Ms X and Department of Education [2024] IEIC 143530 (07 October 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Department was justified in refusing access to parts of submissions to a Memorial Committee

7 October 2024

Background

The Report of the Commission to Inquire into Child Abuse, also known as the Ryan Report, was published on 20 May 2009. Its recommendations included the construction of a memorial to victims of abuse while in institutional care. In 2009, a Memorial Committee (the Committee) was appointed to oversee the commissioning of the memorial. In mid-2010, the Committee sought views on the matter from interested parties.

The applicant's FOI request to the Department of 19 June 2023 sought access to records relating to the Committee's consultations with former residents of residential institutions and/or their representative groups.

The Department's decision of 6 July 2023 part-granted the request. It granted access to three records. It withheld seven others (records 1-6 and 10) under sections 29(1) (deliberative processes) and 37(1) (personal information) of the FOI Act.

On 18 July 2023, the applicant sought an internal review. The Department's internal review decision of 12 September 2023 affirmed its decision.

On 1 November 2023, the applicant applied to this Office for a review of the Department's decision. During the review, the Department released the withheld records, except for parts of records 1, 5 and 10. It said that the relevant details comprised personal information and were exempt under section 37 of the FOI Act. However, the applicant argues that some of the redacted details appear to concern organisations rather than individuals, and wants a decision on the matter.

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 to correspondence between this Office, the Department, various third parties and the applicant, to the contents of the records at issue, and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Department's refusal of access to the remainder of records 1, 5 and 10 is in accordance with the provisions of the FOI Act.

Further to the Department's release of records during the review, the applicant raised some issues that I am pleased to note the Department has since addressed. She also argued that the Department should hold certain further records covered by her request. As she is aware, however, I am not examining the adequacy of the Department's searches because she did not raise the issue in her application for internal review.

Preliminary Matters

The applicant says that she is researching for a thesis. She says that she is seeking to disseminate information of national importance, concerning the memorialisation of residential institutions in Ireland. However, 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 be disregarded. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, 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.

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 public body concerned considers appropriate, of the record with the exempt information removed. 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 a withheld record for the purpose of granting access to those particular sentences or paragraphs.

Section 25(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the performance of his functions 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.

Release of records under FOI is generally understood to have the same effect as publishing them 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.

Finally, in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 5 (the eNet judgment), the Supreme Court said that "it is the FOI body that must explain and justify a conclusion that the records are exempt by reference to the relevant provisions of the Act, and equally, it is the FOI body that must explain why the public interest does not justify release in the public interest." I also note that, in the Supreme Court case of Sheedy v the Information Commissioner ([2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to the record could reasonably be expected to result in the outcome envisaged. He stated that "[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard".

However, while FOI bodies must justify their decisions, the eNet judgment in particular also says that a failure by an FOI body to do so does not lead to an inevitable or statutorily mandated outcome. Rather, this Office must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.

Third party consultations

Section 22(6) of the FOI Act requires the Commissioner to notify the following parties of his proposal to review a decision of an FOI body: the head of the FOI body, the applicant, in the case of a decision in respect of a request to which section 38 relates, the original requester, and, any other person who, in his opinion, should be notified.

Section 24 of the FOI Act provides that a party to a review or any other person affected by a decision of the Commissioner may appeal against that decision to the High Court on a point of law. Section 22(10) requires the Commissioner to notify his decision to any person to whom, in his opinion, it should be notified. Any person who would be affected by his decision should be notified, thus giving the person an opportunity to exercise his/her rights under section 24. Thus, a guideline for deciding whether or not to notify a third party under section 22(6) is whether that person is likely to be affected by the decision of the Commissioner.

In particular, record 10 includes submissions made by representative groups and summarises their contributions at consultative meetings. The Department released the substance of the various comments. However, it withheld details identifying the groups as contributors, such as the groups' names, addresses and contact information (the organisational information). It contends that disclosure of the organisational information would ultimately reveal personal information about the groups' staff (or volunteers, etc., as appropriate). It also appears to argue that the groups made submissions etc. on the understanding that their identities as contributors would remain confidential.

It is not evident to me, from their face, how release of the relevant details from record 10 would reveal confidential or personal information. In other words, it is not apparent to me that the groups (or their staff, etc.) are likely to be affected by my decision. Nonetheless, I decided to seek comment from the groups on the matter. I should say that while submission 13 in particular represents the views of a number of groups, I considered it sufficient to seek to contact only the party that sent on the submission concerned.

