Case 98073. Pre-commencement records - records relating to business dealings with the Department - whether records contained personal information about the requester - application of section 6(5).

Case Summary

Facts

The requester had considerable dealings with the Department of Enterprise, Trade and Employment over a number of years. The records at issue in this case included records relating to other parties, as well as to the requester, and internal memoranda of the Department regarding complaints, suggestions or comments by the requester about the work of the Department or FÁS. The requester operated under a business name and was not a limited company. In anticipation of the coming into effect of the Freedom of Information Act, the Department prepared a file which contained all the records of the requester's contacts with the Department. The requester sought access to this file but was refused access to all but three records on the file. The records refused were created prior to 21 April 1998 and were considered not to relate to personal information about him.

Decision

The Commissioner held that in order for information to be "personal information" within the terms of section 2, the information must be about an identifiable individual; but the mere fact that an individual is mentioned in a record does not mean that all of the information in that record is about him. He found that where information in the records in question was about the requester, it was not of a kind contained in the definition of "personal information". The Commissioner accepted as a general proposition that much information about the business affairs of a sole trader will not constitute personal information about the individual concerned. However, the views of a public body about an individual constitute personal information about him. He decided that parts of some of the records did contain such matter and should be released.

Date of Decision: 01.02.1999

DECISION

Background:

Mr AAZ applied to the Department of Enterprise, Trade and Employment on 25 June 1998 for access under the Freedom of Information Act, 1997 to all the records held on a certain file. The request was in five parts but all the records were held on this particular file. Mr AAZ has had considerable dealings with the Department over a number of years. In anticipation of the coming into effect of the Freedom of Information Act, the Department prepared this file, which contained all the records of Mr AAZ's contact with the Department. On 30 July 1998, the Department decided to refuse access to all but three records on this file in relation to four of the five parts of the request, as they were created prior to 21 April 1998 and were considered not to contain personal information about Mr AAZ. The fifth part of this request was refused on the grounds that the record did not exist.

Mr AAZ sought an internal review of the decision on 31 July 1998. The Department upheld the original decision on review.

Mr AAZ applied to me for a review of the Department's decision on 21 August 1998. This application was accepted and submissions sought from both parties.

Following receipt by my Office of Mr AAZ's application for a review of the decision of the Department, Mr AAZ agreed that a number of other applications for reviews which he had previously made related to records held on the file. It was agreed with Mr AAZ to review all those cases together.

In communicating its original decision to Mr AAZ, the Department sent him a schedule of the records on the file, indicating which records were being released and which were not. In the course of this review, my officials discovered that the file contained a further 25 records not disclosed in the schedule.

While scheduling records on foot of an FOI request is not a requirement of the Act, there is a requirement under section 8(2)(d) that Departments give an adequate statement of the reasons for refusal of a request, stating which provisions of the Act they are invoking, the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purpose of the decision. I consider that where there is a considerable number of records involved in a request, detailed schedules can give a clearer outline of the records considered under the request and the reasons for refusing access thus providing the requester with useful information on which to base his decision to appeal or not. In this instance I do not consider that Mr AAZ was provided with complete information and therefore could not make submissions regarding the 25 records omitted from the schedule. The existence of these records was brought to Mr AAZ's attention by my Office and he indicated that he wished to have them considered as part of the review. Mr AAZ indicated originally that for the purposes of the present review I could confine my consideration to three separate lots of records viz:

• the 25 records which had not been scheduled
• 15 records to which the Department had refused access under the Act but in respect of which it had indicated a willingness, at one stage, to release outside the Freedom of Information Act
• 16 records to which the Department refused access under the Act

Officials from my Office had extensive discussions with the Department and Mr AAZ in an attempt to arrive at a settlement. It became clear during these discussions that a high degree of mistrust exists between Mr AAZ and the Department and, in the event, a settlement did not prove possible. However, as a result of the discussions Mr AAZ did find it possible to greatly narrow the scope of his request. For example, some of the records which Mr AAZ had sought are exchanges of correspondence between him and the Department. Mr AAZ explained that he was not interested in this correspondence itself but he wished to see any annotations on the relevant records. Having been assured by my officials that certain of these records contained no meaningful annotations, he agreed to withdraw his request in relation to most of the records referred to above.

