Case 98022

Access to pre-commencement records - application of section 6(5)(b) - whether information about a company is personal information about its shareholder/managing director - definition of personal information - section 2.

Case Summary

Facts

The requester in this case sought access to information relating to the company of which he was the main shareholder and the managing director. The records related to the events surrounding a statement by the Director of Consumer Affairs regarding a product imported by this company. The request was refused on the grounds that the records held were created prior to the commencement of the Act ( 21 April 1998 ) and did not contain personal information relating to the requester. The requester claimed that as he was the main shareholder and the managing director of the company, the actions of the Office of the Director of Consumer Affairs affected him personally and accordingly he should have access.

Decision

The Commissioner found that all the records related to the company, its products and its dealings with the Office of the Director of Consumer Affairs. The Commissioner found that a number of the records concerned the requester in the sense that he was referred to in those records. He held that the records concerned the requester only in his capacity as managing director of the company and were not records relating to personal information about him. The Commissioner considered that the question of whether the records related to personal information of the requester had to be decided by reference to the content of the records rather than by considering the consequences of the events to which the records related. He also found that it was clear from the definition of personal information that the term can only be applied to an identifiable individual meaning a natural person as opposed to a legal person such as a company. The Commissioner held that there was no basis for seeking to treat a company as the same person as its directors or shareholders for the purposes of the FOI Act and, therefore, that the requester was not entitled to access to the records under the Act.

Date of Decision: 25.08.1998

DECISION

Background:

On 1 May 1998, Mr AAG applied under the Freedom of Information Act, 1997 to the Office of the Director of Consumer Affairs (ODCA) for full access to information, files and correspondence in relation to a company of which he was owner and managing director. In a subsequent telephone conversation with an official of the ODCA, Mr AAG referred to the issue of a press statement by the Director of Consumer Affairs. This press statement was issued before the commencement of the Freedom of Information Act. Mr AAG clarified that he wished to have access to all the records regarding this incident.

The ODCA refused access on the grounds that the records concerned were created prior to the commencement of the Act. Mr AAG sought an internal review, seeking "full disclosure of your files on the company and myself". The decision on review was that the records were created pre-commencement and did not fall within the categories of Section 6(5) which would grant access to records created prior to the commencement of the Act.

On 30 June 1998 Mr AAG wrote to the Information Commissioner seeking a review of the decision on the grounds that as he was owner and managing director of the company, these records were personal to him. I agreed to grant the application for review and sought submissions from both parties. While Mr AAG had described the records sought in slightly different terms in his original request, in his telephone clarification and in his request for internal review, I have proceeded on the basis that he is seeking all the records relating to the issue of the press statement. Both parties made submissions on matters relevant to the review.

In its submission, the ODCA argued that the FOI decisions were reached on the basis that all the records relating to the company were created prior to the commencement of the Act and were not records personal to Mr AAG.

Mr AAG also made a submission in which he argued that as he was owner and managing director of the company, the actions of the ODCA affected him personally and therefore the information should be released to him. His submission argued that the actions of the ODCA were unjust and referred to the impact on his personal reputation and good name in business of these actions. In particular, Mr AAG's application for review made the case that in effect he was the company, so it "would not be understating the matter to say that it [the actions of the ODCA] affected me personally".

AAG. In reviewing the decision of the ODCA, I examined the records concerned and considered the arguments in the submissions made by the parties relevant to the review.

The records concerned can be described broadly as follows:-

• letters of complaint from consumers relating to the product distributed by the company. Some refer to the product by the name under which it was marketed. Some of these are physical letters and others are print outs from a database of complaints logged. The paper files relating to the latter have been destroyed. All of the records whether recorded notations of phone complaints or letters from individuals include the name and address of the complainant and occasionally the name of the retailer from which the product was purchased. The complaints fall into two categories, those which refer to actual difficulties with the product and those which arose out of the publicity relating to the product and which refer to the fears of the individuals that the product could be unsafe.
• The second major grouping of records relate to the role of the Office of the Director of Consumer Affair in assessing these complaints, seeking to reach a resolution of the matter and taking follow-up action after the issue of the press release. This includes test results following the testing of the product by the body, test results provided by Mr AAG as managing director of the company in attempting to refute the claims, correspondence from Mr AAG and his solicitor on behalf of the company, records of meetings and discussions with Mr AAG, records of correspondence and discussions with a number of third parties viz. officials in various Government departments and in the European Commission, public representatives and trade interests who were concerned at the effect of the press release on their business.

