Whether the Department was justified in refusing access to certain information contained in the applicant’s Jobseeker’s file under section 37(1) of the FOI Act and in refusing access to certain additional records relating to him other than those already released on the ground that no further relevant records exist or can be found

21 February 2022

Background

On 1 December 2020, the applicant submitted a request to the Department for access to all data held regarding him, to include “all data of an operational nature i.e. notes of deciding officers, calculations of means assessments and all policy that led to these calculations i.e. legislation guiding it, operational rules dictating it”. On 30 December 2020, the Department decided to part-grant the request.  It granted access to two files of records, the applicant’s Carer’s Allowance file and his Jobseeker’s file, withholding certain information under section 37(1) of the FOI Act on the ground that release of the information concerned would involve the disclosure of personal information relating to third parties.

On 7 January 2021, the applicant sought an internal review of the Department’s decision to withhold information from pages 55, 64, 74, 75, 92, 95, 96, 124, 125, and 126 of his Jobseeker’s file.  Also, in addition to submitting queries about the content of certain records, including pages 116 and 117, as opposed to concerns about unwarranted redactions, he sought access to a printout of all his Jobseeker’s payments to date and further relevant records in support of information contained on pages 92, 93, 128, 129, 130, and 132. On 27 January 2021, the Department issued its internal review decision, wherein it affirmed its original decision to withhold certain information from the applicant’s Jobseeker’s file.  On 13 March 2021, the applicant sought a review by this Office of the Department’s decision.

During the course of this review, in relation to the printout sought by the applicant relating to his Jobseeker’s payments, the Department notified this Office that on 29 January 2021, it provided him with a statement of all his social welfare payments, including all his Jobseeker’s payments, and on 4 February 2021, it provided him with a detailed printout, including a breakdown of Exceptional Jobseeker’s Payments, and a cover letter, detailing the total Jobseeker’s Allowance and Jobseeker’s Benefit amount paid on a yearly basis for 2014, 2015, and 2016.  It stated that these documents were provided to the applicant outside the FOI process and were not redacted. 

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting the review, I have had regard to the correspondence between the Department and the applicant as outlined above and to correspondence between this Office and both the Department and the applicant on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the page numbering system used by the Department when processing the applicant’s request.

Scope of Review

In his submissions to this Office dated 28 June 2021, the applicant indicated that he was seeking access to all pages of his Jobseeker’s file that had been redacted.  However, it is important to note that a review by this Office is limited by the wording of the applicant’s internal review request.  As such, I am satisfied that the scope of this review is concerned with whether the Department was justified in withholding certain information from pages 55, 64, 74, 75, 92, 95, 96, 124, 125, and 126 of the applicant’s Jobseeker’s file under section 37(1) and in refusing access to further relevant records relating to pages 92, 93, 128, 129, 130, and 132.

Preliminary Matters

Before I consider the substantive issue arising in this case, I wish to make a number of preliminary comments. First, in his internal review request the applicant expressed concerns about how the Department had treated him relation to his welfare entitlements and raised a number of queries regarding information contained in the records received.  It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.  If the applicant is dissatisfied with the actions of the Department, he may wish to contact the Office of the Ombudsman to determine if that Office might be in a position to examine his complaint.

Second, section 13(4) of the FOI Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that this Office cannot have regard to the applicant’s motives for seeking access to the records and information at issue, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest. I will address the public interest balancing test contained in section 37 later in this decision.

Finally, 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 FOI 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). This Office takes the view that the provisions of section 18 do not 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, this Office is 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.

Analysis and Findings

Section 37

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned 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 (commonly known as joint personal information).

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (x) information relating to the entitlements of the individual under the Social Welfare Acts as a beneficiary or required for the purpose of establishing whether the individual, being a claimant, is such a beneficiary and (xiv) the views or opinions of another person about the individual.

Having examined the withheld information at issue, I am satisfied that it is either personal information relating to a third party (i.e. an individual other than the applicant), joint personal information relating to the applicant and the third party, or joint personal information relating to the applicant, the third party, and the applicant’s son (a minor).  Accordingly, I find that section 37(1) applies to all of the withheld information. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section.

Section 37(2)

Section 37(2) sets out certain circumstances in which section 37(1) does not apply, including where the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester (section 37(2)(b) refers).  In such cases, the FOI body must ensure, before granting the request, that the consent of the individual is established to its satisfaction.  While I note that the third party concerned contacted this Office during the course of this review, I am satisfied that the consent required was not given to the Department in this case and that section 37(2)(b) does not apply. 

