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Case Number: 160323

Whether the Department was justified in its decision to refuse access to a report prepared by the applicant's colleague in connection with a workplace incident involving the applicant and her colleague

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

This review has its background in an incident which occurred in the workplace involving the applicant and a work colleague in 2014. The applicant subsequently sought access to her personnel file, which the Department released in May 2015. However, the applicant was not satisfied with the extent of the records released as she had not received copies of reports submitted by her manager and her colleague in connection with the incident. She subsequently submitted a request for access to her "full personal file" under the FOI Act on 21 September 2015.

As the Department had previously released a copy of the applicant's personnel file and as she had subsequently requested copies of the two reports, the decision maker treated the request as a request for those reports. Access was granted in part to the report submitted by the applicant's manager, while access was refused to the report submitted by her colleague. Following a request for an internal review, the Department affirmed its decision. Subsequently, the applicant sought a review by this Office of the decision of the Department to refuse access to the report submitted by her colleague.

During the course of this review, Mr Christopher Flood of this Office informed the applicant of his view that the report was exempt from release under section 37 on the ground that disclosure of the report would disclose personal information relating to third parties. However, the applicant has indicated that she requires a formal decision on the matter. Accordingly, I have decided to conclude this review by way of a formal, binding decision. In conducting this review I have had regard to the full contents of the record at issue. I have also had regard to correspondence between the applicant and the Department on the matter, and to communications between this Office and both the applicant and the Department during this review.

Preliminary Matters
I wish to make a number of comments before I address the substantive issues arising. First, while I am required by section 22(10) of the Act to give reasons for my decision, I am also subject to the requirement of section 25(3) that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. Therefore, the description that I can give of the contents of the record at issue, and the level of detail I can provide in relation to the reasons for my decision, are limited.

Secondly, 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 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). Neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Thirdly, as noted above, this Office has determined that the exemption at section 37 is of relevance in this case. My jurisdiction under section 22 is to make a new decision in light of the facts and circumstances as they apply on the date of the review. Given the fact that the exemption relating to the protection of personal information is mandatory, and that the release of the record at issue may affect the interests of third parties, it is appropriate for me to consider the applicability of section 37, notwithstanding the fact that it was not originally relied upon by the Department in refusing access to the record sought.

Scope of Review

This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to the report submitted by the applicant's work colleague.

Analysis and Findings

Section 37 - General
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of a request if access to the records concerned would involve the disclosure of personal information of individuals other than the requester. Furthermore, section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a request where access to the record at issue would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.

For the purposes of the FOI Act, "personal information" is defined under section 2 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 an FOI body on the understanding that it would be treated by it as confidential. Section 2 details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "... (iii) information relating to the employment or employment history of the individual" and "... (v) information relating to the individual in a record falling within section 11(6)(a)" (that section refers to personnel records of members of staff of FOI bodies).

Paragraph I of section 2 excludes certain information from the definition of personal information, including the name of a staff member of an FOI body and information relating to his/her office or position or its functions, 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. This exclusion is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant while carrying out his or her official functions. However, the exclusions to the definition of personal information do not deprive public or civil servants of the right to privacy generally. As noted above, the personnel records of staff members of FOI bodies are included within the definition of personal information.

Given the nature of the incident to which the report relates, I find that it cannot be said to have been prepared by the individual in question for the purpose of the performance of his functions. Rather, it was prepared in the course of an enquiry into a specific incident that took place. I find, therefore, that the exclusion in Paragraph I does not apply.

Sections 37(1) and 37(7)
I have carefully examined the contents of the report at issue. In addition to containing information concerning a workplace incident involving both the applicant and the individual who prepared the report, it also contains information relating solely to that individual that is inherently sensitive and private. Furthermore, the report contains other information concerning additional third parties. Having regard to the definition of personal information set out above, I am satisfied that the information contained in the report is either personal information relating to parties other than the applicant or joint personal information relating to the applicant that is inextricably linked to personal information of third parties. In the circumstances, I find that section 37(1) applies.

Section 37(2)
There are some circumstances, provided for at section 37(2), where section 37(1) does not apply. Having examined the report, and having regard to the submissions of both the applicant and the Department on the matter, I am satisfied that none of the circumstances identified at section 37(2) arise in this case.

Section 37(5)
Section 37(5) provides that a record which is otherwise exempt under section 37(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the parties concerned. I find, therefore, that section 37(5)(b) does not apply.

Section 37(5)(a) - The Public Interest
On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals to whom the information relates. There is a distinction to be made between a request made by a private individual for a private purpose and a request made in the public interest. 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.

In this case the applicant has expressed what appears to be a private interest in accessing the report. In her internal review request, the applicant indicated that she wanted to obtain the report so that a resolution could be reached and because she was experiencing interference with her health and well-being at the time. In correspondence with this Office, the applicant stated that she believed the report to contain false accusations about her. The applicant stated that she wanted to know what the accusations were so that she could "put the record 'straight'" and, in accordance with "Natural Justice", seek redress if such statements were defamatory.

In the context of determining whether to grant a request in the public interest under section 37(5)(a), the reasons given for a request may be considered only insofar as they reflect a true public interest. While the applicant's interest in accessing the report appears, in essence, to be a private interest, the Long Title of the FOI Act nevertheless reflects that there is a general public interest in promoting openness and accountability with respect to information held by public bodies, provided that it is consistent with the right to privacy. 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.

On the other hand, the public interest in respecting the right to privacy is a very strong public interest and is recognised in the language of section 37. This public interest in protecting privacy rights is also reflected in the Long Title to the Act, which makes clear that the release of records under FOI must be consistent with the right to privacy. Moreover, the right to privacy has been recognised as an unenumerated right under the Constitution. The strong protection afforded to privacy rights under FOI is also consistent with Article 8 of the European Convention on Human Rights. Furthermore, 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.

It is also important to note that the release of records under FOI is regarded as being, in effect, to the world at large because the FOI Act places no restriction on the subsequent uses to which the records may be put. The public interest in promoting transparency and accountability in relation to the manner in which the Department dealt with the incident in question has been met to a certain extent by the release of the report prepared by the applicant's manager. The question I must consider is whether the public interest in the release of the report prepared by her colleague outweighs, on balance, the public interest in protecting the privacy rights of the third parties concerned. In my view, it does not. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the Department was justified in its decision to refuse access to the report under section 37 of the Act. Given my findings regarding section 37, it is not necessary for me to consider the applicability of section 35 in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse access to the record sought.

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