Cinneadh
Ms A and Hospitaller Order of St John of God
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148611-J8F8Z3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-148611-J8F8Z3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
31 January 2025
In a request dated 11 December 2023, the applicant sought access to “all correspondence meeting notes, or other records with or in relation to the Health and Social Care Board (HSCB) in Northern Ireland including development of training and of an all-Ireland service from 2019 to now”. The applicant specified that the request related to “SJOG doctors who work with the National Gender Service (NGS)”. The website of the National Gender Service states that it provides specialist support to people who are seeking medical and surgical interventions to help them affirm their gender. It is a fully public service provided by the Health Service Executive and SJOG.
On 10 January 2024, SJOG wrote to the applicant. It referenced section 14(1)(a) of the FOI Act and advised her that it was necessary to extend the period of consideration for her request by four weeks. On 6 February 2024, SJOG refused the applicant’s request on the basis of section 15(1)(a) of the FOI Act. It said that after completing an extensive search, it was sorry to inform her that it does not have any correspondence with the HSCB Northern Ireland between the specified dates.
On 7 February 2024, the applicant contacted SJOG and said that she was making a follow-up FOI request. She said that she was requesting records relating to a named doctor’s “plans and discussions about joint service development with the NHS as mentioned in the 13th January 2022 NGS Clinical Governance Committee minutes”. She specified that this should include initial documents shared with the NHS and any preceding or subsequent communications with the NHS related to joint transgender service development. She directed SJOG to a relevant extract from the minutes referenced in her request.
On 6 March 2024, SJOG issued correspondence to the applicant in which it said that it did not have any correspondence relating to the named doctor’s discussions about joint service development with the NHS. It said that “the discussions held by [named doctor] were on a private basis and were not part of his work in a St John of God Community Services capacity”. SJOG acknowledged that it is an FOI body as provided for by section 6 of the Act. However, it said that as the request relates to information that it does not have access to and is not part of its organisation, it falls outside the scope of the Act.
On 8 March 2024, the applicant sought an internal review of SJOG’s decision. She made a number of submissions in her correspondence. She drew the FOI body’s attention to the Central Policy Unit’s Notice 24, which concerns official information held in non-official systems, email accounts and devices. She said that if there are relevant records being held by a staff member of an FOI body outside of that body, the body should search those records. She said that she found the claim that the named doctor was working with the NHS on a private basis with no relation to his employer “implausible”. She said that the records requested concern joint service development between the NHS and the National Gender Service (NGS) and she said that the named doctor works under the latter service as part of his role in SJOG. She made further submissions in respect of the named doctor, his employment, and matters concerning transgender healthcare.
SJOG did not issue an internal review decision, despite communications from the applicant. On 12 April 2024, she applied to this Office for a review on the basis of the FOI body’s deemed refusal of her request. This Office wrote to SJOG and directed it to issue a letter to the applicant stating its effective position in respect of the request.
On 29 April 2024, SJOG issued its effective position. It varied the original decision made. It said that as part of its internal review, a new search for the requested records was initiated. It identified five records as coming within the scope of the request and refused access to the records in full, on the basis of sections 29(1) and 30(1) of the FOI Act. On the same day, the applicant confirmed that she wished the Commissioner’s review to proceed in respect of SJOG’s refusal.
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 submissions made by SJOG and the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
As noted above, SJOG identified five records as coming within the scope of the applicant’s request. In its effective position letter, it indicated that records 1, 3, 4 and 5 were refused on the basis of section 29(1) of the FOI Act and that record 2 was refused on the basis of section 30(1)(a). However, in its submission to this Office, it stated that record 1 was being refused on the basis of section 30(1)(a) and that records 2-5 were being refused on the basis of section 29(1). I confirmed this with SJOG and considered whether the applicant should be notified of this revised position. However, having considered the submissions made in her application, I am satisfied that the amendment to SJOG’s position in respect of the application of exemptions to specific records will not prejudice her. The applicant is aware of the exemptions claimed and has made submissions which I will consider below.
