Cinneadh
Ms X and Department of Social Protection
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-103483-H8S9Y1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-103483-H8S9Y1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in partially refusing access to records relating to the applicant’s claim for jobseeker’s allowance
13 July 2021
In a request dated 3 September 2020, the applicant sought access to all records relating to her application for jobseeker’s allowance for the period 1 January to 31 August 2020. In a decision dated 1 October 2020, the Department identified what it regarded as three records that fell within the scope of the applicant’s request. The Department granted access to the first record in full, partial access to the second record (with certain information redacted), and refused access to the third record. The Department cited section 37(1) of the FOI Act as the basis for its redaction of the relevant information in the second record, and section 30(1)(a) of the Act as the basis for withholding the third record.
On 28 October 2020, the applicant sought an internal review of the Department’s decision. On 23 November 2020, the Department affirmed its original decision. On 9 February 2021, the applicant sought a review by this Office of the Department’s decision.
In its submissions to this Office in relation to this matter, the Department indicated that it also wished to rely on section 29(1) and 32 of the FOI Act as a basis for withholding the third record, and made a number of arguments in support of that position. This Office put the applicant on notice of the additional exemptions upon which the Department sought to rely and invited her to make any further arguments or comments in response that she wished. The applicant did not provide any such further arguments.
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 and to the submissions made by the Department. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in its communications with the applicant and with this Office.
My review in this case is concerned solely with the question of whether the Department was justified, under various provisions of the FOI Act, in redacting certain information from Record 2 and in refusing access to Record 3.
Record 2 comprises certain items of correspondence in relation to the applicant’s claim for jobseeker’s allowance, in particular the applicant’s engagement with the ‘JobPath’ service, and representations and responses made in connection with her application. The pages are numbered 2 to 9. Record 3 comprises documentation relating to certain investigative procedures undertaken by the Department.
Record 2
In its submissions to this Office, the Department indicated that it was relying on section 37(1) of the FOI Act as a basis for its decision to redact certain information from the documents associated with Record 2. 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. 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. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
Section 2 of the 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. Without prejudice to the generality of this definition, section 2 goes on (at paragraphs (i) to (xiv)) to list 14 categories of information in particular which constitute personal information. It is worth noting that there is no requirement for information falling within paragraphs (i) to (xiv) to also meet the requirements of the general definition of personal information contained in section 2 of the Act.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph (I) refers). Similar information relating to service providers is also excluded (Paragraph (II) refers).
The information redacted from Record 2 comprises the name and contact details of a staff member, the name of a member of the staff of a service provider to the Department, namely a Social Welfare Branch Office, and the name of a third party who co-signed with the applicant a letter submitted to the Department in connection with the applicant’s claim for jobseeker’s allowance. Having regard to the exclusions to the definition of personal information as described above, I find that the names of the staff member of the Department and her contact details that were redacted from pages 3 and 4 of Record 2 is not personal information for the purposes of the Act. I find, therefore, that section 37(1) does not apply to that information and that the Department was not justified in redacting it.
On the other hand, I find that section 37(1) applies to the name of the staff member of the Branch Office redacted from page 3. While the exclusion in Paragraph (II) provides that the definition of personal information does not include the name of a service provider, this does not, in my view, extend to the names of the staff members of a service provider. I also find that section 37(1) applies to the name of the third party who co-signed the letter to the Department that was redacted from page 5.
However, that is not the end of the matter as subsection (1) of section 37 is subject to the other provisions of the section. Subsection 2 provides that subsection (1) does not apply in certain circumstances, including where the individual to whom the personal information relates consents to the disclosure of the information to the requester. In its submissions to this Office, the Department noted that it did not have the consent of the third party co-signatory to release the name to the applicant, and argued that it did not consider it appropriate to seek such consent.
While I accept that consent has not been given, in the particular circumstances of this case, I see no reason why the third party in question would withhold consent to the release of his or her name, particularly when the individual was a co-signatory of the letter to the Department. In any event, it seems to me that the applicant will be fully aware of the identity of the individual and I note that she has not made any specific arguments to this Office in connection with the redaction of the information. Nevertheless, the fact remains that the third party has not consented to the release of the information at issue. However, if she wishes to pursue the matter further, it is open to her to provide the consent of the third party to the release of his or her name in the record in question, following which I would expect the Department to release the letter in full.
