Decision
Mr R and the Department of Justice and Equality (the Department)
From Office of the Information Commissioner (OIC)
Case number: 130289
Published on
From Office of the Information Commissioner (OIC)
Case number: 130289
Published on
Whether the Department has justified its decision to refuse to release certain records relating to the processing of visa applications which had been submitted to it by or on behalf of Mr. Sirin Temel
11 April 2014
On 7 February 2013, Ms. Temel made an FOI request for all records pertaining to Mr. Temel's visa applications, submitted in 2010, 2011 and 2012. The Department, in its decision of 9 April 2013, released some of the records sought and withheld others on the grounds that they were subject to mandatory exemption from release, under section 28(1) or section 28(5B) of the FOI Act. In the decision letter, the Department did not refer to the relevant public interest test as specified in section 28(5). Mr. Temel sought an internal review of the Department's decision on 10 April 2013. The Department issued its internal review decision on 20 May 2013. The internal review decision was, in effect, to affirm the original decision.
On 19 November 2013, the applicants sought a review by this Office of the Department's decision to withhold certain records relevant to the FOI request, through their solicitor.
In carrying out my review, I have had regard to correspondence between the Department and the applicants as set out above; to details of various contacts between this Office and the Department; to details of various contacts between this Office and the applicants and their solicitor, and, in particular, the 'preliminary views letter' sent to them, dated 18 February 2014, by Mr. Richie Philpott, Investigator in this Office. Neither the applicants nor their solicitor have indicated acceptance of the position set out in the 'preliminary views letter', and I have therefore decided to conclude the review by way of a formal binding decision. 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 judgment").
The scope of this review is confined to whether or not the Department has justified its decision to withhold certain records from the applicant.
The records sought were withheld by the Department under sections 28(1) and 28(5B) of the FOI Act. Following discussions with this Office the Department released some additional records to the applicant in February 2014. The remaining documents withheld by the Department relate to its examination of the visa applications submitted by or on behalf of Mr. Temel. Having examined these records, I am satisfied that they contain either personal information relating to third parties, or otherwise they contain personal information of both the applicant and the third parties involved. On that basis, in my view, section 28(1) and section 28(5B) respectively, as cited by the Department, are the relevant provisions under which the claims for exemption should be considered.
Section 2 of the FOI Act includes a definition of personal information, defining it as "information about an identifiable individual that:- (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual...". Section 2 also gives twelve examples of types of information which are considered to comprise personal information within the terms of the Act. The list includes "...the name of an individual where it appears with other personal information relating to an individual or or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual...".
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would "involve the disclosure of personal information" about an identifiable individual. Having examined the records in this case, I have found that they relate to the personal information of persons other than the requester, and that they thereby fall for examination under this section.
Section 28(2) provides for the release of a record to which section 28(1) applies in a number of circumstances. These are: where the record relates to the applicant; where the third party consents to the release of the records to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or, finally, where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. Having examined the details to which I have found section 28(1) to apply, I am satisfied that none of the circumstances identified at section 28(2) arises in this case.
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption from release under section 28(1) 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 consider section 28(5)(b) to be of relevance in this case, as I do not consider that release of the information at issue would benefit the individuals to whom it relates.
In the 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.
In addition, the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large. This is because the Act places no restrictions on the subsequent use to which the record may be put. Accordingly, this is a factor which must be taken into account in this case in balancing any public interest arguments.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. However, I am not satisfied in the circumstances of this case that this public interest is sufficient to warrant the breach of the third parties' rights to privacy. Accordingly, I find that the details to which I have found section 28(1) to apply should not be released further to section 28(5)(a) of the FOI Act.
Section 28(5B) of the FOI Act protects records from release where access to the records 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. In this case, the relevant records consist of records containing personal information of both Mr. Temel and of one or more other persons, the release of which would disclose personal information pertaining both to the requester and to the third party or parties involved. I therefore consider that the records in question are exempt in accordance with this section.
Once again there is a public interest test to be applied in relation to this exemption. However, the same position applies in relation to the the public interest, in relation to these records, as applies to the records exempted under section 28(1) above, and, accordingly it is my view that they should not be released. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby uphold the Department's refusal of the records concerned.
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