Whether the Council was justified in its decision to refuse access to the name of the person(s) who provided certain information to the Council's FOI Officer, under section 37(1) of the FOI Act

2 November 2023

Background

By way of background, An Bealach Nua project (the project) is a community-led collaborative public/private initiative. The project's purpose is to provide a direct channel for rural regeneration in the North West Roscommon region. The lead public agency is the Roscommon Integrated Development Company/Roscommon LEADER Partnership . The project is also backed by the Council, among other organisations.

On 22 March 2023, the applicant sought access to the minutes of Council meetings regarding its attendance at meetings of the project. The Council refused his request under section 15(1)(a) of the FOI Act, on the basis that the records didn't exist. It stated that the project was still in the pre-development and pre-planning phase, that the project's strategic advisory group had not yet met, and wouldn't meet until it was much further progressed.

In a new request dated 20 April 2023, the applicant sought the name of the person(s) who gave the Council's FOI Officer the information relating to the project's strategic advisory group and whether it had met. His position was that this information was incorrect. On 17 May 2023, the Council issued a decision wherein it stated that it was granting the applicant's request. It provided the name of a Council staff member who it said had given the information to the FOI Officer. It stated that the staff member concerned had received the information from the Council's Arts Office. It did not give the name of the individual in the Arts Office, or explain where the Arts Office had received the information. Nor did it release any records.

On 22 May 2023, the applicant applied for an internal review on the basis that the information provided in the Council's decision did not answer his question. He reiterated his view that the information provided to the FOI Officer was incorrect. On 9 June 2023, the Council affirmed its original decision. On 23 June 2023, the applicant applied to this Office for a review of the Council's decision. In his application, he indicated that he had concerns about the governance of the project.

During the course of this review, the Investigating Officer asked the Council whether it held any records which contained the information sought by the applicant in this case. In its submissions to this Office, the Council stated that it had identified two email threads relating to the applicant's previous request, which, among other things, contained the information sought by the applicant, but that it considered section 37 to apply to the name of a third party contained in these records. It also stated that it considered some of the information contained in the records to be outside the scope of the applicant's request.

The Investigating Officer notified the applicant of the records located, gave him an outline of the Council's submissions regarding its reliance on section 37 of the FOI Act and invited him to comment on the matter. In response, the applicant indicated that he wanted access to the third party's name, details of their role in the project and the reason why their name should be withheld.

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 applicant's comments in his application for review and his submissions to this Office, and to the submissions made by the FOI body in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As set out above, during the course of this review, the applicant indicated that he wanted access to the third party's name, details of their role in the project and the reason why their name should be withheld. I am satisfied that the records located by the Council during this review do not contain details of the third party, other than the name of the individual concerned. I am also satisfied that only the individual's name is within the scope of his original request. The matter of whether the Council was justified in withholding the name concerned under the FOI Act will be considered below.

In correspondence with this Office, the Council indicated that some of the information contained in the email threads located during the review was outside the scope of the applicant's request in this case. In particular, it stated that the names of other staff members copied on the emails in question were not captured by his request. While it would have been open to the Council to release this information in full in the interest of openness, I am satisfied that the staff members who were copied on the emails concerned are not the individuals who provided information to the FOI Officer regarding the meeting of the strategic advisory group, nor did they provide the information to the individual who in turn provided it to the FOI Officer. The Council also highlighted some internal emails in the email thread identified, which solely concerned administrative matters relating to his initial FOI request. I am also willing to accept that these emails are outside the scope of the applicant's request, as they do not contain any information relating to the name of the person(s) who provided the information in question.

In further correspondence with this Office, the Council indicated that it was willing to release one email in full (Record A "� an email dated 19 April 2023) and one in part (Record B, an email sent on 17 April 2023 at 16:46) on the basis of section 37(1) of the FOI Act. If the Council has not already released these records to the applicant, I would expect it to make arrangements to do so now.

Having carefully reviewed the records identified and the wording of the applicant's request, I am satisfied that solely records A and B are within the scope of his request. As noted above, the Council has indicated that it is willing to records these records to the applicant, subject only to the redaction of the name of a third party contained in record B. Accordingly, this review is concerned solely with whether the Council was justified in refusing access to the name of a third party under section 37(1) of the FOI Act.

Preliminary Matters                                                                        

It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information sought from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought.

It is also important to note that a review by the Commissioner under section 22 of the FOI Act is considered to bede novo, which means that it is based on the circumstances and the law as they apply on the date of the decision.

