Ms X and Department of Agriculture, Food and the Marine

Whether the Department was justified in refusing access to a record relating to the estate of the applicant's late husband under section 37 of the FOI Act

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 the Department as outlined above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.

In communications with this Office, the applicant confirmed that she was agreeable to confining the scope of this review to the Department's decision to refuse access to a letter of 19 January 2019 from her late husband's solicitor to the Department. Accordingly, this review is concerned solely with whether the Department was justified in refusing to grant access to the aforementioned letter under section 37 of the FOI Act.

The Department refused access to the letter at issue under section 37 of the Act. Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record would involve the disclosure of personal information, including personal information relating to a deceased individual. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester.

Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.