Case number: 170396
On 23 November 2016, the applicant requested access to all records held by the Agency relating to her and her daughter, from October 2016 to the date of the request. At the time of the request the applicant's daughter was near but had not yet reached the age of majority. The Agency did not issue an original decision. On 23 June 2017, the applicant submitted a request for an internal review on the basis of her request being deemed refused by the Agency, under the provisions of section 19(1) of the Act. On 12 July 2017, the Agency issued an internal review decision and granted access to a number of records in full or in part and refused access to other records on the basis of sections 31(1)(a), 35(1)(a) and 37(1) of the FOI Act. On 4 August 2017, this Office received an application for review of the Agency's decision from the applicant.
During the course of the review the Agency confirmed that a copy of a request, signed by the applicant's daughter on 22 June 2017, was regarded as consent for her records to be released to her mother. However, the Investigator advised the Agency that in reaching its decision it had not shown whether it had considered the provisions of section 37(8) - Access to the personal information of minors. Section 37(8) provides for the making of regulations under which the parent or guardian of a person belonging to a specified class of persons may have a right of access 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. In this case, the request was commenced under the 2016 Regulations (S.I. No. 218 of 2016).
The Investigator invited the Agency to make a submission on the basis of section 37(8) and also informed the applicant of the provisions. The applicant's daughter is still a minor at the time of this decision. However, one of the consequences of the Agency's release of additional records in the course of the review is that release of personal information relating to the applicant's daughter is no longer an issue in this review.
In addition, in its decision schedule, the Agency stated that a number of records were refused on the basis that they were duplicates of other records that were released as part of the applicant's request.
Although the applicant spoke to the Investigator during the review, a submission was not received from her.
As mentioned above, during the review the Agency released a number of additional records in part and in full. In so doing, the Agency no longer relied on the provisions of section 35(1)(a).
I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the Agency and to correspondence between the applicant, the Agency and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.
Scope of Review
This review is concerned solely with whether the Agency was justified in deciding to refuse access, in full and in part, to certain records on the basis of sections 31(1)(a) and 37(1) of the FOI Act.
When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of the public interest.
Section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
The Agency refused access to records 9, 36-42, 86, 87, and 179, on the basis that they are duplicates of other records. Having examined the records, I am satisfied that they are duplicates of those other records and that there is no need to consider them further.
Section 31(1)(a) - Record considered to attract legal professional privilege
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and
confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).
The Agency stated that records 217 and 218 are withheld on the basis of legal advice privilege.
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.
Having examined the records, I accept that they comprise legal advice received from the Agency's professional legal adviser. Accordingly, I uphold the Agency's refusal of the information in the records concerned under section 31(1)(a) of the FOI Act.
Section 37 - Personal Information
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. Section 37(7) provides that, notwithstanding subsection (2)(a) (which provides that section 37(1) does not apply where the information relates to the requester), a request shall be refused where access to a record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individual(s) other than the requester. This is often referred to as ‘joint personal information’.
For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, 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".
While I cannot discuss their content in any detail, I can state that the remaining withheld parts of the records contain relatively small pieces of information relating to the applicant's family (other than her daughter) and other individuals. Having reviewed the relevant records and redactions, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that the withheld information is exempt under section 37(1) of the Act.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. Section 37(7) is also subject to section 37(2(b) to (e). I am satisfied that none of those circumstances 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 that 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.
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 information would be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
Section 37(5)(a) - The Public Interest
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner  IESC 26 ("the Rotunda case") (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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. Accordingly, when considering section 37(5)(a), privacy rights will 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 my view, the information in the records is inherently private. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. The public interest has been served to a large extent by the release of the majority of the records to the applicant. I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.
Having reviewed the relevant records, I am satisfied that all of the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the records.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Agency. I affirm its decision to refuse access to records under section 31(1)(a) of the Act on the basis of legal professional privilege. I affirm the Agency's decision to refuse access in part to the remaining withheld records under section 37(1) of the FOI Act, on the basis that they contain the personal information of individuals other than the applicant and her daughter who is a minor. I find that the public interest in granting the request does not outweigh the public interest in upholding the privacy rights of other individuals.
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.