Whether Camphill was justified in refusing access to the remainder of certain records referring to the applicant

2 February 2022

Background

In a request dated 26 August 2021, the applicant sought access to all records referring to him or his previous roles in Camphill, which had been furnished to the organisation’s Board of Directors, individual Directors or Chairperson, or to the HSE or HIQA, by a named person within Camphill or by that person’s office over the previous five months.

Camphill’s decision of 15 September 2021 part-granted the request. The correspondence itself did not explain the decision. In particular, it did not cite any provisions of the FOI Act in relation to any withheld details or otherwise explain the basis for any redactions, or include rights of appeal. The attached schedule, however, indicates that Camphill had granted access to four records in full and four others in part. It said that the partly released records had been submitted to the Ombudsman in relation to a now-closed case. On 15 September 2021, the applicant sought an internal review of the redactions. Camphill’s internal review decision of 1 October 2021 said that the withheld details were exempt under section 37(1) of the FOI Act (personal information). On 12 October 2021, the applicant applied to this Office for a review of Camphill’s redaction of the records.

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 above exchanges, correspondence between this Office, Camphill and the applicant, the contents of the records at issue and the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is confined to the sole issue of whether Camphill’s refusal to grant full access to the four records was justified under the provisions of the FOI Act.

Preliminary Matters                                                                 

Sections 13(2)(d) and 21(5)(c) of the FOI Act provide that where an FOI body decides to refuse to grant a request whether wholly or in part, the notification of the original or internal review decision shall specify:

• the reasons for the refusal;
• any provisions of the FOI Act pursuant to which the request is refused;
• the findings on any material issues relevant to the decision;
• particulars of any matter relating to the public interest taken into consideration for the purposes of the decision; and
• details concerning rights of review and appeal under the Act.

The Investigator brought Camphill’s attention to the above in the context of the content of its original decision. It confirms that it will take steps to ensure that the relevant requirements are adhered to in future cases.

Section 13(4) of the FOI Act requires me not to take into account any reasons that the applicant has, or that he may have, for making his FOI request.

Section 18(1) of the FOI Act 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 confirm that I have examined all of the withheld details. However, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review 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. As set out above, Camphill’s schedule describes the withheld details in general terms. I must limit the level of any further detail I can give about the withheld information and also parts of Camphill’s submission because of the requirements of section 25(3).

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

Analysis and Findings

Personal information – section 37

Camphill says that the withheld details comprise personal information relating to parties other than the applicant. The applicant says that Camphill is obliged to supply as much non-personal information as possible without redaction and that there is no public or commercial reason as to why so many details had been redacted.

Section 37(1)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. In particular, section 2 includes a list of 14 non-exhaustive examples of what must be considered to be personal information. Mindful of the requirements of section 25(3), I note that the records relate to a complaint that was ultimately submitted to the Ombudsman. The complaint concerns a person (not the applicant) whom is not a public servant or service provider. I am satisfied that the withheld information is captured by one or more of the examples of what comprises personal information relating to identifiable individuals other than the applicant.

The applicant says that the redactions render the records practically unreadable and almost useless, and that this is not in line with current guidelines from this Office. While he does not refer me to the relevant part of this Office’s guidelines, it should be noted that the Commissioner is generally not in favour of the extraction of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs further to the provisions of section 18.

It seems to me that although Camphill granted very limited access to the four records, it was seeking to ensure that the applicant would get as much access to information about himself as possible, while applying the exemption under section 37 of the FOI Act to what it considered to be third party personal information. It is my view that its actions in this regard were in keeping with the spirit of the FOI Act.

I appreciate the importance that the applicant attaches to getting access to the remaining details. However, even if names were to be redacted from the withheld material, I am satisfied that individuals other than the applicant, whom are not public servants or service providers, would be identifiable from the content and context of the remaining material.

The applicant may also be of the view that, because he is referred to in the records, they also relate to him and therefore contain joint personal information. However, it seems to me that the records refer to the applicant in his capacity as a staff member of Camphill and not in any personal capacity. In any event, even if the records could be considered to contain joint personal information, section 37(7) is relevant. 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 find that the withheld information is 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, including section 37(2)(a), which provides for the grant of access to personal information relating to the requester. As set out already, the applicant may be of the view that the records relate to him and that he is entitled to access to them further to section 37(2)(a). However, I am satisfied that no information falls for release further to this provision. I have already outlined the provisions of section 37(7). 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), it is my view 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 (“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 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.

Camphill says that the right to privacy of the service user outweighs the public interest in disclosing the details concerned.

The applicant has made no arguments relating particularly to the public interest. For the sake of completeness, it is clear from the above judgments that I cannot have regard to any private interests the applicant may have in obtaining the records. Neither would it be 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, for instance, how he was dealt with in the course of his employment, or other matters.

I accept that disclosure of the withheld information would give the applicant a further insight into the overall context in which he is briefly referred to in the records. However, this does not mean that there should be no protection of privacy rights of other individuals. Furthermore, 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.

It seems to me that by releasing records in part, Camphill has sought to strike a balance between the competing interests. Having regard to the nature of the withheld information, I am aware of no public interest factors in favour of its release 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.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Camphill’s decision to withhold parts of the four 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