Whether the NMBI was justified in refusing access to certain records relating to the applicant’s complaint under sections 30(1)(a), 35(1)(a), and 37(1) of the FOI Act

12 March 2020

Background

In a request dated 8 November 2019, the applicant sought access to records relating to a complaint that he had lodged with the NMBI.  In a decision dated 6 December 2019, the NMBI refused the request under sections 30(1) and 37(1) of the FOI Act.  On the same day, but evidently before he received a notice of the NMBI’s decision, the applicant requested an internal review of the matter.  On 2 January 2020, NMBI varied its decision by granting the request in part and refusing it in part.  The decision to refuse related to the following two sets of documentation:

• The observations and comments of the person that the applicant had made his complaint against;
• The correspondence between the NMBI, the person that the complaint had been made against, and the person’s representatives.

The NMBI’s refusal on internal review was based on sections 30(1)(a), 35(1)(a), and 37(1) of the FOI Act.  On 6 January 2020, the applicant applied to this Office for a review of the NMBI’s decision.

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 submission and documents received from the NMBI.  I have also examined the records at issue.  I note that, on 8 January 2019, this Office invited the applicant to make submissions in relation to any matter relevant that he considered may be relevant to the review.  To date, however, no submissions from the applicant have been received.  I have now decided to conclude this review by way of a formal, binding decision.

Scope of the Review

As indicated above, the records at issue consist of two sets of documentation relating to a complaint made to the NMBI by the applicant concerning a particular individual.  My review is concerned solely with the question of whether the NMBI was justified in refusing access to the records concerned under the FOI Act.

Preliminary Matters

There are a number of preliminary matters I wish to address at the outset.

First, 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. For this reason, the description I can give of the contents of the records is limited.

Secondly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed.  This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent

Lastly, it is important to note the release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

I note that the NMBI’s submission in this case is largely focused on its claim for exemption under section 30(1)(a) of the FOI Act, which provides that an FOI body may refuse access to a record if it considers that access could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.  It explains that the role of the Preliminary Proceedings  Committee (PPC) of the NMBI is to consider complaints referred to it under the Nurses and Midwives Act 2011.  It states that the PPC may set its own procedures and that under its procedures it is entitled not to release observations and comments by those against whom complaints are made.  It notes that, following its consideration of the applicant’s complaint, the PPC formed the opinion that no further action was required and a decision was made not to release the observations at issue in light of representations made on behalf of the person concerned.

Having regard to the contents of the records, however, I find that section 37 of the FOI Act is the more relevant exemption to consider in the circumstances of this case.  Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information.   Section 37(7) specifies that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).  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.  The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual";  and "(xiv) the views or opinions of another person about the individual". 

Certain information is excluded from the definition of personal information.  Where the individual holds or held a position as a member of staff of a public body, the definition does not include his or her name, or information relating to the office or 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 of the definition refers).  This exclusion to the definition of personal information is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held, any records created by the public servant while carrying out his or her official functions, or information relating to the terms and functions of any position.  However, the exclusions to the definition of personal information do not deprive public servants of the right to privacy generally.  Thus, previous decisions of this Office have accepted that the exclusions do not apply to references involving allegations of inappropriate or illegal behaviour, whether proven or otherwise.

The records at issue in this case include representations made on behalf of the person against whom the applicant made a complaint of what seems to amount to an allegation of professional misconduct.  They also include a detailed personal statement by the person concerned.  I am satisfied that the records do not fall within any of the exclusions to the definition of personal information and that section 37(1) applies, subject to consideration of sections 37(2) and 37(5) of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply.  However, I am satisfied that none of those circumstances arises in this case.  That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.  

Section 37(5) provides 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.

As I find no basis for concluding that the release of the information concerned would be to the benefit of the third party individual to whom it relates, I find that section 37(5)(b) does not apply.  In considering the public interest test contained in section 37(5)(a), it is important to have 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] IESC 26 ("the Rotunda Hospital 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. 

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. 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.

In this case, I accept that there is a strong public interest in openness and accountability in relation to the manner in which the NMBI, including its PPC Division, carries out its investigations.  However, the case file reflects that the applicant was informed by the NMBI of the process and procedures followed, the documentation considered, and its decision on the matter.  In the circumstances, I find that the public interest in granting access to the records at issue does not, on balance, outweigh the public interest in upholding the right to privacy of the third party individual concerned.  Accordingly, I am satisfied that the NMBI's decision to refuse access to the records at issue was justified under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the NMBI in this case.

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