Whether TUH was justified, under section 37(1) of the Act, in withholding certain information from records released to the applicant relating to her

21 September 2020

Background

In a request dated 24 October 2019, the applicant sought access to all records held by TUH relating to her, for the period 2008 to 2017. In a decision dated 12 May 2020, TUH part-granted the request, releasing a number of records but refusing parts of others under section 37 of the FOI Act (personal information). Following a request for an internal review, TUH issued a fresh decision on 3 June 2020, affirming the refusal under section 37. On 6 July 2020, the applicant sought a review by this Office of that decision. 

I have now completed my review in this case. In carrying out the review under section 22(2), I have had regard to the communications between the parties outlined above and to communications between this Office and both TUH and the applicant on the matter. I have also had regard to the full contents of the records at issue.

Scope of the Review

During the course of the review, both parties were invited to make submissions to this Office on the matter. TUH was informed that it should consider the request for focused submissions issued to be its final opportunity to present arguments to this Office in support of its decision. While it was invited to respond to a series of questions regarding the exemption cited in its internal review decision, it was also informed that those questions were not exhaustive and it should therefore provide any other information it considered relevant to the review.

TUH provided a submission on the matter on 1 September 2020. Therein, TUH made what I consider to be a passing reference to section 35 of the FOI Act in respect of the information withheld. However, I am satisfied that TUH made no substantive claim for exemption of the records at issue under the provisions of section 35. Accordingly, this review is confined to the question of whether TUH was justified in withholding certain information from the records sought under section 37(1) of the FOI Act.

Preliminary Matters

Before addressing the substantive issues arising, I wish to address a number of preliminary matters. First, I wish to comment on the manner in which TUH has approached this case. As the applicant noted in her request for internal review, TUH did not provide an itemised schedule with its original decision, detailing all relevant records considered and the exemptions cited in respect of the parts withheld. I gather that prior to the issuing of its internal review decision, TUH issued the applicant with copies of the redacted records at issue and an explanation of its position regarding its refusal to grant access to the relevant details under section 37(1). In the internal review decision, TUH apologised to the applicant for the earlier error.

However, I also note from the internal review decision that TUH did not engage fully with the requirements of section 37(1) when refusing access. It did not engage with the public interest balancing test at subsection (5) and I further note that when responding to the request for focused submissions issued from this Office, TUH did not engage meaningfully with the questions posed in the request, including in relation to the public interest balancing test. This was despite encouragement from this Office to fully engage in the process.

The Central Policy Unit of the Department of Public Expenditure and Reform has, in its guidance to FOI bodies, stipulated that full schedules should be provided with decisions on FOI requests where relevant records are identified. In the conduct of their functions under the FOI Act, FOI bodies are obliged under section 48 of the Act to have regard to any such guidance. Furthermore, it is essential that FOI bodies comply with the obligation under section 13(2) of the Act to provide adequate reasons for refusing FOI requests. I expect TUH to be vigilant in adhering to its obligations when processing all future requests.

In her correspondence with this Office, the applicant made wide-ranging arguments concerning the review and the manner in which TUH processed her request. Therefore, before I address the substantive issues arising, I would like to make a number of important preliminary comments.

• This Office does not examine complaints about the manner in which public bodies conduct their business generally. In conducting this review, which has been conducted under section 22(2) of the FOI Act, I am confined to considering whether TUH was justified in refusing access to the records concerned under the provisions of the Act.
• Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
• It is important to note that the release of a record under the FOI Act is regarded, in effect, as disclosure to the world at large. This is because the Act places no restrictions on the type or extent of the subsequent use to which a record released under the Act may be put.
• The applicant also contended that this Office’s procedures for conducting a review under section 22 are not in adherence with the principles of fair procedures and natural justice. She objects to the fact that in conducting a review, this Office provides the FOI body concerned with a copy of the application for review in the case, including any arguments raised therein. I am satisfied that this Office’s procedures comply with the principles of fair procedures. Section 22(6)(a) requires that this Office provide the body concerned with a copy of the relevant application for review. In order to progress a review, we put the body involved on notice of arguments raised by the applicant concerned and offer it an opportunity to respond. In turn, as in this case, we inform applicants of any material issues arising over the course of the review and provide them with an opportunity to respond in kind.

Analysis and Findings

Section 37 – Personal Information

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. This does not apply where the information involved 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).

Section 25(3) of the Act requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. It is important to note that this means that I am limited in the degree of description I can provide of the records at issue and of my reasoning in this case. Having examined the withheld information at issue, I am satisfied that it comprises information relating to the applicant that is inextricably linked to personal information of other identifiable individuals, i.e. joint personal information. I am satisfied that the release of such information would involve the disclosure of personal information relating to individuals other than the applicant.

In the circumstances, I find that section 37(1) applies to all of the withheld information. However, that is not the end of the matter as section 37(1) is subject to the provisions of subsections (2) and (5).

Subsection (2) provides that subsection (1) does not apply in certain circumstances. Having examined the records, and having regard to the correspondence between this Office and the parties to this review, I am satisfied that none of the circumstances identified at section 37(2) arise in this case.

Subsection (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 information would be to the benefit of the person to whom the information relates. I am satisfied that subsection 5(b) does not apply in the circumstances of this case.

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 [2011] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] (“the F.P. case”), which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that “the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”

From the applicant’s correspondence, I am satisfied that she has expressed, in essence, a private interest in release. While I can appreciate the importance the applicant attaches to accessing the withheld information, the above judgments make clear that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interests in the grant of access to the records withheld. Furthermore, it is not appropriate for me to direct the release in the public interest of third party personal information, effectively to the world at large, on the basis, for example, that the applicant takes issue with actions of TUH.

The applicant has also made much of the fact that by withholding information relating to her, she is being denied the opportunity to avail of her right to seek to have any such information that is incomplete, incorrect, or misleading amended under section 9 of the Act. However, while section 9 of the FOI Act may be regarded as recognising a public interest in the personal information held by public bodies being accurate, complete, and not misleading, it does not give a right of access to an otherwise exempt record.

As the Commissioner said in his composite decision in cases  090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

The FOI Act reflects that there is a general public interest in openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy. I also accept that there is a public interest, recognised by the FOI Act, in establishing that TUH carries out its functions, including those in relation to the applicant, in a way that is consistent with the principles of natural and constitutional justice.

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 unenumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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.

Having regard to the nature of the withheld information, and in light of the fact that the release of a record under FOI is regarded, in effect, as release to the world at large, I find that the public interest in favour of granting access to the records does not outweigh the public interest that the right to privacy of the other individuals concerned should be upheld. I find, therefore, that TUH was justified in refusing access to the withheld information under section 37(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TUH’s decision to withhold certain information from the records released to the applicant, under section 37(1) of the FOI Act.

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.

 

Stephen Rafferty

Senior Investigator