In its original decision, which was issued via email on 6 March 2024, SJOG appeared to refuse access to the records on the basis that they fell outside the scope of the FOI Act. However, it subsequently identified relevant records and is seeking to apply exemption provisions. In my request for focused submissions, I noted that its original arguments in respect of scope appeared to no longer be at issue. The FOI body was invited to make further submissions as relevant. SJOG has made submissions in respect of the application of sections 29(1) and 30(1)(a). It has made no submissions in respect of the scope of the FOI Act. I am satisfied that it is no longer seeking to rely on any such arguments in respect of its refusal and I will not consider the matter further.
It is important to note that a review by this Office is considered to be “de novo”, which means that, in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability of additional mandatory exemptions, notwithstanding the fact that the provisions were not relied upon as a ground for refusing access to the records in the FOI body’s decisions on the request. Having considered the contents of the records at issue, it seems to me that section 37(1) of the FOI Act may apply to exempt certain information. The applicant was notified of this position and provided with an opportunity to make submissions, which she duly did. I will consider the application of the exemption provision below.
Accordingly, this review is concerned solely with whether SJOG was justified in refusing access to the records on the basis of sections 29(1), 30(1)(a) and 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. Firstly, I must note that the manner in which SJOG processed the applicant’s request fell short of the required standards. The FOI body did not issue an internal review decision. In the effective position which issued, it did acknowledge the delay in processing the internal review and apologised for any inconvenience that this may have caused. I would remind SJOG that the administration of FOI is a statutory function which should be afforded due weight. I expect it to have regard to these comments and ensure that it complies with relevant requirements in future.
Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Thirdly, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Finally, section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on SJOG to satisfy this Office that its decision to refuse access to the records sought, either in whole or in part, was justified.
Section 30(1)(a) – functions and negotiations of FOI bodies
Section 30(1)(a) provides that an FOI body may refuse to grant a 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.
Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should 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 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 and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
In its submissions, SJOG said that record 1 contains correspondence discussing possible audit and assessment processes. It said that its view is that release of the document would prejudice the effectiveness of such methods if released at this time. It provided no further submissions in respect of the application of section 30(1), though it did make submissions in respect of the public interest test.
In her application to this Office, the applicant said that the reasoning given by SJOG in respect of section 30(1) was very generic. She referenced guidance produced and published by this Office and noted that an FOI body is required to identify the potential harm and provide evidence for it. She noted that a mere assertion is not sufficient. She also made a number of submissions in respect of the public interest test.
I have considered the submissions received as well as the relevant record. The first question I must consider is whether the record relates to functions falling within the scope of section 30(1)(a). As noted above, section 30(1)(a) refers to “tests, examinations, investigations, inquiries or audits”. As noted by SJOG, the record at issue relates to possible audit and assessment processes and its position is that release of the record would prejudice the effectiveness of such methods. I am satisfied that record 1 relates to matters falling within the scope of section 30(1)(a).
However, I must also consider whether the release of the information at issue could reasonably be expected to prejudice the effectiveness of such processes. While I am limited in the extent to which I can describe the contents of the record at issue, I believe that I can say that the record comprises email correspondence relating to a draft audit report and certain other documents which were referenced in the schedule provided to the applicant by SJOG. It seems to me that record 1 could be described as largely administrative in nature. While it refers and relates to certain processes and drafts, the record itself contains high-level information.
SJOG has not explained how the release of the particular information contained in the record could reasonably be expected to result in the relevant harms. As noted above, the onus is on the FOI body to satisfy this Office that its decision to refuse access to the records sought was justified.
However, I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal. SJOG was made aware of this position in the request for focused submissions that issued. It was also informed that mere assertions or blanket claims for exemption are generally not sufficient. A number of specific questions were asked which were not responded to. I do not consider that the FOI Act requires this Office to continue to ask a body for sufficient details and arguments until the threshold for an exemption is met.
