Whether the Department was justified in its decision to refuse access to certain records relating to complaints about direct provision centres on the basis that they are excluded from the scope of the FOI Act under the provisions of Schedule 1, Part 1 of the Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 23 January 2017, the Department received a request from the applicant for access to information on "the number of complaints per direct provision centre to the Reception and Integration Agency". The request included "each complaint". In its original decision, the Department stated that it had granted access in part but withheld parts of the records on the basis of sections 31(1)(a), 35(1)(a) and 37(1) of the FOI Act. However, the Department did not provide a clear explanation on the status of four records (numbers 19, 28, 29 and 30). The Department subsequently clarified that access to the four records was refused. Following an application for an internal review in respect of the four records, the Department affirmed its decision to refuse access to them on the basis that that they were outside the scope of the FOI Act, further to the provisions of Schedule 1, Part 1 of the Act. It also affirmed refusal of other records under sections 31 and 37 of the Act but the applicant has not applied for a review of those parts of the decision. On 19 June 2017, this Office received an application for a review from the applicant.

In conducting my review, I have had regard to the submissions of the Department and to correspondence between this Office and the applicant and the Department. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

The applicant did not make a submission. However, during the course of the review the Investigator spoke to the applicant and explained the Office's views on the records and on the exemptions applied by the Department.

Scope of Review

This review is concerned with whether the Department was justified in deciding to refuse access to the withheld records (numbers 19, 28, 29 and 30).

Preliminary Matters

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. However, I can say that three of the records contain correspondence to and from individuals, the Ombudsman and complaints involving the Reception and Integration Agency. The fourth record contains correspondence to and from individuals, and the Ombudsman for Children (the Ombudsman for Children was not referred to in the decision of the Department), and complaints involving the Reception and Integration Agency.

Analysis and Findings

Schedule 1, Part 1 of the FOI Act

Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Schedule 1, Part 1(z) of the FOI Act provides that section 6 does not include a reference to the Ombudsman insofar as it relates to records concerning an examination or investigation carried out by the Ombudsman under the Ombudsman Acts 1980 to 2012.

Schedule 1, Part 1(aa) of the Act provides that section 6 does not include a reference to the Ombudsman for Children insofar as it relates to records concerning an examination or investigation carried out by the Ombudsman for Children under the Ombudsman for Children Act 2002.

By way of explanation, under section 46 of the FOI Acts 1997 & 2003, the Act did not apply to certain records relating to specified functions of a number of bodies. For example, the Act did not apply to records relating to complaints conducted by the Ombudsman, regardless of what body held the records. However, under the FOI Act 2014, a number of such bodies are now included in Schedule 1, Part 1 as partially included agencies. While this means that such bodies remain entitled to refuse access to those records that they hold, which are excluded under Schedule 1, the protection from release does not extend to such records if they are held by other bodies that are subject to FOI.

The Investigator invited the Department to make a submission. He queried whether the Department regarded the sum of all the pages within each record as a 'single record', and noted that one set of records referred to the Ombudsman for Children.

The Investigator stated that the view of this Office is that Schedule 1, Part 1(z) and Part 1(aa) have the effect of no longer putting all Ombudsman records outside of FOI but only removing those ones which are held by the relevant Ombudsman as a public body, rather than those held by any other public body. The Investigator advised the Department that in his view section 37 (Personal information) of the FOI Act may be applicable to records the subject of the review. He advised the applicant of his view on the Department's decision about Schedule 1, Part 1, and the provisions of section 37.

In its submission, the Department confirmed that "The sum of all the papers in a particular complaint constitute a single record in this instance". It also confirmed that all the records were a combination of a complaint made to the Reception and Integration Agency and correspondence to and from the Offices of the Ombudsman and Ombudsman for Children. It explained that the records "consist of all communications and supporting material about these complaints". The Department stated that is not possible to separate the pages in each record to distinguish between Reception and Integration Agency and Ombudsman correspondence. However, the Department said that

"In hindsight and following the extension of the remit of both [Ombudsman Offices] to residents in State provided accommodation, we have amended our internal systems so complaints from individuals and/or organisations representing those individuals are kept separately from correspondence to and from the Ombudsman's Offices."

In response to the Investigator's query about schedule 1 part 1 of the Act, the Department stated that it understood that "correspondence to and from either Ombudsman is specifically exempt under the provisions of FOI legislation". However, the Department did not make a submission either on any reasons it had for applying the exemption at schedule 1, part 1, or on the provisions of section 37, concerning the records.

It is clear to me that the records are held by the Department. Accordingly, I consider the records not to be covered by Schedule 1, Part 1(z) and Part 1(aa) of the FOI Act, and therefore are subject to the Act.

In the circumstances, an option is to annul the Department's decision to refuse to grant access to the records and direct it to undertake a fresh decision making process on them. However, having examined the records, and having advised the Department and the applicant about the view of this Office concerning the application section 37 of the Act, I consider that it is appropriate to make a decision on the records on the basis of that section.

Section 37 - Personal Information

Section 37(1) of the FOI Act is a mandatory exemption which provides that access to a record shall be refused if access 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 the body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

It is clear from my examination of the records that release of the withheld information would disclose the personal information of identifiable individuals other than the applicant. I am satisfied that the withheld information in all of the records at issue is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the FOI Act applies to those records.

I should say here also that it would not be practicable to redact all of the personal information in the record and, in any event, the extent of the exempt information to be removed would result in a copy of the record being misleading (section 18 of the FOI Act refers).

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2)

Section 37(2) of the FOI Act provides for a number of circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2)(a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information in circumstances where the applicant has not provided this and where release under FOI is considered to be equivalent to release to the world at large. Consequently, I find that section 37(2) does not apply to the details at issue.

Section 37(5) - the Public Interest

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 any of the individuals concerned and that section 37(5)(b) does not apply.

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.

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is 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[2011] 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 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.

Having regard to the above, on balance, I find that the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I annul its decision to refuse access to the records on the basis that they are excluded from the scope of the FOI Act under the provisions of Schedule 1, Part 1(z) and Part 1(aa) of the FOI Act. I find that the records are exempt under section 37(1), on the basis that they contain the personal information of individuals other than the applicant.

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.

Elizabeth Dolan
Senior Investigator