Whether AGS was justified in refusing access to details of the Garda Stations at which a named member of AGS has been stationed over the years on the ground that the Act does not apply to the record sought pursuant to Part 1(n) of Schedule 1 or, alternatively, on the ground that the information sought is exempt from release under section 37(1) as disclosure of the information would involve the disclosure of personal information relating to a third party

28 June 2022

Background

In a request dated 2 November 2021, the applicant sought details of the Garda Stations at which a named member of AGS has been stationed over the years. In a decision dated 4 November 2021, AGS refused the request on the ground that AGS is a partially included agency under Schedule 1 Part 1(n) of the Act and as such the request did not come within the ambit of AGS. The applicant sought an internal review of that decision, following which AGS affirmed its refusal of the request. On 21 March 2022, the applicant applied to this Office for a review of the decision of AGS.

During the course of the review, AGS cited section 37(1) of the Act as a further ground for refusing the request. The Investigating Officer informed the applicant of the additional grounds cited by AGS for refusing the request and invited her to make submissions on the matter, which she did.

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 correspondence between the applicant and AGS as outlined above, and to communications between this Office and both the applicant and AGS on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether AGS was justified in refusing the applicant's request on the ground that the Act does not apply to such records pursuant to Schedule 1, Part 1(n), and/or under section 37 of the FOI Act on the ground that the disclosure of the withheld information would involve the disclosure of personal information relating to a third party.

Preliminary Matters                                                                       

For the benefit of the applicant, I wish to explain that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. Accordingly, I will consider whether AGS was justified in refusing access to any relevant records it holds containing the information sought in this case.

I also note that the applicant set out in her submissions to this Office details of why she was seeking access to the information. Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall generally be disregarded. This means that this Office 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 Act requires a consideration of the public interest (see below).

Analysis and Findings

The effect of Schedule 1 of the Act is to exclude certain records from the scope of the FOI Act. If the records are excluded pursuant to Part 1(n) of Schedule 1, the question of whether section 37 also applies does not arise as there is simply no right of access to records that do not come within the scope of the Act. Accordingly, I will first examine whether AGS was justified in refusing the request pursuant to Part 1(n).

Schedule 1 Part 1(n)

Section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists to such records held by the body.

Schedule 1, Part 1(n) provides that AGS is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters. In other words, the only records held by AGS that are subject to the FOI Act are those that relate to administrative matters concerning human resources, finance, or procurement. In accordance with Part 1(n), all other records held by AGS are excluded. This Office considers that the effect of Part 1(n) is to restrict the right of access to those functions or processes of AGS that relate to the administration or management of the organisation, and only in relation to matters concerning human resources, or finance or procurement matters.

In its initial submissions, AGS made what appeared to be contradictory submissions in support of its refusal of the request pursuant to Part 1(n). It said that human resources records relate to statistical information in respect of the organisation, e.g. sick leave, discipline, retirements, etc. However, it also accepted that they refer to personal records of staff working within AGS but argued that -�such records are the personal information of each individual Garda member-�.

The Investigating Officer sought to clarify the position of AGS on the matter. She suggested that if AGS accepts that members of AGS are entitled to access their personnel records under the Act, it is not appropriate to refuse this request pursuant to Schedule 1, Part 1(n). In response, AGS argued that its refusal pursuant to Part 1(n) is not inconsistent with the right of Garda members and staff accessing their own personnel records. It argued that the service history of an individual Garda does not consist of an -�administrative record relating to human resources matters-� and instead suggested that the right of Garda members and staff to access their own personnel records is well established and provided for within the Act, in particular at Section 11(6).

AGS appears to be of the view that section 11(6) of the FOI Act provides a specific and separate right of access by staff members of public bodies to their personnel records, regardless of the restrictions imposed by Schedule 1. If that is the case, then AGS is mistaken. As I have explained above, if a body is listed in Schedule 1, the Act applies only to those records described in the Schedule that are held by the body and all other records it holds are excluded. The right of access afforded by section 11 of the Act does not apply to any records that are excluded from the scope of the Act pursuant to Schedule 1.

In the case of AGS, this means that the only records held by AGS that are subject to the FOI Act are those that relate to administrative matters concerning human resources, finance, or procurement. Therefore, the right of access to personnel records by members of AGS exists only if such records are not excluded from the scope of the Act pursuant to Schedule 1. Accordingly, if I was to accept the argument of AGS that personnel records are excluded from the scope of the Act pursuant to Schedule 1, this would mean that AGS members would not have a right of access to their own personnel records.

The Act does not define the term -�administrative record-�. This Office considers the term to cover records relating to the administration of the body, as opposed to, say, records relating to its operational matters or core functions. In the case of a number of specified public bodies, the right of access afforded by the FOI Act is restricted to records relating to their general administration. We consider the term general administration to refer to records which have to do with the management of a public body such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like.

In the case of AGS, the category of administrative records to which a right of access applies is limited further; they must also concern human resources, finance, or procurement matters. I am satisfied that personnel records can appropriately be categorised as administrative records relating to human resources. Indeed, as I have outlined above, AGS accepts that human resources records refer to personal records of staff working within AGS. The information sought in this case comprises details of the Garda Stations at which a named member of AGS has been stationed over the years. I am satisfied that any records AGS holds that contain the information sought would properly be regarded as personnel records of the named Garda and that they can properly be described as administrative records relating to human resources. Accordingly, I find that AGS was not justified in refusing the request pursuant to Schedule 1, Part 1(n) of the Act.

Section 37

Section 37(1)

Section 37(1) of the Act provides for the mandatory refusal of a request if the FOI body considers that access to the records sought would involve the disclosure of personal information relating to a person other than the requester.

The applicant argued that the information requested would have been in the public domain. She said the named member is an employee of the State and serves as an acting member of AGS. She said the member carries out his daily duties without the aid of camouflage, is in the public eye and not under cover. She said the member would have served his time in the Public Office and would have had to disclose his name and shoulder number for any official documents. She said she does not see why the member's career history is being withheld from her.

For the purposes of the 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 an FOI body on the understanding that it would be treated by it as confidential. Section 2 of the Act details fourteen specific categories of information that is personal information without prejudice to the generality of (a) and (b) above, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a) (personnel records of staff members of FOI bodies).

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, this exclusion is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. As I have noted above, the personnel records of staff members of FOI bodies are included within the definition of personal information.

I am satisfied that the disclosure of the information sought would involve the disclosure of personal information relating to the named staff member of AGS and that the exclusion to the definition of personal information does not apply. Accordingly, I find that section 37(1) applies to the information sought.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case.

Section 37(5)

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 be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individual to whom the information relates and that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a -�sufficiently specific, cogent and fact-based reason-� is required -�to tip the balance in favour of disclosure-�.

It is also important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26. It is noted that a public interest should be distinguished from a private interest.

In her submissions to this Office, the applicant explained why she was seeking access to the information in question. I am satisfied that the applicant has essentially expressed a private interest in release of the records. I can appreciate the importance the applicant may attach to accessing the information. However, the above judgments make clear that in considering where the balance of the public interest lies, I cannot take into account the applicant's private interest in seeking access to the records.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.

In considering where the balance of the public interest lies in this case, it is important to note that the release of records under FOI is regarded, effectively, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. In this case, I find no relevant public interest in granting access to the records that on balance outweighs the public interest in upholding the privacy rights of the individual whose personal information would be disclosed by releasing the records. In the circumstances, I find that section 37(5)(a) does not apply.

In conclusion, therefore, I find that AGS was justified in refusing access, under section 37(1) of the FOI Act, to the information sought.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of AGS to refuse, under section 37(1) of the Act, the applicant's request for details of the Garda Stations at which a named member of AGS has been stationed over the years.

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.

Stephen Rafferty
Senior Investigator