Decision
Mr L and the Department of Defence
From Office of the Information Commissioner (OIC)
Case number: 130175
Published on
From Office of the Information Commissioner (OIC)
Case number: 130175
Published on
Whether the Department was justified in its decision to grant a request, to which section 29 of the FOI Act applies, for access to records which the applicant considers contain personal information about him
12 September 2014
This review arises from a decision made by the Department to release records following a request to which section 29 of the FOI Act applied. Section 29 applies to cases where the public body has considered at some stage in the decision making process that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest.
Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s), considered to apply should be overridden in the public interest. The applicant or affected parties, on receiving notice of the final decision of the public body, may apply for a review of that decision to the Office of the Information Commissioner directly.
On 28 January 2013 the original requester sought the following information from the Department:
While processing the FOI request, the Department's decision maker considered that some of the records contained personal information (section 28 of the FOI Act) relating to the applicant (the third party in relation to the FOI request) and he formed the view that it would be in the public interest (under section 28(5) of the FOI Act) to release the records to the requester.
As the decision maker was of the view that these records should be released under section 28(5), the request was deemed to be one to which section 29 of the FOI Act applied. Therefore, on 29 May 2013 the Department notified the affected third party of his right to make a submission and to have his views considered before a decision was made.
On 16 June 2013, the applicant made a submission to the Department objecting to the release of the records. The Department decided to grant the requester access to parts of the records i.e. with the applicant's personal details (i.e. name and address) redacted. It advised the applicant of this decision on 28 June 2013. On 10 July 2013, the applicant wrote to this Office and requested a review of the Department's decision.
In carrying out my review, I have had regard to correspondence between the Department and the applicant, to contacts between this Office and the Department, to correspondence between the Department and the requester, and, in particular, to the letter sent to the applicant by Ms Stephanie O'Connell, Investigator, on 24 July 2014 ("the preliminary views letter"). In addition, I have had regard to the relevant provisions of the FOI Act.
I note that the applicant responded to Ms O'Connell's letter on 6 August 2014 confirming that he did not agree with her views. I have therefore decided to conclude this review by way of a formal binding decision.
The scope of this review is confined to whether the Department was justified in its decision to partially grant access to the records about which the applicant was consulted.
It should be noted that, in a review of a decision to which section 29 applies, there are limits to the provisions of the FOI Act that I may consider. Section 29 requires consultation with a third party where any one or more of three specific exemptions is considered by the public body to be relevant to the records at issue (i.e. sections 26, 27, or 28), but where it considers the public interest warrants release of the records nonetheless. Thus, any review of such a decision cannot consider whether the records concerned could be exempt under any other provision of the FOI Act.
I should also point out that section 34(12)(a) of the Act provides that the public body's decision on a request shall be presumed to be justified unless the person to whom the information relates "shows to the satisfaction of the Commissioner that the decision was not justified". Thus, generally speaking, the onus would be on the applicant - as the person objecting to a public body's decision to release information in the public interest - to show that, on balance, the public interest would not be better served by granting access to the details concerned.
Section 29 of the FOI Act relates to records which may fall to be exempt under sections 26, 27 and 28 of the FOI Act. The section most relevant to the circumstances of this case is section 28. This mandatory exemption deals with personal information.
Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual.
Section 28(5) qualifies this exemption by providing that a record to which 28(1) applies may be released if the public interest in its release outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld.
In conducting this review this Office invited the applicant to make a submission. The applicant was requested to outline to this Office how the records in question constitute information personal to him. In his submission to the Office the applicant argued that he provided information to the Department on the understanding that it would be treated as confidential and referenced section 2(b) of the FOI Act, which defines "personal information" as information relating to an "identifiable individual" that "is held by a public body on the understanding that it would be treated by it as confidential". I have considered whether the information in the records as redacted identify the individual in the context of this definition of personal information or under (a) of the definition- "would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual...". I note also that the non-exhaustive list of information in the definition (i) to (xii) includes the name of the individual where it appears with other personal information relating to him/her or where disclosure of the name would or would be likely to establish that any personal information held by the public body relates to the individual.
Having carefully examined the records which the Department proposes to release in versions which do not include his name and address, I am satisfied that nothing in the records would identify the applicant. The records mainly consist of correspondence from the applicant regarding the Defence Forces including copies of media articles which are already in the public domain. Accordingly, I find that section 28(1) does not apply to the records and therefore it is not necessary for me to consider the public interest test at section 28(5) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's decision to partially grant access to records 16, 59, 60, 66, 68, 69, 70-74, 77, 86 and 90 to the original requester, under section 29(3) 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.
Elizabeth Dolan
Senior Investigator