Whether Irish Rail was justified in redacting, under section 37(1) of the FOI Act, certain information from records coming within the scope of the applicant’s request

22 October 2021

Background

The applicant submitted a request to Irish Rail on 13 October 2020, seeking “All correspondence and documentation between [Irish Rail] and [its] agents, Port of Cork Company and their agents, Cork County Council and Cobh Municipal District from 1997 to present day 2020 with regard to any aspect of Ownership, Development and/or Maintenance of any part of Cobh’s Deepwater Quay, including Cobh Cruise Terminal and Five Foot Way adjacent to Cobh Rail Station”.  As Irish Rail failed to issue a decision on the request within the statutory time-frame, the applicant sought an internal review of the deemed refusal of his request. 

Irish Rail issued its internal review decision on 22 December 2020, wherein it granted partial access to four records it identified as coming within the scope of the request, with the redaction of certain information under section 37 of the Act. On 14 January 2021, the applicant sought a review by this Office of Irish Rail’s decision. He expressed his dissatisfaction with the redactions made and also argued that the documentation received comprises only a partial disclosure.

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 correspondence between the applicant and Irish Rail and to the correspondence between this Office and both parties on the matter. I have also examined the records that Irish Rail identified as coming within the scope of the request. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

There has been considerable confusion in this case as to the precise nature and extent of the records sought by the applicant. On its face, the request as worded appears to be quite broad, covering a range of issues and a considerable time period. It is also rather vague, in so far as it seeks records regarding “any aspect of ownership, development and/or maintenance of” various locations.

Section 12(1)(b) of the Act provides that an FOI request must sufficient particulars in relation to the information concerned to enable the record sought to be identified by the taking of reasonable steps. Section 15(1)(b) allows a public body to refuse a request where it does not comply with the requirements of section 12 (1)(b), although it is important to note that it cannot refuse a request under that section unless it has assisted, or offered to assist, the requester in amending the request for re-submission so that it no longer falls to be refused on those grounds (section 15(4) refers).

It seems me that Irish Rail could reasonably have argued that the request as submitted did not comply with the requirements of section 12(1(b) in this case, in which case it could usefully have engaged with the requester in order to clarify the precise nature of the scope of the request. However, this did not happen. Nevertheless, following various exchanges of correspondence between this Office and the parties, I understand that the applicant has since submitted a fresh request containing more specific details of the nature of the records sought. In light of that fact, I do not propose to consider, in this review, whether Irish Rail holds any further relevant records other than the four already identified.

Accordingly, my review is concerned solely with whether it was justified in reacting certain information for the four records in question under section 37(1) of the Act.

Analysis and Findings

The records at issue in this case comprise four emails with a number of attachments. A small amount of information was reacted from the records under section 37(1) of the Act. That section provides, subject to the other provisions of the section, for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to individuals other than the requester.

Section 2 of the 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 their family or friends, 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 that, without prejudice to the generality of the above definition, constitute personal information, including (xii) 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 FOI body concerned relates to the individual.

Certain information is excluded from the definition of personal information. The Act provides that personal information does not include:

(I) in a case where the individual holds or held—

(A) office as a director of,

(B) a position as a member of the staff of, or

(C) any other office, or any other position, remunerated from public funds in,

an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 aforesaid,

(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service

The redactions at issue in this case comprise

• names and contact details of Irish Rail staff members
• the name and contact details of an engineering consulting company involved in construction works adjacent to Irish Rail property,
• the name of the appointed contractor for the works, and
• names and contact details of staff of the engineering company and the contractor.

The names or contact details of Irish Rail staff do not comprise personal information for the purposes of the Act, having regard to exclusion (I) above. Neither do the names or contact details of the engineering company or the contractor involved in the works comprise personal information as the reacted information does not relate to identifiable individuals. As such I find that section 37(1) does not apply to this information.

I am satisfied that the only information redacted from the records that comprises personal information for the purposes of the Act is the names and contact details of staff of the engineering company and the contractor and a mobile phone number for an Irish Rail staff member. I find that section 37(1) applies to this information.

However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that no such circumstances arise in this case.

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 information would benefit the person to whom the information relates. As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the individual(s) concerned, I find that section 37(5)(b) does not apply.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individual(s) concerned, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. found that there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.  While the comments of the Supreme Court in the judgment were made in relation to provisions of the FOI Act other than section 37, 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 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). Unlike other public interest tests provided for in the FOI Act, there is also a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in 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.

Having considered the matter, I find no relevant public interest in granting access to the information at issue that, on balance, outweighs the right to privacy of the individual(s) to whom the information relates. I find therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that Irish Rail was justified, under section 37(1) of the Act, in redacting the names and contact details of staff of the engineering company and the contractor and a mobile phone number for an Irish Rail staff member, that it was not justified in redacting the remaining information.

Finally, for the sake of completeness and for the benefit of Irish Rail, I would like to address an argument raised by Irish Rail to the effect that some of the information contained in the emails at records 1-4 is restricted under the Data Protection Act 2018.  This Office has previously commented on the relationship between data protection legislation and the FOI Act in a number of past decisions.

Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation.

Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request. Data protection legislation does not prohibit public bodies from releasing personal data on foot of an FOI request. The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of Iris Rail in this case. While I affirm its decision to refuse access to the names and contact details of staff of the engineering company and the contractor and a mobile phone number for an Irish Rail staff member, I direct the release of the remaining information that was redacted from the records at issue.

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 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.

Stephen Rafferty
Senior Investigator