Mr AAZ has now agreed that the only aspect of the Department's decision which he requires me to review is the refusal of access to the records listed in the Appendix to this decision and numbered by my referencing OIC 62, 105, 108, 109, 114, 168, 212, 226 & 234.

The nine records which are the subject of this review can be broadly described as follows:-

• records which relate to other parties as well as to Mr AAZ,
• internal memoranda regarding complaints, suggestions or comments by Mr AAZ or ABA Associates about the work of the Department or FÁS.

The precise link between ABA Associates and Mr AAZ is not clear from the records furnished to me. Mr AAZ is variously described in correspondence from ABA Associates as senior partner or secretary. Mr AAZ explained that for a period of time he had tried to form a workers co-operative with a number of other individuals, under the name of ABA Associates. At one stage there had been an intention to form a limited company but this never came to pass. Mr AAZ explained to me that he was now a consultant and operated at present as a sole trader acting under ABA Associates's name. He claimed that he had applied to register the name of ABA Associates as a business name.

Submissions

I received submissions from both Mr AAZ and the Department in relation to this review.

The Department is arguing that following legal advice "personal information must be of an essentially private and personal nature, as opposed to information relating to the business affairs of the individual". In this case, the Department says that it does not accept that ABA Associates is Mr AAZ and Mr AAZ is ABA Associates. It was strongly submitted "that the dealings of this Department with ABA Associates represent dealings with a group of expert trainers of which Mr AAZ is but a senior associate".

Mr AAZ has argued in various submissions that "given the Department's definition of non-personal" there may well be records containing personal information about him on the particular file. In relation to the documents held on the "Mr AAZ" file (i.e. the file in question) he argues that "it is self evident that this is personal information. The Department disputes this". Mr AAZ has also commented that he "understands the DETE position is that they wish to push this issue up the line in order to get a definition of what is personal information. I must admit that I share their curiosity of seeing how the Commissioner will define personal information.....With respect to DETE, if they have no good grounds for not releasing the Mr AAZ file, it should be released outside of the Act". In a further submission he argues that he considers the advice that Departments are acting upon to be "one of the reasons that requesters like myself are running into difficulties obtaining information....The FOI Act does not use the expression "private" information but "personal" information. The business affairs of a small business or family business are very personal to the people involved".

Findings

All of the records requested in this case were created prior to 21 April 1998. It follows that there is a right of access to them under the Freedom of Information 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) of the Freedom of Information 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. It follows, therefore, that the sole matter at issue in this case is whether the records relate to personal information about Mr AAZ.

The term "personal information" is defined in section 2. 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. In addition, the definition provides for three specific exclusions of which the only relevant one in this case is that contained in subparagraph III of the definition which reads as follows:

"the views or opinions of the individual in relation to a public body, the staff of a public body or the business or the performance of the functions of a public body;"

Before dealing with the specific records in this case, I will make some general comments on the interpretation of the term "personal information".

The information must be about an identifiable individual; the mere fact that an individual is mentioned in a record does not mean that allof the information in that record is about him. The substance of many of the records which were originally the subject of this review, is concerned, not with Mr AAZ, but with the affairs of other parties. Mr AAZ's only connection with the matter is that, in one capacity or another, he represented those third parties.

Of course, in a literal sense, any mention of Mr AAZ in a record might arguably contain some information about him and his activities. For example, some of the records disclose such matters as Mr AAZ's attendance at meetings with officials or the fact that he represented certain parties. It would be possible to make substantial deletions to the records so as to leave only the information about Mr AAZ. The Department might query whether such an exercise could serve any useful purpose because the only matters disclosed would be matters of which Mr AAZ is already aware. Mr AAZ for his part might wish to ensure that the information about him was correct.

