Whether the Agency was justified in its decision to refuse access to information in certain records under sections 15(1)(a), 31(1)(b) and 37(1) of the FOI Act

13 November 2018  

Background

On 10 January 2018, the applicant requested access to records held by the Agency relating to concerns he said he had reported to An Garda Siochána concerning his children. The Agency forwarded the request to two of its regional FOI units in the Midlands (Laois) and Kildare West Wicklow (Naas).  

The circumstances and timing of the response of the Agency to the request are confusing. On 7 February 2018, in an original decision, the Agency's Midlands FOI unit granted access in part to a number of records and refused access in full to one other record on the basis of sections 31(1)(b) and 37(1) of the FOI Act. In that decision, the applicant was informed that his request had also been forwarded to the Naas FOI unit.

On 18 April, some three months after receipt by the Agency of the original request, the Naas FOI unit wrote to the applicant and advised him that under section 14 of the Act, it was extending the time period within which it would make a decision on the request by four weeks beyond the initial four weeks provided for at section 13(1). The letter also stated that due to receipt by the Agency of a high volume of FOI requests, there was a delay in responding to his request. Section 14(1) of the Act provides for an extension based on the number of records related to the request or the number of other FOI requests relating to the same records such that compliance with the time limit is not reasonably possible. However, it does not provide for an extension on the basis that the FOI body is experiencing an increase in FOI requests generally. In addition, section 14(2) of the Act provides that such notice must be given to the requester before the expiration of the four-week period for making the original decision (section 13(1) refers), which clearly did not happen in this case.

The applicant submitted a request for an internal review on 27 April 2018 and referred to a deemed refusal of his request (section 19(1) of the Act refers). On 28 May 2018, the Naas FOI unit issued an internal review decision and refused access to records in part and in full on the basis of sections 29 and 37 of the FOI Act.

In correspondence with this Office the Agency explained that the Midlands FOI unit did not make an internal review decision as it understood the applicant's internal review request to concern the Naas FOI unit only. The applicant told this Office that he was confused about how to access all the records relating to his single FOI request. He said that he was unsure about how the records were referenced by the Agency and that, while he was informed about the request being forwarded to another unit within the Agency, this might have been a "mis-communication" to him. It seems to me that the applicant would not have been aware of what records were stored in each of the units, so that he would not be able to specify what he wanted the Agency (and both FOI units) to review. He cannot be held responsible for the records management of the Agency. The applicant confirmed to this Office that he sought access to all of his records and that he sought a review by this Office of the decisions of both units within the Agency. His application was accepted in relation to the "decisions" of both FOI units. During the review the applicant also queried whether further records relevant to his request as made might exist.

As mentioned earlier, a number of records were withheld on the basis of section 29 of the FOI Act. However, during the course of the review, the Agency stated that most of those records were created after the date on which it received the applicant's original request and accordingly are not within scope of the original request. The Agency also said that the remaining records to which it had applied the exemption at section 29 had since been released in full. Records created after the date of an FOI request to a public body are not within scope of the request or of this review. 

In his request, the applicant sought clarification about the manner in which the Agency dealt with his reporting of his concerns. During this review, the Agency explained that the applicant sought access to the records created further to his contact with An Garda Siochána where he expressed concerns for his children. It said that a file was created by the Agency further to the Garda Notification and these are the records which were processed in the Agency's Midlands unit. The Agency said that as the applicant's report referred to his children, it opened a file in their names and recorded the information in that file. It confirmed that this file was not in the applicant's name. The Agency said that although the file was initially processed by its Midland unit, due to a potential conflict of interest, it was copied to the Agency's Kildare West Wicklow (Naas) unit for further processing and where additional records were created. 

In his FOI request, the applicant also asked for reasons as to how and why the Agency processed certain aspects of his reporting of the matter. Section 10 of the FOI Act entitles applicants to a statement of reasons for administrative decisions or acts affecting them in certain circumstances. To avail of this right, which is separate from a right of access to records (section 12), the request must be expressed to be one made under section 10 of the FOI Act 2014, although section 10(11) requires the FOI body to assist the individual preparing a section 10 application, where one is not in the proper form but where access to the information can be provided only by way of a section 10 application. The applicant-™s request was not stated as being made under section 10 of the Act. I do not, therefore, propose to address those questions of the applicant in this review. It seems to me that there is no valid application for review before me in relation to a decision by the Agency on any section 10 application. 

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

Scope of Review

This review is concerned solely with whether the Agency was justified in deciding to refuse access to information in records falling within the scope of the applicant's FOI request as made, on the basis of sections 15(1)(a), 31(1)(b) and 37(1) of the FOI Act.

