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Whether the Department was justified in refusing the applicant's request for his personnel records on the grounds that the records contained the personal information of a third party and were exempt under section 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 27 January 2014, the applicant made a request for access to his records and "personal file" held by the Department from 1 November 2009 to the date of his request. The Department made a decision on 24 February 2014 which granted access to 516 of 560 records. Of those released, 20 records were identified as having redactions. Access to 28 records was refused on the basis that they related to the personal information of a third party and access to a further 18 records was refused on the basis that they were protected by legal professional privilege. The applicant sought an internal review of the decision to refuse access to 28 records held on his personnel correspondence file on 9 April 2014. On 6 May 2014, the Department made a decision to uphold the refusal of access to those 28 records. On 24 October 2014, the applicant applied to this Office for a review of the Department's decision.
I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out this review, I have had regard to the application for review, communications between the parties and the submissions made by the Department and the applicant to this Office. I have also examined the file of records forwarded to this Office for the purposes of this review and I have now decided to conclude the matter by way of a formal, binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The applicant's request for an internal review stated that "I refer to my recent FOI request and subsequent reply from Karen Hanlon Personnel Division in which she has refused me access to 28 records on my Personnel Correspondence file". He stated that he wished to appeal Ms Hanlon's decision on the matter. The request went on to state "...I feel it is totally unfair and unjust not to release those 28 records to me in their original and entire state." It appears to me that the applicant confined the scope of the request to 28 records at this stage and the Department's internal review dealt solely with those 28 records. Ms. Monica Brennan, Investigator in this Office, wrote to the applicant on 12 May 2015 and outlined that this was her interpretation of the application for review. The applicant responded on 20 May 2015 and stated that he believed that his "original request of 28 records should also have included all of the records that the department are claiming legal privilege over and all of the redacted records." He further stated that he wished to amend his original request to reflect this. However, the Department appears to have only considered the 28 records at internal review stage and, on application to this Office, the applicant highlighted these 28 records as the basis of his request for review.
Section 34(1) of the FOI Act sets out the decisions that the Commissioner has jurisdiction to review and this section essentially provides that the Commissioner's function is to review the decision made at internal review stage. The decision made at internal review stage in this instance related only to the 28 records mentioned above and, accordingly, it is not now open to me to consider all of the records over which legal professional privilege is claimed or the redacted records.
The scope of this review is therefore concerned solely with whether the Department was justified in refusing access to 28 records on the basis of section 28 of the FOI Act. This is without prejudice to the applicant's right to submit a fresh request to the Department for the remaining records which are not considered in this review.
Analysis and Findings

Section 28
Section 28(1) of the FOI Act provides that a public body shall refuse a request where access would involve the disclosure of personal information relating to an individual other than the requester. Section 28(5B) of the FOI Act provides that, where a record contains what is referred to as joint personal information, i.e. personal information about two or more individuals, third party information must, subject to the other provisions of section 28, remain protected.

For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which is personal, without prejudice to the generality of the forgoing definition, including "(ii) information relating to the financial affairs of the individual, . . . (x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, . . . (xi) information relating to property of the individual (including the nature of the individual's title to any property), and (xii) the views or opinion of another person about the individual".

Records 7-19, 153-154, 20-22, 40, 42, 44, 54-55, 56, 57

In its submission dated 9 January 2015 the Department stated that records 7-19 (13 records) and 153-154 (2 records) related to investigations which were not connected to and did not in any way concern the applicant but were held on the file for reference purposes only. These records relate to investigations of misconduct by third parties. In relation to records 20-22, 40, 42, 44, 54-55, 56 and 57 (10 records) the Department stated that these contained the personal information of third parties and consisted of correspondence between the Department and those third parties. These records relate to the financial affairs and property of third parties.

Having examined the records concerned, I find that granting the applicant's request would involve the disclosure of personal information relating to third party individuals and that section 28(1) therefore applies.

As a general rule, personal information about an individual can be released to a third party without the individual's consent but only where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. There are some exceptions to this general rule, for example, where "disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual" (section 28(2) refers). However, I am satisfied that none of the exceptions are applicable in this case and, for the sake of completeness, I also note that I see no basis for concluding that granting the request would be to the "benefit" of the third party individuals involved (section 28(5)(b) refers).

I now turn to section 28(5)(a) and the public interest balancing test. The FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). 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. In his application to this Office, the applicant referred to "personal and reputational damage" caused by allegations made against him and stressed that he had been exonerated. Insofar as this may be taken as a public interest argument, I accept that there is a public interest in openness and accountability in relation to how public bodies carry out their functions in relation to allegations against staff. I note that the applicant has been furnished with copies of the investigation report and other relevant material.

In this case, I do not consider that any public interest in granting the request would outweigh the public interest in protecting the privacy rights of the third parties concerned. Accordingly, I am satisfied that the Department was justified in refusing access to the above records under section 28(1) of the Act.

Records 119-121

In relation to records 119-121 (3 records) the Department has stated that these records contain an invoice from a hotel to which section 28 applies. I am not satisfied that these records contain personal information and find no basis for exempting them from release under section 28 or otherwise. These records should be released to the applicant.

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the Department in respect of its refusal of access to 25 records on the basis of section 28 of the FOI Act. I annul its decision in relation to records 119, 120 and 121 and direct their release.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator