Whether the Service was justified in refusing access, under section 37(1) of the FOI Act, to the names of certain individuals to whom payments were made under the Special Secretarial Allowance scheme 

28 March 2023

Background

In a request dated 29 September 2022, the applicant sought access to the following: a table or record of all expenditure under the Special Secretarial Allowance scheme (SSA) from 1 October 2021 to the date of the request and a record of how was much was paid overall through the SSA during that time period. In a decision dated 27 October 2022, the Service part-granted the request. It provided the total amount paid under the SSA. It granted partial access to four records, releasing details of payments to companies for services provided to members under the SSA, but withheld certain information under section 37(1) of the Act.

On 1 November 2022, the applicant sought an internal review of the Service-�s decision. In his correspondence, he accepted that the names of those persons providing services under the Temporary Vouched Allowance scheme are exempt from release, but argued that other payments made under the scheme are not, namely "contracting services in respect of expenses arising from the purchase of certain secretarial assistance, public relations, information technology (but not web related) and training services-�. I understand that the SSA affords Members a capped sum which they can apply to certain types of expense in support of the performance of their duties and one manner in which this can be deployed is to retain an employee, known as a Temporary Vouched Employee (TVE) in place of the staff provided under the Secretarial Facilities Regulations.

In its internal review decision dated 23 November 2022, the Service said it had excluded from the review details of the names of persons providing services under the TVE Scheme in line with the applicant-�s comments in his application for internal review. It varied its original decision and released a limited amount of additional information contained in one record. It continued to rely on section 37(1) in respect of the remaining withheld information. On 29 November 2022, the applicant applied to this Office for a review of the Service-�s decision.

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 applicant-�s comments in his application for review and to the submissions made by the Service in support of its decision. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

As noted above, the names of persons providing services under the TVE Scheme were excluded from the scope of the internal review as the applicant accepted that such information was exempt from disclosure. That information is therefore outside the scope of this review. In addition, as the Service has provided the requested information in respect of the total amount paid under the SSA scheme, I will not consider that matter further.

In relation to the remaining information, the Service released details of payments made in respect of various identified TDs and Senators but redacted the names of the individuals to whom the payments were made. Accordingly, this review is concerned solely with whether the Service was justified in refusing access, under section 37 of the Act, to the names of those individuals to whom payments were made under the SSA.

Analysis and Findings

In its submissions to this Office, the Service explained that the Special Secretarial Allowance is established under section 2(2A) of the Oireachtas (Allowances to Members) Act 1962 as inserted by s. 16 of the Oireachtas (Allowances to Members) and Ministerial, Parliamentary, Judicial and Court Offices (Amendment) Act 1998 and regulated by Statutory Instruments made under that subsection. It provided this Office with a copy of the Guidance issued to Members. That guidance provides as follows:

-�-� the purpose of the Secretarial Allowance is to assist towards expenses arising from the purchase of certain secretarial assistance, public relations, information technology (but not web related) and training services from a person employed under a contract of service or the purchase of such services under a contract of service including any applicable tax and social insurance costs. The allowance may also be used for remuneration of persons providing secretarial services (i.e. Temporary Vouched Employees or TVE). Purchase of equipment or expenses for which the Public Representation Allowance is intended, are not allowable under the Secretarial Allowance scheme.

The Member is the Employer or the Contractor of the service subject to the terms and conditions for the scheme funded by the Houses of the Oireachtas. In respect of monies due, the Houses of the Oireachtas Service is the paying agent to the employee or the service provider as applicable on behalf of the Member. All payments are made directly to the employee/service provider-�

Contracting services are the responsibility of the Member as the contractor. The Member must ensure that the service has been received and complies with the statutory requirements-�

Section 37 -� personal information

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to individuals other than the requester.

The information at issue in this case comprises the names of individuals to whom payments were made under the SSA for contracting services provided to named TDs and Senators. As I have outlined above, the actual payments made have already been released, as have the names of service providers where they were readily identified as corporate entities.

Before considering whether section 37 applies to the names of the individuals in question, I must first consider whether the disclosure of that information would involve the disclosure of personal information relating to those individuals.

Section 2 of 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 information without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual and (xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Pursuant to the findings 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 (more commonly referred to as "the Rotunda Hospital case"), it is important to note that paragraphs (a) and (b) of the definition of personal information are not overarching prior requirements and that information falling into any of the categories set out at (i) to (xiv) constitutes personal information, even if neither of the requirements of paragraphs (a) or (b) are satisfied.