Neither do I believe that I am required to construct arguments to support an FOI body’s assertions. Nevertheless, I have carefully considered the contents of the record. I fail to see how the release of high-level correspondence could reasonably be expected to prejudice the effectiveness of possible audit or assessment processes or relevant procedures or methods. It is not apparent to me that the relevant harms could flow from release, nor has SJOG satisfied me of same in its submissions. Accordingly, I do not accept that the release of the records could reasonably be expected to result in relevant harms to “tests, examinations, investigations, inquiries or audits” or the procedures or methods employed for the conduct thereof. I find that section 30(1)(a) does not serve to exempt the relevant record.
Section 29(1) – deliberations of FOI bodies
Section 29 provides for the refusal of a request if (a) the record concerned contains matter relating to the deliberative process of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would 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 met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest.
In order for section 29(1)(a) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to those processes.
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. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
SJOG has applied section 29(1) to records 2-5. The records are described in the relevant schedule as a draft report, draft assessment, draft competency document and draft training overview. In its submissions, SJOG said that the records remain at draft stage “as no further progress has been made”. It said that the deliberative process relates to the development of assessments and training with the NHS and that the deliberations were paused due to a change in staff which has resulted in delays to the progress of the deliberations. It said that “it is foreseen that they may resume if/when the staffing issue is resolved”.
SJOG said that the records withheld relate to matters that are subject to the deliberative process. It said that its view is that release at this stage in the process would be contrary to the public interest, as the information contained is incomplete and not yet fully developed. It said it is satisfied that release would be harmful to the process and that the records should not be released at this time. It said that it took into account that the release of the records is likely to impair future decisions/development and that premature release could hinder the decision-making process. It referenced the need to preserve confidentiality having regard to the subject matter and the circumstances of the communications. It said that premature release of the records would impair the integrity of the decision-making process to a substantial degree without countervailing benefit to the public. It referenced the consideration of broader community interests, distinct from those of the applicant and the subject of the records.
SJOG said that it is essential for the effective provision of its services, that it “engages in negotiations and deliberations with relevant bodies and that certain subject matter remains confidential to ensure the integrity and prevent contamination of the decision-making process”.
In her application to this Office, the applicant said that she finds it “odd” that every single aspect of the five records has been refused. She noted that “not a single name, date, or document title has been released”. In respect of section 29(1), she said that she had expected that at least some facts and procedures would have fallen under section 29(2). She said that given the fact that no information has been released she is working “blind” and cannot judge whether finalised versions of the records might now exist. She said that the reasoning provided by SJOG in support of its position was “very generic”. She said that the body has not identified specific deliberative processes and how the records relate to them. She again referenced guidance provided by this Office and noted that SJOG is required to show how release of the records would be contrary to the public interest. She referenced the stronger public interest test and said that the body has not identified specific harms.
Having considered the submissions and the content of the records in question, I am satisfied that the matters contained therein relate to a deliberative process, namely the development of certain assessments and training. I therefore find that the records meet the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the records meet the requirements of section 29(1)(b) of the FOI Act.
As noted above, the public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
I have considered the public interest submissions advanced by SJOG. Its position is that release at this stage in the process would be contrary to the public interest as the information contained is incomplete and not yet fully developed. However, it has not explained how the release of incomplete or underdeveloped information would be contrary to the public interest. This Office does not generally accept that the possibility that released information will be used in some particular way, or will be misinterpreted, or will not be properly understood, is a valid reason for refusing access to the information, nor does the FOI Act providing for the withholding of information on the grounds that it is incomplete or inaccurate. Apart from anything else, such arguments appear to be based on an assumption that public bodies are incapable of explaining their records to the public or are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions. The records at issue are clearly identified as draft documents. It is not clear to me how release of the records would be expected to impair future decisions or developments or hinder the decision-making process, nor has SJOG explained its reasoning in this regard.
The FOI body also referenced the need to preserve confidentiality “having regard to the subject matter and the circumstances of the communications”. It has not provided any further submissions in this regard. It is not clear to me why the subject matter of the records and circumstances would merit particular confidentiality though I note that in her application to this Office, the applicant said that “transgender healthcare is highly debated, so there’s significant public interest in the general public knowing what sort of things are under consideration”. The fact that there is significant interest in a subject among the public does not necessarily mean that records relating to that subject should be withheld, or, indeed, released. The release of records may well generate discussion and debate but that is not a sufficient reason to refuse release. SJOG also referenced the need to “prevent contamination of the decision-making process”. Again, it has not explained why it believes that release of the particular records could result in any such ‘contamination’ and nor is this evident to me from a consideration of the contents.
As noted, I am limited in the extent to which I can describe the contents of the records in question. However, I believe that I can say that records 3, 4 and 5 comprise a draft assessment appraisal tool, a draft competency document, and a draft training process overview for certain healthcare professionals. Having carefully considered the contents of these records, it is not clear to me that their release would be contrary to the public interest. The content of the records is relatively high-level and I cannot envisage a situation where release would result in harms such that section 29(1)(b) is engaged.
Record 2 comprises a draft audit of an assessment pathway and is dated 2019. Individuals who attended for a particular initial assessment in 2019 were included in the audit and the document does include statistical information including in respect of demographics, housing, pathway processes, clinical interventions, assessment outcomes, identified needs and other information. The information is in an aggregate format and no individuals are named or referenced in the record. While the information in the record may relate to sensitive matters, I am not satisfied that release of the record would be contrary to the public interest for the purposes of section 29. The information in question is anonymised and is now over five years old. In addition, it seems to me that even if I was satisfied that section 29(1) applied, much of the content of the record is factual such that section 29(2)(b) would likely serve to disapply the exemption. Section 29(2)(b) provides that subsection (1) does not apply to a record if and in so far as it contains factual information. In the first instance, however, it is not clear to me that the release of the record could reasonably be expected to result in relevant harms, nor has SJOG made any substantive submissions to that effect.
In sum, it is not clear to me how the release of the records at issue could have a negative impact on the deliberative process. Nor is it clear that any particular disadvantage or harm could be expected to flow from release. SJOG has not sufficiently explained why it considers that granting the information would be contrary to the public interest, nor is this evident to me from an examination of the records. While the FOI body has made general submissions in respect of the public interest factors weighing against release, it has not shown to my satisfaction how granting access would be contrary to the public interest. Accordingly, I find that SJOG has not justified its decision to refuse access to the records on the basis of section 29(1) of the FOI Act.
Section 37(1) – personal information
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. Section 2 of the FOI Act defines personal information as information about an identifiable individual that either, (a) would, in the ordinary course of events, be known only to the individual or members of the family or friends of the individual or, (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual occupies or occupied 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 the functions of the position.
The exclusion at paragraph (I) does not provide for the exclusion of all information relating to such directors, staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out their official functions. The exclusion does not deprive such individuals of the right to privacy generally.
As noted above, during the course of the review it became apparent that section 37(1) was of relevance, notwithstanding the fact that SJOG had not relied on the exemption provision in its decision. While I am limited in the extent to which I can describe the contents of the records, it seems to me that two categories of information require consideration:
i. The names and details of staff of SJOG/the NGS contained in record 1
ii. The names and details of staff working in the NHS or Health and Social Care Northern Ireland (HSCNI) contained in record 1
I am satisfied that the names of staff members of SJOG or those working for the Irish NGS do not constitute personal information by virtue of the exclusion to the definition at section 2. Such individuals hold a position as a member of staff of an FOI body and their names or information relating to their position or anything written or recorded by the individual in the course of and for the purpose of the performance of their functions is excluded from the definition of personal information. Accordingly, I am satisfied that section 37(1) does not apply to exempt such information.
However, the exclusion to the definition of personal information applies to staff of FOI bodies. An FOI body is defined as a public body or a prescribed body. A public body means a body or entity referred to in section 6 of the Act. Having considered the legislation, I am satisfied that the staff of health and social care entities in another jurisdiction, in this case the NHS or HSCNI, are not covered by the exclusion to the definition of personal information in the FOI Act. This is notwithstanding the fact that such staff information might be available under the Freedom of Information regime in that jurisdiction. In her submissions to this Office, the applicant referred to individuals who may be named in the records and said that she would not expect their identity to fall within the definition of personal information. However, information relating to the employment or employment history of the individual comprises personal information. I am satisfied that the information pertaining to third parties contained in the records relates to their employment. As such, I find that the information does comprise personal information and that section 37(1) therefore applies.
