Decision
Mr, Mr & Mrs X and Kildare and Wicklow Education and Training Board
From Office of the Information Commissioner (OIC)
Case number: OIC-56818-T2L7X9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-56818-T2L7X9
Published on
Whether KWETB was justified in refusing access to certain of the applicant’s school records under sections 15(1)(a) and 37 of the FOI Act
20 January 2020
The applicants in this case are two parents and their son. This review arises from the suspension of the son (hereinafter referred to as the applicant) from school. All reference in this decision to engagements with the applicant include engagements with the parents. On 7 February 2019, the applicant requested his full school file, to include the following:
On 1 March 2019, KWETB part-granted the request. While access was granted to 11 records, access to 10 records was refused on the ground that they had previously been released (records 3, 6, 10, and 18 to 24) and one other record (record 12) on the ground that it contained personal information relating to third parties. It also refused access to the Principal’s report and BOM minutes dated 27 November 2018 on the basis that the records in question did not exist. The schedule of records that KWETB provided with the decision indicated that the Principal’s reports to the BOM dated 8 October 2018 and 4 December 2018 were contained in the Board minutes that were released. It also indicated that the Principal’s report of 11 October 2018 was refused on the ground that it had previously been released.
On 24 March 2019, the applicant sought an internal review of the decision to refuse access to the following records:
On 12 April 2019, KWETB varied its original decision. It released notes from which the Principal read at the BOM meeting of 8 October 2018. It stated that the Principal’s report of 11 October 2018 and the minutes of the Section 29 Appeal Hearing had previously been released. It affirmed the decision to refuse record 12 under section 37 of the FOI Act. It further stated that it had not been able to locate any further records and was therefore refusing the remainder of the request under section 15(1)(a) of the Act. On 16 September 2019, the applicant sought a review by this Office of KWETB's decision.
During the course of the review and following correspondence with this Office, KWETB released a copy of handwritten minutes of the Section 29 Appeal Hearing with the names of the Hearing Committee redacted. KWETB also located an email from the school Principal to KWETB which came within the scope of part 6 of the applicant’s original request. It argued that the record in question was exempt from release. However, Ms Whelan of this Office informed the applicant that as he had narrowed the scope of his request at internal review stage, this record would not form part of the review. It is open to the applicant to make a fresh request for the email in question and any other records which KWETB holds which may fall under part 6 of his original request.
On 19 December, Ms Whelan informed the applicant of the details of the searches undertaken by KWETB, as outlined in its submissions to this Office, in relation to records it refused on the ground that the records sought do not exist. The applicant made a submission in response.
I have now concluded my review in this case. In conducting the review, I have had regard to the relevant correspondence between the applicant and KWETB as set out above and to the communications between this Office and both the applicant and KWETB on the matter.
This review is concerned solely with the question of whether KWETB was justified in refusing access to the records identified by the applicant at the internal review stage under sections 15(1)(a) and 37 of the FOI Act.
Before I consider the substantive issues arising in this case, I would like to make a number of preliminary comments. At the outset, it is important to note that while 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 I can give of the contents of one of the records at issue in this case is somewhat limited.
I also note that in his application for internal review, the applicant said he wanted the rationale by the Principal or any other member of staff for contacting An Garda Síochána (AGS) in relation to him. During the review, Ms Whelan informed the applicant that it was open to him to apply under section 10 of the FOI Act for a statement of reasons for any act of the public body that affected him and in which he has a material interest. However, as no such application was made in the original request in this case, this review is not concerned with whether or not he is entitled to a statement of the rationale for contacting AGS.
Finally, it is important to note that this Office has no role in examining the substantive administrative actions of the KWETB in relation to the manner in which it dealt with the applicant. Rather, our role is confined to considering the appropriateness of the decision taken on the FOI request.
The applicant argued that KWETB has not provided him with all relevant records. Specifically, he argued that he had not been given access to the Principal’s full notes and/or reports to the BOM on 8 October 2018, 11 October 2018 and 4 December 2018 or any reports or communications the Principal and any other member of staff made to external agencies.
In relation to the Principal’s reports to the BOM, KWETB’s position is as follows:
In relation to reports or communications the Principal and any other member of staff made to external agencies, KWETB’s position is that no such records exist.