Since all of the records requested were created prior to 21 April 1998, there is a right of access to them under the FOI Act only if

• access is necessary or expedient in order to understand records created after that date, or
• if they relate to personal information about the person seeking access to them (Section 6(5) FOI Act).

No argument has been made that access to any of the records sought is necessary or expedient in order to understand records created after 21 April 1998. Therefore, it follows that the sole matter at issue in this case is whether the records relate to personal information about Mr AAG.

As indicated above, all of the records sought relate to the company, its products and its dealings with ODCA. Some of the records sought make no reference whatsoever to Mr AAG, referring solely to the company or to its products. In my view it would not be correct to say that such records relate to information about Mr AAG, much less "personal information" about him.

It is true that many of the activities of the company, including meetings and correspondence with the ODCA were conducted by Mr AAG. As a consequence some of the records sought concern Mr AAG in the sense that he is referred to in those records. The records in question are representations made by public representatives to the ODCA which refer to Mr AAG as Managing Director of the company; correspondence from solicitors acting for Mr AAG of the company; correspondence with the European Commission regarding the product; records of meetings between officials of the ODCA and Mr AAG; a record of discussions with other trade interests primarily about their own business but containing references to the company and Mr AAG.

Therefore, I have considered whether any of these documents could be said to relate to personal information about Mr AAG. In all cases the subject matter of the documents is the company, its products and its dealings with the ODCA. In my view, these records concern Mr AAG only in his capacity as Managing Director of the company and are not records relating to personal information about Mr AAG.

In coming to this view I have had regard to the definition of the term "personal information" in Section 2 of the FOI Act.

The Section provides that : ''personal information" means 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".

The section goes on to detail twelve specific instances of information which is personal.

The essential question to be decided in relation to all the records sought is whether they contain information about Mr AAG. Where a document contains a record of the views, comments or actions of a company director in relation to the business of the company or the views, comments or actions of another party in relation to the company director in his capacity as a director, I am of the view that the mere reference to the director by name in the record is not sufficient to enable it to be said that the record relates to personal information about the director. A company can only act through the agency of natural persons, generally its directors or employees. As a consequence it is almost inevitable that in a record referring to matters about a company or its business, references will also be made to such persons. In such cases it is necessary to decide whether the information in the record is about that individual or about the company.

While some of the records in question contain information about Mr AAG viz. that he was a director of the company, I do not consider this to be personal information, since, being on the public record, it does not come within paragraphs (a) and (b) of the definition. In my view the rest of the information in the records in question is information about the business of the company, which business was conducted in part by Mr AAG. Therefore, I find that the content of such records does not relate to information about Mr AAG.

In his submission, Mr AAG made two arguments which I can paraphrase as follows. The first argument is that he was so personally affected by the collapse of the company, caused, he believes, by the actions of the ODCA, that all records relating to the matter are records relating to personal information about him. His second argument is that he and the company were one, by which I understand him to mean that for the purposes of the FOI Act he can be considered as the same person as the company, and that all information relating to the latter can be treated as relating to him.

I find that I must reject the first argument. In my view the question of whether the records relate to personal information about Mr AAG has to be decided by reference to the content of the records rather than by considering the ultimate consequences of the actions and events to which these records relate. As indicated above, I consider that the content of these records does not relate to personal information about Mr AAG.

I must also reject the second argument. It is clear from the definition of "personal information" that the term can only apply to information about an identifiable individual, meaning a natural person as opposed to a legal person such as a company. In my view there is no basis for seeking to treat a company as the same person as its directors or shareholders or any of them, for the purposes of the FOI Act.

Submissions

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Findings

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Decision

Having carried out a full review of the original and subsequent decisions of the ODCA in this case, and having considered the arguments put forward in the submissions made to me by the relevant parties, I consider that the records in question were created pre-commencement, do not relate to personal information about Mr AAG as defined by section 2, and accordingly do not fulfil the requirements of Section 6(5) of the Freedom of Information Act, 1997. Therefore I affirm the decision of the ODCA to refuse access to the records.

Emily O'Reilly

Information Commissioner

25 August 1998