I would, however, note that most of the information withheld from pages 74, 75, 95, 96, 124, and 125 comprises information that the applicant and/or the applicant and the third party concerned provided to or discussed with the Department.  It appears to me that the majority of such information is most likely already known to the applicant.  However, if the applicant still wishes to obtain access to the that information and to the remaining redacted information at issue, it remains open to him to provide the Department with the relevant consent of the third party concerned to the release of the information in question.  For the sake of completeness, I would add that should the applicant do so, given that some of the information at issue is joint personal information relating to the applicant, the third party concerned, and the applicant’s son (a minor), the Department may also need consider the regulations (Statutory Instrument No. 218 of 2016) that have been made by the Minister for Public Expenditure and Reform under section 37(8) of the FOI Act, which provide for access by parents and guardians to records of minors and certain others in certain circumstances.

Section 37(2) also outlines a number of other circumstances where section 37(1) does not apply. I am satisfied that no such circumstances arise in this case.

Section 37(5)

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 benefit the person to whom the information relates. It is not apparent to me that the release of the information at issue would benefit the third party concerned. I find, therefore, that section 37(5)(b) does not apply. 

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 individual 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. 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.

It seems to me that in this case, the Department sought to provide as much information as possible relating to the applicant while simultaneously seeking to protect the privacy rights of a third party.  The information at issue is of an inherently private nature.  I am also cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.   

Having carefully considered the matter, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individual to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply. 

Consequently, I find that the Department was justified in refusing access to the withheld information under section 37(1).

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

In his internal review request, the applicant submitted that further relevant records in support of the information contained on pages 92, 93, 128, 129, 130, and 132 of his Jobseeker’s file should exist.  In essence, he sought access to additional records relating to his means assessments and calculations and exceptional/manual payments.

In response to queries from this Office regarding the additional records sought by the applicant and seeking an explanation regarding the types of records typically held in relation to means assessments and calculations and exceptional/manual payments, the Department pointed to financial details already released to the applicant on pages 36 and 59, which were used in its calculations regarding pages 130 and 132, and information already released on pages 92 and 93.  The Department also informed this Office that it had located over 200 pages of records that were not located during its response to the FOI request and should have been, including, but not limited to, records relating to pages 92, 93, 128, 129, 130, and 132.  It provided this Office with a copy of those records and also outlined that was seeking to withhold certain information contained therein under section 37(1) of the FOI Act.  It also provided further explanations regarding exceptional payments and how they are calculated.

In the circumstances, it is clear to me that the Department did not take all reasonable steps in an effort to locate all relevant records.  As such, I simply cannot find that section 15(1)(a) applies in this case.  I would add that the manner in which the Department processed the applicant’s request is wholly unsatisfactory.  It is difficult to understand how the Department failed to identify the significant number of further records located during the course of the review when initially processing the request.  The Department should bear in mind that in responding to an FOI request, it is responsible for ensuring that the searches carried out extend to all its locations that might hold relevant records.

I note that a number of the further records located, while they fall within the scope of the applicant’s original request, do not fall within the scope of his internal review request.  As outlined above, this review is limited by the wording of the applicant’s internal review request. Accordingly, I consider that the most appropriate action to take at this stage is to annul the Department’s refusal of additional records relating to pages 92, 93, 128, 129, 130, and 132 of the applicant’s Jobseeker’s file, the effect of which is that the Department must consider the applicant’s request for such records afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.  The applicant will have a right to an internal review and a review by this Office if he is not satisfied with the Department’s decision.

However, before processing the request for additional records relating to pages 92, 93, 128, 129, 130, and 132 afresh, in the circumstances of this particular case, I would expect the Department to liaise with the applicant to establish whether he would like to submit a fresh request for all additional records held by the Department relating to him other than those already released.  If so, the applicant may also wish to provide the Department with the relevant consent of the third party related to this matter.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Department.  While I find that it was justified in refusing access to certain information on pages 55, 64, 74, 75, 92, 95, 96, 124, 125, and 126 of the applicant’s Jobseeker’s file under section 37(1), I find it was not justified in refusing access to further relevant records relating to pages 92, 93, 128, 129, 130, and 132 on the ground that it has not conducted all reasonable searches in an effort to identify all relevant records.  I direct the Department to conduct a fresh decision making process in respect of the applicant’s request for access to additional records relating to those pages.

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