As I have found that section 37(1) applies to limited information relating to certain third party staff members contained in record 1, I must proceed to consider the other provisions of section 37.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply:
a) subject to subsection (3), the information concerned relates to the requester concerned,
b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that subsections (a), (b), (d) and (e) do not apply in this case. In respect of subsection (c), I note that in her submissions to this Office, the applicant referenced the public availability of information about a certain named individual and a particular working group. While certain information about a third party’s involvement in matters referenced in the records might be in the public domain, I am not satisfied that the information is available to such an extent that the provision could be found to apply. As such, I am satisfied that section 37(2)(c) does not serve to disapply subsection (1).
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. Given the circumstances of this case, I find that section 37(5)(b) does not apply.
In considering whether a right of access exists to records under section 37(5)(a), 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.
As referenced above, I notified the applicant of the potential relevance of section 37 and invited submissions. In response, the applicant said that names contained in the records are of interest in order to identify participants. As she has not had sight of the records, she made submissions based on what she believed the records might contain. Given the nature of the submissions received, I do not intend to refer to them in full. However, I confirm that I have carefully considered the points raised. The applicant referenced difficulty experienced in obtaining information from the NGS. She referenced named individuals and their engagement in matters relating to transgender healthcare in Ireland and the United Kingdom. She said matters referenced would be of “major public interest” in the UK and Ireland. She also referenced potential conflicts of interest and difficulty obtaining relevant public records in the UK. The applicant said that, in respect of the future of transgender healthcare in Ireland, any engagement between the NGS and entities in the UK is of significant public interest.
In her application to this Office, the applicant made a number of submissions in respect of the public interest in release of the records. Her position is that the NGS has a standing policy of not engaging with any trans organisations. She said that this is contrary to its own approved Model of Care, which calls for trans people to be involved in service development. She said that the NGS did not engage with any trans groups in 2023 and that, accordingly, there is no route for any of the Irish trans community to learn about plans for their healthcare other than through FOI requests. She said that the records likely relate to a particular review, which is a matter of “rather contentious debate”. She said that the NGS’ involvement in developing the report is of considerable public interest. She said that there is interest in the records from those abroad, particularly in the UK, given that “Irish trans healthcare is ranked as the worst in the EU”. She said that transgender healthcare is highly debated, so there is significant public interest in the public knowing “what sort of things are under consideration”.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". Although the Court's comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
Both the language of section 37 and the Long Title to the FOI Act recognise that there is a strong public interest in protecting the right to privacy. The right to privacy also has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
I have accepted that certain information in record 1 comprises personal information relating to third parties. I have carefully considered the information and the submissions made by the applicant in support of its release in the public interest. I accept that there is a public interest in the provision and development of transgender healthcare in Ireland. While I accept that the release of the third party details may serve to somewhat enhance transparency around the matters referenced in the record, any enhancement must be balanced against the breach of privacy rights that would entail. Furthermore, having considered the contents of the record and the applicant’s submissions, it seems to me that any enhancement in transparency would be minor. The information at issue is limited and it seems to me that the public interest in transparency and openness in respect of the work of SJOG is sufficient served by the release of the remaining records and information. I must regard the release of the personal information as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the information outweighs, on balance, the privacy rights of the individuals referenced therein. I find, therefore, that section 37(5)(a) does not apply. I find that section 37(1) applies to exempt the names and details of third parties in record 1.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of SJOG. I find that it was justified in refusing access to third party personal information contained in record 1. I find that it was not justified in refusing access to the remaining information and records on the basis of sections 29(1), 30(1)(a) and 37(1) and I direct its release.
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.
Alison Connolly
Investigator