Decision
Mr. X and An Garda Síochana
From Office of the Information Commissioner (OIC)
Case number: OIC-110230-W3F0P4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-110230-W3F0P4
Published on
Whether AGS was justified in redacting, under section 37(1) of the FOI Act, certain information from records relating to the applicant’s late father
OIC-110230-W3F0P4
6 October 2021
This review is related to a previous review (case OIC-93962) wherein I annulled a decision of AGS to refuse the applicant’s request for records relating to his late father, a former member of AGS, on the ground that the records sought were excluded from the scope of the FOI Act. In a fresh decision dated 2 December 2020, AGS part-granted the request, redacting certain information from the records under section 37 of the Act. The applicant sought an internal review of that decision on 29 December 2020, following which AGS affirmed its original decision. On 13 July 2021, the applicant sought a review by this Office of the decision of AGS in relation to his request.
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 AGS and to the correspondence between this Office and both parties on the matter. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue I have adopted the page numbering system used by AGS in the schedule of records it prepared at internal review stage.
AGS identified a personnel file relating to the applicant’s later father as falling within the scope of the request, comprising 53 pages. It reacted certain material from pages 1, 4, 5, 7, 8, 10, 13, 15, 16, 23, 25, 29, 30, 31, 33, 36, 38, 40, 42, 46 and 48 under section 37(1) of the FOI Act.
This review is concerned solely with the question of whether AGS was justified in redacting, under section 37 of the FOI Act, the information in question.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, much of the application for review submitted by the applicant was concerned with what he deemed to be breaches of the Act by AGS as a result of its failure to include certain details in its decision letters and his concerns that AGS had not provided him with adequate reasons for its decision.
The original decision letter, whilst reasonably comprehensive, failed to make any reference to a key provision that AGS subsequently said, in correspondence with this Office, it had considered when processing the request, namely section 37(8). As such, the decision failed to fully comply with the requirements of section 13(2)(d) which provides that a refusal, in whole or in part, must contain, amongst other things, the reasons for the refusal and any provisions of the Act pursuant to which the request is refused and the findings on any material issues relevant to the decision. I will address the applicability of section 37(8) later in this decision.
The internal review decision also failed to make any reference to section 37(8). The applicant also argued that the internal review decision did not engage in any significant way with the substantive points he raised in his application for internal review. I accept this to be the case, but I note that the internal review decision essentially indicated that the internal reviewer affirmed the refusal and the reasoning for the refusal as set out in the original decision.
I agree that the decision letters fell short of the requirements of the Act in this case although I am satisfied that the applicant was made aware of the essence of its reasons for making the various redactions. Nevertheless, I would urge AGS to avail of the resources that have been made available by the Central Policy Unit of the Department of Public Expenditure and Reform on its website www.foi.gov.ie. The website has a comprehensive decision making manual that contains, amongst other things, detailed instructions on issuing decisions and the information such decisions must contain, along with sample decision letters.
The second preliminary point I wish to make is that while I am required by section 22(10) of the FOI Act to give reasons for decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that I am constrained in this case from providing a fuller explanation for my findings than that set out below.
Finally, section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse and 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. 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 what might be regarded as public interest factors in favour of release of the records where the Act requires a consideration of the public interest.
Section 37(1)
Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester, including personal information relating to a deceased individual. Before I consider the relevance of the other provisions of the section, I must first consider whether section 37(1) applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (ii) information relating to the financial affairs of the individual, (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), namely a personnel record. It is sufficient for the information at issue to fall within one or more of the fourteen categories for it to be deemed personal information for the purposes of the Act.
In its submissions to this Office, AGS argued that section 37(1) applied in respect of the redactions it had made to the record on the basis that the redacted material constituted either personal information relating to parties other than the applicant’s late father, or personal information relating to the financial affairs, medical history, employment, or employment history of the applicant’s late father.
Having examined the redactions in question, I am satisfied that their release would involve the disclosure of third party personal information and that section 37(1) applies. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply, namely;
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any 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,
I am satisfied that none of the circumstances set out arise in this case in relation to any of the redactions at issue, except for those made to page 25. That page comprises a copy of the birth certificate of the applicant’s father, which is a publicly available document. I find that section 37(2)(c) applies to the information that was redacted from page 25 and that section 37(1) does not apply.
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 be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet 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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, it is also important to have 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] 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.
In his application for Internal Review, the applicant set forth his views as to why he believed the public interest would be better served by the release of the redacted information. In particular, he argued that AGS had afforded too much weight to the public interest in preserving the confidentiality of information, to the detriment of other considerations. He argued that the obligation on AGS to preserve the confidentiality of personal information relating to living staff was less pronounced in the case of deceased staff, particularly in the case of individuals who had been deceased for many decades.
As its long title indicates, the FOI Act is intended " to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies”. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8) (which I will consider separately below), FOI is not about granting access to information to particular individuals only. Therefore, any decision to grant access under section 37(5)(a) would be on the basis that there is an overriding public interest in the release of the information that outweighs the privacy rights of the third party individuals concerned. As such, it is appropriate to regard any release of the records concerned as being effectively, or at least potentially, to the world at large.
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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.
Having regard to the fact that the release of records under the Act is, in effect, regarded as release to the world at large, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the individuals to whom the information relates. I find that section 37(5)(a) does not apply in this case.
Section 37(8) and the associated Regulations
Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where:
“(b) the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”.
It should be noted that such regulations have indeed been made, namely the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (the 2016 Regulations). Amongst other things, they 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 and shall, subject to the other provisions of the FOI Act 2014, be granted, where
a) “the requester concerned belongs to one or other of the following classes:
(i) a personal representative of the 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 individual or his or her estate acting in the course of the performance of the function,
or
b) the requester is the spouse or the next of kin of the individual and, in the opinion of the head [of the relevant FOI body], 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”.
In its submissions to this Office, AGS confirmed that it accepted that the applicant is the next of kin of his late father. As such, the question of whether the redacted information can be released to the applicant pursuant to the 2016 Regulations as the next of kin must be considered. Accordingly, the question I 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 Minister for Public Expenditure and Reform has published guidance on access to records relating to deceased persons, under section 37(8) of the FOI Act. Under section 48(3), public bodies must have regard to such guidance. The guidance refers to factors to be taken into consideration in deciding if release is appropriate to the next of kin. Factors referred to in the guidance include:
• the confidentiality of personal information – would the deceased have consented to the release of the records to the requester when living?
• has the person outlined arrangements in his or her will or other instrument in writing consenting to release of personal records?
• 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 the relationship prior to the death of the deceased
• the nature of the records to be released - can the requester obtain the information they seek without accessing the records of the deceased?
• any other circumstances relevant to the request as set out by the requester.
It is important to note at this stage that the purpose of the 2016 Regulations is to provide for a right of access by certain classes of individuals to the personal information of deceased persons. It does not provide for a right of access to personal information relating to any other individuals that might be contained in the records. Neither section 37(8) nor the 2016 Regulations provide a basis for releasing records, or parts of records, which contain personal information relating both to a deceased person and a third party, except where the third party is the requester. As such, I find that the 2016 Regulations do not provide for a right of access to any of the redacted information whose disclosure would also involve the disclosure of personal information other than the applicant’s father. Accordingly, I find that only the following information remains to be considered:
• The redaction on page 1
• The redaction on page 4
• The first redaction on page 5
• The redactions on page 10
• The first redaction page 13
• The redaction on page 15
• The redaction on page 16
• The redacted answers to questions 4 and 6 and the final redaction on page 23
• The redaction on page 29
• The second redaction on page 30
• The second and third redactions on page 31
• The redaction on page 33
• All except the first redaction on page 36
• The redactions on page 38
• The redactions on page 40
• The redactions on page 42
• The redaction on page 46, and
• The redactions on page 48.
The redactions above relate to the financial affairs, medical history, employment, or employment history of the applicant’s late father.
In its submission to this Office, AGS sought to rely on the public interest factors contained in its decision letter as the basis on which it determined that no right of access existed under the 2016 Regulations. In that decision, AGS said that “the public interest in preserving the personal information and the reasonable expectation that information be maintained in a confidential manner by [AGS] outweighs the public interest which would be served were the records released to [the applicant]”.
The Regulations provide that a request shall be granted in certain cases where the individual to whom the record relates is dead. The Commissioner takes view that it is plain from the Regulations, which refer to “all the circumstances”, and from the factors specified in the Guidance produced by the Minister, that such circumstances and matters, where relevant, cannot be excluded solely on the basis that they are not public interest factors.
It seems to me that if I was to accept the argument of AGS in this case, it would be difficult to envisage any circumstances where the release of personal information would be warranted. This would, in my view, run contrary to the purpose of the 2016 Regulations which is to provide for a right of access by certain classes of individuals to the personal information of deceased persons.
Having carefully considered the nature of the information at issue, I find no basis for considering that the applicant’s late father would have objected to the release of the majority of the information. I am, however, of the view that AGS was justified in refusing access to a small amount of the information, relating to recordings of what is categorised as “unfavourable record”. I am satisfied that AGS was justified in withholding the following information:
• The redaction on page 16,
• The second redaction on page 30,
• The third redaction on page 31, and
• The fourth redaction on page 36.
Conclusion
In conclusion therefore, I find that AGS was not justified in refusing access, under section 37(1) of the Act, to the following information and I direct its release:
• The redaction on page 1
• The redaction on page 4
• The first redaction on page 5
• The redactions on page 10
• The first redaction page 13
• The redaction on page 15
• The redacted answers to questions 4 and 6 and the final redaction on page 23
• The redactions on page 25
• The redaction on page 29
• The second redaction on page 31
• The redaction on page 33
• The second, third, and fifth redactions on page 36
• The redactions on page 38
• The redactions on page 40
• The redactions on page 42
• The redaction on page 46, and
• The redactions on page 48.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of AGS in this case. While I find that AGS was justified in redacting, under section 37(1) of the FOI Act, certain information from the records relating to the applicant’s later father, I find that it was not justified in redacting the information identified above under the heading “Conclusion” and I direct the release of that information.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator