Brendan Howlin (Wexford, Labour) | Oireachtas source

The potential for release of personal information under freedom of information is one of the most sensitive aspects of the regime. The provisions included in the current Act were carefully crafted to provide a very high but not absolute level of protection for personal information.

Notwithstanding the many complex and difficult issues that have arisen in the area of personal information over the years, and the application of the freedom of information Acts, the existing provisions have, I believe, stood the test of time. Notwithstanding this, it will be very important that the code of practice for freedom of information provides further guidance on several aspects of the treatment of personal information under the legislation. Deputy Fleming has adverted to this point.

A key presumption in freedom of information is that a person should have access to his or her own personal information. This is reflected, for example, in the absence of any fees or charges for personal freedom of information requests. That was always so before this new provision. This is not, however, an absolute right and must be balanced against other objectives such as, for example, ensuring public bodies receive confidential information on matters which are relevant to the performance of their duties and responsibilities.

There are a wide range of circumstances in which a public body may hold what would fall within the definition of personal information under freedom of information legislation in circumstances that the relevant information has been provided by a third party. These records could relate, for example, to the medical or psychiatric history of a person; social work cases, where there might be distressing facts that need further criminal investigation; performance assessments or employment references; or Garda security or intelligence matters. It cannot be the case that a person would have an unrestricted right to such information in all circumstances, which would override all other considerations.

The legislation explicitly provides that a decision-maker must take into account the possible harm to the requester from the release of particular health records, allowing these to be released to a nominated health professional. More generally, in deciding on a request for information, the decision-maker must take cognisance of the basis that exists for exercising relevant exemptions that may apply to third-party information on a person held by a public body. In some cases an absolute prohibition may exist on the release of that information. In others, a public interest balancing test may apply. It is very unlikely that there would be one approach that aligned with every set of circumstances.

It cannot, however, be correct that all such information would always be released. It could do terrible damage to people to release some information in that way. Such an approach would be likely to have what could be described as a chilling effect on the appropriate communication of information from one public body to another. It is important that many bodies receive information in confidence from third parties which may assist them in providing services to vulnerable members of the community and that they would be able to do that on the basis that there would not be an absolute right to release that information to a requester. I do not believe we should move from the tried and trusted path that has existed since the 1997 Act in respect of this very sensitive area. I hope the Deputy appreciates that.

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