Decision
Ms. A and The Department of Justice
From Office of the Information Commissioner (OIC)
Case number: OIC-151905-G0R7B6
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-151905-G0R7B6
Published on
Whether the Department was justified in refusing access, under section 37(1) of the FOI Act, to certain records relating to staff transfers and staff participation at anti-immigration protests
26 June 2025
In a request dated 20 May 2024, the applicant made a 4-part request to the Department seeking access to;
(1) Internal records discussing the transfer of an Executive Officer out of the International Protection Office for non-promotion reasons between November 2023 to March 2024
(2) Internal records discussing staff participation in anti-immigrant/far right protests between October 2023 to the present
(3) A copy of guidelines (if any) on disciplinary measures against staff who have attended anti-immigrant/far right protests
(4) Any correspondence or minutes of meetings discussing alleged/proved GDPR breaches committed by staff between October 2023 to the present (In correspondence with the Department the applicant later refined part 4 of the request to a log of all GDPR breaches committed by staff between October 2023 to present).
As the Department failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of her request. In its decision dated 29 August 2024, the Department part granted the request. While I note that there are some discrepancies in the schedule of records released to the applicant, the Department confirmed during the course of the review that it identified 22 records as falling within the scope of the request. Access was refused to records 1 to 19 relating to parts 1 and 2 of the request under section 37(1) of the Act. Records 20 to 22, relating to parts 3 and/or 4 of the request were released in full. On 10 September 2024, the applicant applied to this Office for a review of the Department’s decision to refuse parts 1 and 2 of her request.
I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the submissions made by both parties. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Department said the 19 records at issue were created for the purpose of facilitating the internal staff transfers by HR and the related business units in conjunction with the staff members involved in those transfers. It said the records include the personal details of staff members relating to their names, grades and places of employment. The 19 records are essentially concerned with the administrative aspects of the internal transfer of certain International Protection Office (IPO) staff members to other areas of the Department. It is worth noting that all of the records fall within the scope of part 1 of the applicant’s request, and not within the scope of part 2. On this point, the Department said searches were carried out using the key phrases from the request “anti-immigrant + staff participation ” and “far right protests + staff participation ” and no records were identified. It said it was satisfied that no records exist in respect of those matters.
This Office’s Investigator informed the applicant of the nature of the records and also of the Department’s position in respect of records falling within part 2 of the request, which she accepted. The Investigator enquired if the applicant had any further information which could assist the Department in their search for records relevant to part 2 of her request. The applicant said she had no further specific information she could provide to the Department and as such she accepts that no records exist relevant to part 2 of her request.
Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under section 37(1) of the FOI Act, to the 19 records it identified as coming within the scope of the applicant’s request.
Section 37(1)
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). Personal information is defined in section 2 of the FOI Act 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 that body as confidential. Section 2 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above, including (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a), i.e. a personnel record of an FOI body staff member.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that the definition does not include the name of an individual who is or was a member of staff of an FOI body, or information relating to the position held or its functions or the terms upon and subject to which the individual occupies or occupied 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 the functions of the position. The exclusion at paragraph (I) does not provide for the exclusion of all information relating to staff members of FOI bodies. Essentially it is intended to ensure that section 37 is not used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions or information relating to the terms, conditions or functions of positions. The exclusion does not deprive staff of FOI bodies of the right to privacy generally.
I am satisfied that the records are of a type that can reasonably be described as personnel records and that they do not fall within the exclusion to the definition of personal information in Paragraph I described above. I am satisfied that the release of the records at issue would involve the disclosure of personal information relating to the relevant staff members and that section 37(1) applies to all 19 records. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
Section 37(2)
Section 37(2) provides for a number of circumstances in which section 37(1) will not apply. No argument has been made that any of the provisions of section 37(2) apply in this case and I am satisfied that they do not.
Section 37(5)
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where, on balance, (a) 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, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
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 in deciding whether to grant or refuse an FOI request, any reason that the applicant 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 when records are released under the FOI Act, they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record under the Act can be put. With certain limited exceptions provided for under the Act, 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 regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, (‘the Enet case ’). In that case, 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
Having considered the applicant’s submissions, it is apparent that they are based on her belief that the records to relate to the matter of staff participation at what she described as “anti-immigrant/far right protests ”. However, the records at issue are concerned solely with the matter of the transfer of staff members of a certain grade out of the IPO for non-promotion reasons during a specified period and they contain no details as to the reasons for the transfers.
In refusing records 1-19, the Department said the records were refused as they contain personal information relating to staff members. It said the records were created to facilitate internal staff transfers and contain staff names, grades and places of employment. It said the records were refused to protect the privacy of the staff members and that they contain sensitive information which would ordinarily form part of an individual staff member’s record. It said staff members would and should as a matter of course expect this information to be kept confidential. It said information on internal transfers would in all cases be only known to the individuals involved, HR and as necessary, the respective managers involved in accommodating the transfer arrangements.
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).
As I have outlined above, the applicant’s submissions in support of the release of the records in the public interest are based on matters that are not contained within the records at issue. Moreover, 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. Accordingly, as I am not aware of any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the records, I find that the public interest in granting the request does not outweigh the public interest in protecting the right to privacy of the individuals to whom the information in the records relates. I find therefore that section 37(5)(a) does not apply to the records.
Accordingly, I find the Department was justified in refusing access to records 1-19 under section 37(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision to refuse access to records 1-19 under section 37(1) of the FOI Act.
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