Cinneadh
Mr. X and Residential Tenancies Board (the RTB)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150166-X1W4S0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150166-X1W4S0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the RTB was justified in refusing access to various records concerning a Tribunal hearing, and to various records concerning an RTB staff member and a Tribunal member
6 August 2025
This review has its background in a dispute between the applicant and his landlords, which I understand resulted in an application being made to the RTB. The RTB referred the matter to an Adjudication Hearing and then to a Tenancy Tribunal. The Tribunal held a hearing on 12 January 2024 and issued its determination by way of a report dated 22 January 2024. The report was signed by the Tribunal’s Chairperson (Ms A). The RTB subsequently issued a Determination Order to the applicant, which was signed by a particular RTB staff member (Ms B).
The applicant made an FOI request to the RTB on 7 May 2024 for access to the recording of the Tribunal hearing. He also sought access to “the people present at the meeting” and the proofs of identity that were shown at the Tribunal by the witnesses.
On 15 May 2024, the applicant made a further FOI request to the RTB, the various parts of which I have summarised and numbered as follows:
1. What position Ms B holds in the RTB; a record of her qualifications; her employment record to view; and her nationality and previous employment history record
2. The “policy record [that Ms B] uses” to make her decisions
3. The audio recording for the Tribunal hearing
4. All declarations made by Ms A to the RTB
5. The “two Tribunal members who never signed the tribunal report decisions”; and the record of their decisions
6. The record of evidence looked at in the Tribunal hearing.
The RTB issued an undated, composite decision on both requests, which I understand was emailed to the applicant on 28 May 2024. It refused the requests under section 15(1)(g) of the FOI Act (frivolous and/or vexatious).
On 28 May 2024, the applicant sought an internal review of the RTB’s decision.
The RTB’s internal review decision of 18 June 2024 granted partial access to a transcript of the Tribunal hearing. It said it had redacted confidential information and third-party personal information from this record under sections 35 and 37 of the FOI Act.
The internal review decision said that the RTB would provide an organisational chart detailing Ms B’s role within the RTB. However, I understand that, on 19 June 2024, it provided the applicant with details of Ms B’s grade and where she is assigned within the RTB. It said that the policy record Ms B uses to make decisions does not exist (section 15(1)(a) of the FOI Act). It refused access to the other details sought about Ms B under section 37 of the FOI Act.
The RTB said that the declarations made by Ms A and the copies of decisions made by the other Tribunal members do not exist (section 15(1)(a)). It refused access to the record of evidence under section 15(1)(i) of the FOI Act (records already released and available to the applicant). It did not deal with the other parts of the requests.
On 28 June 2024, the applicant applied to this Office for a review of the RTB’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges, and correspondence between this Office, the RTB and the applicant, to the contents of various records, and to the provisions of the FOI Act.
The scope of this review is confined to the sole issue of whether the RTB’s decision on the applicant’s request is justified under the provisions of the FOI Act.
Parts of the applicant’s requests seek information. I note also that his OIC application says that that the RTB would not answer whether Tribunal members have to declare an interest as a property owner or landlord or “how they enforce the terms and references of the tribunal”. However, these questions were not contained in the original requests.
As the applicant is now aware, requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. The applicant is also aware that my review cannot be broadened to include records that are not covered by his original requests.
The RTB has provided the applicant with Ms B’s grade and the area in which she works. I informed him that I considered this to have satisfied his request for details of Ms B’s position and that I did not need to further address this issue. The applicant has not taken issue with this approach. I am proceeding accordingly.
I also informed the applicant that I was taking what I have listed as parts 2, 4 and 5 of the request of 15 May 2024 as seeking access to the following:
• policy records relating to any decisions that Ms B may make in relation to ongoing disputes;
• declarations made by Ms A concerning conflicts of interest in his case; and
• records showing the names of the two Tribunal members other than Ms A, and copies of the decision or decisions that the applicant believes these members made in his case.
The applicant has confirmed my understanding of part 4. He has not taken issue with my understanding of parts 2 and 5, and I am proceeding accordingly.
In addition, I told the applicant that he had not specified the information he was seeking in relation to Ms B’s current employment record. I told him that I was taking it that he was not seeking information about the general functions and/or terms attached to Ms B’s post/grade, such as would be contained in a circular or advertisement for the post concerned. I said that I was taking him as seeking access to information about Ms B’s performance in her role (such as in a performance assessment, for instance) and how she has progressed through her employment.
The applicant’s response did not comment specifically on what he is seeking in relation to Ms B’s current employment record. He says only that in relation to RTB staff he was trying to find out if there “was any connection to the landlords or tribunal panel or any conflict of interest between them.” He does not appear to suggest that he is seeking access to records detailing the general functions and/or terms attached to Ms B’s post/grade. I am proceeding on the basis that the applicant is seeking information specifically about Ms B’s performance and/or progression within the RTB.
Finally, the review cannot examine the RTB’s performance of its functions, or the contents or merits of the Tribunal’s determination. Neither can I take account of the applicant’s views on such matters.
The RTB initially refused both requests outright under section 15(1)(g) of the FOI Act. Given that the internal review decision did not rely on this provision, I will not consider the merits of its application. However, I note that the original decision did not explain why the RTB considered section 15(1)(g) to apply. In addition, as already noted, the RTB’s internal review decision did not deal with all aspects of the applicant’s requests. It also provided no basis for the RTB’s position that certain records do not exist, and did not address section 37(2) (exceptions to section 37(1)) or the public interest test at section 37(5)(a) of the FOI Act.
I wish to draw the RTB’s attention to sections 13(2)(d) and 21(5)(c) of the FOI Act. These provisions specify the details that must be contained in original and internal review decisions which are refusing records, such as findings on relevant material issues, and particulars of any matter relating to the public interest that have been taken into account. While it seems to me that the RTB’s decisions fell short of these requirements, it should be noted that these matters are not relevant to my review.
The applicant says that he paid for the Tribunal. He says that he could not attend the hearing through no fault of his own, and that his representative was unable to attend due to the RTB’s protocols. He says that the recording should be made available to him for transparency and because, in his view, aspects of the Determination Order need to be reviewed. He describes errors that he says are contained in the Tribunal’s report. He says that “wrong information was put on the determination order confirmed by [Ms B].”
Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse a request, any reason that a requester gives for the request shall be disregarded. This means that in this case, I cannot have regard to the applicant's motives for making his requests, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Release of records under FOI is generally understood to have the same effect as publishing them 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.
Section 15(1)(a) – records do not exist
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken. A review of an FOI body's refusal of records under this provision assesses whether the FOI body is justified in claiming that it has taken all reasonable steps to locate records of relevance to a request or that the requested records do not exist.
Proofs of identity
The RTB’s internal review decision does not address the applicant’s request for access to records concerning the proofs of identity that were provided to the Tribunal by the witnesses. However, it has now clarified that case parties are not required to produce ID, which I see no reason to dispute. Essentially, its position is that the requested records do not exist.
I provided these details to the applicant. He has not commented on the RTB’s explanation. In the circumstances, I am satisfied that the requested records do not exist, and I find that section 15(1)(a) of the FOI Act applies.
Policy records used by Ms B; conflict of interest declarations made by Ms A; decisions made by Tribunal members
While the RTB’s internal review decision refused these parts of the requests under section 15(1)(a), it did not explain how it concluded that the relevant records do not exist. It clarifies that its position is as follows:
Policy records used by Ms B
I understand that Ms B issued the Determination Order in order to give effect to the Tribunal’s determination, as required by the provisions of section 121 of the Residential Tenancies Act. The RTB says that Ms B’s role is purely administrative and that she does not make decisions on cases. It says that only an appointed adjudicator or Tribunal panel member has authority to decide on disputes.
In essence, the RTB is saying that Ms B was carrying out an administrative function, rather than making a decision on a dispute, when she issued the Determination Order. Its position is that, in the circumstances, the requested policy records do not exist.
I provided these details to the applicant. He refers to the staff member’s grade and says that she has made decisions. He says that Ms B confirmed to his representative that, to the contrary of what is said in the Tribunal’s report, the representative had not been present at a particular meeting in December 2023. He describes other errors that he says are in the report. He says that “wrong information was put on the determination order confirmed by [Ms B].”
I note also the applicant’s comment that he is trying to establish if Ms B has any connection to the landlords or tribunal panel “or any conflict of interest between them”, although it is not apparent to me that this is relevant to the matter of whether the requested policy records exist.
I am aware that there has been correspondence between Ms B and the applicant’s representative regarding whether certain statements in the Tribunal’s report are factually correct. However, I have no role in relation to this matter, or in determining whether the Tribunal report and/or Determination Order contain errors. Accordingly, the applicant’s comments on these issues are not relevant to my review.
While I note the applicant’s view that Ms B has made decisions, I also note the RTB’s explanation of her role, particularly in relation to the issuing of Determination Orders. In the circumstances, I see no reason to dispute the RTB’s explanation that Ms B’s job is administrative in nature. I am satisfied that Ms B does not make decisions on ongoing disputes and that the policy record sought by the applicant does not exist. I find that section 15(1)(a) of the FOI Act applies.
Declarations made by Ms A
It is the RTB's position that Ms A made no declarations that she had any conflicts of interest in the applicant’s case. It says that such declarations normally come into the case officer scheduling the appeal, and would then be saved on the RTB’s case management system. It says that it searched the applicant’s case record and that no such declarations are on file.
It says also that, if Ms A had made such a declaration, the applicant’s case would have been scheduled for another panel member.
I provided the RTB’s explanation to the applicant, who has not commented. In the circumstances, I see no reason to query the RTB’s position. I am satisfied that the requested declarations do not exist, and I find that section 15(1)(a) of the FOI Act applies.
Decisions made by Tribunal members
The Tribunal consisted of Ms A and two other panel members. I note that the report issued on 22 January 2024 was signed by Ms A “[f]or and on behalf of the Tribunal.” The applicant contends that the two other Tribunal members also made a decision(s) in his case.
The RTB says that the Tribunal members elect a Chairperson on the day of the hearing, prior to its commencement. It says that the panel members will hear the case and any evidence before them. It says that after the hearing, they review the evidence provided and heard during that hearing, which they then discuss amongst themselves in private. It says that the panel members are completely impartial. It says that they then make a decision, taking into account legislative requirements. It says that the elected Chairperson then signs the decision on behalf of all panel members for that hearing. Its position is, essentially, that the other Tribunal members did not make any decisions in the applicant’s case and that the requested record(s) do not exist.
I provided the RTB’s explanation to the applicant. He has not commented. In the circumstances, I see no reason to query the RTB’s position that the other Tribunal members did not make any decisions in the applicant’s case. I am satisfied that the requested records do not exist. I find that section 15(1)(a) of the FOI Act applies.
Section 15(1)(d) – information in the public domain
Section 15(1)(d) provides for the refusal of a request where the information is already in the public domain.
The internal review decision does not address the applicant’s requests for details of the persons present at the Tribunal hearing or the names of the two Tribunal members other than the Chair. However, the RTB now confirms that it has published the Tribunal report on its website. The attendees and the Tribunal members are listed on the first page of this report. I informed the applicant of this and gave him the relevant web link. I also informed him of the potential relevance of section 15(1)(d) of the FOI Act. He has not commented on the matter. In the circumstances, I find that section 15(1)(d) applies to the relevant parts of his requests.
Section 15(1)(i) – records already released
In relevant part, section 15(1)(i) of the FOI Act provides that a head may refuse to grant a request where it relates to records already released to the same requester where the records are available to the requester concerned.
The RTB’s internal review decision refused access to the record of evidence looked at in the Tribunal hearing under section 15(1)(i) of the FOI Act. It said that the records had already been provided to the applicant before the Tribunal hearing took place. However, the RTB’s website states that it shares evidence with the case parties and the mediator, adjudicator or tribunal panel on the basis that “[a]ny circulated materials are only for the hearing and cannot be used for any other reason.” The RTB also confirms its position that the evidence was provided to the applicant for a restricted purpose. It seems to me that section 15(1)(i) can only apply if the relevant records have been provided to the applicant in an unrestricted manner, as is the case when records are disclosed further to FOI or Subject Access requests or under administrative arrangements, for instance. In the circumstances, I am not satisfied that section 15(1)(i) of the FOI Act applies to the requested evidence.
However, I do not consider it appropriate to direct the release of the records, given that they may qualify for exemption under the substantive provisions of the FOI Act. Furthermore, the role of this Office is to review decisions taken by public bodies on requests, not to effectively act as a first instance decision maker in relation to the records concerned. In the circumstances, it seems to me that the most appropriate course of action is to annul the RTB’s decision on what I have listed as part 6 of the request of 15 May 2024, and to direct it to make a new decision on the matter in accordance with the provisions of the FOI Act.
Section 37 – personal information
The RTB refused access to records relating to Ms B (as covered by the remainder of part 1 of the request of 15 May 2024), and to parts of the transcript, under section 37 of the FOI Act.
Section 37(1)
Section 37(1) 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 (including personal information relating to a deceased individual).
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered as personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. The examples include (i) information relating to the educational and medical history of the individual, (iii) information relating to the employment or employment history of the individual, (viii) information relating to the racial or ethnic origin of the individual, (xiii) information relating to property of the individual and (xiv) the views or opinions of any other person about the individual.
Section 2 of the FOI Act excludes certain information from being considered as personal information. Where the individual holds or held a position as a member of the staff of an FOI body, personal information 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). Section 2 contains similar exclusions where contractors are concerned (Paragraph II refers).
However, the exclusions do not cover all information relating to public servants or contractors. This Office considers that the exclusions are intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or a service provider in the context of the particular position held or service provided, or any records created by the relevant person while carrying out his or her official functions or while providing the service, or information relating to the terms, conditions and functions of positions or contracts. The exclusions do not deprive public servants or contractors of the right to privacy generally.
Records relating to Ms B
I informed the applicant that on its face, records of Ms B’s qualifications, employment record, nationality and previous employment history comprise sensitive personal information about Ms B for the purposes of section 37(1) of the FOI Act. I said also that the limited exclusions set out in section 2 do not apply.
As noted earlier, the applicant says that, in relation to RTB staff, he is seeking to establish whether there “was any connection to the landlords or tribunal panel or any conflict of interest between them .” However, he does not appear to dispute that he is seeking personal information about Ms B.
I am satisfied that the applicant is seeking access to information relating to Ms B’s educational history, employment or employment history, and racial or ethnic origin. I am also satisfied that the details concerned are not covered by the relevant exclusion in Section 2. I find that the relevant records amount to personal information about Ms B, and that they are exempt under section 37(1) of the FOI Act.
Transcript
Each page of the transcript is numbered, as is each line within each page. The transcript attributes comments made during the hearing to particular parties. The RTB has redacted a small amount of the comments, but it has disclosed the names of the persons who made the comments concerned. The final pages of the transcript consist of an alphabetical list of words. Each word is referred to by the page and line numbers where they are located within the transcript. The RTB has fully withheld this list.
While the applicant has made arguments as to why the requested recording (and presumably the transcript) should be fully released to him, he does not appear to dispute that the redacted details comprise personal information.
I have examined the details at issue. Mindful of section 25(3), I consider that the redacted comments meet the definitions of personal information and/or are captured by one or more of the 14 examples of what comprises personal information about identifiable individuals.
I note that the withheld list sets out most of the words contained in the parties’ comments. It shows where those words are located within the transcript by reference to page and line numbers. I am satisfied that disclosure of the list would enable a reader to establish, at the very least, the general gist of the redacted comments. In the circumstances, I am satisfied that the list also comprises personal information about identifiable individuals.
The RTB’s schedule of records says that some of the redactions do not “involve/pertain to” the applicant. I do not agree. While the applicant was not present at the hearing, it nonetheless concerned him, and the transcript must be considered in this context. I am satisfied that all of the details redacted from the transcript relate to the applicant and therefore comprise his personal information. However, I am also satisfied that the applicant’s personal information is inextricably linked to personal information relating to other identifiable individuals. This is generally called “joint personal information”.
The RTB says that its general practice is not to permit any recordings, other than the official recording made by the RTB. However, members of the public may attend Tribunal hearings as observers. Accordingly, I have considered whether granting access to the remainder of the transcript under FOI may be considered as “disclosing” the relevant joint personal information to the world at large. As the applicant knows, the RTB confirms that the hearing was held virtually rather than in-person, such that members of the public could not physically attend. It also confirms that hearings are not live streamed, and that no access to the virtual hearing was granted to members of the public in the applicant’s case. The applicant has not commented on the matter.
I am satisfied, in the circumstances, that granting access to the withheld details would involve the disclosure of joint personal information to the world at large.
The applicant may argue that he is entitled to the joint personal information. However, the provisions of section 37(7) of the FOI Act are relevant. Section 37(7) provides that, notwithstanding section 37(2)(a) (see below), access to a record shall be refused where access to it 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 all of the circumstances, I find that section 37(1) of the FOI Act applies to the details that have been withheld from the transcript. Before I go on to consider the application of sections 37(2) and (5), however, I will address the fact that the withheld list includes words that are contained in the released parts of the record.
Section 18(1) of the FOI Act 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).
This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or 'dissecting' of records to such an extent. Being 'practicable' necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
It seems to me that the RTB would have to check each mention of the listed words in the transcript, to ensure that they are not contained in the redacted details. In the circumstances, I do not consider it practicable, or in accordance with the Commissioner’s general approach to section 18, to direct the RTB to identify and grant access to the listed words that are contained in the released parts of the transcript.
