Decision
Ms N and Social Welfare Appeals Office ("SWAO")
From Office of the Information Commissioner (OIC)
Case number: 140107
Published on
From Office of the Information Commissioner (OIC)
Case number: 140107
Published on
Whether the SWAO was justified in its decision to refuse access to records containing personal information of third parties on the basis of section 28(1) of the FOI Act
31 July 2014
The applicant's husband made an FOI request to the SWAO for access to "a copy of his file" on 28 November 2013. On 9 December 2013 access to the requested records was granted in part only and the remainder was refused on the basis of section 28 of the FOI Act as it contained personal information of other persons. The applicant, on behalf of her husband requested an internal review of this decision on 26 March 2014. On foot of this internal review a number of records were released to the applicant while a number of others were released in part. The applicant was not satisfied with this and applied to this Office for a review of this decision on 2 May 2014.
I note that Mr David Logan of this Office advised the applicant by way of a phone call and subsequent letter that the decision of the SWAO was justified in his view. The applicant informed Mr Logan during this phone call that she did not accept his view and 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:
I have also had 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(which I will refer to below as "the Rotunda judgment").
While the FOI Act requires me to provide reasons for my decisions, section 43(3) of the FOI Act requires that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. Thus, I can only give a limited description of the records at issue in this case.
On foot of the internal review the SWAO released a number of records while redacting five others on the basis that they contain personal information relating to third parties. Therefore this review is confined to whether or not the refusal by the SWAO to release the redacted portions of these five records was justified on the basis of section 28(1) of the FOI Act.
As per the schedule provided to this Office by the SWAO these are records 20/21 (this is one single record), 30, 31, 32 and 33. Record 20/21 is an email relating to an interview carried out with the applicant by staff of the SWAO which contains redactions of PPS numbers relating to third parties, while records 30, 31, 32 and 33 are Vehicle Sales Lodgement records provided to the SWAO by a private company as part of the SWAO's investigation into particular aspects of the applicant's Jobseekers Allowance claim. These records contain a list of transactions entered into by individuals with this particular private company including those entered into by the applicant. The redacted information relates to third party information of individuals who are not involved in the SWAO's investigation.
Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the Act personal information is defined as "information about an identifiable individual". Having reviewed the records at issue in this case, I find that these records contain the personal information of third parties and that, accordingly, section 28(1) of the FOI Act applies to that 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 sections 28(2) and 28(5).
Section 28(2) provides that section 28(1) does not apply in certain circumstances. Having examined the records in question, I am satisfied that subsections (a) to (e) of section 28(2) are not relevant because the information contained in the records does not relate to the applicant; there is no evidence that any of the individuals referred to consented to the release of the records to the applicant; the information is not of a kind that is available to the general public; neither does it belong to a class of information that might be made publicly available. It has not been argued either that disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.
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 see how the release of the records at issue to the applicant would benefit the third parties mentioned in the records. Accordingly, I find that section 28(5)(b) of the FOI Act does not apply.
In relation to section 28(5)(a) , in the Rotunda judgment referred to earlier, the Supreme Court 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 public interest ("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 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.
What now remains to be determined in this case is the question of the public interest in releasing the information withheld by the SWAO, which would otherwise not be releasable under section 28(1), in accordance with section 28(5) of the FOI Act. The SWAO has already released most of the records sought, and has withheld only a small amount of information relating to individuals other than the applicant. While I accept there is a public interest in the release of this information with regard to the promotion of openness, transparency and accountability in relation to the activities of the Department, in my view this does not outweigh the public interest in maintaining the right to privacy of the third party individuals identified in the records. I therefore consider that the SWAO was justified its decision to refuse to release the information it withheld in response to the applicant's FOI request, in accordance with sections 28(1) of the FOI Act and I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the SWAO in this case.
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.
Sean Garvey
Senior Investigator