Decision
Mr O and Child and Family Agency (the Agency)
From Office of the Information Commissioner (OIC)
Case number: 140116
Published on
From Office of the Information Commissioner (OIC)
Case number: 140116
Published on
Whether the Agency was justified in its decision to partially refuse a request, made under section 7 of the FOI Act, for access to the applicant's personal records, on the basis that the information contained in the parts refused is exempt from release under sections 28 section 22 of the FOI Act
9 September 2014
The applicant made an FOI request to the HSE on 30 October 2013 seeking access to all records relating to his to his care at Cuan Mhuire, Collins Avenue, Dublin 9, and Saarsfield House. After the FOI request was made, responsibility for child and family matters transferred to a new agency, TUSLA, which was established at the beginning of 2014.
In its decision dated 5 February 2014 the Agency part-granted the applicant's request. Access certain records was refused under sections 22(1)(a) and 28 of the FOI Act as it was considered that release of those records or parts of records would involve the disclosure of information protected by legal professional privilege, and the personal information of third parties, respectively. The applicant applied for internal review of that decision on 13 February 2014. In its internal review decision of 30 April 2014, the Agency varied its original decision and released a number of records which had previously been refused in full or in part. However, the internal review decision withheld certain records or parts of records, again on the grounds of sections 22(1)(a) and section 28 of the Act.
The solicitor for the applicant wrote to this Office on 6 May 2014 seeking a review of the Agency’s decision. The application did not specify any particular records that were being sought or specify any exemption that it was considered had not been applied correctly.
I note that Mr. Christopher Campbell, of this Office, contacted the solicitor for the applicant by phone and email to seek her views on this application, and further contacted her office by phone call after the agreed deadline for submissions had passed. To date, no submission or further contact has been received from the solicitor for the applicant and so I consider that the review should now be brought to a close by the issue of a formal binding decision.
In conducting this review, I have had regard to the submissions and decisions of the Agency, the correspondence between the applicant and the agency and the provisions of the FOI Act. I have also had regard to the records in question, copies of which have been provided to this Office by the Agency for the purposes of this review. In doing so, I have had further regard to the provisions of the FOI Act, and, in considering the public interest test at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner (the Rotunda judgment).
This review is concerned solely with the question of whether the Agency was justified in its decision to partially refuse access to the records on the basis that they are exempt from release under the provisions of the Act.
While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during 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 is somewhat limited.
i. Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
ii. Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Section 22(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.
It is clear that the redacted parts of records numbered three and four in the schedule of records provided by the Agency convey legal advice sought and received from a solicitor acting in a professional capacity. I am satisfied that the first limb of legal professional privilege, advice privilege, applies, and find that the Agency correctly applied the exemption at section 22(1)(a).
In its internal review decision the Agency refused, or refused in part, access to a number of records under section 28(1) and 28(5B) on the basis that they contained the personal information of a third party or joint personal information relating to the applicant and a third party.
Section 28(1) provides that a public body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. Section 28(5B) provides that a public 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 applicant, also involve the disclosure of personal information relating to an individual or individuals other than the requester, “joint personal” information.
In this case, I accept that the release of the majority of the records subject to this review would involve providing access to the personal information of another person or persons as well as to the applicant himself. Therefore, I find that section 28(1), or 28(5B), applies to these records.
However, having reviewed the records in question, I am of the view that some redacted parts of the records released to the applicant, and some parts of one record withheld by the Agency, contain information that relates solely to the applicant. I find therefore, that the sections of text outlined below within the records provided by the Agency, which have been either redacted or withheld entirely in the Agency’s internal review decision, should not be redacted or withheld, and should be released to the applicant.
1. Page 29, third paragraph (headed ‘November’), fifth sentence, beginning with ‘I had’ continuing to ‘staff’. Sixth (final) sentence beginning ‘[I]t continuing to tenth word ‘whims’.
