Decision
Ms X and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-144638-C9Y3N4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144638-C9Y3N4
Published on
Whether the Department was justified in refusing access to a record relating to the estate of the applicant's late husband under section 37 of the FOI Act
04 April 2024
In a request dated 16 February 2023, the applicant sought access to copies of correspondence or notes of telephone calls, in relation to the estate of her late husband, between a named solicitor or the executors of the estate and the Department. She also sought copies of all supporting documentation sent by the named solicitor or the executors to the Department. On 6 March 2023, the Department refused the applicant's request under section 37(1) of the FOI Act. The applicant applied for an internal review of that decision. On 23 March 2023, the Department affirmed its original decision. On 27 March 2023, the applicant sought a review by this Office of the Department's decision. In a decision dated 11 July 2023, the Investigator found that the Department had failed to properly consider the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 when processing the request. He annulled the Department's decision and directed it to undertake a fresh decision-making process in respect of the applicant's request having due regard to the relevant Regulations.
On 14 July 2023, the Department notified the applicant that decision makers from its Inheritance Enquiry Unit (IEU) and its CAP Entitlements Unit had been assigned to process her request. On 4 August 2023, the IEU granted partial access to one record relevant to the applicant’s request and it refused access to the remaining 11 records held by that unit under section 37 of the Act. On 24 August 2023, the applicant requested an internal review of the IEU’s decision and she stated that she had not received a decision from the CAP Entitlements Unit. On 25 August 2023, the applicant provided the Department with detailed submissions and documents in support of her request for review.
On 11 October 2023, the applicant wrote to this Office and said she had not received an original decision from the CAP Entitlements Unit or an internal review decision from IEU. This Office requested that the Department clarify the status of the review. In reply, the Department said it wrote to the applicant on 15 September 2023 and replied to the issues raised in her correspondence of 24/25 August. The Department said it informed the applicant that if she wished to request a review of the IEU’s decision, she should address her request to the Department’s FOI Unit as stated in the IEU’s original decision letter. The Department also stated that the CAP Entitlements Unit had issued a decision on 10 August 2023, in which it refused the applicant’s request under section 37 of the FOI Act. On 20 November 2023, the Department emailed a copy of that decision to the applicant. On 21 November 2023, the applicant requested an internal review. On 27 November 2023, the Department issued its internal review decision affirming its original decision. On 13 December 2023, the applicant sought a review by this Office of the Department's decision.
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 between the applicant and the Department as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.
In communications with this Office, the applicant confirmed that she was agreeable to confining the scope of this review to the Department’s decision to refuse access to a letter of 19 January 2019 from her late husband’s solicitor to the Department. Accordingly, this review is concerned solely with whether the Department was justified in refusing to grant access to the aforementioned letter under section 37 of the FOI Act.
Before I consider the substantive issues arising in this case, I would like to make the following preliminary comments. Firstly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in 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 record at issue and the material that I can refer to in the analysis is limited.
Secondly, during the course of this review the applicant expressed dissatisfaction with the manner in which her late husband’s farm payments were dealt with by the Department. In particular, she stated that she was unhappy with the procedure adopted by the Department to establish whether her late husband and her son were farming as joint tenants or tenants in common and its conclusion that they were farming as joint tenants. It is important to note, 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. I cannot therefore adjudicate on how the Department performed its functions in relation to the transferring of farm payments in this case.
Section 37 Personal Information
Section 37(1)
The Department refused access to the letter at issue under section 37 of the Act. Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. 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.
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 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (xiii) information relating to the property of the individual (including the nature of the individual’s title to any property).
The Department states that the correspondence dated 10 January 2019 contains information relating to property of two named individuals including the nature of those individual's title to property. It states that it obtained and holds the requested document in order to facilitate the processing of an application to transfer CAP payment entitlements. It states that the parties provide this information to allow the processing of their applications on the understanding that it is personal information and will be treated in strict confidence and will not be disclosed to anyone outside those directly involved in the process.
I have examined the letter at issue carefully and I am satisfied that it contains personal information about two people including one person who is now deceased. The record contains information that relates to the property of the individuals (including the nature of the individual’s title to property). It is important to note that the fact that the applicant may be aware of the identity of the parties does not mean that the information cannot be protected under section 37(1). I find that section 37(1) applies to the letter at issue. Section 37(1) is subject to the other provisions of section 37, which I examine below.
Section 37(2)
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, the information contained in the record does not relate solely to the applicant; the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) 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 person to whom the information relates. In the particular circumstances of this case, 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 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 record 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, such as under section 37(8) which I consider below, 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 considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, 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 the consideration of public interest tests generally.
In her submissions to this Office, the applicant states that the Department dealt with her late husband’s farm payments as though her late husband and her son were joint tenants. She states that her late husband and her son at all times conducted individual businesses and made individual tax returns and no joint tenancy ever existed. She states that from 2012 when her late husband fell seriously ill, her son had the use of her late husband’s farm entitlements and the land jointly owned by her late husband and herself for an annual rent. She states that she received correspondence from the Department dated 15 September 2023, which clearly states that the decision to transfer entire entitlements to her son was based solely on correspondence received by the Department from her late husband’s solicitor dated 10 January 2019. She states that had the matter been dealt with correctly, her son would have received a 50% share of farm entitlements and the remaining 50% would be allocated to the estate of her late husband and would ultimately go to the residual beneficiary of the said estate, which is the applicant. She states that Department regulations clearly state this. The applicant has provided this Office with a legal opinion which states that the Farm Entitlements fall due to be paid in their entirety to her son. She states that this legal opinion is seriously flawed and should not have been used as a basis for any decision. The applicant states that the content of the correspondence from her late husband’s solicitor dated 10 January 2019 is the root cause of the difficulties that have persisted since her husband’s death. She states that she was negatively affected by the Department’s decision, yet the Department refuses to provide the information on which the decision was based. She states that any such information regarding her late husband’s affairs must be correct and in the event of same not being so, the information must be rectified.
The Department states that the transfer of entitlements decision was not based in any way on the legal opinion provided by the applicant. The Department confirmed that, as part of the processing of the transfer application, it was in contact with the named solicitor in his capacity as the solicitor responsible for her late husband's affairs. The Department noted that the applicant provided it with a copy of an email, dated 31 October 2018, which it sent to the solicitor, following discussions with him, to ensure that the Department had a full and accurate understanding of the nature of the arrangement between her late husband and her son. The Department states that this is the first procedure in all cases where one person on a joint herd number dies as it has to establish if they were farming as joint tenants or tenants in common as there are different legal obligations for the transfer of the entitlements. The Department confirmed that the decision with regard to the transfer of entitlements was based solely on the response to this email, a letter dated 10 January 2019. The Department says it has considered whether this letter should be released in the public interest. It says there is a public interest in members of the public exercising their rights under the FOI Acts. On the other hand, it states that there is also a public interest in safeguarding the privacy of third parties and the deceased and in protecting information provided in confidence to the Department. The Department concluded that, on balance, the public interest in this case does not warrant the release of this withheld letter.
In her submissions, the applicant states that information regarding her late husband’s affairs must be correct and if it is not correct it must be rectified. It is important to note that where personal information in a record held by an FOI body is incomplete, incorrect or misleading, it is open to a party to apply to the FOI body to amend the records by altering it so as to make the information complete or correct or not misleading as may be appropriate (section 9 of the FOI Act refers). The applicant also states that she has been affected by the Department’s decision in relation to the transfer of entitlements. A person who is affected by an act of an FOI body and has a material interest in a matter affected by the act or to which it relates, may apply to the FOI body for a statement of reasons for the act and of any findings on any material issues of fact made for the purposes of the Act (section 10 of the FOI Act refers). In this case, the applicant has made an application for access to records as opposed to an application under section 9 of the FOI Act for amendment of records or section 10 of the FOI Act for information regarding acts of the FOI bodies affecting the person. The question I must consider in this review, is whether the Department was justified under section 37 of the FOI Act in refusing to grant access to the letter of 19 January 2019.
The applicant has argued that the manner in which the Department dealt with the transfer or entitlements was not correct, it has placed reliance on a record which is not accurate and its decision has negatively affected her. The Department has confirmed that the decision with regard to the transfer of entitlements was based solely on the letter dated 10 January 2019. It seems to me, that the applicant’s arguments are reflective of the public interest in transparency in relation to the way a public body performs its functions.
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, including those afforded to deceased persons under the FOI Act, 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 disclosure of the record would give some insight into how the Department acted in carrying out its functions and would enhance transparency around transfer of entitlements. However, this does not mean that there should be no protection of privacy rights of individuals. While the applicant says that she is unhappy with how the Department acted in this matter, I do not believe it is appropriate for me to direct release in the public interest of third party personal information, effectively to the world at large, on the basis that the applicant is dissatisfied with the Department’s actions, or indeed the actions of others. Neither do I have any remit to consider, or make findings on, the merits of such actions.
I am satisfied that releasing the withheld information into the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific withheld information that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Section 37(8) and the 2016 Regulations (S.I. 218 of 2016)
Section 37(8) of the Act provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of an FOI request where the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations. The relevant regulations are the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016), as amended. The Regulations provide that notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual. Such a request shall, subject to the other provisions of the Act, be granted if the case falls within a case to which Regulation 7 applies. Regulation 7 applies where:
(b) the requester is the spouse or the next of kin of the individual and in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request.
As outlined above, in the original decision in this matter, this Office found that the Department had failed to properly consider the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 when processing the request. The Investigator annulled the Department's decision and directed it to undertake a fresh decision-making process in respect of the applicant's request having due regard to the relevant Regulations. When the applicant sought a review from the Office for a second time, she narrowed the scope of her request to the letter of 19 January 2019 from her late husband’s solicitor to the Department. It is important to note that neither section 37(8) nor the 2016 Regulations provide a basis for releasing records, or parts of records, which contain personal information relating both to a deceased person and a third party, except where the third party is the requester. In this case, the letter of 19 January 2019 contains information relating to a deceased person and a third party other than the applicant. Accordingly, I do not need to consider whether this record falls for release under the Regulations.
In conclusion, I find that the Department was justified in refusing access to the record at issue 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.
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.
Jim Stokes, investigator