Whether the Council was justified in its decision to withhold details of certain business owners whose grant applications were approved under the Artisan Foods and Artisan Arts and Crafts Scheme in 2016 and details of the grants awarded, under section 37(1) of the FOI Act

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

Background

In a request the Council received on 6 June 2016, the applicant sought a list of all applications for the Artisan Food and Artisan Arts and Crafts Scheme (the Scheme), and a list of the grant relief provided under the scheme. In its decision of 16 August 2016, the Council provided details of the number of applications received, deemed eligible, and approved, and the overall value of the support to date. It refused access to the specific details of the business owners on the ground that the information in question is personal information relating to those parties.

On 6 September 2016, the applicant sought an internal review of the Council's decision, following which the Council decided to consult the ten business owners whose applications had been approved about the possible release of the information sought. Following that consultation process, the Council provide the applicant with a table containing the names and business addresses of the business owners who had consented to the release of information relating to them. It redacted details relating to three business owners who had not consented to the release of the information. The table did not include details of the amount of grant relief paid to the relevant business owners under the scheme. On 15 February 2017, the applicant sought a review by this Office of the Council's decision.

During the course of the review, the applicant agreed to confine her request for information to the details of the ten business owners whose applications had been approved. This Office invited submissions from those business owners on the potential release of information relating to them. One business owner stated that he did not want details of the amount of grant awarded to be released.

I have decided to bring this review to a close by issuing a formal decision. In carrying out my review, I have had regard to the correspondence between the Council and the applicant. I have also had regard to the communications between this Office and the applicant, the Council and the various business owners.

Scope of Review

This review is concerned solely with the question of whether the Council was justified in its decision to withhold details of certain business owners whose grant applications were approved under the Artisan Foods and Artisan Arts and Crafts Scheme in 2016 and details of the grants awarded, under section 37(1) of the FOI Act.

Analysis and Findings

Section 37(1) provides that a public body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to a third party. 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 the foregoing definition, including "(ii) information relating to the financial affairs of the individual".

In a submission to this Office, the Council argued that the individuals who applied and who were awarded a grant under the scheme are sole traders and that the name of the individuals who made the application, the business names and addresses, and the amount awarded, is personal information relating to the individuals concerned. It commented that the status of the individuals concerned as sole traders would not generally be available to the public and the amount of the grant awarded under the scheme was information that related to their financial affairs.

In her application for internal review, the applicant referred to a previous decision of this Office wherein the then Commissioner stated that the business affairs of a sole trader do not constitute personal information about the individual concerned. At the time of that decision, this Office held the view that for information to be regarded as personal information, it must come within part (a) or (b) of the definition; the fact that it came within one or more of the categories of information included in the definition, of itself, did not mean that such information was personal information. 
Since that decision was made, however, the Supreme Court has determined that information coming within any of the categories included in the definition is personal information and need not also come within part (a) or (b). The information at issue in this case is information about identifiable individuals and relates to their financial affairs. I find, therefore, that section 37(1) applies.

The effect of section 37(1) is that a record containing personal information of a third party or third parties cannot be released to another person, unless one or more of the relevant subsections of section 37 apply, namely 37(2) and 37(5). Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that a request which falls 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.

As no evidence has been presented to this Office to suggest that the release of the record at issue would be to the benefit of the third parties concerned, I find that section 37(5)(b) does not apply. On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person to whom the information relates.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of FOI bodies in how they carry out their functions. On the other hand, the FOI Act also recognises a strong public interest in protecting privacy rights. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. 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 this case, I accept that there is a strong public interest in ensuring openness and accountability in relation to the Council's administration of the Scheme, particularly as it involves the expenditure of public monies. I also accept that there is a public interest in protecting the privacy rights of the business owners concerned. However, in my view, those privacy rights are not particularly strong in this case as they arise in a commercial context and relate to the business affairs of the business owners rather than their personal or private affairs. Neither is the information of an inherently private or sensitive nature.

I am of the view, therefore, that on balance, the public interest in ensuring openness and accountability in relation to the Council's administration of the Scheme outweighs the public interest in protecting the privacy rights of the relevant business owners. I find, therefore, that section 37(5)(a) applies in this case and the Council was not justified in its decision to withhold details of certain business owners whose grant applications were approved under the Artisan Foods and Artisan Arts and Crafts Scheme in 2016 and details of the grants awarded, under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby annul the decision of the Council to withhold details of certain business owners whose grant applications were approved under the Artisan Foods and Artisan Arts and Crafts Scheme in 2016 and details of the grants awarded, under section 37(1) of the FOI Act. I direct it to release the information sought.

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