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Case Number: 160564

Whether the Commission was justified in refusing, under section 37 of the FOI Act, to grant access to records concerning the "early retirement based on sickness" of a named T.D.

Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 April 2016, the applicant made an FOI request to the Commission for "all records relating to the decision to grant [the named T.D] early retirement based on sickness and to give him an extra five years notional service. Please include any records showing the cost of this decision to the state and the financial benefit for [the named T.D.]".

The Commission's decision of 9 May 2016 refused to grant access to the records under section 37(1) of the FOI Act, on the basis that release would disclose personal information. The applicant's email to the Commission, dated 10 May 2016, for details regarding how he could "lodge an appeal fee" was taken as a request for internal review of this decision. On 22 June 2016, the Commission upheld its earlier refusal of the applicant's request. On 16 December 2016, the applicant sought a review by this Office of the Commission's decision.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Department, and the applicant (who, although invited to, did not make submissions to this Office). I have had regard also to the withheld records and to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Commission has justified its refusal to release the records requested by the applicant.

Preliminary Matters

It is relevant to note a number of preliminary matters.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Information Commissioner takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a withheld record for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Findings

It is publicly known that the named T.D. has resigned. However, according to the Commission, the circumstances of his resignation have not been officially placed into the public domain. My decision in this case should not be taken as providing any confirmation that he was granted "early retirement based on sickness". Of their nature, all of the records relate to the identifiable individual concerned and I will consider their content on this basis.

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.

"Personal information" is defined at section 2 of the FOI Act as

"information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential" ...

I am constrained in the description I can give of the content of the records. However, I am satisfied that they disclose the circumstances of the named T.D.'s resignation/retirement, and that they contain information that meets both elements of the above definition. I find that they are exempt under section 37(1) of the FOI Act.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply.

Having examined the withheld records, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third party has not consented to the release of the personal information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the withheld records would benefit the third party, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest

In relation to the issue of the public interest, it is 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 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

I accept that there is a public interest, recognised by the FOI Act itself, in promoting the openness and accountability of public bodies, particularly where any payment of public monies is concerned. The Commission's submission acknowledges this public interest and says it has provided the applicant with copies of Statutory Instruments 354/1992 and 78/1998, which relate to members' pension entitlements. I consider the details in these Statutory Instruments to partially serve the public interest in release in this case. In particular, it is relevant to note that Clause 5K of SI 354/1992 - "The Houses of the Oireachtas (Members) Pensions (amendment) (No.2) Scheme 1992" details the provisions applicable to all members of the Oireachtas in relation to any calculations of notional service for pension purposes.

On the other hand, 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). Furthermore, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. The Commission says that it "is the circumstances of [the named T.D.'s] retirement that is considered to be confidential."

When considering section 37(5)(a), privacy rights will 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. I accept that release of the withheld records would further enhance the public interest in openness and accountability regarding the Commission's treatment of the named T.D.'s resignation/retirement. However, I have already accepted that the withheld records concern the circumstances of the named T.D.'s retirement and, therefore, reflect a private aspect of his life. This Office has previously found that the assigning of an individual to a particular point on a public service salary scale can often derive from some personal aspect of an individual's life and that disclosure of the specific point (as opposed to the scale itself) could disclose such circumstances and result in disclosure of the individual's personal information. I consider that the circumstances in this type of case warrant similar treatment. I find that, on balance, the weight of the public interest in granting the request is not such that it outweighs the public interest that the right to privacy of the third party should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Commission's refusal of the applicant's request.

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