Mr A and Department of Finance

• Jurisdiction: Ireland
• Judge: Senior Investigator
• Judgment Date: 28 June 2021
• Case Outcome: The Senior Investigator varied the Department's decision. She found that it was justified in refusing access to certain information under sections 35(1)(b) and 37(1) of the FOI Act. She annulled its decision on the remaining information and directed its release.
• Court: Information Commission
• Respondent: Department of Finance
• Record Number: OIC-101373-T1Q3C3

Whether the Department was justified in refusing access to records relating to a previous application for review by the applicant, under sections 30(1)(a) and 35(1)(a) of the FOI Act

28 June 2021

Background

The background to this review is a previous application for review by the applicant. This Office’s decision on that review can be found at www.oic.ie, Case OIC-96537-J0R5T9.

On 8 October 2020 the applicant made an FOI request to the Department for records relating to the previous review. He sought access to the Department’s letters or emails in reply to this Office; documents relied on by the Department in making three specified assertions to this Office; and specified correspondence between the Department and a named bank (the bank). On 2 November 2020, the Department refused access to the records on the ground that they were exempt under sections 30(1)(a) and 35(1)(a) of the FOI Act. On 12 November 2020, the applicant applied for an internal review. On 30 November 2020, the Department issued its internal review decision, in which it affirmed its original decision under sections 30(1)(a) and 35(1)(a). On 14 December 2020, the applicant applied to this Office for a review of the Department’s decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the Department for the purposes of this review.

Scope of the Review

In correspondence with this Office, the applicant said that the Department did not appear to have addressed point 1 of his FOI request. During the review, the Investigator confirmed for the applicant that the records contain records sought by him at point 1 of his FOI request. The applicant also said that he regards this as a request for personal information, as he is requesting records that name him specifically. However, he has since confirmed that his request concerns all the records he originally sought.

This review is concerned with whether the Department was justified in refusing access to the records under sections 30(1)(a) and 35(1)(a) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.

Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. 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.

Thirdly, and subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, 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 FOI Act requires a consideration of the public interest.

Finally, with certain limited exceptions (e.g. section 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Analysis and Findings

Having examined the content of the records, I consider it appropriate to address section 37 of the FOI Act first. The investigator drew the applicant’s attention to this exemption during the review and invited his submission. The applicant says that if the records contain personal information relating to individuals other than him, redacted copies could be provided to him.

Section 37 - Personal information

Sections 37(1) and 37(7)

Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include “(iii) information relating to the employment or employment history of the individual”. The Commissioner accepts that an individual may not be named in a record, yet may still be identifiable.

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

Record 1 comprises correspondence between the Department and the bank. Records 2 and 3 comprise correspondence from the Department to this Office, in connection with the previous review. Pages 5 – 6 of Record 1 contain detailed information about certain allegations and complaints made about individuals other than the applicant. They disclose the names of third parties, the nature of allegations made, and details of employment histories. Pages 1 – 2 (until “request.”) of Record 2 disclose further information about the allegations made by the applicant, as well as a personal email address and a mobile telephone number. I am satisfied that section 37(1) applies to this information. In theory, one could extract certain words and...