Case number: 180529
On 7 March 2018, the applicant made his FOI request to the Department. He referred to documents that he said had been seized by the Department in a raid of an individual's (Mr A's) house. He said that Mr A had since been dealt with by the courts. He said that the documents listed the names and contact information of particular types of individuals involved in the horse industry. He requested access to the "full list" of individuals referred to in the documents.
The Department's decision of 23 March 2018 refused to grant the request under section 31(1)(b) (contempt of court) on the basis that the requested information "would involve the release of documents furnished to the Court as part of the discovery process". The applicant sought an internal review on 23 April 2018. On 16 May 2018, the Department issued its internal review decision, in which it affirmed its refusal to grant the request. It said that regardless of whether section 31(1)(b) applied, the records were in any event exempt under section 37 (personal information). On 18 December 2018, the applicant applied to this Office for a review of the Department'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 Department, and the applicant. I have had regard also to the records considered by the Department and to the provisions of the FOI Act.
This review is confined to whether the refusal to grant the applicant's request is justified under the FOI Act.
It is in the public domain that the Department raided Mr A's house, arising from which Mr A pleaded guilty to certain criminal matters.
In making my decision, I must comply with section 25(3) of the FOI Act. 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. Furthermore, I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large.
Section 31(1)(b) requires the refusal of an FOI request where it is known, or ought reasonably to be known, that granting it would constitute contempt of court.
The Department's position is that it is a contempt of court to grant the request because it would disclose certain records subject to undertakings in discovery procedures relating to court proceedings. The applicant argues that the Department may waive the undertaking it gave to the Court in this regard.
It is an accepted rule of law that a party obtaining the production of documents by discovery in an action gives an implicit undertaking to the Court that he or she will not make any use of the documents or the information contained therein otherwise than for the purpose of the action. In EH and EPH v. the Information Commissioner  2 I.R. 463 (available on www.oic.ie), Mr. Justice O'Neill in the High Court stated that where the head of a body, or the Commissioner, "is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b)". Section 31(1)(b) of the FOI Act 2014 is the current equivalent of section 22(1)(b) of the FOI Act 1997.
In short, when a party has obtained documents from an FOI body under discovery procedures and makes an FOI request to the body for the same records, the body must refuse the request under section 31(1)(b). It is open to the body to waive the undertaking to the Court, as argued by the applicant.
However, the Department confirms that the applicant was not party to the proceedings and that it did not disclose records to him under discovery procedures. Therefore, he would not have given any undertaking to the Court and it is not a contempt of court for such records to be granted to him under FOI. I find that section 31(1)(b) does not apply. However, the applicant is not entitled to access to any such records if they are exempt under another provision of the FOI Act, such as section 37.
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information.
"Personal information" is defined at section 2 of the FOI Act, which also lists 14 examples of what must be considered to be personal information. These examples include (vi), "information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements of the definition to also be met.
The Department says that granting the request would disclose personal information about Mr A and that any references that there may be to the individuals would also disclose personal information about them. The applicant does not seem to dispute that the information he has requested is personal information about Mr A. He says that if the individuals have done nothing wrong, they have nothing to fear from his request being granted.
I am limited in the description I can give of the records and in my analysis. I am satisfied that the request seeks personal information about Mr A and also about any of the individuals who may be referred to in any documents seized by the Department. It is not for this Office to determine whether any of the individuals has done anything wrong. However, information indicating whether one has or has not a criminal history is clearly information falling within example (vi) of what comprises personal information.
The applicant also says that Mr A is a former public servant. Thus, I have also considered the exclusions to what is personal information where current or former public servants are concerned. These narrow exclusions are also set out in section 2 of the FOI Act. In summary, the following do not constitute personal information: the name of the individual in the context of being a member of staff of an FOI body; information regarding the office, position or functions of that member of staff of an FOI body; the terms upon which the member of staff holds office or occupies a position and records created by that employee in the course of and for the purpose of, the performance of his/her functions.
Generally speaking, the exclusions to the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members in the course of their work or to details in records that would identify the public servants who dealt with the matters the subject of those records. However, they do not deprive current or former public servants of the right to privacy generally.
I do not consider the requested information to be of a sort that is excluded from the definition of section 37 where a former public servant is concerned. I find that section 37(1) applies.
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 individuals to whom the information relates should be upheld.
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 IESC 26 ("the Rotunda judgment"). 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 the public has a right to know the full story behind Mr A's criminality, and that various parties have a right to know what is happening in the horse industry. He says that Mr A's right to privacy cannot be more important than ensuring the welfare of horses. He also says that the Department's refusal of his request suggests that they are trying to limit the damage caused to an important industry by a former colleague.
The FOI Act itself recognises a public interest in ensuring that FOI bodies are open about, and can be held accountable for, how they carry out their functions. I accept that granting access to any records or parts of records covered by the request would further this public interest, to at least some extent.
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). 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.
I do not agree with the applicant's view that Mr A's conviction means that he is not entitled to privacy regarding the contents of any records that may have been seized from his home by the Department. Neither do I the view that insofar as such records may refer to the individuals, they are not entitled to privacy because of Mr A's conviction. I am satisfied that granting access to any records or parts of records covered by the request would significantly breach the rights to privacy of the individuals as well as of Mr A.
I find that the public interest in favour of granting the request does not outweigh the public interest that the right to privacy of the persons to whom the information relates should be upheld.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal to grant 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.