Preliminary Matters

The applicant explained why he wanted access to the records. It would not be appropriate here to go into the detail of his concerns. However, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions. 

Reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicant's right to access records under the FOI Act and do not extend to other matters related to issues concerning the applicant and the Agency.

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.

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. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.  

The evidence in "search" cases consists of the steps actually taken to search for 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 records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.  However, it is not normally the function of this Office to search for records that a requester believes are in existence.

The applicant referred to dates and times of calls he said he made concerning his reporting of the matter of his children and to notes that may have been included in a diary but were not made available to him. He said that two conversations took place but he was not aware if they had been recorded. The Investigator asked the applicant to provide further information in support of his point that further records should exist but no additional information was provided by him. The Agency was also required to provide details of searches it had undertaken in relation to the request.

In its submission, the Agency stated that no diary entries exist in respect of telephone conversations. The Agency said that diaries are only used for scheduling professional meetings and never contain case notes. As mentioned earlier, the Agency stated that the case notes relating to the applicant's concerns were first recorded by the Midlands unit in a file in the name of the applicant's children and that subsequently, the matter was transferred to the Naas Unit. The Agency said that both FOI units carried out searches for the social work records relating to the applicant's request as made. The Agency also said that at the time of this decision, notes relating to other meetings are being considered by it under a separate FOI request from the applicant.

At the request of this Office, the Agency identified the files which it said were searched in order to establish what records were held. It said that following the applicant's expressed concerns about his children, it created a file further to the Garda notification. According to the Agency, the file was created with the name of the applicant's children and no separate files are held in the applicant's name.

The position of the Agency 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 Agency to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, and its responses to this Office's queries, I consider that the Agency 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.

If the applicant has identified specific additional records which he believes are held by the Agency, it is open to him to consider making a fresh request for access to those. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps. 

Section 31 - Contempt of Court
Section 31(1)(b) is a mandatory exemption that requires the head of an FOI body to refuse to grant a request if the record is such that the head knows or ought reasonably to have known that its disclosure would constitute contempt of court. It is not subject to a public interest balancing test.  

In this case, the Agency has stated that the in camera rule applies and therefore it would be a contempt of court to release the small amount of withheld information in the records. 

It is a contempt of court for any person to disseminate information emanating or derived from proceedings held in camera without prior judicial authority. The in camera rule applies to proceedings where there is a statutory requirement that such proceedings are held in private or otherwise than in public. It applies to certain proceedings including certain family law proceedings and certain proceedings involving minors. In many cases the requester seeking access to the records may have been a party to the in camera proceedings, but the identity of the requester is not relevant to the issue of whether disclosure would constitute contempt of court under section 31(1)(b).

I accept that the withheld information in the records emanated or derived from proceedings held in camera, so that the Agency is justified in its position that disclosure of the withheld information would be a contempt of court.  I find therefore that the withheld information in the records is exempt under section 31(1)(b) of the FOI Act.  

Section 37- Personal Information
Section 37(1)
Section 37(1) of the FOI Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their 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 fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where 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". 

Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

While I cannot discuss their content in any detail, I can state that the information withheld in part in most of the records, and in full in a single record, contain information relating to other individuals. Many of the records contain the same withheld information in repeated email threads.

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. Section 37(7) is also subject to sections 37(2)(b) to (e). I am satisfied that none of these are relevant in this case. 

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. I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. As regards section 37(5)(a), the public interest in openness and transparency in how the Agency dealt with the applicant has been served to a large extent by the release of information in the records to him. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved.

Section 37(8) - Access to the personal information of minors 
Section 37(8)(a) provides that, notwithstanding subsection (1), the Minister for Finance may provide by regulations for the grant of access where

"the individual to whom the record concerned relates belongs to a class specified in the regulations and the requester concerned is the parent or guardian of the individual". 

The FOI Act 2014 (Section 37(8)) Regulations, 2016 (S.I. No. 218 of 2016) make provision for access to personal information of minors and deceased persons in certain circumstances. In the particular circumstances of this case, I am satisfied that there are no withheld records containing solely the personal information of the applicant and his minor children to which the provisions of section 37(8) can be applied.

I am satisfied that the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Agency. I hereby affirm the decision of the Agency to refuse to release further records to the applicant under section 15(1)(a) of the FOI Act on the ground that further records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. I affirm its decision to withhold information in some records under section 31(1)(b) of the Act. I affirm the Agency's decision to withhold information in part and in full in the remaining records under section 37(1) of the FOI Act, on the basis that they contain the personal information of individuals other than the applicant. I find that the public interest in granting the request does not outweigh the public interest in upholding the privacy rights of other individuals. 

Right of 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