2. Page 30, second sentence beginning ‘[I]t’ continuing to fourth word ‘that’, recommencing sixth word ‘would’ continuing to end of sentence, ‘rough!’ (fifth word remaining redacted).
3. Page 40, first paragraph, sixth sentence, beginning eighth word ‘John’, continuing to end of eighth sentence ‘time.’ Tenth sentence beginning ‘[H]owever’ continuing to end of sentence ‘grandmother.’
1. Page 34, first paragraph, first sentence, beginning ‘I’ continuing to ‘1973’, and recommencing 23rd word ‘John’ continuing to end of sentence ‘[H]ospital’. Second paragraph, first sentence, beginning ‘John’ continuing to eleventh word ‘his’, recommencing 14th word ‘address’, to end of sentence ‘Drumcondra’.
2. Page 35, second paragraph, second sentence, first word ‘John’ only, recommencing ninth word ‘was’ continuing to end of sentence ‘Hospital’. Second sentence, beginning third word ‘took’ continuing to end of third sentence ‘1977’.
3. Page 36, first paragraph, last sentence, beginning with ‘I’ continuing to end of sentence ‘mother.’
4. Page 37, sixth sentence, beginning with ‘John’ continuing to end of seventh sentence ‘did’.
4. Page 39, second paragraph, third sentence, from ninth word ‘John’ to end of sentence ‘mother.’ Fifth sentence, beginning ‘[I]t’, continuing to end of sentence ‘sides’. Eighth sentence beginning ‘John’ continuing to end of ninth sentence ‘January’.
5. Page 130, record titled (the applicant), signed on page 138 by Joan O’Keeffe, Social Worker. Unredact title and all dates through document (beginning ‘July ‘79’ to last date ‘19.2.79.’).
6. Page 130, third paragraph, first sentence beginning first word ‘John’, second and third words remain redacted, recommencing fourth word ‘went’ continuing to end of paragraph and second sentence ending ‘away.’
7. Page 134, second paragraph, first sentence beginning ‘John’, continuing to end of sentence ’12.’
8. Page 136, third paragraph, first sentence beginning ‘[W]eekly’ continuing to end of fourth sentence ‘versa’.
9. Page 137, third paragraph, fourth sentence beginning ‘John’ continuing to 31st word ‘him’.
10. Page 138, third sentence, beginning first word ‘[A]t’ continuing to end of seventh sentence ending ‘school’.
11. Page 139, first paragraph, fourth sentence beginning '[S]poke', continuing to end of seventh sentence ending 'all'.
Apart from the sections specified above I find that section 28(1) and/or 28(5B) applies to the remainder of the records.
Under Section 28(2) there are some circumstances in which sections 28(1) and 28(5B) do not apply. Having examined the withheld portions of the records, I am satisfied that none of those circumstances arise in this case. That is to say, (a) that the third parties have not consented to the release of their information; (b) that the information is not of a kind that is available to the general public; (c) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (d) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 28(5)(a) provides that a record, which is otherwise exempt under section 28(1) or 28(5B), may be released in certain limited circumstances where it can be demonstrated that ‘on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld’.
The judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, ‘a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law’ must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 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 unenumerated personal rights under the Constitution). When considering section 28(5)(a), privacy rights will 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.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. This public interest has been served to a certain extent by the material released to the applicant to date. However, having reviewed the content of the withheld portions of the records, I do not consider that their release would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. Thus, section 28(5)(a) of the Act does not apply in this case.
Section 28(5)(b) provides that a record, which has been found to be exempt under section 28(1) or 28(5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information would be released. The applicant has not made any case that the release to him of the personal information of the third parties would "benefit the individual[s]" to whom it relates, nor having reviewed the records do I consider that this might be the case. Therefore, I find that no right of access arises to the withheld information further to the provisions of section 28(5)(b) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby vary the Agency's decision to refuse access to the records concerned; I direct that the parts of the records detailed above be released to the applicant, and uphold the decision of the Agency with regard to the remainder of the records in accordance with sections 22(1)(a) and 28 of the FOI Act.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator