Irish Information Commissioner's Decisions

Whether the Department was justified, under sections 31(1)(b) and 37(1) of the FOI Act, in its decision to refuse the applicant's request for records relating to members of An Garda Síochána -�acting up-� at the rank of Assistant Commissioner, Deputy Commissioner or Commissioner during a specified period

26/04/2019

Background

On 22 August 2018 the applicant submitted two requests to the Department for the following records: 
1. All records concerning communications, decisions, submissions and business cases for a member of An Garda Síochána -�acting up-� at the rank of Assistant Commissioner, Deputy Commissioner or Commissioner for the period 1 July 2014 to 22 August 2018. 
2. All records giving details of the decision making rationale around such appointments. 
3. Records of all payments of acting up allowances, by quarter.
4. All records concerning the selection process and procedures.
5. Records of the business case and all other notes used to support the application for each -�acting up-� and records showing the decision makers and rationale.

In its decision of 23 September 2018 the Department refused access to eight records it had identified as falling within the scope of the request under section 37 of the FOI Act. The applicant sought an internal review of that decision following which the Department affirmed its refusal of the request.
On 22 December 2018, the applicant sought a review by this Office of the Department's decision. During the course of the review, the Department stated that it also wished to rely on section 31(1)(b) of the FOI Act, on the basis that disclosure of the records could amount to contempt of court in respect of certain specified legal proceedings.
I have decided to conclude this review by issuing a binding decision on the matter. In conducting the review, I have had regard to the correspondence between the applicant and the Department as set out above and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the nature and contents of the records at issue. 

Scope of Review

This review is concerned solely with whether the Department was justified in its decision to refuse the applicant's request for records relating to members of An Garda Síochána -�acting up-� at the rank of Assistant Commissioner, Deputy Commissioner or Commissioner for the period 1 July 2014 to 22 August 2018, under sections 31(1)(b) and 37 of the FOI Act.

Analysis and Findings

As I consider section 37 to be most relevant in this case, I will consider its application first. Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester. 
The Act defines personal information as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, 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) i.e. personnel records of staff of FOI bodies.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).
The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.
All of the records at issue in this case relate to the conditions of employment, including pension entitlements, remuneration and salary issues of individuals acting up at the rank of Assistant Commissioner, Deputy Commissioner or Commissioner.
Having regard to the small number of individuals who fall under this category during the period for which the applicant is requesting records, I am satisfied that the release of the information sought by the applicant would involve the disclosure of information about identifiable individuals. Given the nature of the information sought, I am also satisfied that the information that would be disclosed is personal information relating to those individuals and that the exclusion to the definition of personal information does not apply to the information at issue. I find, therefore, that section 37(1) applies to the records at issue. 
 
Section 37 contains other provisions that serve to disapply section 37(1), namely subsections (2) and (5). I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides for the release of information to which section 37(1) applies where (a) the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned or (b) the grant of the request would benefit the individuals concerned. I am satisfied that subsection (b) does not apply.

On the question of whether subsection (a) applies, the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. Indeed, under section 11(3), in performing any function under the Act, public bodies must have regard to, among other things, the need to achieve greater openness in their activities and to strengthen their accountability.

On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 37 and in 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. 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.  
The question I must consider is whether the public interest in the promotion of transparency and accountability concerning the manner in which the Department carries out its functions is sufficiently strong to outweigh, on balance, the public interest in protecting the privacy rights of the individuals concerned. In my view, it is not. Granting the request would involve the disclosure of personal information of an inherently private nature such as an individual's employment and remuneration. It is also important to note that the release of records under FOI is essentially regarded as release to the world at large given that the Act places no restrictions on the uses to which the information may subsequently be put. Having carefully considered the matter, I find that the public interest in the release of the records at issue does not, on balance, outweigh the privacy rights of the individuals to whom the records relate. I find that section 37(5)(a) does not apply.    
Having found that section 37(1) applies, it is not necessary for me to consider the application of section 31(1)(b).  

Decision 

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Department to refuse the applicant's request for records relating to members of An Garda Síochána -�acting up-� under section 37(1) of the FOI Act.

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