While the contents of record 10 are 14-15 years old, it appeared to me from internet searches that some contact details therein remain current. I asked the Department to provide up to date details for others. The Department was unable to provide details for one of the organisations concerned. Otherwise, it provided me with email addresses and with phone numbers where email addresses were unavailable. In total, I contacted 17 representative groups in Ireland and the UK. It transpired that one of the phone numbers provided to me now belongs to an individual unconnected with any representative group.

I am satisfied that I have taken reasonable steps to consult the organisations referred to in the records. Having given careful consideration to the matter, and having regard to my analysis as set out below, I do not consider it necessary, or indeed feasible, to take further steps to consult with the parties concerned.

Analysis and Findings

The withheld details

Bearing in mind the requirements of section 25(3), I can say that the Department has withheld a list of names from record 1, and a name and part of a sentence from record 5.

Record 10 contains 90 pages. Page 1 is the cover page, which has been released. Pages 2-4 list the submissions that were sent to the Committee by individuals and support/representative groups (numbered as 1-41). Pages 5-86 consist of the submissions. Pages 88-90 summarise meetings held between the Committee and various groups.

The Department made numerous redactions to record 10 and it is not practicable for me to identify each one. In summary, I am satisfied that they largely consist of individuals' names, initials, home addresses, private email addresses, work email addresses, phone numbers, dates of birth, identity numbers, signatures, as well as views expressed about identifiable individuals and certain other details concerning identifiable individuals. As noted, the Department also withheld some small amounts of organisational information.

Section 37(1) - personal information

The Department says that section 37 applies to all of the redacted details. 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.

Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 also details 14 specific categories of information which is personal without prejudice to the generality of the foregoing definition, including, but not limited to (i) information relating to the educational, medical, psychiatric or psychological history of the individual; (iii) information relating to the employment or employment history of the individual; (viii) information relating to the age, racial, ethnic origin or any disability of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiv) the views or opinions of another person about the individual.

The parties' arguments

The Department says that it was not intended for the identity of individuals who made submissions to the Committee to be made public. It says that, while the notice seeking submissions did not explicitly refer to the confidentiality of the process, it was implicit that the privacy of individual contributors would be protected, given the extremely sensitive nature of the subject matter. It refers also to legislation providing for the protection of personal information of victims of abuse. In addition, it says that the various individuals have not consented to the disclosure of their personal information.

The Department also withheld some small amounts of organisational information on the basis that some of the groups have or had very small staff numbers, such that disclosure of the relevant details would identify the staff concerned and therefore disclose their personal information. It also appears to contend that the groups would have expected their identities as contributing bodies to be treated confidentially.

The applicant contends that it is already possible to identify some of the relevant organisations. She contends that one redacted submission was published in full by the relevant organisation. She provides a link to a document on an organisation's website. She also provides a link to minutes of a meeting, published in full on the gov.ie website, which she says includes views of some organisations on the memorial. She says that the minutes were not redacted. For the avoidance of doubt, these minutes are not included in the records at issue.

Analysis

Section 37(1) is a mandatory exemption. It is not relevant to section 37(1) whether the personal information may already be publicly known or has been placed in the public domain outside of FOI.

I am satisfied that the details withheld from records 1 and 5 identify various former residents of institutions and/or concern an identifiable individual's employment history. While I do not intend to deal with each redaction to record 10 (other than the specific ones below), I am also satisfied that the majority thereof concern identifiable individuals, including former residents of institutions and/or their families, other individuals who made submissions, and the staff/volunteers of representative groups/support groups. I am satisfied that such details meet the definitions of personal information and also that they fall into various categories of information, listed earlier, that must be considered as personal information.

I note that submission 11 contains the views and opinions of an individual, who refers to an organisation (which is not an FOI body) in the context of alleged wrongdoing. I am satisfied that the submission, in its entirety, comprises the individual's personal information.

Submissions 15 and 23 were made by individuals. It seems to me that some of the redactions do not, of themselves, qualify under section 37 (i.e. icons containing the titles of attachments that have been released, and official contact details for public servants). However, in keeping with this Office's approach to section 18, I do not intend to direct the release of these excerpts.

