Whether the Department was justified in refusing access to certain records relating to the applicant and whether further records are held

 

23 December 2019

 

Background

 

The applicant’s FOI request to the Department of 5 June 2019 alleged that a particular staff member of the Department discussed her personal data with a staff member of TUSLA (the Child and Family Agency). She said that her character was negatively portrayed as a result and that she has been excessively scrutinised by the Department beyond what is reasonable. She named various other Department staff in her request and sought access to all “emails (plus all attachments) plus phone texts sent by company phone and all electronic messages concerning [her]” from 1 January 2016 to 1 June 2019.

 

The Department’s decision of 1 August 2019 refused her request under the provisions of section 37(1) of the FOI Act (personal information). It referred to section 18 and said that if it redacted the exempt details, only minimal information would be released and the records would be misleading. The Department also said that no phone texts or electronic messages could be found and that this part of the request was being refused under section 15(1)(a).

 

On 13 August 2019, the applicant sought an internal review of the Department’s decision and also asked it to certify if any of the requested records do not exist. The Department’s internal review decision of 4 September 2019 affirmed its decision to withhold records under section 37 and to refuse access to phone texts and electronic messages under section 15(1)(a) of the FOI Act.

 

On 9 September 2019, 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. I have examined the records the subject of the Department’s decisions and I have also had regard to the provisions of the FOI Act.

 

Scope of the Review

 

The scope of the review is confined to whether the Department’s decision on the applicant’s request was justified under the provisions of the FOI Act.

 

Findings

 

Section 15(1)(a) - adequacy of search

 

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 all records of relevance to a request or that the requested records do not exist. It is not normally the function of this Office to search for records. Furthermore, this Office has no remit to examine, or make findings on, whether or not the Department should have created further records or its record management practices generally.

 

The Department refused access to phone texts and electronic messages under section 15(1)(a) on the basis that such records could not be found. As this Office’s Investigator told the applicant, the Department says that all staff named in the request were contacted and that they searched all of their devices (i.e. phones and laptops). It says that the staff have provided copies of all documents located (i.e. emails and attachments), that its position is that its staff do not carry out business by text message and that no other further records can be found. The Department notes that the applicant’s request is quite precise in that it specifies the particular types of records sought, their date range and relevant staff. It says that all work files, emails etc. are stored on central servers and can be accessed by its staff logging in on any pc or laptop. It says that work emails (Outlook) on phones are also searchable via laptop and desktop. It says that further to its email policy, which is in place since 2009, emails older than 90 days are archived and retained for 100 years but are still readily searchable. It says that while “deleted items” and “drafts” folders are not archived, these are fully searchable in any email search.

 

The applicant expresses disappointment that there is no way of verifying what the Department’s staff say and that it has no mechanisms for monitoring information sent from company phones. However, my role is confined to whether the Department was justified in refusing access to further records on the grounds that it has carried out reasonable searches and that the records cannot be found or do not exist. Having regard to its submission, I am satisfied that this is the case. I find that section 15(1)(a) of the FOI Act applies.

 

Section 37 - personal information

It is useful at this point to outline the Commissioner’s approach to granting partial access to records. 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 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 remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

 

Section 25(3) requires this Office to take all reasonable precautions to prevent the disclosure of exempt material in the performance of its functions. This means that I am limited in the level of detail I can give in describing records that the Department withheld under section 37. It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

 

Section 37(1)

 

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.

 

Personal information is defined in section 2 of the FOI Act 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 (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual, (x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary and (xiv) the views or opinions of another person about the individual. Having examined the records, I consider that they meet both definitions in section 2 and are also captured by various examples of what comprises personal information. I am satisfied that I am not in breach of section 25(3) by explaining that the records relate to various identifiable individuals including the applicant and public servants.
 

The applicant says that is no basis for withholding information showing that members of staff of the Department were acting within the remit of their roles in the Department insofar as she is concerned. I take this to be an argument that the records contain the sort of information about FOI body employees that, also further to section 2 of the FOI Act, cannot be considered to be their personal information. The information excluded is:

 

- the name of the individual,

- information relating to the office or position or its functions,

- the terms upon and subject to which the individual holds/held that office or

occupies/occupied 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 the functions.

 

The exclusions are quite narrow and do not provide for the exclusion of all information relating to staff of FOI bodies. The Commissioner takes the view that the exclusions are intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. They do not deprive staff members of FOI bodies of the right to privacy generally. In considering the exclusions in this case, I must give proper regard to the context of the applicant's request, which alleges impropriety by certain named public servants. I am satisfied that information showing whether or not those allegations have substance comprises personal information about the public servants concerned which is not captured by the exclusions outlined above.

 

I should also reiterate that even if the exclusions in section 2 were relevant in this case, the records also relate to other identifiable individuals who are not public servants.
 

Section 37(7) provides that, notwithstanding section 37(2)(a), 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.
 

In many instances, information relating to the applicant is inextricably linked with that of other individuals (joint personal information). Even if it were feasible to separate out information relating solely to the applicant, I would not consider it to be in keeping with the Commissioner’s approach to section 18 to grant access to the records in this case with such third party personal information redacted.
 

I find the records to be fully 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. Section 37(2)(a) provides for the grant of access to personal information relating to the requester. As outlined above, I do not consider that personal information relating to the applicant as it appears in the records can be separated from that of other individuals.  I am satisfied that section 37(2)(a) does not apply in this case. I am also 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 where the public interest lies, 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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.
 

Furthermore, McDermott J., in his December 2016 judgment in the case of F.P. and the Information Commissioner [2014 No. 114 MCA] ("the F.P. case") which was subsequently upheld by the Court of Appeal, said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the ‘public interest’ in granting access is not to be determined on the basis of the appellant’s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.”
 

While I can appreciate why it is so important to the applicant to obtain access to the records, the above judgements make it clear that I cannot take into account her private interests in the grant of access to the withheld information. Neither has this Office any power to refer the matter to an independent third party to verify whether her data has been handled correctly.
 

The applicant says that her records should not refer to third parties and that she is concerned that the Department is hiding an error on its part. However, it is not appropriate for me to direct the release in the public interest of third party personal information (including personal information relating to public servants in this case), effectively to the world at large, on the basis of the applicant’s assertions that individuals within the Department mishandled her personal information or because she feels that she is being unfairly scrutinised by the Department. As the Commissioner said in his composite decision in cases  090261/090262/090263 which the High Court upheld in the FP case: "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that 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. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
 

The applicant says that the intention of the FOI Act is to ensure that all government departments are transparent and accountable for their actions. I agree that there is a public interest, which is recognised by the FOI Act, in establishing that the Department carried out its functions, including in relation to the applicant, in a way that was consistent with the principles of natural and constitutional justice. This public interest is entitled to significant weight in this case and I accept that it would be served by granting access to the requested records.
 

On the other hand, 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). I am satisfied that placing the records in the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant.
 

Having considered the matter carefully, I find that the public interest in favour of granting access to the withheld records does not outweigh the public interest that the right to privacy of individuals other than the applicant should be upheld.

 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal to grant the applicant’s request 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.

 

 

 

 

 

 

 

 

Elizabeth Dolan
Senior Investigator