Decision
Ms S and the Department of Social Protection (the Department)
From Office of the Information Commissioner (OIC)
Case number: 140165
Published on
From Office of the Information Commissioner (OIC)
Case number: 140165
Published on
Whether the Department was justified in its decision to refuse access to certain records from the applicant's One Parent Family Payment file, on the basis that the records are exempt from release under various provisions of the FOI Act
10 September 2014
The applicant made a request to the Department on 4 June 2013 for access to her One Parent Family Payment file from its initiation in 2004 to date. In its decision of 4 July 2013 the Department decided to part-grant the applicant's request. The applicant applied for internal review of that decision on 14 January 2014. In its internal review decision of 22 May 2014 the Department decided to release further records to the applicant but withheld a number of records, in whole or in part, on the basis of sections 23(1)(b), 26(1)(a), and 28(1) of the Act.
The applicant wrote to this Office on 1 July 2014 seeking a review of the Department's decision. While she specified in her application for review that she was seeking release of the information identified and withheld by the Department as records B, D, E, and F from FOI 41, it is clear from her letter that she was, in fact, seeking access to her complete file.
Mr. Christopher Campbell of this Office outlined his preliminary view to the applicant by telephone on 19 August 2014. He outlined that in his view the Department had correctly applied the FOI Act, and that the records at issue were exempt from release under the Act and would not be released should this review proceed to a formal decision. The applicant indicated that she wished the case to proceed to a formal decision 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 of the Department and of the applicant, and to the provisions of the FOI Act. I have examined the contents of the records, copies of which have been provided to this Office by the Department for the purposes of this review.
For convenience, I have adopted the numbering and identification system used by the Department in referring to the remaining records at issue. The Department originally identified 48 documents as coming within the scope of the applicant's request. Following internal review, the following information remains at issue:
This review is concerned solely with the question of whether the Department was justified in its decision to refuse access to the withheld parts of records identified above on the basis that they are exempt from release under the Act.
During the course of the review, the applicant indicated that she wished to have access to her full file in order to prepare herself fully for her upcoming interview with the Department regarding her One Parent Family payment. The applicant stressed that she considered it necessary to have full access to her file, and the information held by the Department in relation to her, in order to prepare for this interview. However, section 8(4) of the FOI Act expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the applicant has, or is believed to have, for making a request. Regardless of the importance of such issues to the applicant, the jurisdiction of this Office is confined to examining whether or not the Department was justified in refusing access to the records at issue, in accordance with the provisions of the FOI Act.
I also wish to make the point that while I am required by section 34(10) of the 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 limited.
Finally, it is also important to note that any review by the Information Commissioner under Section 34(2) of the FOI Act involves a "de novo" decision. In a case such as this, I must decide afresh upon the request that has already been made and this decision must take account of the law as it stands at present.
Record C on page 7 and pages 74, 75, and 76 of Doc. No. FOI 41 were withheld under sections 23(1)(b) and 26(1)(a) of the Act. Section 23(1)(b) states provides for the refusal of a request where the public body considers that access to the record concerned could reasonably be expected to reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence. The exemption provision is aimed at ensuring that members of the public are not discouraged from co-operating with bodies or agencies in the enforcement or administration of the civil law, by providing information which might assist such bodies or agencies to perform their functions more effectively. For section 23(1)(b) to apply, three specific requirements must be met. The first is that release of the withheld information could reveal, whether directly or indirectly, the identity of the supplier of the information. The second is that the information must have been given to the public body in confidence, while the third is that the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.
Record C on page 7 comprises three sentences. I am satisfied that the disclosure of the first two sentences could reasonably be expected to lead to the revelation of the identity of the person(s) who gave information to the Department and I find, therefore, that the first requirement under section 23(1)(b) has been met. I am not satisfied, however, that the first requirement has been met in the case of the third sentence. This is sufficient for a claim for exemption of that sentence under section 23(1)(b) to fall and I find accordingly.
Pages 74 to 76 comprise a two page report form and a covering letter. Having carefully examined the information contained in the three pages, I am not satisfied that the release of any of the withheld information could reasonably be expected to lead to the revelation of the identity of the person(s) who gave information to the Department and I find, therefore, that section 23(1)(b) does not apply.
As I have found that the first requirement for section 23(1)(b) to apply has been met only in respect of the first two sentences of record C on page 7, I must now proceed to consider whether the two remaining requirements have been met in respect of that information. Based on the submissions received from the Department, I accept that it is unlikely that the person or persons who gave the information to the Department would have volunteered the information if their identity were to be relayed back to the applicant, and that it was given to the Department in confidence and on the understanding that it would be treated as confidential. I accept that the person or persons volunteering the information would have expected that their identity would not be disclosed to the applicant. It is important to the Department that channels of information from the public remain open and it is possible that disclosure of information revealing the identity of the person or persons who have given information could, in certain cases, compromise the supply of such information into the future. I consider that the information was given to the Department in confidence and consequently, that the second requirement of section 23(1)(b) is also satisfied.
The Department has a duty to ensure the validity of welfare payments and to investigate alleged fraud. In this case, the information that was given to the Department was relevant to the matter of possible social welfare fraud. Accordingly, I am satisfied that the information given relates to the enforcement or administration of the civil law. On this basis I find that the third requirement of section 23(1)(b) has been met in respect of the first two sentences of record C on page 7.
Section 23(1)(b) of the FOI Act is subject to 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection or breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply.
In light of the above, I find that the Department was justified in its decision to refuse access to the first two sentences of record C on page 7 under section 23(1)(b) but that it was not justified in relying upon that provision to refuse access to the third sentence of record C or pages 74 to 76 of Doc. No. FOI 41.
The Department also cited section 26(1)(a) as a basis for refusing access to record C on page 7 and pages 74, 75, and 76 of Doc. No. FOI 41. As I have already found that the Department was justified in refusing access to the first two sentences of record C under section 23(1)(b), I will confine my consideration of section 26 to the remaining withheld information only. Section 26(1)(a) of the Act provides protection for certain information given to a public body in confidence. However, section 26(2) provides that section 26(1) does not apply to a record which is prepared by a member of the staff of a public body, or a person who is providing a service for a public body under a contract for services, in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to someone other than a public body, its staff or a person providing a service for the public body under a contract for services. Given that the records at issue in this case were prepared by officials of the Department, section 26(1) cannot apply unless the disclosure of the information contained in the records would constitute a breach of a duty of confidence owed to someone other than a public body or its staff.
Having carefully examined the information at issue, I am satisfied that the disclosure of the information would not constitute a breach of a duty of confidence owed to someone other than a public body or its staff. I find, therefore, that section 26(1)(a) does not apply to the third sentence of record C on page 7 and pages 74, 75, and 76 of Doc. No. FOI 41.
The Department relied upon the provisions of section 28 of the FOI in refusing access to record A in Do. No. FOI 4, Page 1 of Doc No. FOI 24, and the following information in Doc. No. FOI 41:
one deletion on page 6, identified as record B, two deletions on page 7, identified as records D and E, one deletion on page 8, identified as record F, and pages numbered 12-13, 15-17, 19-31, 34-39, 45, 54-66, and 69-72. As I have indicated above, I am required to undertake a de novo consideration in this case and for this reason, I also propose to examine the third sentence of record C on page 7 of Doc. No. FOI 41 and pages 74 to 76 of that document in the context of whether section 28 might apply.
Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a person other than the requester. 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 requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.
While personal information can be released if the person to whom it relates consents to its disclosure, as a general rule, the release of joint personal information requires the consent of all of the individuals to whom it relates, unless under section 28(5) of the FOI Act, (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.
In this case, having reviewed the records in question, I accept that the release of the records for which exemption was claimed by the Department under section 28 would involve providing access to the personal information of another person or persons. Therefore, I find that 28(1) and/or 28(5B) applies to these records. I am also satisfied that the disclosure of the third sentence of record C on page 7 of Doc. No. FOI 41 would involve the disclosure of personal information relating to a third party and that section 28(1) applies to this information. On the matter of the applicability of section 28 to pages 74 to 76 of Doc. No. FOI 41, I find that section 28(1) applies only in respect of the the second screen-shot on page 75 and the PPS number on page 76. I find that section 28 does not apply to the remaining parts of pages 74 to 76.
Having found section 28(1) and/or section 28(5B) applies, I must proceed to consider a number of other relevant provisions of section 28. Under Section 28(2) there are some circumstances in which the exemption for personal information under section 28 does not apply. I am satisfied that none of those circumstances arise in this case. Section 28(5)(a) provides that a record, which is otherwise exempt under section 28, may be released 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 information to which I have found section 28(1) and/or 28(5B) to apply, I do not consider that the release of that information would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. I find, therefore, that section 28(5)(a) of the FOI Act does not apply.
Section 28(5)(b) provides that a record which has been found to be exempt under section 28 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 her 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 section 28(5)(b) of the FOI Act does not apply
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby vary the decision of the Department in this case. I direct that pages 74 to 76 of Doc. No. FOI 41 be released to the applicant subject to the redaction of the second screen-shot on page 75 and the PPS number on page 76. I uphold the decision of the Department to refuse access to the remaining information at issue in accordance with sections 23(1)(b) 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