Submission 24 was submitted by a person in an organisation that is not a representative group. Having given careful consideration to the submission's contents, I am satisfied that it consists of the sender's personal views rather than those of an organisation. I am therefore satisfied that the remainder of submission 24 comprises personal information. Somewhat similarly, while I note that submission 29 appears to refer to a representative organisation, I am satisfied that the views and opinions therein are those of an individual such that the remainder of the submission comprises personal information.

I find that all of the above details in records 1, 5 and 10 are exempt under section 37(1) of the FOI Act.

The organisational information (remainder of record 10)

On its face, the organisational information does not appear to me to identify any individuals. Nonetheless, such details may still be considered as personal information if they allow the individual to be identified. I note the Department's position that disclosure would ultimately reveal personal information relating to identifiable individuals whom are involved with a representative group with low staff numbers. However, it did not identify any such groups.

I accept that the Department may not be familiar with the relevant organisational structures. I also accept that it is seeking to ensure that it does not inadvertently disclose personal information. However, it is reasonable to assume that, where relevant, the consulted organisations would support the Department's position with appropriate argument and information. I explained to the groups why the Department is applying section 37 to their organisational information. I invited them to explain how disclosure of such details would reveal personal information. I also said that if I did not hear from them within two weeks, I would proceed on the basis that they had no objections to release.

Two groups consented to the disclosure of the relevant information. Another said that they had already published their submission. The fourth objected to disclosure. I received no other comments.

While, as noted, one organisation objected to the disclosure of their organisational information, the FOI Act does not provide for such a veto. The organisation provided no argument as to why the details comprise confidential or personal information for the purposes of the FOI Act.

Having regard to all of the withheld organisational information, the Department's arguments and the outcome of my consultations, I have no basis on which to find that disclosure of the relevant details would in turn reveal personal information. I find that section 37(1) does not apply to the following:

Pages 2-4, as follows:

● the names of the organisations listed as having made submissions 9, 14, 33, 38 and 39. For avoidance of doubt, the names of staff of the organisations that made submissions 14 and 33 are to be redacted. No staff details are given in respect of submissions 9, 38 and 39. No other organisations are named in pages 2-4.

Pages 5-86, as follows:

● the details redacted from submission 9, other than the name, email address, extension number and mobile phone number of the individual who sent the submission on behalf of the organisation;

● the details redacted from submission 12, other than the name and phone number of the individual who sent the submission on behalf of the organisation;

● the details redacted from submission 13, other than the name, email address, phone number and employer details (which is not the organisation) of the individual who sent the submission on behalf of the organisation, and the names of various individuals involved with the groups listed in the submission;

● the details redacted from submission 14, other than the name and personal email address of the individual who sent the submission on behalf of the organisation, and the name of another individual as contained within the submission;

● the name and email address of the organisation that forwarded submission 18 on behalf of an individual. For avoidance of doubt, the name of the organisation's representative, and the name and email address of the individual whose submission it is, are to be redacted;

● the details redacted from submission 30 other than the name of the individual who sent the submission on behalf of the organisation;

● the details redacted from submission 33 other than the names of two individuals on the first page and one name on the second page;

● the details redacted from submission 34 other than the names, job titles and signatures of the authors of the two letters therein;

● the details redacted from submission 38 other than the names, job titles and signatures of the authors; and

● the organisation name redacted from submission 39.

Pages 87-90, as follows:

● the organisations listed as having contributed at the meetings. For avoidance of doubt, the names of individuals are to be redacted. Page 90 concerns comments made by an individual and no further details fall to be released from this page.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply in the following circumstances:

(a) the information concerned relates to the requester concerned,

(b) the individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,

No argument has been made that the provisions of section 37(2) apply and I am satisfied that they do not apply in this case. I find, therefore, that none of the provisions of section 37(2) serve to dis-apply section 37(1) 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 request would benefit the person to whom the information relates. No argument has been made that the release of the personal information would benefit the parties to whom it relates, nor is it apparent to me how release would do so. I find that section 37(5)(b) does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act that are not relevant here, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.

All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had further regard to the eNet judgment. The Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

As noted earlier, the applicant says that she is researching for a thesis, with a view to disseminating information of national importance. In considering section 37(5)(a), I cannot take account of the applicant's private interests in obtaining the information. However, I am taking her comments as an argument that it is in the public interest to promote transparency in relation to the consultation process.

The applicant does not appear to argue that there is a public interest in disclosing personal information. I note here that, while invited to do so, the parties ultimately made their submissions to inform and influence decision-making on the matter of the memorial.

I note the applicant's view to the effect that if someone forms a group to represent the views of a specific element of the public, then the organisation must be subject to scrutiny. It seems to me that this is an argument that the organisational information should not qualify for exemption on its face. As outlined earlier, I have found that the organisational information is not exempt under section 37(1).

I believe it unlikely that the applicant is arguing that there is a public interest in disclosing the personal information of staff etc. of representative groups, in order to promote transparency in relation to the activities of those groups and/or the Department's performance of its functions. In any event, and speaking generally, the Commissioner takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations. Again speaking generally, the Act was not designed as a means by which the operations of private enterprises, or in this case representative groups, were to be opened up to scrutiny. I am aware that some of the groups receive public funding. However, the records at issue are not concerned with such matters.

The Department says that it has fully served the public interest by disclosing the full content of the submissions, and thus the scale and depth of the consultation process. It says that disclosure of personal information will not increase the applicant's understanding of the subject matter or otherwise serve the public interest.

Analysis

It seems to me that the Department's disclosure of the content of all submissions received has provided considerable insight into its administration of consultation process and the nature of submissions received and considered. I believe that such disclosure has served the public interest to a significant degree. It seems to me that disclosing the various personal information that is at issue here (including such information regarding staff etc. of representative groups) will provide minimal, if any, further insight into the matter. Furthermore, even if there exists a public interest in this case in disclosing information about the activities of the representative groups, it seems to me that disclosing the relevant personal information will again provide minimal, if any, further insight in this regard. In the circumstances, I am satisfied that there is, at best, minimal weight to the public interest in disclosing the withheld personal information.

On the other hand, 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

It is relevant that disclosure of the details must be regarded as being effectively, or at least potentially, to the world at large. I am satisfied that disclosing the various personal information at issue here would result in significant breaches of privacy rights. In turn, I am satisfied that there is considerable weight to the public interest in protecting against such breaches.

In the circumstances, I do not accept that the public interest in releasing the personal information at issue outweighs, on balance, the privacy rights of the parties concerned. I find, therefore, that section 37(5)(a) does not apply.

Section 35 - confidential information

I need consider section 35 only in relation to the organisational information. Generally speaking, section 35(1) of the FOI Act requires that access shall be refused to (a) information given in confidence, or (b) information subject to a duty of confidence.

As noted earlier, the groups ultimately made submissions in order to inform and influence decision-making on the matter of the memorial. It appears to be the Department's position that the representative groups expected that their identities, as contributors to and potential influencers of the decision-making process, would be treated confidentially. If this is the case, I would expect the consulted organisations to support the Department's position with appropriate argument and information.

I invited the various entities to explain why they might feel that they made their submission on a confidential basis. I have already outlined the extent and nature of the replies that I received. As noted already, while one organisation objected to the disclosure of relevant details, the FOI Act does not provide for such a veto. Furthermore, the organisation provided no argument as to why the details comprise confidential information for the purposes of the FOI Act.

In all of the circumstances, it is not apparent to me how there can be any expectation of confidence in this case concerning the identities of the representative groups as contributors of submissions and views. It follows that I have no basis on which to find that the organisational information qualifies for exemption under either provision of section 35(1). I find that the organisational information is not exempt under section 35(1)(a) or (b) of the FOI Act.

Finally, and as noted above, submission 11 contains the views and opinions of an individual whom refers to an organisation in the context of alleged wrongdoing. I have found that the redactions to submission 11 are exempt under section 37(1). Although not necessary for me to go further, I would in any event consider in the circumstances that the Department would owe a duty of confidence to the relevant organisation such that this particular excerpt is also exempt under section 35(1)(b) of the FOI Act. I would not consider there to exist in this case any circumstances that may justify or excuse a breach of that duty of confidence.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that the redactions to records 1 and 5, and most of the redactions to record 10, are exempt under section 37(1) of the FOI Act. I find that the remaining redactions in record 10 are not exempt under the FOI Act and I direct the Department to grant access to them, as follows: