Whether the NAS was justified in refusing access to an audio recording of a call the applicant made to the emergency services concerning her late partner.
10 January 2022
In a request dated 5 June 2021, the applicant submitted a request to the NAS to hear a recording of a call she made to the emergency services on 9 May 2020 concerning her partner who, sadly, passed away at the scene. On 14 July 2021, the NAS refused access to an audio recording of the call but instead granted access to a transcript of the call with the redaction of certain information relating to the deceased under section 37(1) of the Act. On 9 August 2021, the applicant sought an internal review of that decision, wherein she indicated that she wished to listen to the audio recording of the call in question and would be available to attend at the Offices of the NAS to do so.
On 7 September 2021, the NAS issued its Internal Review decision wherein it stated that it had decided to vary the original decision. It refused to provide a copy of the audio recording on the ground that the audio recording was a complete record and could not be redacted to protect third party personal information. It noted that certain FOI Regulations provide for the right of access to the records of deceased persons by certain categories of persons, but found that she did not meet the qualifying criteria. However, it stated that if she provided the written permission of both parents of the deceased as next of kin, it would be willing to afford the applicant an opportunity to attend its Offices with an accompanying person (presumably one of the parents) to listen to the recording.
On 9 September 2021, the applicant sought a review by this Office of the decision of the NAS to refuse to allow her to listen to the audio recording without the consent of her late partner’s parents.
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 correspondence between the applicant and the NAS as outlined above and to the correspondence between this Office and both parties during the review. I have also had regard to the contents of the audio recording at issue. I have decided to conclude the review by way of a formal, binding decision.
Scope of the Review
This review is concerned solely with whether the NAS was justified in refusing, under section 37(1) of the Act, to allow the applicant an opportunity to listen to an audio recording of the call she made to the emergency services on 9 May 2020 concerning her late partner.
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.
Analysis and Findings
I should say at this stage that the vast majority of the information contained in the record at issue was released to the applicant in the form of the redacted transcript of the call that the NAS provided to the applicant when processing her request. The redactions made comprised certain personal details relating to the deceased such as his name, address and age. It seems to me that the applicant should be in a position to readily identify the information redacted from the transcript. Nevertheless, the she was not satisfied with the redacted record and wishes to listen to the full, unredacted recording.
In its submissions to this Office, the NAS indicated that it was relying on section 37(1) of the FOI Act as a basis for its refusal to grant access to the record at issue. Section 37(1) 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 other than the requester, including personal information relating to a deceased individual. Moreover, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information).
Given the nature of the record at issue and the circumstances in which it was created, I am satisfied that granting access to the record would involve the disclosure of personal information relating to the deceased and that section 37(1) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.
Section 37(5) provides that a request that would fall to be refused under subsection (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 request would benefit the person to whom the information relates. In the particular circumstances of this case, I find 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 carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, it is also important to have 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 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 also important to note that with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large. The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. In the circumstances, I consider it appropriate to regard any release of the records concerned as being effectively, or at least potentially, to the world at large.
In its submissions, the NAS argued that the public interest was best served by refusing to release elements of the record not pertaining to the applicant. As I have indicated above, the vast majority of the information contained in the record at issue was released to the applicant in the form of the redacted transcript of the call that the NAS provided to the applicant when processing her request. As such, it seems to me that the NAS endeavoured to release as much information as possible whilst seeking to protect the privacy rights of the deceased. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find that the public interest in granting access to the records does not, on balance, outweigh the right to privacy of the deceased. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations.
The Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. No. 218 of 2016), as amended, are the relevant regulations in this case (the Regulations). Among other things, the Regulations provide that, notwithstanding section 37(1), a request for records which involves the disclosure of personal information of a deceased individual shall be granted where the requester is the spouse or the next of kin of the individual and the public body considers that, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request. The Regulations provide for a right of access to both the spouse and to the next of kin.
In her correspondence with this Office the applicant said she and the deceased were life partners and that they had been cohabiting for many years and were engaged to be married. The Regulations define spouse as including, in addition to a lawful spouse:
(a) a party to a marriage that has been dissolved, being a dissolution that is recognised as valid in the State, and a person who is living apart from his or her spouse pursuant to a deed of separation;
(b) a man or woman who was not married to, but cohabited as a spouse with, the deceased individual; and
(c) a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (No.24 of 2010).
In essence, the applicant’s argument is that she has a right of access to the full record as she cohabited as a spouse with the deceased.
In its submissions on this specific point, the NAS said that prior to the release of its decision on the applicant’s request, a telephone conversation took place between the NAS and the applicant and confirmed that the applicant did not meet the requirements of the relevant categories of individual who might have a right of access to records relating to the deceased under the Regulations.
It said that in addition to verbally confirming that the parents of the deceased were the next of kin, the applicant did not provide any evidence that she had cohabited as a spouse with the deceased. It said the Civil Partnership and Certain Rights of Cohabitants Act 2010 refers to a "qualified cohabitant” as living together for a period of five years if they have no children or two years if they have children. The NAS further noted that in the course of the call to the emergency services, the applicant referred to the location of the incident as her boyfriend’s house, and that she did not make any reference to cohabitation with the deceased in her application for internal review.
I should say at the outset that the question of who is the next of kin of the deceased has no bearing on whether or not the spouse has a right of access to the records of the deceased. As I have stated above, the Regulations provide for a right of access to both the spouse and to the next of kin. Moreover, the definition of spouse includes separate and distinct categories outlined above. As such, any requirements that might exist in order to establish qualification as a civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (category (c)) have no bearing on the determination of whether a requester qualifies as a man or woman who was not married to, but cohabited as a spouse with, the deceased individual (category (b)).
Under section 48(1) of the Act, the Minister for Public Expenditure and Reform may draw up and publish guidelines for the effective and efficient operation of the Act to assist bodies in the performance of their functions under the Act. FOI bodies must have regard to any such guidelines in the performance of their functions under the Act. The Minister has produced guidance relating to section 37(8) and the Regulations.
The guidance provides that an applicant seeking access to records of deceased persons as the spouse of the deceased would be required to produce evidence of his/her relationship to the deceased. In relation to cohabiting couples, it provides that the requester should establish that he or she has lived with and shared the life of the deceased person for a significant period of time. The guidance suggests that four or more years might be a guideline in this regard. It states that proof of living with and sharing the life of the deceased should be done by way of affidavit or other acceptable proof setting out such facts as are relied upon in support of his/her claim to be the partner of the deceased. It provides that the onus is on the requester to prove the facts on which he or she bases his or her claim, and that such proofs could include:
• evidence of unequivocal acts of sharing the life of the deceased for a significant period;
• evidence of living with the deceased on a continuous basis as opposed to occasional social visits; and
• evidence of payment of outgoings relating to a shared family home.
The guidance further provides that any element of such evidence, considered on its own, may not suffice to establish that the requester was the partner of the deceased. It provides that the matter should be decided by the decision maker on consideration, firstly, of all of the facts established by the requester and secondly, on consideration of the views of other relevant parties whose views have been obtained through any consultation process as necessary to ensure that all public interest considerations are taken into account. It provides that the weight to be given to the different facts established and views obtained is a matter for the decision maker and each such case must be dealt with on its merits on a case by case basis.
The argument of the NAS is, in essence, that the applicant did not provide any evidence that she had cohabited as a spouse with the deceased. While I accept that the relevant guidance provides that an applicant seeking access to records of deceased persons as the spouse of the deceased would be required to produce evidence of his/her relationship to the deceased, it is also relevant to note that under section 11(2) of the Act, an FOI body is required to give reasonable assistance to a person who is seeking a record under the Act in relation to the making of a request for access to the record. It can hardly be expected that the applicant, as a layperson, would have been aware at that stage of the relevant legislative requirements she would need to meet in the course of pursuing her request.
The NAS has presented no evidence to this Office to suggest that it offered reasonable assistance to the applicant in this case. It is not apparent that the NAS brought the provisions of the relevant guidance to the attention of the applicant or that it provided any specific advice on how the applicant might seek to establish her entitlement to be regarded as the spouse of the deceased for the purposes of the 2016 Regulations. For example, it did not explain that proof of living with and sharing the life of the deceased might be done by way of affidavit or other acceptable proof setting out such facts as are relied upon in support of her claim to be the partner of the deceased.
That being said, I find that there is insufficient evidence before me to make a definitive determination either way on whether the applicant can be regarded as the spouse of the deceased for the purposes of the Regulations. In the circumstances, I am satisfied that the appropriate approach for me to take is to annul the NAS’s decision and remit the matter back to it for further consideration. In particular, the NAS must have regard to the relevant guidance published by the Minister and should engage with the applicant to seek evidence that she cohabited as a spouse with the deceased in a manner that might entitle her to be regarded as the spouse of the deceased for the purpose of the Regulations
For the sake of completeness, I should add that even if the applicant is in a position to establish, to the satisfaction of the NAS, that she should be regarded as the spouse of the deceased, the NAS must go on to consider whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request. On this point, the NAS should note that the published guidance also provides guidance on how this matter should be approached.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the NAS in this case, and remit the matter back to it for consideration afresh in accordance with the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 and the accompanying guidance published by the Minister.
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.