In the event, I have decided that no such exercise needs to be undertaken in relation to most of the records in this case. The reason for this is that even where the records contain information about Mr AAZ, it is clear in many cases that the information is not of the kind which comes within either (a) or (b) of the definition of "personal information" set out above. I do not accept that the information that Mr AAZ attended meetings in the Department on certain dates or represented certain third parties is something that would, in the ordinary course of events, be known only to him, his family or friends. Apart from anything else, where Mr AAZ acted in a representative capacity, I would expect these matters to be known to the parties being represented.

I also do not accept that Mr AAZ intended that his involvement in such matters should be treated as confidential by the Department. It may very well be that Mr AAZ intended that views which he expressed to the Department should be kept confidential. However, it would be most unusual, indeed almost unheard of, for an adviser representing a client to ask a public body to keep the existence of the client relationship confidential. Therefore, I have concluded that information, such as the fact that Mr AAZ attended meetings or represented certain parties, does not come within either paragraph (a) or (b) of the definition of "personal information". I would make the point here that in any case where a person genuinely wished a public body to confirm that dates on which meetings involving him/her had taken place or the names of those attending, it would be normal practice to release such information.

Some of the records at issue relate to the affairs of ABA Associates. As indicated earlier, the precise relationship between ABA Associates and Mr AAZ is not clear and it may have changed over the period with which these records are concerned. For the purposes of this decision it is not necessary for me to establish Mr AAZ's precise relationship with ABA Associates. Even if I were to accept that ABA Associates is merely a business name and that the matters contained in the records which relate to the work of ABA Associates are matters which relate to Mr AAZ's business, it does not follow that all such matters are personal information about Mr AAZ.

The question which I have to decide is whether records which concern Mr AAZ's business affairs contain personal information about him. As a general proposition, I accept that much information about the business affairs of a sole trader will not constitute personal information about the individual concerned. However, there can be exceptions. For example, information which discloses such a person's income is personal information about the person. Views or opinions about the individual may be personal information. On the other hand, information about individual transactions will often not be personal information. In many cases such information will be known to parties other than the family or friends of the individual - for example, to employees or customers or other business associates. In the present case, I do not consider it necessary to establish whether all of Mr AAZ's business dealings were known only to himself or to his family or friends. I am satisfied that the business matters which are contained in the records are not of a kind which, in the ordinary course of events, would only be known to the individual, his family or his friends and, therefore, the information does not come within paragraph (a) of the definition of "personal information".

It is still possible that some information about the business affairs of a sole trader could constitute "personal information", if it is held by a public body on the understanding that it would be treated as confidential, so as to come within paragraph (b) of the definition. In deciding whether business information of a sole trader comes within paragraph (b), I am of the view that it is necessary to look at the content of the information and the precise circumstances in which it was communicated to the public body. It is not possible to formulate a general rule to cover all circumstances.

Before dealing with the individual records in this case, I wish to draw attention to subparagraph III of the definition quoted above. As outlined above, some of the records in this case concern comments, suggestions or complaints by Mr AAZ about the work of the Department and/or about FÁS. In the light of subparagraph III, I do not accept that such records relate to personal information about Mr AAZ.

I will deal now with the individual records in this case.

Record number OIC 62

This record consists of a letter to the managing director of a company, ABB Ltd. from Mr AAZ. Mr AAZ has indicated that this letter is of no interest to him. However, attached to this letter is a second letter from a legal advisor to the managing director. Copies of both of these letters were received by the Department at a meeting on 27 February 1998. It seems from the second letter that Mr AAZ was at one stage a director of ABB Ltd. A dispute appears to have arisen between Mr AAZ and the managing director. The letter from the legal advisor contains advice to the managing director on how to deal with the situation. The letter contains a number of references to Mr AAZ by name. Given the purpose of the letter, as I have explained it above, this is hardly surprising. However, by reference to the general comments which I made earlier about the interpretation of the term "personal information", I am satisfied that some of these references contain no information about Mr AAZ and that in the case of any references which do contain such information, the information is not personal information about Mr AAZ.

