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Case Number: 160057

Whether the Department was justified in its decision to refuse a request under sections 15(1)(a) and 37(1) of the FOI Act, for access to records concerning an application for the transfer of a herd number from the applicant's late father to a third party

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 20 May 2015, the applicant submitted a request under the FOI Act for access to records relating to the transfer of a specified herd number from the name of the applicant's late father to the name of a third party. The applicant stated that he required access to all applications submitted and supporting documentation, to include records relating to queries raised, letters, emails and phone calls associated with the transfer process. In its decision, the Department identified eleven records and refused access to all of them on the basis of section 37(1) of the FOI Act. The applicant also referred to the possible existence of other records.

Following a request for an internal review, the Department affirmed the original decision. On 9 February 2016, the applicant's solicitors applied to this Office for a review of the decision of the Department.

In conducting my review, I have had regard to the submissions of the Department and the applicant and to correspondence between the applicant and the Department. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

This review is concerned with whether the Department was justified in deciding to refuse access to the records relating an application for the transfer of a herd number to a third party on the basis of sections 15(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.

While section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

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 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.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for the records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for the records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan v the Information Commissioner[2002 No. 18 M.C.A.] (available on www.oic.ie).

In his internal review request to the Department and in his submission to this Office, the applicant referred to other records which might exist and in so doing, stated that he required access to "all queries (if any) raised by the Department" and copies of all submissions made by his late father. In its decision, the Department did not make reference to other records and consequently, made no reference to the section 15(1)(a) exemption. However, during this review, this Office put a series of "search" questions to the Department based on the general description provided by the applicant in his submission. The Department addressed those queries. It said that all documents relating to the application for the transfer of the herd number had been forwarded to the Department's FOI Unit and that the only records that exist concerning the transfer are those itemised in the schedule.

The Department's position is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the Department to carry out indefinite new searches. In view of the information provided by the Department relating to the search undertaken, I consider that it has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find therefore that section 15(1)(a) of the FOI Act applies.

Section 37(1) - Personal Information
Section 37(1) of the FOI Act provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Furthermore, section 37(7) provides that an FOI body shall refuse to grant a request if access to the record concerned 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, commonly referred to as joint personal information.

The Department confirmed that all the records the subject of this review were taken from the file of the third party who made the application for the transfer of the herd number. It also confirmed that all of those records form part of the third party's application for that transfer.

In his submission to this Office, the applicant stated he is a co-executor to the estate of his late father and that the information he sought in the records was required by him in his position as "beneficiary and executor under the Last Will and Testament of [his] late father". He further stated that he was entitled to obtain this information in circumstances where he is the next of kin of the deceased and that the information requested "could not be rendered personal information."

In a letter dated 7 September 2015, to the applicant, the Department stated that herd numbers are an administrative device used primarily to monitor farm animals and that "such numbers are not necessarily the property of the persons registered under these herd numbers". The Department also explained that the herd number registered to the applicant's late father "would not necessarily require any endorsement from the Estate of the [deceased] to effect registration by the Department"

Having reviewed the relevant records, I am satisfied that all of the withheld information is either personal information relating to individuals other than the applicant, or personal information relating to the applicant that is inextricably linked to the personal information of other individuals. Accordingly, I find that section 37(1) of the Act applies to the records.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Consequently, I find that section 37(2) does not apply to the information in the records at issue.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act 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 information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

In his submission, the applicant referred to a public interest and stated that he was "entitled to obtain this information in circumstances where [he is] the next of kin of the deceased". I will refer to the matter of access to records of deceased persons below. The Department stated in its decision that "it is not in the public interest to release personal information relating to an individual as the right to privacy of the individual to whom the information relates [in this case, the third party who made the application for the transfer of the herd number] must be protected..."

In relation to the information contained in the records at issue, the applicant has expressed what appears to be a private interest in accessing details relating to a third party. The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, privacy rights will 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.

While there is a public interest in openness and transparency in the manner in which the Department performs its functions, I do not consider that the public interest in the release of the withheld information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individual/s to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Section 37(8)(b) - Access to the personal information of deceased persons
Section 37(8) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where (b) "the individual to whom the record relates is dead and the requester concerned is a member of a class specified in the regulations". The FOI Act 1997 (Section 28(6)) Regulations, 2009 (S.I. No. 387 of 2009), continued in force by section 54(2) and Schedule 5 of the FOI Act 2014, in turn, make provision for access to personal information of minors and deceased persons in certain circumstances.

In the particular circumstances of this case, as I have found above that the information at issue is the personal information of another (living) individual under the provisions of section 37(1), I am satisfied that there is no information to which the provisions of section 37(8) can be applied. This being the case, I am satisfied that it is not necessary for me to give detailed consideration to the application of section 37(8).

Accordingly, I find that the Department was justified in its decision to refuse access to all the records at issue, under section 37(1) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Department in this case.

Appeal

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.

Elizabeth Dolan
Senior Investigator