Decision
Mr Y and Dublin City Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150066-F7B9Y2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150066-F7B9Y2
Published on
19 February 2024
In a request dated 2 April 2024, the applicant sought access to copies of the lifeguard log books in respect of the 2022 and 2023 Blue Flag bathing seasons at Dollymount Strand and Sandymount Strand. On 26 April 2024, the Council refused the request. It said that beach lifeguards are not provided at Sandymount Strand, and refused to release the logbooks for Dollymount Strand under section 37(1) of the FOI Act. It said that the records contained information relating to third parties and that, even with redactions, it considered there to be “a risk to the data subjects involved”. The applicant requested an internal review of this decision on 30 April 2024. He said that the names of employees of a public body, or those contracted to provide services for a public body, were not personal information within the meaning of the FOI Act. He also said that any personal information relating to third parties could be redacted, as had been done in previous years when the same records were released to him. On 21 May 2024, the Council affirmed its decision. It said that the names of those engaged as lifeguards on Dollymount Beach were not being released as this was considered personal information under section 37 (1) of the Act, “as these persons are not permanent employees of the Council”. It reiterated the point that even releasing redacted records involved a risk to the data subjects involved. Notwithstanding that, the Council provided the applicant with a record containing monthly statistics recorded by the relevant lifeguards, giving the number and types of incidents which occurred in the relevant timeframe.
On 25 June 2024, the applicant applied to this Office for a review of the Council’s decision. He repeated the points made in his request for internal review, and also said that he had received equivalent records from other local authorities around the country.
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 submissions made by the Council and to the applicant’s comments in his application for review. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Council identified 19 records as falling within the scope of the applicant’s request, which comprise copies of the lifeguard log books for Dollymount Strand for the bathing seasons 2022 and 2023.
The applicant, in his request for an internal review, said that personal information contained in the logs (e.g. details of individuals treated with first aid or contact details of people regarding lost property) could be redacted. I find therefore that such information falls outside the scope of this review. For the avoidance of doubt, this includes names of members of the public, as well as phone numbers, addresses, dates of birth, and car registrations, where they appear. Such information appears on record 2 (pages 5 and 20), record 3 (page 5), record 7 (page 1); record 8 (pages 5, 6 and 8); record 9 (page 10); record 10 (page 4); record 11 (pages 2, 3, 7, 9, 12, 16); record 12 (page 7); record 15 (page 16); record 17 (pages 4 and 10).
This review is concerned only with whether the Council was justified in refusing to release records 1-19, apart from the third party information set out above, under section 37(1) of the FOI Act.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
However, the definition at section 2 provides that personal information does not include:
“(I) in a case where the individual holds or held—
(A) office as a director of,
(B) a position as a member of the staff of, or
(C) any other office, or any other position, remunerated from public funds in,
an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid”
Submissions from the Council
The Council said that it considered partial release of the records with names and contact details redacted. However, it said that even with appropriate redactions, it was of the view that the potential to identify individuals, based on the details of the incidents, remained. It said that as release of records under the FOI Act is considered release to the world at large, it said that it was not appropriate to release information which could result in the individual themselves, or their friends/family, potentially recognising themselves from the incidents being described. The Council acknowledge that some of the incidents described are general and non-descript in nature, but it drew my attention to some specified incidents which occurred, and which contain a more detailed description. It said that it believed that there was sufficient information noted in relation to these incidents that could inadvertently lead to the identification of the individuals involved.
The Council said that in relation to the names of the lifeguards, it was mainly their initials or first names that were recorded. It said that it had taken the view that these employees were not permanent employees of the Council and that their names were considered personal information under section 37(1) of the FOI Act. It acknowledged the exclusion at part (I) to the definition of personal information at section 2 of the Act, but said that it was of the view that as the individuals involved were taken on for specific, short-term positions each year, they would have no expectation that their names would enter into the public domain in this manner.
Analysis
I must first consider whether release of the records, even with the specified information redacted (the names, addresses etc as set out in the scope section), would involve the disclosure of personal information relating to members of the public who were assisted by the lifeguards or involved in various incidents, as recorded in the logbooks. It is the Council’s position that it would and while it accepted that some of the incidents are described at a high level, it pointed to specific incidents where a more detailed description was provided. I have carefully considered the descriptions of these incidents, as well as the other more general descriptions contained in the records and I am not satisfied that release of this information would involve the disclosure of personal information. This is because, as noted above, personal information for the purposes of the FOI Act means information about an identifiable individual (my emphasis) that either would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by an FOI body on the understanding that it would be treated as confidential. Where it is not apparent, I would expect an FOI body to be in a position to show clearly how the disclosure of the information would allow an individual to be identified.
The Council has said that the individuals involved, or their friends/family, might recognise themselves from the description of the incidents. I do not accept that an individual being able to recognise themselves in an anonymised description of an incident equates to the disclosure of personal information. Similarly, if a friend or relative were in a position to identify the person from the anonymised description, this could only happen if the incident and the individual’s involvement in it were already known to them. This would not, therefore, involve the disclosure of personal information to those friends/relatives. I find that release of the records, with the specified information redacted, would not disclose personal information to persons otherwise unfamiliar with the details of the incidents. For these reasons, I do not accept the Council’s position that release of the record, with the specified information redacted, could lead to the disclosure of personal information of identifiable individuals and I find that section 37(1) does not apply to this information.
The second issue for consideration is whether the names of the lifeguards recorded in the logbooks constitute personal information. These mainly appear in the form of initials or first names only, but in a small number of records the full names of the lifeguards on duty are recorded. As noted above, the definition of personal information excludes the name of a member of staff of an FOI body or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions. The exclusion at paragraph (I) does not exclude all information relating to staff members. This exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions or functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
It is the Council’s position that the lifeguards are not permanent employees of the Council and that they are engaged for specific short-term positions. The exclusion at paragraph (I) makes no distinction as to whether a member of staff is engaged on a permanent or temporary basis. Having regard to the content of the records, it is clear to me that the information entered into the logbooks was recorded by the lifeguards on duty in the course of and for the purpose of the performance of their functions. I find that their names/initials fall within the exclusion at paragraph (I) such that they are not included within the definition of personal information at section 2 of the FOI Act. Accordingly, I find that section 37(1) does not apply to this information.
As I have found that section 37(1) does not apply to either of the two categories of information at issue, there is no need to go on to consider the other provisions of section 37, including the public interest test.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Council’s decision. I find that it was not justified, under section 37(1), in refusing to release copies of the lifeguard logs with the specified personal information redacted.
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.
Emer Butler
Investigator