KWETB submitted that all relevant records have been provided to the applicant. Section 15(1)(a) of the FOI Act provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The Commissioner’s role in such cases is to review the decision of the FOI body and to decide whether the decision was justified. This Office must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submissions to this Office, KWETB provided details of the searches conducted in response to the applicant's request. As this Office has provided the applicant with those details already, I do not propose to repeat them in full. In short, KWETB said it had consulted all relevant persons and searched manually and electronically in the locations where it considered all relevant records might be kept. It said the school Principal confirmed that a hardcopy report to the BOM on 4 December 2018 was not retained. It said the practice is that the Principal’s report is recorded in the minutes of the meeting and that on many occasions, the Principal would give a verbal report prompted by written notes. It said the Principal searched her computer records and confirmed that the record sought no longer exists.
Regarding communications between the school and external agencies, KWETB submitted that such communication was verbal, apart from one report to TUSLA which was released (record 17). It said two reports were made to AGS by telephone and a telephone call was made to the Educational Welfare Officer but that no notes of the calls were made.
Having regard to the KWETB’s explanation as to why it does not hold the records sought and to the searches conducted to locate relevant records, I am satisfied that KWETB has carried out all reasonable steps in an effort to ascertain the whereabouts of the records in question and that it was justified in refusing access to the records under section 15(1)(a) of the FOI Act.
KWETB refused access to record 12 and it redacted certain information from the handwritten minutes of the Section 29 Appeal Hearing 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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, 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 (commonly known as joint personal information).
The FOI Act defines the term "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 the body as confidential. Certain information is excluded from the definition of personal information, including the name of an individual who is or was a staff member of an FOI body or a service provider.
KWETB redacted the names of the Hearing Committee from the minutes of the Section 29 Appeal Hearing. In its submissions to this Office, KWETB stated that these individuals are employed on an ad hoc basis by the Department of Education and Skills to carry out such hearings. I am satisfied that the exclusion to the definition of personal information applies and that section 37(1) does not, therefore, apply.
Record 12 comprises two pages of notes prepared by a teacher. While I am constrained by the provisions of section 25(3) from explaining my finding on this point in detail, I am satisfied that these notes contain joint personal information relating to the applicant and third parties and that section 37(7) applies.
There are some circumstances, provided for at section 37(2), in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Furthermore, section 37(5) provides that a record which is otherwise exempt under section 37(1) may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. No evidence has been presented to this Office to suggest that the release of the withheld information would be to the benefit of the parties concerned. Therefore, I find that section 37(5)(b) does not apply.
On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individual to whom the information relates. The FOI Act acknowledges that there is a public interest in ensuring the openness and accountability of public bodies in the manner in which they perform their functions. On the other hand, the Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act, which makes clear that the release of records under FOI must be consistent with the right to privacy. The right to privacy has a constitutional dimension. 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.
It seems to me that the public interest in ensuring openness and accountability in relation to KWETB's actions concerning the applicant’s suspension has been served to a large degree by the release of the vast majority of the records at issue. It is not apparent to me that release of the withheld information would further enhance the accountability and transparency of KWETB to any significant extent. Furthermore, I am cognisant that the release of information under the FOI Act is, in effect, release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put. In the circumstances, I find that the public interest in the release of the withheld record in this instance does not outweigh, on balance, the public interest in protecting the privacy rights of the individual(s) to whom the personal information contained in the records relates. I find, therefore, that section 37(5)(a) does not apply.
For the sake of completeness, I should add that I have considered whether KWETB might be in a position to release a redacted copy of the record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from withheld records for the purpose of granting access to those particular sentences or paragraphs. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. In this case, I am satisfied that KWETB is not required to provide a redacted copy of the record as the personal information relating to the various third parties is inextricably linked to the applicant’s personal information. In conclusion, therefore, I find that KWETB was justified in refusing access to record 12 under section 37(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of KWETB. I direct the release of the redacted names contained in the minutes of the Section 29 Appeal Hearing. I affirm KWETB's decision to refuse access to the other records sought under sections 15(1)(a) and 37 of the Act.
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 eight weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator