Decision
Mr I and the Department of Foreign Affairs and Trade (the Department)
From Office of the Information Commissioner (OIC)
Case number: 130031
Published on
From Office of the Information Commissioner (OIC)
Case number: 130031
Published on
Whether the Department has justified its decision to refuse access, under section 28 of the FOI Act, to certain records relating to the activities of a third party pertaining to the third party's role in organising international adoptions
11 August 2014
The applicant submitted an FOI request to the Department on 6 December 2012 for "All records held by the Department of Foreign Affairs relating to the activities of [a named third party] in her role as facilitator of adoptions in Vietnam between 2004 and 2006". In its original decision, dated 7 January 2013, the Department refused all of the records sought. The response included a schedule showing that there was a total of 28 records involved. The reasons given for the refusals included, for 14 of the records, a claim for exemption under section 24(1)(c) of the FOI Act, which is concerned with the international relations of the State and in addition, all of the records were also refused on the basis of section 28, which is concerned with the protection of personal information.
The applicant sought an internal review of the decision by the Department on 9 January 2013. In his submission, he expressed the view that the State's international relations would not be affected because Ireland and Vietnam now have different administrative arrangements for adoptions than those which operated in the time period covered by the request. In addition, in relation to the matter of personal information, the applicant offered to accept the records with the personally identifiable material relating to third parties redacted. He also strongly argued that the public interest favoured the release of the records.
The internal review decision was issued on 30 January 2013. In this decision, the Department's reviewer removed five records from the schedule. Four were removed on the grounds that they were deemed not be relevant to the request, and one was removed on the grounds that it was stated to be a copy of another record. Accordingly the reviewer considered only 23 of the original 28 records. Ten of the records were refused on the basis of section 24(1)(c) of the FOI Act. The reviewer also decided to apply an additional exemption, section 24(2)(c) of the FOI Act, to five of the records under consideration. All records were again also refused under section 28(a) [sic].
The applicant submitted a request for a review of the Department's decision on 5 February 2013. In his application, in addition to restating the arguments he made in the context of the internal review, he also responded to the application of the 24(2)(c) exemption. He also rejected the removal, on the stated grounds of irrelevance, of four of the records from the set of records under consideration.
In its submission to the Commissioner dated 6 March 2013, the Department amended its position on some of the records, and claimed that 20 of the records are items of correspondence with, or relating to, Irish citizens and their personal circumstances, and that those records were being refused under section 28 of the FOI Act. It also stated that the section 24(1)(c) exemption was being applied to certain specified records as their release would "adversely affect the State's relationship with Vietnam". It further stated that mandatory exemptions under sections 24(2)(b) and 24(2)(c) of the FOI Act had been applied to communications between the embassy in Kuala Lumpur and "a foreign ministry in another State" and to "communications between the Embassy and a Government Department of this State". Finally, the Department stated that it considered it appropriate to apply the provisions of section 20 of the FOI Act, which covers the exemption from release of records pertaining to the deliberative processes of public bodies, to "records detailing the deliberative processes of the Adoption Board".
The enclosed schedule listed a total of 27 records. However, the Department wrote to the Commissioner again on 8 March to explain that one record had been inadvertently omitted, and that record was included on an enclosed amended schedule. Thus, all 28 records were again brought into the scope of the Commissioner's review on the basis of this submission by the Department.
Mr. Richie Philpott, Investigator, engaged in detailed correspondence with the applicant and with the Department regarding the matters in dispute. As a result of this correspondence, the applicant agreed to drop his request for the records which the Department contended were subject of exemption under section 24(2)(c), and the Department agreed to release a number of the other records to the applicant. Following this, there remained a total of eight records in dispute, i.e. records numbers 11, 12, 13, 18, 19, 22, 23 and 27 from the original schedule of the records as prepared by the Department, all of which the Department contends are exempt under section 28(1) of the FOI Act.
