Decision
Mr X and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-145812-D2X9B4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145812-D2X9B4
Published on
Whether the Department was justified, under section 37(1) of the FOI Act, in refusing access to certain information contained in records it released to the applicant concerning his application for Disability Allowance
11 June 2024
In a request dated 3 December 2023, the applicant made a request for records held by the Longford Office of the Department relating to his application for Disability Allowance. The applicant requested papers and documents produced in that section pertaining to his application, including all contemporaneous documents and telephone attendance notes including any notations made on his application form itself.
On 5 January 2024, the Department initially refused the applicant’s request under section 15(1)(b) of the FOI Act on the basis that it had not received proof of identity which it had sought from the applicant. On 9 January 2024, the applicant sought an internal review of the Department’s decision and provided proof of his identity, which he said had already been given to the Department. On 16 January 2024, the Department issued its internal review decision part-granting the applicant’s request. The Department refused a small amount of personal information of other parties contained in two records (Records 12 and 15) under section 37(1) of the FOI Act. On 29 January 2024, the applicant applied to this Office for review of the Department’s decision on the basis that it had incorrectly refused information under section 37(1) of the Act as it had not considered the provisions in section 37(2) of the Act which he had brought to its attention on 18 January 2024.
During the course of this review, the Investigating Officer provided the applicant with details of the Department’s submissions to this Office, wherein it set out its reasons for refusing the personal information of other individuals. The applicant was invited to make submissions which he duly did. The applicant said that his primary objection was that the Department had completely ignored his request to read section 37(2) of the Act.
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 referred to above and 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.
This review is concerned solely with whether the Department was justified, under section 37 of the FOI Act, in refusing access to the personal information of other individuals contained in records numbered 12 and 15.
In his application to this Office, the applicant contends there was maladministration by the Department in responding to his FOI request as its internal reviewer refused to read section 37(2) of the FOI Act when he brought it to her attention. I note that the applicant raised his query with the Department about section 37(2) of the Act on 18 January 2024, which was after the Department had issued its internal review decision and informed him of his rights of appeal to this Office. In its response to the applicant’s email of 18 January 2024, the Department’s internal reviewer explained that if he was unhappy with her decision he may appeal it to this Office. While I note the applicant’s comments about what he considers to be the Department’s failure to engage with his arguments about section 37(2) of the Act, the appropriate route to address the Department’s decision at that stage was through this Office, which he duly availed of.
The Investigating Officer informed the applicant that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
In his submissions to this Office, the applicant said his primary objection was that the senior civil servant he was communicating with in the Department totally and completely ignored his request that she should read the section of the Act that was relevant. In his reply to the Investigating Officer, the applicant asked what this Office can and cannot do in these circumstances.
While I will consider the provisions of section 37(2) of the Act below, it is important to note that this review has been conducted under section 22(2) of the Act and therefore cannot be extended into a wider investigation into how the Department handled the applicant’s request, including the applicant’s complaint about the decision maker. Such an investigation, were it to take place, could only be initiated by this Office under section 44 of the FOI Act. Amongst other things, section 44 empowers this Office to carry out investigations into the practices and procedures adopted by FOI bodies generally or any particular FOI body or bodies for the purposes of compliance with the provisions of the Act. A decision to undertake a general investigation under section 44 of the Act is not one that is taken lightly and is quite uncommon. In the particular circumstances of this case, I am satisfied that an investigation under section 44 is not warranted. Further details about our role and our procedures are available on our website at www.oic.ie
Section 37 of the Act – personal information
The Department redacted the name and the PPS number of one individual and the names of two other individuals that are contained in records numbered 12 and 15, under section 37(1) of the Act. Records 12 is a letter sent by the applicant to the Department and Record 15 is a Disability Allowance application form he submitted to the Department.
Section 37(1) of the Act provides that, subject to the other provision of the section, an FOI body shall refuse a request if access to the record(s) concerned would involve the disclosure of personal information. However, this does not apply where the information concerned relates to the requester. This is because section 37(2)(a) provides that section 37(1) does not apply if the information relates to the requester. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies. Where an FOI body is relying on section 37(1) for the refusal to grant access, it is important to consider whether the other provisions of section 37 (including, in particular, section 37(2) or 37(5)) apply before reaching a conclusion on the application of the exemption.
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. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
I am satisfied that the names, and the PPSN number, of third parties that are contained in records 12 and 15 comprise personal information relating to individuals other than the applicant and I find that section 37(1) of the Act applies to that information. However as noted above, that is not the end of the matter as section 37(1) is subject to other provisions of section 37, which I examine below.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. The applicant contends that section 37(2) of the Act is relevant to his request and had not been considered by the Department in refusing the information at issue. In his correspondence with the Department, the applicant referred specifically to section 37(2)(a) of the Act. Section 37(2)(a) of the Act provides that section 37(1) does not apply if, subject to subsection (3), the information concerned relates to the requester concerned.
In his correspondence with the Department, the applicant emphasised the word “relates” as an important consideration in regard to his request. The applicant argued that the information within the records relating to third parties relates to him as the definition of the operative word “relates” is “to show causal connection between…” and/or “to be connected.” The Department stated that it was satisfied that the circumstances identified in section 37(2)(a) do not arise in this case. It stated that the applicant has not demonstrated how the personal information pertaining to the third parties relates to him. It stated that no consent has been provided from the third parties for release of their personal information. The Department stated that it was satisfied that none of the other circumstances at section 37(2) arise in this case.
Having examined the records, I am satisfied that the Department released any information that relates solely to the applicant. The fact that the applicant may have created, or sent, the records concerned in this case to the Department does not mean that he necessarily has an entitlement to be given full access to those records under FOI, in circumstances where those records contain personal information of other parties. Furthermore, the fact that third party personal information is known to a requester does not change the fact that such information may be exempt from release under the FOI Act.
I consider that section 37(2)(a) is clearly intended to give a requester a right of access to information that directly relates to them as an individual, and not to information that relates to other individuals (unless appropriate consent has been provided by the relevant party), even in circumstances where the applicant may have supplied that information to the Department. While I do not consider it relevant in this case, it is also worth noting section 37(7) provides that, notwithstanding section 37(2)(a), an FOI 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. This is commonly known as joint personal information.
On the basis of the above, I am satisfied that section 37(2)(a) of the Act does not apply in this case. For the sake of clarity, I am also satisfied that none of the other provisions in section 37(2) of the Act apply.
Section 37(5)
Section 37(5) of the FOI Act 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 request would benefit the person to whom the information relates. No argument has been made that release of the relevant information to the applicant would benefit the other individuals, nor is it apparent to me how release would do so. Accordingly, I find that section 37(5)(b) does not apply.
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, subject to the Act, in deciding whether to grant or refuse an 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. 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 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. 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 relation to the applicability of section 37(5)(a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals or individuals to whom the information relates. 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, which 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 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 consideration of public interest tests generally.
In this case, while the applicant did not identify any specific public interest factors in favour of the release of the information at issue that might outweigh, on balance, the privacy rights of the other individuals, it seems to me that his request reflects a public interest in transparency and accountability around how decisions are made by the Department on social welfare applications it receives and in regard to appeals of those decisions.
On the other hand, 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).
I accept that there is a public interest in enhancing transparency and accountability around the manner in which the Department processes social welfare applications. However, in this case the Department released the records at issue and only redacted a small amount of personal information of third parties, information that had been provided to it by the applicant. It seems to me that the Department has sought to strike a balance by releasing as much information as possible to the applicant, while still seeking to protect the privacy rights of the third parties concerned. Having regard to content of the records at issue, I can find no public interest factor in favour of releasing the redacted information that outweighs the right to privacy of the third party individuals concerned. Accordingly, I find that section 37(5)(a) does not apply and that the Department was justified in refusing access to the information it withheld 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, under section 37(1) of the FOI Act, to the personal information of third parties contained in records 12 and 15.
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.
Richard Crowley
Investigator