14 examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. I am satisfied that the record contains personal information although, given the requirements of section 25(3), I am unable to describe its contents any further lest exempt material be disclosed. I find the record to be exempt under section 37(1) of the FOI Act.
Exceptions to section 37(1)
Section 37(8) and associated Statutory Instruments (S.I.s)
Access may be granted to a deceased person's records in certain circumstances, as provided for by section 37(8) of the FOI Act and S.I. No. 218 of 2016 as amended by S.I. No. 558 of 2016. However, while the record relates to the applicant's deceased family member, it also contains the third party's personal information. Section 37(8) and the associated S.I.s do not provide for the grant of access to the record in such circumstances.
I find that the applicant is not entitled to access to the record under section 37(8) and the associated Statutory Instruments.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Section 37(2)(a) provides for the grant of access to personal information relating to the requester (i.e. the applicant for review). I am not in a position to say whether the record contains personal information about the applicant for review. However, even if it does, section 37(7) provides for refusal of a record that 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. As is already evident, at the very least the record contains the third party's personal information. Accordingly, I find that section 37(2)(a) does not apply. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise in this case.
Section 37(5) provides that a record that is otherwise exempt under section 37(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I have no basis for considering that granting access to the record would benefit the third party and I find that section 37(5)(b) does not apply.
The public interest (section 37(5)(a))
On the matter of 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 1 I.R. 729,  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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The applicant says that it is in the public interest to prevent similar events happening in other families in the future. However, I do not consider this to be a true public interest of the sort described in the Rotunda case. Neither can I take into account any private interests that the applicant may have in the grant of access to the withheld information. Furthermore, it is not appropriate for me to direct the Council to grant the request on the basis that the applicant is unhappy that his or her family member was exhumed, or may be seeking to find out more about the application for the licence or the exhumation itself.
In the case at hand, there is a public interest, recognised by the FOI Act, in ensuring openness and accountability for the Council's actions in relation to the exhumation. While this public interest has been served to some extent by the general information that the Council provided to the applicant in this regard, I accept that it would be further served if the request was granted. 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). It is also relevant that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. I am satisfied that placing the withheld record in the public domain would significantly breach the rights to privacy of the third party whose personal information is contained in it.
Having given careful consideration to the matter, I find that the public interest in favour of granting the applicant's request does not outweigh the public interest that the third party's right to privacy should be upheld.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's refusal to grant the applicant's 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.