For the sake of completeness, I find that none of the other circumstances identified at section 37(2) do not arise in this case. Section 37(1) is also subject to subsection (5) which 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 right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that subsection 5(b) does not apply in the circumstances of this case.
On the matter of the applicability of section 37(5)(a), 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 in this case, the Department sought to provide as much information as possible relating to the applicant in the record at issue while simultaneously seeking to protect the privacy rights of third parties. I am also conscious of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put.
Given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the information at issue that, on balance, outweighs the right to privacy of the individual to whom the information in question relates. Accordingly, I find that the Department was justified in refusing access, under section 37(1), to the name of the staff member of the Branch Office redacted from page 3 and the name of the third party who co-signed the letter to the Department that was redacted from page 5.
Record 3
The Department indicated that the documents comprising Record 3, of which there are 20, were withheld under section 30(1)(a) of the FOI Act. That section provides that an FOI body may refuse to grant an FOI request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof.
Article 30(1)(a) is a harm-based provision. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.
In its submissions to this Office, the Department argued that section 30(1)(a) applied in the case of Record 3 because the documents associated with that record related to the investigation file of a Social Welfare Inspector working in the Department’s Special Investigations Unit (SIU), who was currently carrying out a review of the applicant’s Jobseekers Allowance entitlement. Noting that the investigation in question was incomplete and ongoing, the Department contended that the harm it envisaged by the release of Record 3 was two-fold: the prejudice that such release would cause to this particular investigation, and the prejudice such release would have to the enforcement of, compliance with or administration of Social Welfare legislation.
The Department went on to argue that if access to Record 3 was granted before an investigation was complete, then it would become public knowledge how an SIU officer conducts an investigation, including the method and approach taken to evidence gathering, the circumstances in which an investigation is commenced and the different contacts and requests for information sought. The Department argued that if such information was released, it could have severe repercussions for the Department’s control and prevention of abuse and fraud and implementation of social welfare legislation as enacted by the Oireachtas. In addition, the Department submitted that the release of information relating to an incomplete investigation could prejudice the effectiveness of any further similar investigations, by making people aware of the approach taken by an officer in investigating or reviewing a suspected fraudulent claim. The Department argued that the procedures and method used to conduct such an investigation – including how the Department contacts and obtains information from other agencies and bodies – could also be prejudiced. It argued that if it was to be instructed to release such records, then its ability to carry out investigations would be considerably undermined.
With reference to the specific investigation at issue in this case, the Department submitted that if the documents contained in the investigation file were to be released in full, it would enable the person who is the subject of the investigation to make all efforts to obstruct the investigation process and to amend/destroy any additional evidence that the SIU officer was seeking. In this case, the Department noted that it was in possession of certain information, which the investigating officer was attempting to confirm or deny by gathering corroborating evidence. The Department stated that, in cases such as this one, the investigating officer might present this information to the subject of the investigation at some point, and that if the records were to be released before the review investigation was complete then this would prejudice the applicant’s response to any further questions and the need for the investigating officer to pose those question under legal caution.
The Department outlined that in this case, the review had not proceeded far enough for the investigating officer to question the applicant in relation to the information obtained by way of the investigation, and said that the likelihood was that, had the investigation proceeded further, this information would have been put to the applicant in an interview setting, possibly under legal caution. In the course of this process, evidence acquired by way of the investigation would be put to the person who was the subject of the investigation, and their responses invited and such responses further examined. To release evidence prior to interview questioning, according to the Department, would have undermined any such interview process. The Department noted that, in this case, certain additional documents germane to the investigation were still to be received by the investigating officer, as well as clarification in respect of documents that had been received, and it argued that prior release of evidence could have further compromised the collection of outstanding documents. In summary, the Department submitted that if any evidence contained in Record 3 was released to the applicant before the SIU investigation was complete, the investigation and the possible outcomes would be compromised.
It seems to me that the Department has sought to withhold all of the documents comprising Record 3 based solely on the fact that they form part of the investigation file, regardless of their specific contents. As I have explained above, a claim for exemption under section 30(1)(a) must be made in light of the contents of each particular record.
Having carefully examined the contents of each of the documents, I find that section 30(1)(a) does not apply to documents 2 to 17 or Document 20. In my view, there is nothing in the contents of those documents that could reasonably be expected to give rise to the harms identified by the Department. They disclose nothing about the ongoing investigation that is not already known to the applicant, nor do they disclose, in my view, details of an investigation that would facilitate evasive measures to avoid detection or that might prejudice an investigation or the methods employed for such an investigation.
On the other hand, I accept that the release of documents 1, 18, and 19 could reasonably be expected to give rise to the harms identified by the Department. However, pursuant to section 25(3) of the FOI Act, which requires this Office to take all reasonable precautions to prevent the disclosure to the public or to a party to a review of information contained in an exempt record, I find that I am not in a position to expand on my reasons for this finding.
Public Interest test under section 30(2)
The exemption provided for in section 30(1)(a) of the FOI Act is subject to a public interest test, as provided for in section 30(2) of the Act. Section 30(2) states that the section 30(1) exemption(s) shall not apply in relation to a case in which, in the opinion of the FOI body, the public interest would, on balance, be better served by granting rather than refusing access to the record(s) in question. As such, while I have determined that the documents 1, 18 and 19 associated with Record 3 are exempt under section 30(1)(a) of the Act, this finding is subject to a ‘public interest override’, which requires this Office to consider whether, in respect of the above documents that I have determined are exempt from release, the public interest would be, on balance, better served by their release.
In relation to the public interest test contained in section 30(2), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the public interest test under section 30(2), in its submissions to this Office the Department noted that, that on the one hand, section 30(1)(a) reflected the public interest in the Department conducting its investigations into the review of continued eligibility and entitlement to its schemes as well as the prevention, detection and deterrence of fraud and abuse of the schemes effectively. On the other hand, it noted a public interest in transparency around the way in which the Department carries out its functions. The Department submitted that it had considered the public interest issues and had identified, in favour of the release of Record 3, the public interest in the public knowing how a public body performs its functions; the public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate; and the interest in members of the public exercising their rights under the FOI Acts.
Against this, the Department submitted that the public interest in the efficacy of the control measures outweighs any private interest which the applicant may have. Moreover, it stated that it was not a question of the Department never releasing information in relation to individual investigations, but rather that such evidence was only prudently and properly released at the appropriate juncture in the investigative processes. In particular, the Department stated that, ordinarily, when an investigation is concluded the issues identified above may no longer arise and the information gathered would then be made available to an applicant in order for them to understand the reasoning behind any decision made, to prepare an appeal to the independent Social Welfare Appeals Office if required, or – if applicable – as part of any disclosure required for the purpose of prosecution. The Department submitted that the release and thus the exemption and the compromising impact was essentially a timing issue, contending that the public interest in ensuring an effective investigation outweighed any public interest in release of the record.
Having considered the public interest exemption under section 30(2) of the Act, as it applies to documents 1, 18 and 19, I am aware of no public interest factors in favour of the release of the documents that would be sufficient to outweigh the public interest in protecting the Department’s ability to effectively investigate continued eligibility and entitlement to its schemes as well as the prevention, detection and deterrence of fraud and abuse of the schemes.
In summary, therefore, I find that the Department was justified in refusing access to documents 1, 18 and 19 of Record 3 under section 30(1)(a) but that it was not justified in refusing access to the remaining documents associated with the record under that section.
Section 29(1)
In its submissions to this Office, the Department indicated that it also wished to rely on the exemption provided for by section 29(1) of the FOI Act as a basis for its refusal to release Record 3 to the applicant. In circumstances where I have already determined that documents 1, 18 and 19 are exempt from release under section 30(1)(a), I do not consider it necessary to examine whether the exemption under section 29(1) of the Act also applies to these documents. It therefore falls to me to consider whether documents 2 to 17 and document 20 are exempt under section 29(1).
Section 29(1) of the Act provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply in so far as the record(s) contain any of the information or matter referred to in section 29(2) of the Act. Thus, where an FOI body is relying on section 29(1) for the refusal of a record, it must also consider whether section 29(2) applies in relation to the record concerned.
In its submissions to this Office on the applicability of section 29(1), the Department argued that while the investigation process is in progress, the totality of the investigating officer’s evidence gathering was part of a legal process involving submission of findings to a Deciding Officer, and possible appeal to the Social Welfare Appeals Office, or possible criminal charges. It stated that there was a strong likelihood that release of records of an evidential nature, before they had been considered fully under the statutory decision making process, and before the consideration of any likelihood of prosecution was determined, would impact negatively on those processes. The Department submitted that it had to be afforded the opportunity to gather and consider the evidence and make determinations in respect of the investigative process and in respect of relevance or the impact of that evidence free from any input from external third parties including the customer. It stated that Social Welfare Inspectors, including those working in the SIU, must be free to carry out their functions in an independent manner as required under the Social Welfare Consolidation Act 2005 and related enactments without any external pressures or considerations.
With the above arguments of the Department in mind, I have examined documents 2 to 17, and document 20, of Record 3 in turn, in order to determine whether the exemption provided for by section 29(1) of the Act applies in respect of each document. In relation to the first test under section 29(1) – whether the record concerned relates to the body’s deliberative process – it should be noted in the first instance that a deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. I do not consider that the material in any of the documents outlined above meets this standard. In particular, none of these documents contain opinions, advice, recommendations or the results of consultations considered by the body for the purposes of its deliberative processes. In the circumstances, I find that section 29(1) does not apply to the documents in question.
Section 32
In its submissions to this Office, the Department indicated that it also wished to rely on the exemption provided for by sections 32(1)(a)(i) and (ii) of the FOI Act, as well as section 32(2) of the Act, as a basis for its refusal to release Record 3 to the applicant. Again, in circumstances where I have already determined that documents 1, 18 and 19 are exempt from release under section 30(1)(a), I do not consider it necessary to examine whether the exemptions under section 32(1)(a)(i) and (ii), or section 32(2), of the Act also apply to this document. It therefore falls to me to consider whether documents 2 to 17 and document 20 are exempt under section 32(1)(a)(i) and (ii) and section 32(2).
Section 32(1)(a)(i) provides that an FOI body may refuse to grant access to records where to release same would prejudice or impair the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters. Section 32(1)(a)(ii) provides that the body may refuse to grant access where such access would prejudice or impair the enforcement of, compliance with or administration of any law.
An FOI body seeking to rely on section 32(1)(a) of the Act should show how the harm envisaged could reasonably be expected to result from the release of the records. It should also be noted that the exemption provided for by section 32 of the Act is subject to a limited public interest test, which arises only where certain limited circumstances exist (subsection 3).
In its submissions to this Office in relation to the applicability of sections 32(1)(a)(i) and (ii), the Department argued that until its investigation in this case was complete, there was a probability that the ongoing investigation could lead to prosecution of offences under the Social Welfare Consolidation Act 2005 or under the Criminal Justice Theft and Fraud Act 2001. In particular, in the case of the applicant, the Department notified this Office of certain information in its possession that it considered relevant in this regard (I am constrained by section 25(3) of the FOI Act, which requires this Office to take all reasonable precautions to prevent the disclosure to the public or to a party to a review of information contained in an exempt record, in the extent to which I can discuss this information; it must suffice for me to state that I am satisfied as to its relevance in a discussion of the applicability of section 25(3) of the Act).
The Department further argued that it was reasonable to assert that to release evidence to the applicant while an investigation was ongoing would weaken its investigative hand before all evidence is processed and before evidence can be put to the applicant and a decision reached as to how to proceed. In this case, it submitted that to provide to the applicant certain information regarding its investigation would be to impair and prejudice the lawful procedures for investigating offences and allow the applicant to draw inferences which might otherwise not exist. The Department stated that to give prior access would very likely be to the detriment of the interview process by providing an opportunity to anticipate and prepare responses to questions and allegations before they were introduced by the interviewing officer or to evade questions or the process completely.
Regarding section 32(2) of the FOI Act, it is noted that this is a ‘neither confirm nor deny’ provision. It provides for the refusal of a request for access to a record and for the refusal to disclose whether or not such a record exists, provided the requirements of the subsection are met. Specifically, section 32(2) of the Act states that where an FOI request relates to a record to which section 32(1) applies, or would, if the record existed, apply, and the body is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (a), (b) or (c) of that subsection, the body shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists. For the purposes of the matter at hand, the question in relation to section 32(2) is whether the disclosure of whether or not the record sought exists or does not exist would cause the harm or outcome envisaged by the Department under section 32(1)(a)(i) and/or (ii) of the Act. In its submissions in relation to section 32(2), the Department argued that the disclosure, while an investigation is ongoing, of the existence of any record which may be considered evidential in nature, before such record has been considered or put to the applicant for comment under caution or otherwise, could reasonably be expected to show the investigating officer’s hand and compromise the investigation. The Department further submitted that to alert the applicant to the existence of information may allow the applicant to draw inferences which might otherwise not exist.
