Decision
Ms. X & The Department of Social Protection (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-161776-T4J5W6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-161776-T4J5W6
Published on
Whether the Department was justified in refusing the applicant access, under section 37(1) of the FOI Act, to certain information contained in records relating to an application she made for a social welfare payment
18 November 2025
This case has its background in an application for a particular social welfare payment made by the applicant. In a request dated 14 April 2025, the applicant sought access to the following records which concern her social welfare payment application: -
• An email dated 2 August 2024 from a named individual (Person A) requesting a meeting with the Department,
• A statement given in person by Person A to a Social Welfare Inspector on 7 August 2024,
• A Social Welfare Inspector’s Report dated 7 August 2024,
• A Social Welfare Report following an interview with a second named individual (Person B) on 14 August 2024.
On 19 May 2025, the Department part-granted the applicant’s request. It granted access to one record in full (Document 1). It redacted certain information from three records (Documents 2, 4 and 5) and refused access to one record in full (Document 3) under section 37(1) of the FOI Act on the ground that they contain personal information about individuals other than the applicant. On 16 June 2025, the applicant sought an internal review of the Department’s decision. She claimed that fictitious statements had been made about her to a social welfare inspector and that the Social Welfare Appeals Office had granted her appeal and thereby exonerated her in relation to false statements made about her. She said she cannot see how the privacy of the third parties who made these false statements about her can override her right to know what was stated in these statements. The Department subsequently varied its original decision. It released some further information from the three part-granted records and affirmed its refusal of the remaining information under section 37(1) of the FOI Act.
On 24 August 2025, the applicant applied to this Office for a review of the Department’s decision. The applicant said that she is very concerned about false information about her person that is currently held on record in the Department. She said that such fictitious information on record could be damaging to her good name and integrity if left unchecked, that it was important to her to have knowledge of all details on record that are personal to her, and to be able to apply for rectification/erasure of the false, incorrect information. The applicant attached a copy of a Social Welfare Appeals Report and other documentation with her application to this Office.
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 outlined above and to the submissions made to this Office. I have also had regard to the content of the records at issue. In referring to the records in this case, I have adopted the numbering system used by the Department in the schedule of records it released to the applicant with its decision. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in redacting certain information from Documents 2, 4, and 5 and withholding Document 3 in its entirety under section 37 of the FOI Act.
While I am required by section 22(10) of the FOI Act to give reasons for my decision, section 25(3) provides that the Commissioner must take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record. Accordingly, the details I can provide of the information refused in this case are somewhat limited, as are the reasons I can give for my decision.
While the records at issue in this case concern a claim the applicant made for a social welfare payment, certain information contained in those records relates to other parties. Document 2 is an email dated 2 August 2024 from Person A requesting a meeting with the Department, which contains information such as PPSNs, the mobile number of Person A, and medical information about a third party. Document 3 is a record received by the Department from a third party. Documents 4 and 5 are the Social Welfare Inspector’s reports on the matter.
Sections 37(1) and 37(7)
Section 37(1) of the FOI Act 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. Section 2 of the FOI Act defines personal information 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 that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the foregoing definition, constitute personal information, including >(i) information relating to the educational, medical, psychiatric or psychological history of the individual, >(ii) information relating to the financial affairs of the individual and (xiv) the views or opinions of another person about the individual.
This does not apply where the information concerned relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), 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). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused pursuant to section 37(7) if that personal information is inextricably linked to personal information relating to parties other than the applicant.
The Department in its submissions to this Office said that the applicant has not provided authorisation for the release of third party personal information. It said that it does not consider that it is appropriate to seek the consent of the individuals concerned to release their information in circumstances where the applicant has not provided this and where the release under FOI is considered to be equivalent to release to the world at large.
Having reviewed the records, I am satisfied that all of the information withheld by the Department comprises either personal information relating to third parties or joint personal information relating to the applicant that is inextricably linked to the personal information of third parties. I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5).
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if:
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
The purpose of section 37(2)(a) is to ensure that section 37(1) cannot apply to information relating solely to the requester. I am satisfied that the withheld information in the records that relates to the applicant is inextricably linked with personal information relating to third party individuals. I am satisfied, therefore, that section 37(2)(a) does not apply. No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply.
Section 37(5)
Section 37(5) provides that access to the personal information of a third party may 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. No evidence has been presented to this Office to suggest that the release of the information withheld would be to the benefit of the third party/parties concerned, nor do I consider this to be the case in the context of the records at issue. I therefore find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an 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. In relation to the question of the public interest, 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, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, the release of records under the FOI Act must be regarded, in effect, as release to the world at large given that the Act places no constraints on the uses to which a record released under the FOI Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party/third parties concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case ”). In that case, 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.
As noted above, the applicant’s position is, in essence, that she should be able to access information that concerns her and is held on her social welfare file, particularly in circumstances where she claims that statements made about her were false. She further said, as noted above, that she wished to be able to apply for rectification/erasure of the false, incorrect information. She said that, as the Social Welfare Appeals Office had upheld her appeal, the right to privacy of the third parties was outweighed by her right to access false statements made about her by these third parties.
In its submissions to this Office, the Department said that it considered the underlining principle of FOI legislation that all records held by a department should be released to a requestor as a factor in favour of release. It said that it considered the following factors against release: the public interest in protecting privacy, and the public interest in maintaining the personal privacy of third parties. The Department said that it was of the view that the public interest test is not what is of interest to the public or the private interests of the requester. It said that it does not take the view that the release of these records would further serve the public interest to such extent that same would outweigh the right to privacy of the third parties in this case.
The FOI Act recognises a public interest in ensuring the openness, transparency, and accountability of public bodies in how they perform their functions. While the applicant’s interest in the redacted information at issue appears to ultimately be a private interest, I accept that there is a public interest in individuals being able to access information held by public bodies that concerns them, and to know what kind of information a public body may be acting on.
On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the FOI 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 question I must consider is whether the public interest in releasing the information withheld by the Department outweighs, on balance, the public interest in protecting the privacy rights of the third parties concerned. It seems to me that the public interest in ensuring openness and accountability in relation to the Department’s inspection processes has been served to a large degree by the release of the majority of the information at issue on foot of the internal review. It seems to me that the applicant is aware of the nature of the statements that were made from her oral appeals hearing. While there may be a public interest in understanding what information the Department holds about individuals and acts on in considering social welfare applications, there is also a strong public interest that the Department receives such information from the public, even in circumstances where certain information is later disproved or deemed inadequate by, for example, the Social Welfare Appeals Office. While I note the Social Welfare Appeals Office found in favour of the applicant’s claim, I do not consider this provides me with a basis to override the rights of privacy of the third parties in this case, nor is it apparent to me that release of the withheld information would further enhance transparency around the Department’s actions in relation to the matters that were the subject of the records at issue.
Having regard to the content of the redacted information at issue and to the significant protection afforded to privacy rights, as well as the fact that the release of the information must be regarded effectively as release to the world at large, I do not accept that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. I find, therefore, that section 37(5)(a) does not apply.
In conclusion, while I recognise that this outcome may be disappointing for the applicant, I find that the Department was justified in its decision to refuse access to the information it redacted in the records sought by the applicant, 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 Department’s decision to refuse access to the information it withheld 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.
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Richard Crowley
Investigator