In its submissions, the Service said that it is -�not of the opinion that the use of a person-�s name in a commercial context deprives it of status as -�personal information-�-�. It said it attempted to ascertain which of the service providers constituted corporate entities and which did not. In the case of two providers, and following queries from this Office, it outlined its approach to determining whether the two providers were corporate entities. It referenced the Companies Registration Office (CRO) and said that both providers are listed as relating to individuals. It said that the relevant providers are using trade names and that the individuals associated can be readily identified through the CRO search function. It said the exemption at section 37(1) was claimed on that basis.

In his application for internal review, the applicant argued that the services in question are -�provided by a contractor-�, not an employee, and that the records -�provide no information on the employment or employment history of the contractor concerned-�.

Having regard to the findings of the Supreme Court in the Rotunda Hospital case, I must consider whether the information at issue, namely the names of the individuals in question, is captured by any of the fourteen categories of information that are deemed to comprise personal information. I am satisfied that it is. The disclosure of the names of the individuals concerned would, in my view, involve the disclosure of more than simply their names. It would involve the disclosure of information relating to their financial affairs given that details of payments they received have already been disclosed (category (ii) of the definition), and information relating to their employment, in so far as it would disclose the fact that the individuals in question were providing services (category (iii)). I am satisfied that this also applies in the case of the two service providers who are using trade names.

Certain information is excluded from the definition of personal information. The FOI Act provides that personal information does not include:

-�(II) in the case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service-�.

The term -�service provider-� is defined as -�a person who, at the time the request was made, was not an FOI body but was providing a service for an FOI body under a contract for services and contract for services in this definition includes an administrative arrangement between an FOI body and another person-�.

In his application to this Office, the applicant sought to draw a distinction between the current case and a previous decision I issued in respect of records relating to secretarial and parliamentary assistants employed by Deputies and Senators (OIC-121282). In that case, I found that the Service was justified in refusing access, under section 37(1) of the Act, to a list of the names of secretarial and parliamentary assistants employed by TDs and Senators in 2020 and 2021. I found that parliamentary and secretarial staff are employed by the relevant Members and not by the Service and that parliamentary and secretarial staff do not hold positions in an FOI body.

In this case, the applicant argued that the individuals referenced in the records -�are not employees of the members and are service providers remunerated directly from public funds-�. He also outlined a number of hypothetical scenarios which he described as -�repercussions-� of this Office affirming the decision of the Service. Those scenarios essentially concern engagements between FOI bodies and their service providers.

The exclusion to the definition of personal information in paragraph (II) means that the name of a service provider is not personal information for the purposes of the Act. The Act defines a service provider as a person who, at the time the request was made, was not an FOI body but was -�providing a servicefor an FOI bodyunder a contract for services-� (my emphasis). The individuals in question in this case were not providing a service for an FOI body. Instead, they were providing services for the members of the Houses of the Oireachtas. In terms of considering the applicability of the exclusion, it is of no relevance that they were remunerated from public funds.

In his application for internal review, the applicant also argued that certain work being carried out under the relevant service contracts -�is on behalf of ministers or ministers of state and relates to their ministerial role rather than the person-�s role as a TD-�. He referenced a previous decision of this Office (Case 170315). In that case, the question arising was whether the then Department of Justice and Equality was justified in refusing to grant access to copies of correspondence between the Minister and a named individual and/or a named company on the ground that it did not hold relevant records. In my view, the case provides no support for the applicant-�s contention that the individuals concerned in this case were providing services for an FOI body. It seems to me that the SSA is available to the members of the Houses of the Oireachtas in their roles as members and as such, the service providers in question are providing services to those individuals and not to any FOI body.
Accordingly, I am satisfied that the exclusion to the definition of personal information in paragraph (II) does not apply in this case. I find, therefore, that the disclosure of the names of the individuals in question would involve the disclosure of personal information relating to those individuals and that section 37(1) applies. However, this is not the end of the matter as section 37(1) is subject to the other provisions of the section.    

Section 37(2) and 37(5)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. No argument has been made that any of those circumstances arise in this case, nor do I consider that they do.

Section 37(5) provides that a request that would fall 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. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individuals to whom the information relates and that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, I would note that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. Nevertheless, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (-�the Enet Case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of the Supreme Court in the Rotunda Hospital case. It is noted that a public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 applicant argued that -�the special secretarial allowance has in the past been used to hire family members, party colleagues and individuals already in receipt of public funds from other sources-�. He said payment through the scheme is -�not vouched in any sense and there is no oversight of the payment by the Oireachtas except by way of submission of an invoice-�. He said -�it is wide open for a TD or Senator to hire a favoured person to provide services-� with little or any work having actually taken place. All that is required for payment of public funds under this scheme is the submission of the invoice by the individual TD or Senator. There is no clarity whatsoever over how much work is done, the rates that apply, or other such detail-�.

In its submissions, the Service noted that section 37(5) -�confers a final discretion on the decision maker even where the public interest appears to warrant release-�. It contrasted this provision with the mandatory language of the public interest provisions in section 35 and 36 of the FOI Act. It made submissions in respect of the -�strength of the right to privacy-� including reference to the Irish Constitution, the European Convention on Human Rights, the decision of the Supreme Court in the Rotunda Hospital case and previous decisions of this Office. The Service outlined arguments it considered in respect of the public interest including that -�the records relate to the deployment of public funds and their fuller release would promote accountability and transparency in that regard-� and that -�the retention by Members of family members, party colleagues, or other persons in receipt of public funds could provide greater insight into the operation of the scheme-�. It noted that, as per the decision of the Supreme Court in the Enet case, -�The general interest in the transparent deployment of public funds without something more specific will not justify incursion on an individual payee-�s right to privacy-�. It said that the expenditure in the current case is -�in substance that of the Member, not of the Houses of the Oireachtas Service-�.

The Service further argued that the public interest considerations advanced by the applicant are insufficient to warrant disclosure. It said that it has released a substantial amount of information in the interests of transparency, including the amounts paid to each Deputy and Senator, the amount of each invoice paid and the identities of corporate service providers. It disputed the applicant-�s argument concerning the level of oversight and/or transparency in respect of such payments.

It said -�The claimant Member must declare that the expenditure was wholly and exclusively incurred in discharging his or her parliamentary duties, that the work was done to a satisfactory standard and is value for money, and the service provider was appropriately qualified to undertake the work. Should any of these declarations prove deliberately incorrect, the Member would be obtaining the payment on a false basis with all the consequences that may follow from that. Also, payments are subject to cross-checking by phone call, the service provider has to provide banking and tax information, and payments above €1,000 are reported to the Revenue Commissioners. There is therefore a significant level of transparency inherent in the administration of the allowance-�. Finally, the Service argued that a similar basis for contesting the Service-�s decision in case OIC-121282 referenced above was also unsuccessful.

It seems to me that the fact that a certain level of transparency currently exists around the operation of the SSA scheme does not, of itself, mean that no further transparency is warranted. Nevertheless, it is clear that a certain level of transparency exists in respect of the scheme. The allowance is governed by regulations which stipulate the amount to be paid as well as exceptions, restrictions and conditions. In addition, the Service has released certain information in respect of the scheme to the applicant, including details of the amounts paid in respect of each of the named members. In doing so, it seems to me that it has sought to strike a balance between enhancing transparency in the scheme whilst simultaneously seeking to protect the privacy rights of the individuals concerned.

More importantly, it is relevant to note that the general principles of the FOI Act such as the enhancement of openness and accountability apply to the FOI bodies that are subject to the provisions of the Act. It is the Service that is subject to the provisions of the FOI Act. It is not apparent to me that the disclosure of the names of individuals who provided services for the members would further enhance the transparency and accountability of the Service, in circumstances where the contracted services are not provided for it or on its behalf.

Moreover, while it is not apparent to me that the disclosure of the names of the individuals who received payments under the SSA would involve anything other than a minimal intrusion on their privacy rights, it would, nevertheless, involve an intrusion. I also note the applicant-�s comments that -�the special secretarial allowance has in the past been used to hire family members, party colleagues, and individuals already in receipt of public funds from other sources-�. However, I am not aware that such uses of the allowance might constitute a breach of the regulations governing the scheme.

In the circumstances, I consider that there is no sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information sought in this case. I find that the public interest in granting the request does not, on balance, outweigh the privacy rights of the individuals concerned. I find that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Service was justified in refusing access, under section 37(1) of the FOI Act, to the names of individual service providers contained in the relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Service to refuse access, under section 37(1), to the names of individual service providers in records relating to the Special Secretarial Allowance scheme.

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