I should also state that it seems to me that a reasonable interpretation of the applicant's request in this case would have been to consider who had provided the information originally, rather than just giving the name of the person who provided it to the FOI Officer. The Council seems to be of the view that its narrow interpretation meets the strict wording of the applicant's request. However, it also seems to me that in the interest of openness and transparency, it could have provided additional information to the applicant, including the name of the individual in the Arts Office. In any event, I am satisfied that what the applicant is actually seeking in this case is the name of the third party who provided the information to the individual in the Arts Office, which was then passed on. Furthermore, it is clear to me that the applicant could not have been expected to be aware that more than one staff member and/or an external individual was involved in providing the disputed information when he made his request.

Finally, I note from the correspondence between the parties that has been provided to this Office of the purposes of this review, that the parties have been in contact about the project and related matters for some time. I also note that the applicant has expressed concerns relating to the governance of the project. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies or external organisations perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies or third party organisations.

Analysis and Findings

Section 37

The Council's position is that the name of an external third party contained in record B is exempt under section 37(1) of the FOI Act. Before considering whether section 37 applies to the names of the individual in question, I must first consider whether the disclosure of that information would involve the disclosure of personal information relating to this individual.

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or; (b) is held by a public body on the understanding that it would be treated by it as confidential. This 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. It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met.

Certain information is excluded from the definition of personal information. While the applicant has not argued that the individual concerned is an employee of the Council or a service provider, for the sake of completeness, I will consider the exclusions to the definition of personal information.

Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers). Paragraph II provides that where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service. The term "service provider"� is defined as "a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person"�.

The Council has stated that individual in question is not a Council employee. From the content and context of the record in question, I am satisfied that this is the case. It has also stated that he/she is not a service provider. I have no reason not to accept its submissions in this regard.

In correspondence with this Office, the applicant argued that the information provided by the individual concerned was false. He has also suggested that the incorrect information may have been provided knowingly to the Council.

It seems to me that at the very least the information concerned relates to the employment history of an identifiable individual, which is captured by the definition of personal information. Furthermore, I am satisfied that in the circumstances where the applicant is seeking the name of a person whom he alleges to have provided false information to the Council, that the information is personal information relating to an identifiable individual and that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.

Section 37(2) of the FOI Act set out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances set out in section 37(2) arise in this case.

Section 37(5)

Section 37(5) states 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.

It has not been argued that releasing the information withheld would benefit the individual to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

Public interest

In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure"�. Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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 am required to disregard the applicant's motives for seeking access to the information withheld, other than insofar as it reflects a public interest factor in favour of releasing the record concerned. As set out above, the applicant has indicated that he was seeking access to the records in order to ascertain who had provided the FOI Officer with the information that he contended was false. The applicant stated that as the project was a community project being funded by public money, this information should be readily available.

In my view, there is a significant public interest in the public knowing how publicly funded projects are managed and administered, and how such funds are allocated. However, as set out above, there is also a very strong public interest in protecting the right to privacy, which is recognised by the language of section 37 and also by the Long Title to the FOI Act. 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.

Essentially, the applicant's position was that the information provided to the FOI Officer was false and he seeks to know the identity of the individual who provided it.  

As noted above, the Council has indicated that it is willing to release the majority of records A and B to the applicant. It seems to me that in its amended position, the Council has sought to balance the competing public interests in the release of the information concerned. I am satisfied that the records at issue demonstrate how the FOI Officer received the information and the chain of communication within the Council. I accept that the release of the records in full would reveal the identity of the person outside the Council who provided the information, but I do not see how the release of this person's name would shed any light on the Council's functions, nor on how the project is being administered. Furthermore, I must also have regard to the fact that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

It seems to me that the disclosure of the identity of the individual would not serve to further the public interest in relation to the efficient management of the project and/or the appropriate use of public funds to any significant degree. Having considered the matter carefully, I find that, on balance, the public interest in granting access to the name of individual does not outweigh the right to privacy of that same individual.  Accordingly, I find that the Council was justified in refusing access, under section 37(1) of the FOI Act, to the name withheld from release.

As set out above, if it has not already done so, I would expect the Council to release records A and B to the applicant, subject to the redaction of the third party's name and the names of staff members copied on the correspondence, other than those who provided the information to the FOI Officer and the FOI Officer himself.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council's amended decision to refuse access to the name of a third party on the basis of section 37(1) of the FOI Act. I find that the public interest, on balance, does not warrant its release. 

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.
 

Sandra Murdiff
Investigator