Section 37(2) - exceptions
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. Neither the RTB nor the applicant have made any arguments regarding the application of section 37(2).
In particular, section 37(2)(a) provides for the grant of access to personal information relating to the requester. However, I am satisfied that none of the information falls for release further to this provision of the FOI Act. It is not apparent to me how records concerning Ms B’s educational history, employment or employment history, and racial or ethnic origin could be considered to also relate to the applicant such that they could be said to comprise joint personal information. Furthermore, while I have found that the details withheld from the transcript comprise joint personal information, I have already outlined the provisions of section 37(7). In addition, I do not consider that personal information relating to the applicant can be separated from that of other individuals.
I am satisfied that the remaining circumstances set out in section 37(2) do not arise.
Section 37(5)(a) – the public interest
Section 37(5) provides that a request that would fall to be refused under section 37(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 request would benefit the person to whom the information relates. I have no reason to consider that section 37(5)(b) applies, and the applicant has made no arguments to this effect.
Before I consider the applicability of section 37(5)(a), there are a number of important 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 an applicant's motives for seeking access to the records 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 the Regulations made under section 37(8), which are not relevant in this case) FOI is not about granting access to information to particular individuals only. Furthermore, 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 had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the eNet judgment). In relevant part, 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.
While the RTB has not made any arguments regarding section 37(5)(a), this does not mean it is appropriate for me to direct the release of personal information in the public interest.
The applicant disputes the contents of the Tribunal’s report/determination as well as the Determination Order issued by Ms B. He says that he is seeking to whether Ms B has any connection to the landlords or the Tribunal panel or “any conflict of interest between them.” He says also that he is seeking to establish if the Chairperson has any conflict of interest in relation to his case.
Overall, it seems to me that the applicant’s arguments can be summarised as saying that disclosure of records relating to Ms B, and the remainder of the transcript, is required to enable scrutiny of the RTB’s performance of its functions in relation to the dispute involving the applicant, and to ensure that the RTB can be held accountable, if necessary.
Analysis
I am satisfied that there is a public interest in providing insight into, and enabling scrutiny of, the RTB’s performance of its functions in relation to the applicant. I also accept that, in turn, there is a public interest in ensuring that the RTB can be held accountable for its performance, if this is necessary.
As noted already, I am aware that there has been correspondence between the RTB and the applicant’s representative regarding whether certain statements in the Tribunal’s report are factually correct.
However, even if the report contains factual errors, this does not provide me with a basis for directing the release of personal information in the public interest. Neither does the applicant’s dissatisfaction with the Tribunal’s report/determination and the ensuing Determination Order.
I note that the applicant has been given no details regarding Ms B’s educational history, employment or employment history, and racial or ethnic origin. I have accepted that Ms B does not make any decisions and instead performs an administrative role. In the circumstances, it seems to me that disclosure of Ms B’s personal information will provide minimal, if any, insight into the RTB’s performance of its functions in relation to the applicant’s case. In my view, this reduces the weight of the public interest in disclosing the relevant records.
The applicant has already been given access to the majority of the transcript which, in my view, serves the public interest to a significant extent. The remaining details comprise comments made by identifiable third parties. While these parties are not public servants or contractors, I accept that disclosure of the relevant comments will provide some small further insight into the RTB’s performance of its functions in relation to the applicant, however. In my view, there is a commensurate weight to the public interest in their disclosure.
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). Furthermore, 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. The statutory privacy rights afforded by the FOI Act relating to personal information will be set aside by this Office only where the public interest served by granting the request (and breaching those rights) outweighs the public interest in protecting privacy.
I have explained why I am of the view that there is minimal weight to the public interest in disclosing records concerning Ms B’s educational history, employment or employment history, and racial or ethnic origin. Even if the public interest in disclosure of such records is entitled to more or indeed significant weight, I am also satisfied that disclosure would place very private and sensitive personal information relating to Ms B in the public domain. I accept that disclosure would result in a significant breach of Ms B’s right to privacy. I am satisfied that there is significant weight to the public interest in protecting against such a breach.
I am also satisfied that the details redacted from the transcript comprise very private and sensitive personal information relating to identifiable individuals other than the applicant. Furthermore, while tribunal hearings are open to the public, I have accepted that the relevant details were not discussed before members of the public in this particular case. In the circumstances, I am satisfied that disclosure of those details to the world at large would result in a significant breach of those parties’ rights to privacy. I am satisfied that there is significant weight to the public interest in protecting against such breaches.
