Whether the Department was justified in refusing access to records relating to the estate of the applicant's late husband under section 37(1) of the FOI Act

11 July 2023

Background

In a request dated 16 February 2023, the applicant sought access to:

1. Copies of all correspondence or notes of telephone calls to the Department of Agriculture from a [named] Solicitor in relation to the estate of her late husband;
2. Copies of all correspondence or notes of telephone calls from the Department of Agriculture to a [named] Solicitor in relation to the estate of her late husband;
3. Copies of all correspondence or notes of telephone calls from the executors of the estate of her late husband to the Department of Agriculture;
4. Copies of all correspondence or notes of telephone calls from the Department of Agriculture to the executors of the estate of her late husband;
5. Copies of all supporting documentation sent to the Department of Agriculture by a [named] Solicitor or by the executors of the estate of her late husband.

On 6 March 2023, the Department issued a decision in which it refused the applicant's request under section 37(1) of the FOI Act (personal information). On 9 March 2023, the applicant applied for an internal review of the Department-™s decision. On 23 March 2023, the Department issued its internal review decision, in which it affirmed its original decision. On 27 March 2023, the applicant sought a review by this Office of the Department'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 correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties on the matter. 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

This review is concerned solely with whether the Department was justified in refusing to grant the applicant's request for access to records relating to her late husband's estate under section 37(1) of the FOI Act. 

Preliminary Matters                                                                       

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. 

The release of records under FOI is generally considered to equate to their release to the world at large, as the FOI Act places no restrictions on the use to which released records may be put.

Analysis and Findings

Section 37 -“ Personal Information

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 records concerned would involve the disclosure of personal information, including personal information relating to a deceased individual. 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). I accept that release of the records at issue in this case would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual or would involve joint personal information.

Section 37(8) provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates is deceased. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). The Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual andshall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one or other of the following classes:

(i) a personal representative of the deceased individual acting in due course of administration of the individual's estate or any person acting with the consent of a personal representative so acting,

(ii) a person on whom a function is conferred by law in relation to the deceased individual or his or her estate acting in the course of the performance of the functions, or

(iii) the requester is the spouse or the next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

Neither of the decision letters issued by the Department made any reference to the section 37(8) Regulations or gave any indication that they were considered in the decision making processes. During the course of the review, this Office invited the Department to make a submission in support of its refusal of the request and it drew the Department's attention to relevant provisions where the individual to whom the record concerned relates is deceased.

In its response, the Department stated that section 37(8) of the Act was not referenced in processing the original request. The Department stated that in considering the review of the original decision, an FOI training course slide was used. It provided this Office with a copy of the slide which refers to the three categories of requester for access to a deceased person-™s records under Section 37. The Department also provided this Office with a note which it said was made by the internal reviewer prior to issuing his decision and which refers to a consideration of access to deceased person-™s records where the request is made by the spouse or next of kin. 

The Department's submission suggests that it considered the applicant's request under category (iii) above, as spouse of the deceased. I am not convinced by the Department's assertion that it considered the Regulations when processing the request given the absence of any mention of the Regulations in its decision letters. Even if it did, it appears that the Department did not have due regard to the accompanying guidance issued by the Minister for Public Expenditure and Reform pursuant to the provisions of section 48(1) of the Act. That section provides that the Minister may draw up and publish guidelines for the effective and efficient operation of the Act to assist FOI bodies in the performance of their functions under the Act and that FOI bodies shall have regard to such guidelines.

The relevant guidance is available on the website of the Central Policy Unit of the Department of Public Expenditure and Reform and I expect that the Department is aware of its existence. In considering whether the applicant has a right of access to the records sought under category (iii), the question the Department must consider is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.

The relevant guidance suggests that each case must be judged on its own merits and that the decision maker will have to balance the public interest in the confidentiality of personal information against the public interest in the right of the requester to access the records. It suggests that in light of the requirement on the decision maker to have regard to "all the circumstances", the factors to be considered include:

• the confidentiality of personal information
• whether the deceased would have consented to the release of the records to the requester when living
• would the release damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship prior to the death of the deceased
• the nature of the records to be released
• can the requester obtain the information sought without accessing the records of the deceased

It is not clear to me that the Department had regard to these factors. It has not explained in its decisions how those factors led it to find that the public interest would, on balance, be better served by refusing the request. I am not satisfied that the Department properly considered S.I. 218 of 2016 when processing the applicant's request or that it has justified its decision to refuse the request. However, in light of the nature and contents of many of the records at issue, I do not consider it appropriate to simply direct the release of the records. Instead, I consider that the appropriate course of action is to annul the Department's decision and direct it to undertake a fresh decision-making process, during which it must have due regard to section 37(8) and the provisions of the 2016 Regulations. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department in this case. I direct it to undertake a fresh decision making process in respect of the applicant-™s request, having due regard to the provisions of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016.

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.

Jim Stokes
Investigator