In relation to its citation of section 32 of the FOI Act as a whole, the Department indicated that it did not wish to suggest that a prosecution would definitely arise in this case, adding that the investigation would have to be finalised before considering such an action. Indeed, the Department stated that it may be that the outcome of the investigation may result in no such further action. By raising the exemptions under section 32, the Department argued that its aim was to protect the investigative process.
With the above arguments of the Department in mind, I have examined documents 2 to 17, and document 20, of Record 3 in turn, in order to determine whether the exemptions provided for by section 32(1)(a)(i) and (ii), and section 32(2) of the Act, apply in respect of each document.
In relation to the applicability of section 32(1)(a)(i), this Office has previously held that as a general proposition, an investigator must be allowed a fair degree of latitude, subject to the need for fair procedures, to decide when information already in his or her possession should be made available to a party which is the subject of the investigation. This Office has further stated that, if a party subject to investigation by an FOI body has a right to be fully informed at all times of the state of knowledge of the investigating authority, then it would appear to be inevitable that this would impair the investigation of offences. The timing or stage of the investigation of an offence is also a relevant consideration. This Office has previously expressed the view that, where an investigation is still ongoing, a prosecution has not commenced and there is a strong possibility that a criminal prosecution will result, the arguments in favour of release of relevant records are weak and remain weak until such time as the investigation has been completed and a prosecution has been concluded or a decision has been taken not to institute a prosecution.
All of the above being said, it does not appear to me that the release of the documents at issue in this case could reasonably be expected to give rise to the harms identified in section 32(1)(a)(i). As with section 30, it seems to me that the Department has sought to withhold all of the documents comprising Record 3 as a class, regardless of their specific contents. I cannot find any material in documents 2 to 17 or document 20 of Record 3 whose release could reasonably be expected to give rise to the hams identified by the Department. The contents of the documents are straightforward, basic and uncontroversial, and in several cases contain information already in the applicant’s knowledge. I find that section 32(1)(a)(i) does not apply to the documents.
In relation to the applicability of section 32(1)(a)(ii) of the Act, the question at issue is whether the release of the documents could reasonably be expected to prejudice or impair the enforcement of, compliance with or administration of any law. For the same reasons as I have outlined in respect of the applicability of section 32(1)(a)(i), I find that section 32(1)(a)(ii) does not apply.
In relation to the applicability of section 32(2), it seems to me that the Department has misapplied the provision. The section essentially allows a public body to refuse to disclose whether certain records exist in circumstances where the disclosure of the existence or non-existence of the records would, of itself, have an effect specified in section 32(1)(a). The Department has already confirmed the existence of the records at issue in this case. I find that section 32(2) does not apply.
Conclusion
While I have found that sections 30(1)(a), 29(1) and 32(1) and (2) do not apply to documents 2 to 17 and 20 of Record 3, I am not in a position to simply direct the release of those documents as I note that a number of them contain third party personal information. On this point it is important to note that section 37(7), also subject to other provisions of section 37, provides for the mandatory refusal of a request where access to the record at issue would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.
I find that the name of the staff member of the Branch Office, as contained in documents 11, 15, and 16, is exempt from release under section 37(1). A number of the other documents contain personal information relating to the co-signatory I have referred to above in record 2. I find that section 37(1) applies to documents 9, 17 and 20 in full and to documents 3 and 13 in part. However, I would again note that it is open to the applicant to provide the consent of the third party to the release of his or her personal information that is contained in the documents.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision in this case. I direct as follows:
Record 2
I find that the Department was justified in redacting, under section 37(1), the name of the staff member of the Branch Office from page 3 and the name of the third party from page 5. I find that it was not justified in redacting the name of the staff member of the Department and her contact details from pages 3 and 4 and I direct the release of that information.
Record 3
I find that documents 9, 17 and 20 are exempt from release under section 37(1) of the Act. I find that the Department was not justified in refusing access to documents 2, 4 to 8, 10, 12, or 14 and I direct their release in full. I also direct the release of documents 11, 15 and 16, subject to the redaction of the name of the staff member of the Branch Office and the release of documents 3 and 13 subject to the redaction of third party personal information.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator