Whether the Department was justified in refusing access to records relating to certain types of complaints submitted by or on behalf of a particular individual concerning the applicant

23 March 2022

Background

The applicant is employed by an FOI body other than the Department. His FOI request dated 13 August 2020 sought access to records dating from particular points in 2019. In summary, he requested all records relating to complaints concerning him that were submitted by or on behalf of a particular individual, under what can generally be described as separate informal and formal complaints procedures. The Department's decision of 17 September 2020 part-granted the request. It released a small number of records in full and in part and relied on sections 30(1)(a) (investigations of an FOI body), 30(1)(c) (negotiations of an FOI body), 31(1)(a) (legal professional privilege), 35(1)(a) (information given in confidence) and 37(7) (joint personal information) of the FOI Act in withholding the remaining records and parts of records. The applicant sought an internal review on 5 October 2020. The Department's internal review decision of 27 October 2020 affirmed its decision on the request. On 3 December 2020, the applicant applied to this Office for a review of the Department's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision.  In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Department and the applicant, as well as the contents of the withheld records. I have also taken account of the provisions of the FOI Act.

Scope of the Review

The review is confined to the sole issue of whether the Department's decision on the applicant's request was justified under the FOI Act. I note that some of the records comprise email threads in which emails covered by the request were forwarded to the Department's decision maker to consider for release. It should be noted that the review extends to only those records that existed as at the date of receipt of the request.

Preliminary Matters

The applicant says that he made his FOI request because he was made aware of correspondence and other records concerning him that were not furnished to him when he requested them. He refers to certain matters involving a third party. He says he has been told that the third party has objected to the release of records to the applicant. He says that he has had no transparency in relation to the matters concerned. He also feels that a disproportionate number of records have been withheld overall, and that section 31(1)(a) in particular has used as a blanket exemption. He feels that the Department's decisions are generic and inadequate and do not reflect an adherence to the FOI Act.

Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has for making his FOI request. Furthermore, my review does not extend to examining, making findings on or taking account of the applicant's employer's or the Department's dealings with him in general. It is also the case that, as the Department has told the applicant, the FOI Act does not require the release of any particular proportion of records covered by a request. The applicant's views on the adequacy of the Department's schedule and indeed the way in which the Department scheduled the records are also immaterial to my consideration of that body's decision on his FOI request.

It is also relevant to set out the Commissioner's position on the provision of records with exempt information redacted. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).

The Department has granted partial access to some of the records. I acknowledge that this was intended to ensure that the applicant would get as much access to information about himself as possible. While I appreciate the importance that the applicant attaches to getting access to the withheld details, the Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remainder of such records for the purpose of granting access to those particular sentences or paragraphs.

Section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the records and of the reasons for my decision are somewhat limited in this case.

Finally, release of records under FOI is generally understood to have the same effect as publishing them to the world at large.

Findings

Personal Information - section 37

The Department's decisions relied on section 37 in relation to only a small number of the withheld records. It now argues that this provision applies to the majority of the records at issue. The applicant says that the Department cannot claim section 37 in relation to more records than previously claimed and he also has concerns that it is being relied on disproportionately.

Section 37(1) is a mandatory exemption. I must find it to apply if I am satisfied that the relevant tests for the exemption to apply are met, even if it had not been claimed by the Department at all.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. It is not relevant whether an applicant may be aware of any of the information concerned.

For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual falling within section 11(6)(a) (i.e. personnel records). Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

I am mindful of the requirements of section 25(3). It is worth noting that the request sought all records relating to complaints submitted by or on behalf of a third party concerning the applicant.  Having examined all of the withheld records and parts of records, I am satisfied that they are captured by one or more of the examples of what comprises personal information about identifiable individuals. Although not necessary for me to go further, I am satisfied that in any event they contain information of a type that meets the definitions of personal information. I find that section 37(1) applies to all of the records at issue.

Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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 (i.e. joint personal information). The applicant asks whether he can be given partial access to such records. However, I am satisfied that all personal information relating to the applicant is inextricably linked with personal information of other identifiable individuals. I should also say that I am also satisfied that even if names were redacted, individuals would be identifiable from the context and content of the remaining details. Therefore, it is not feasible to separate out information relating solely to the applicant.

