Whether the Defence Forces was justified in refusing access to records concerning an inquiry into a matter involving a third party and the applicant

15 July 2022

Background

In a request dated 11 August 2020, the applicant sought access to all records concerning him arising from the appointment of an individual to carry out an inquiry into a particular matter involving a third party and the applicant, and any related records circulated within the Defence Forces. On 10 September 2020, the Defence Forces sought an extension of time to deal with the request under section 14 of the FOI Act. However, it did not issue a decision within the extended timeframe, thus effectively refusing the request. The applicant sought an internal review on 4 January 2021. On 24 February 2021, the Defence Forces issued its internal review decision. It said that it was part-granting the request and that section 35(1)(a) (confidential information) applied to one record. On 10 March 2021, the applicant applied to this Office for a review of the Defence Forces' decision, including in relation to the adequacy of its searches for records. The Defence Forces provided this Office with a further relevant record during the review and also clarified that it was relying on section 37(1) (personal information) in relation to some of the withheld details.

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. I apologise for the delay in reaching a conclusion on this case. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, the Defence Forces and the applicant. I have also had regard to the contents of the records at issue and to the provisions of the FOI Act.

Scope of the Review

The review is confined to the sole issue of whether the Defence Forces' decision on the applicant's request was justified under the FOI Act. The Defence Forces' handling of any aspect of the request is not relevant to my review.

Two matters arise: (i) whether the Defence Forces has carried out reasonable searches for the requested records and (ii) whether its refusal to grant full access to the records that it identified as covered by the request is justified under the FOI Act. In relation to (ii), as noted above the Defence Forces' internal review decision mentioned the redaction of only one record. It did not specify how many records it had identified as covered by the request or refer to further redactions or exemption provisions. However, it had identified a total of three records and redacted details from all of them. In addition, it did not release any details from the record that it copied to this Office during the review.

Preliminary Matters

Section 13(4) of the FOI Act requires me to disregard any reasons that the applicant has, or is believed to have, for making his FOI request. Furthermore, my review does not extend to examining, making findings on or taking account of the Defence Forces' dealings with the applicant in general, including its handling of his FOI request.

It is 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). I acknowledge that the Defence Forces' grant of partial access to three records was intended to ensure that the applicant would get as much access to information about himself as possible. I appreciate the importance that the applicant attaches to gaining access to the remaining details. However, 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 withheld information and of the reasons for my decision are somewhat limited in this case.

Finally, 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.

Findings

Whether further records exist - section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.

This Office's Investigator invited the Defence Forces' submissions on the searches it had carried out. She also asked it to comment on the applicant's argument that a particular document, which is referred to in two of the partially released records, should have been amongst the records considered for release.

The Investigator's letter to the applicant of 19 May 2021 set out the details of the Defence Forces' submission, which I do not intend to repeat at length here. Firstly, it says that its initial searches identified the further record referred to by the applicant, a copy of which it supplied to this Office. It says that it assumed the applicant already held a copy because he had written it and sent it from his email account.

It also says that it carried out searches of the following: a shared computer drive in a particular office; a cabinet, a particular storage unit, desk areas and lockers used by a particular staff member in two locations and of that staff member's email account and personal diary; and lockers, desk areas and cabinets of two other personnel. It says that it asked the person who carried out the enquiry, and a further staff member acting in an official capacity whom is referred to in the records, if they hold records. It says that the person who carried out the enquiry says that notes taken were destroyed once the final report was completed, and that the other staff member says that no notes were taken of the relevant discussion.

In response, the applicant queried whether personal drives had been included in the searches. The Defence Forces confirms that personal drives were searched, except for that of the individual who carried out the enquiry, because he is currently serving overseas and does not have physical access to his drives. The Defence Forces says that the individual is not due to return home for some time yet. It says that he has said that he would not have saved any document relating to the enquiry on a personal drive, other than perhaps the final report, due their highly sensitive nature.

While I note the assurances from the individual who carried out the enquiry that he would not have saved any sensitive documents on a personal drive, it would be desirable for him to have confirmed this further to a search. However, I have no reason to dispute the Defence Forces' position that he is currently unable to do so. I am satisfied from the Defence Forces' submission that, in the circumstances, it has taken all reasonable steps to look for records covered by this request. I find that section 15(1)(a) applies. However, I would expect the Defence Forces to require the individual to carry out this outstanding step on his return to Ireland and to notify the applicant accordingly.

Personal information - section 37

The Defence Forces clarifies that it withheld details from one record under section 35(1)(a) and from the other two under section 37(1). I note the nature of the details withheld from all three records and the content of the further record copied to this Office during the review. In my view, it is appropriate to consider section 37 (which is a mandatory exemption) in relation to all of the withheld information.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. 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). As noted, the request sought all records relating to an inquiry into a particular matter involving a third party and the applicant. Having examined all of the withheld information, I am satisfied that it is captured by one or more of the examples of what comprises personal information about identifiable individuals.

I note the applicant's point that redactions "concern[ing] the identity of the other party to this process" are unnecessary. While I accept that the applicant knows the third party's name (and possibly also some of the other withheld details) and that he created some of the records at issue, these matters are not relevant to whether information is exempt under section 37 of the FOI Act. In the overall circumstances and context of this case, I am satisfied that the third party's identity comprises personal information relating to that party.

The Defence Forces' partial release of three records does not require me to direct it to also partially release the fourth. I am satisfied that the remaining withheld material comprises personal information relating to the applicant that is inextricably linked to the personal information of another identifiable individual. It follows that it is not possible to separate out information relating solely to the applicant. Even if the third party's name was withheld, I am satisfied that the individual concerned would be identifiable from the context and content of the remaining material. 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).

I find that the withheld record and parts of records are exempt under section 37(1) of the FOI Act. I will now go on to consider sections 37(2) and (5).

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. I note that section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, I am satisfied that no 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 contact information like his work email address and phone 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 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 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 in The 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.

I accept that the disclosure of the withheld information would give the applicant some further insight into matters concerning the inquiry. This does not mean that there should be no protection of privacy rights of other individuals, however. Furthermore, I am satisfied that placing the withheld details in the public domain would significantly breach the rights to privacy of an identifiable individual other than the applicant. I should also say that 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 may be dissatisfied with the actions of an FOI body or any individual.

It seems to me that by releasing certain details from some of the records, the Defence Forces has sought to strike a balance between the competing interests. Having regard to the nature of the remaining information at issue, I am aware of no public interest factors in favour of the release of the withheld record and parts of records 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 section 35(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Defence Forces' decision under sections 15(1)(a) and 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