Having considered the matter, on balance, I do not consider that the public interest in the disclosure of Ms B’s personal information and the remainder of the transcript outweighs the rights to privacy of the various individuals to whom the withheld details relate. I find that the applicant is not entitled to the withheld details further to the provisions of section 37(5)(a) of the FOI Act.
In the circumstances, there is no need for me to consider the RTB’s reliance on section 35 of the FOI Act in relation to the remainder of the transcript.
More efficient form of access – section 17(2)
Speaking generally, section 17(1) of the FOI Act describes the various formats by which an FOI body may give access to a record. Also speaking generally, section 17(2) provides that access shall be given in the form or manner requested, unless the head of the body is satisfied (a) that such access in another form or manner specified in or determined under section 17(1) would be significantly more efficient, or (b) that the giving of access in the form or manner requested would give rise to any one of a number of specified harms, including (iii) conflict with a legal duty or obligation of an FOI body or (iv) prejudice, impair or damage any interest protected by Parts 4 or 5 of the FOI Act. In particular, Part 4 of the FOI Act sets out various exemption provisions, including section 37 of the FOI Act.
The applicant sought access to the audio recording of the Tribunal hearing. However, the RTB says that it normally advises people that its practice is to provide transcripts rather than recordings. I understand that the RTB did not ask the applicant whether he would accept this alternative form of access, and I am satisfied from his comments that this is not the case.
It is not part of this review to examine the merits of the RTB’s practices. However, it is important to note that section 17(1) does not, of itself, entitle an FOI body to decide on the particular format for release. Section 17(1) has to be read in conjunction with the remainder of section 17, particularly the provisions of section 17(2).
I have already found that parts of the transcript are exempt from release under section 37 of the FOI Act. It follows that the relevant parts of the audio recording are similarly exempt. However, as set out already, section 18 of the FOI Act provides for the release of part of a record that does not consist of exempt material, if such partial release is practicable. The question I must now address is whether it is practicable for the RTB to grant access to the audio recording subject to redaction of the exempt personal information.
In essence, the RTB’s position is that providing the applicant with a redacted transcript is significantly more efficient than providing him with a redacted audio recording. As the applicant is aware, the RTB says that it does not have software in place to grant access to a redacted audio recording. It says that would have to use an online AI facility that would take the audio and transcribe it. It says that the transcription would then have to be redacted manually by RTB, and re-loaded to the audio file. It says that RTB staff would have to listen back to the audio to ensure that it re-loaded correctly. I informed the applicant of the RTB’s explanation. He has not made any comments on this issue.
I have no reason to dispute the RTB’s description of how it would currently produce a redacted audio recording. It seems to me that the production of a transcript would require the record to be typed up, redacted and presumably double checked. However, it seems to me that additional work would be involved in producing a redacted audio recording (namely the re-loading of the redacted record to an audio file and further double checking). I am satisfied that providing the applicant with a redacted transcript is significantly more efficient than providing him with a redacted audio recording. I find that section 17(2)(a) applies and that the RTB is justified in providing the applicant with access to a redacted transcript.
While the applicant may argue that he should simply be provided with the full recording, such release would disclose information that I have found to be exempt under section 37(1) of the FOI Act. It seems to me that such an outcome would result in the harms set out in sections 17(2)(b)(iii) and (iv) of the FOI Act. In other words, disclosure would conflict with a legal duty or obligation of the RTB to withhold the information that I have found to be exempt under section 37 of the FOI Act, and it would also prejudice, impair or damage an interest protected by Part 4 of the FOI Act. I find that, further to section 17(2)(b) of the FOI Act, the applicant is not entitled to access to the full recording of the hearing.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the RTB’s decision on the applicant’s requests.
I annul the RTB’s application of section 15(1)(i) of the FOI Act to the record of evidence looked at in the Tribunal hearing. I direct the RTB to make a fresh decision on this matter in accordance with the provisions of the FOI Act.
I affirm the RTB’s refusal of the remaining parts of the requests under sections 15(1)(a), 15(1)(d) and 37(1) of the FOI Act. I also affirm its decision to grant partial access to a transcript, rather than the requested audio recording, in accordance with section 17(2) of the FOI 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 four weeks after notice of the decision was given to the person bringing the appeal.
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Anne Lyons
Investigator