I find that all of the relevant withheld records and parts of records are exempt under section 37(1) of the FOI Act. This is subject to the consideration of sections 37(2) and (5), however.

Section 37(2) - exceptions to section 37(1)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The applicant refers in particular to section 37(2)(a), which provides for the grant of access to personal information relating to the requester. However, noting the details released by the Department in this case, I am satisfied that no further information falls for release further to this provision of the FOI Act. I have already outlined the provisions of section 37(7) and explained why I do not consider that personal information relating to the applicant can be separated from that of other individuals. I should also say that while a small number of the withheld details may relate only to the applicant, such as his work email address and contact numbers, I do not consider it in keeping with the Commissioner's approach to section 18 to direct the Department to grant access to such further parts of the records. I am satisfied that the remaining circumstances set out in section 37(2) do not arise.

Section 37(5)(a) - the public interest

In considering section 37(5), I consider that only section 37(5)(a) is relevant in this case. This 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 whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court inThe 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.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

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). 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the Act places no constraints on the uses to which the information contained in those records may be put.

The applicant is dissatisfied with how he has been treated by his employer and/or the Department. He says that the Department has not properly considered the public interest in granting his request. However, it is the Department's position that the wider public interest would not be served by release of the withheld records.

I accept that the disclosure of the withheld records and parts of records would give the applicant some further insight into various matters relating to him. This does not mean that there should be no protection of privacy rights of other individuals, however. I do not believe it is 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 that the applicant is not happy with the actions of various FOI bodies or indeed those of particular individuals. Neither do I have any remit to consider, or make findings on, the adequacy of those actions.

It seems to me the Department's release of certain details from the records attempts to strike a balance between the competing interests, notwithstanding that the majority of the records have been withheld. I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific redacted information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In the circumstances, it is not necessary for me to consider the other exemptions relied on by the Department.

Scheduling of Records

As noted earlier, the applicant's views on the adequacy of the Department's schedule are irrelevant to my review. However, I have decided to address his comments given related matters that arose in the review, which are also dealt with below.

The applicant has requested the names of those whom are referred to by their initials and as "Solicitor". He refers to the fourth column of the schedule, which lists the number of pages in each record, and says that it suggests that multiple records have not been identified. In other words, he maintains that the schedule should give a better breakdown of the content of each record. The Department is not willing to provide the applicant with any further detail.

The FOI Act does not impose any requirements on FOI bodies concerning the preparation or provision of schedules. However, the Central Policy Unit (CPU) in the Department of Expenditure and Reform has published aCode of Practice for FOI bodies(the Code), which says that decisions should be issued with schedules providing details of those records being released in full, of those to which partial access is being given and of those being refused. The Code also recommends that schedules should set out the reasons why access is not being granted in full or in part and reference relevant sections of the Act where refusals are made. The CPU has also published amodel FOI decision schedule.

I have no powers to compel the Department to take further steps in relation to its schedule. That said, the Department's schedule appears to me to follow the CPU's guidance. Furthermore, in the context of a request seeking information about complaints made by a third party, I would say that aspects of the Department's schedule could reasonably have been less detailed and would still comply with the CPU's guidance.

The applicant also notes the omission of records 33-38 from the schedule. The Department says that the apparent omission of records arises from an error it made when creating the schedule. This may be the case and I do not intend to comment further on its explanation. However, the records supplied to this Office by the Department for the purposes of the review include a small number of further records, which the Department considered in its decisions on the applicant's request. The Department did not describe or otherwise list these records on the schedule it provided to the applicant.

The Department cites various exemption provisions that it believes to apply to the records and believes that it is entitled to "remain silent" on them, insofar as the applicant is concerned. It refers to the former Commissioner's comments in Case No 080050 as support for its position. In summary, it has concerns that any indication of the records' existence, or any reference to an exemption provision, would have the same effect as would releasing the records concerned.

Some of the provisions cited by the Department provide for a refusal to confirm or deny whether requested records exist (generally known as "refuse to confirm or deny" provisions). Such provisions, such as section 37(6), provide for the refusal of a request on the basis that to disclose the existence of records would, of itself, disclose exempt information. Section 37(6) provides that a body may refuse to confirm whether records covered by a request exist in situations where confirming that particular records exist or do not exist would be to disclose personal information. The request in Case No 080050 case sought all records relating to disciplinary hearings or internal inquiries involving a named Waterford County Council employee. The Commissioner noted that the request was predicated on an assumption that the named Council employee was under investigation for an alleged breach of discipline or some form of wrong-doing. She said that to confirm this assumption would be to disclose personal information of that employee but that equally, however, to state that no such allegations were made and that no investigation was in train was also to disclose personal information of that employee. She noted that the usefulness of the "refuse to confirm or deny" provision depends on it being invoked in instances where relevant records do not exist as well as in cases where relevant records do exist. The Commissioner affirmed the Council's refusal of the request in full under the then equivalent of section 37(6) of the FOI Act.

It is also useful at this point to set out the Department's understanding of the requirements contained in sections 13 and 21 of the FOI Act insofar as "refuse to confirm or deny" provisions are concerned. Sections 13 and 21 concern the notification by bodies of original and internal review decisions on FOI requests. Section 13(2)(d) provides that, where a request is refused, whether wholly or in part, the notification shall specify:

(i) the reasons for the refusal, and
(ii)unless the refusal is pursuant to section 28(5), 31(4), 32(2), 33(4), 35(4), 36(4) or 37(6), any provision of this Act pursuant to which the request is refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision, (emphasis added to the above by the Department in its submissions).

Section 21(5)(c) provides that an internal review decision shall specify, if the decision is to refuse to grant, wholly or in part, the request aforesaid, the information specified in sub paragraph (i) of paragraph (d) of section 13(2) and, if the refusal is not pursuant to section 15(1)(c), 28(5), 31(4), 32(2), 33(4), 35(4), 36(4) or 37(6), the information specified in subparagraph (ii) of that paragraph (again, emphasis added to the above by the Department in its submissions).

In essence, the Department appears to be of the view that where a request is being refused under section 28(5), 31(4), 32(2), 33(4), 35(4), 36(4) or 37(6), it is not required to cite any such provision in its original or internal review decisions. I do not agree with this interpretation of sections 13(2)(d) and 21(5)(c). These provisions seem to me to impose a requirement on FOI bodies to cite the relevant "refuse to confirm or deny" provision and give reasons why the request is being refused, whether in full or in part, under that provision. 

It is the nature of a particular request that determines whether it is appropriate for an FOI body to refuse to confirm or deny whether the requested records exist. For instance, as set out above, the request in Case No 080050 was predicated on the basis that the named Council employee was under investigation for some form of wrong-doing. As the Commissioner explained, to confirm whether such records do or do not exist discloses personal information about the employee. Such a request can be distinguished from a request for records held by an FOI body regarding staff matters generally. Although exceptions may arise, disclosing that an FOI body holds records about its staff does not of itself disclose personal information about the individuals concerned. Whether such records would be exempt from release is another matter, of course. It is also important to note that in Case No 080050, the Council clearly relied on the then equivalent of section 37(6) of the FOI Act.

In this case, the request seeks records concerning complaints made by a third party about the applicant. The Department's decisions effectively confirm that it holds such records. In such circumstances, I see no reason why the Department could not have informed the applicant that a small number of further records are covered by the request and which contain, for instance, joint personal information.

For avoidance of any doubt, I confirm that I have examined all records that the Department has identified as covered by the applicant's request, and that the additional records are covered by my findings above on section 37. In addition, I accept that the Department's approach to the relevant records was in good faith. However, I do not believe that it is appropriate for me to stay silent on the records even though I have found them to be exempt under the FOI Act. While I considered annulling the Department's decision on the records and requiring it to make a fresh decision on them in accordance with sections 13(2)(d) and 21(5)(c), I did not consider it practicable, appropriate or in any party's interests to do so given my findings that the records are ultimately exempt from release. In the circumstances, however, I see no reason to give the applicant any further detail about the records concerned such as by way of schedule. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to withhold the remaining records and parts of records 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.

Deirdre McGoldrick

Senior Investigator