In carrying out my review, I have had regard to records of various contacts which have taken place between the Department and the applicant, including the correspondence referred to above; to details of various contacts between this Office and the Department; to details of various contacts between this Office and the applicant, and, in particular, the 'preliminary views email' sent to him, dated 10 June 2014, by the Investigator mentioned above. The applicant indicated his dissatisfaction with the position set out in the 'preliminary views email' in his responses dated 10 June 2014 and 22 June 2014, the second of which contained a detailed submission on the matter, which I have considered carefully in formulating this decision.
The scope of this review is confined to whether or not the Department has justified its decision to withhold the eight records referred to above under section 28(1) of the FOI Act.
While section 43(3) of the FOI Act requires that all reasonable precautions be taken to prevent disclosure of information contained in an exempt record during the course of a review, I am satisfied that I would not be in breach of that provision by providing the following general description of the records at issue in this case. Records 11, 12, and 13 comprise emails sent by an Irish citizen to the then Irish Adoption Board which were also copied to the Irish Embassy in Malaysia by that citizen. Records 18, 22 and 27 comprise emails sent by another Irish citizen to the Embassy, while record 19 is a copy of record 18 with very minor annotations and record 23 is a note created by the Irish ambassador to Malaysia of a telephone conversation he had with the citizen concerned. Essentially, the citizens in question were seeking the assistance of the Embassy while abroad in relation to issues arising during their efforts to adopt Vietnamese children.
The records at issue clearly contain personal information relating to the Irish citizens who contacted the Embassy for assistance and I note that the applicant is not seeking access to the personal information of those individuals. However, they also contain, in part, comments made by those citizens about a third party, namely the adoption faciltator. The FOI Act defines personal information as “information about an identifiable individual" and goes on to list 12 types of information which are included in the definition, including, pertinently in this case "(xii) the views or opinions of another person about the individual". I am satisfied that the comments contained in the records relating to the third party comprise personal information relating to that individual. Accordingly, I will confine my consideration of section 28 to the information contained in the records relating to the third party.
Section 28(1) provides that access to a record shall be refused if access would involve the disclosure of personal information. The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2) or 28(5). Therefore, I am satisfied that all of the records which have been withheld by the Department are records to which section 28(1) applies, and I find accordingly.
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. Having examined the records at issue, I am satisfied that none of the circumstances identified at section 28(2) arises in relation to them. I find, therefore, that section 28(2) does not apply in this case.
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) 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, or (b) the grant of the request would benefit the individual. I do not consider that release of the information at issue in this case would "benefit the individual" to whom it relates (i.e. the third party) as envisaged by section 28(5)(b) of the FOI Act. Accordingly, what remains to be determined is the question of the public interest in releasing the relevant parts of the records which are otherwise not releasable under section 28(1), in accordance with section 28(5)(a) of the FOI Act.
The applicant, in his submissions to this Office, has made it clear that he wishes to obtain the records he is seeking in order to provide transparency in relation to certain matters pertaining to the administration of inter-country adoptions by the then Irish Adoption Board ( which has since been replaced by the Adoption Authority of Ireland). Specifically, he considers that there is a public interest in disclosing details of the comments made by the various parties relating to the third party in question. Essentially, the applicant's argument is that the disclosure of the relevant parts of the records at issue would increase accountability and transparency in relation to the Adoption Authority of Ireland and its relationship and dealings with the third party. However, it is important to note that the records at issue in this case are not held by the Department because of some particular role it has in the adoption process, which it clearly does not, but simply because it was asked to provide consular assistance to Irish citizens abroad. In so far as there is a public interest in increasing the accountability and transparency of the Department in how it dealt with those requests, it seems to me that the release of comments made by the citizens concerned about the facilitator would not serve to achieve such an aim. It is also important to note that the Adoption Authority of Ireland is not a public body for the purposes of the FOI Act.
On the other hand, the release of the information at issue would result in the disclosure of personal information relating to the third party, and the public interest in the release of the records must be carefully weighted against the clear public interest in protecting privacy rights of individuals. The language of section 28 and of 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 un-enumerated personal rights under the Constitution). Accordingly, 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. I am not satisfied that the public interest in granting the request in this case outweighs, on balance, the public interest in upholding the right to privacy of the third party, and I find, therefore, that section 28(5)(a) does not apply.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the Department's refusal of the records concerned.
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