Record number OIC 105

This is a copy of a background note dated 18 December 1996 from the Department to the Minister's Private Secretary outlining Mr AAZ's relationship with the Department to date arising out of complaints he had made regarding FÁS and the Department. Paragraphs 1 and 2 of this record contain information about Mr AAZ. The two paragraphs mention Mr AAZ's employment history and outline the Department's experience of dealing with him over the years. The Department's case is that material of the kind contained in these paragraphs - and, indeed, in the other records which are the subject matter of this review - arose in the course of Mr AAZ's business dealings with the Department and for this reason cannot be considered to be personal information. As I indicated earlier, much information about an individual's business affairs does not constitute personal information about that person. However, the views of a public body about an individual constitute personal information about him. In my view, the information in paragraphs 1 and 2 discloses the Department's views about Mr AAZ. It is true that each individual sentence taken in isolation may not do so, but it is clear that the statements taken together, are designed to give the reader a particular impression of Mr AAZ. In saying this I have taken into account the apparent purpose of this record. It is entitled "Mr AAZ and FÁS Co-operative Development Unit". The memorandum, from paragraph 3 onwards, is concerned with the (then) current dispute between Mr AAZ/ABA Associates and the FÁS Co-operative Development Unit. The first two paragraphs of the memorandum are not concerned with this matter. Their purpose, as I have said, appears to be to convey a particular view of Mr AAZ. In the circumstances, I find that this part of the records relates to personal information about Mr AAZ and access should be granted to it. The balance of the record is concerned with the dispute between Mr AAZ/ABA Associates and FÁS. Mr AAZ is mentioned by name, but having examined the record, I am satisfied that it contains no further personal information about him and that the Department is entitled to refuse access.

Record number OIC 108

This is an internal memorandum of the Department and refers to a letter from ABA Associates to FÁS regarding a scheduled meeting with FÁS to discuss Mr AAZ's complaint. I am of the view that records documenting the existence of Mr AAZ's complaint against FÁS, his views on FÁS and how it handled his claim, the views of FÁS and the Department on the merits of his claim (as opposed to their views about Mr AAZ) are not records relating to personal information about Mr AAZ. This memorandum is concerned solely with the complaint from Mr AAZ. He is mentioned by name. However, by reference to my earlier general comments on the meaning of "personal information", I am satisfied that the record contains no personal information about him.

Record number OIC 109

This record is a note of a meeting between FÁS and the Department dated 24 January 1997 to discuss the relationship between ABA Associates and these two bodies. Much of the record is concerned with dealings between ABA Associates or Mr AAZ individually and the Department or FÁS. It seems to me that, by and large, these matters are not personal information about Mr AAZ. The record is a history of individual transactions between Mr AAZ/ABA Associates and the Department or FÁS. Some of the references are solely to ABA Associates and some are solely to Mr AAZ. Having examined the record, against the background of my general comments on "personal information" I am satisfied that even if all of the references to ABA Associates were taken to be references to Mr AAZ, most of the information in the record is not personal information about Mr AAZ. However, scattered throughout the memorandum are references which clearly disclose what the participants thought about Mr AAZ - about his style of doing business, his competence, his ethics. In my view, this is personal information about Mr AAZ and it should be disclosed.

Paragraphs 2 and 3 of the record concern Mr AAZ in the sense of referring to his involvement with ABA Associates and summarising very briefly the history of his dispute with the FÁS Co-operative Development Unit. Paragraph 5 refers to the FÁS view of the then (current) position with ABA Associates. In contrast to record number OIC 105, this material discloses nothing of the Department's views about Mr AAZ. It simply discloses that he had differences of opinion with the Department on a number of business or policy issues. I find that this is not personal information about Mr AAZ.

Paragraph 4 describes Mr AAZ's relationship with FÁS and refers to Mr AAZ's handling of the matter. The description in the second sentence discloses the views of FÁS and the Department regarding Mr AAZ's style of doing business and, in my view, constitutes personal information about him.

Paragraphs 6-8 refers to ABA Associates and the FÁS Training Support Scheme. Paragraphs 6 and 7 give a brief history of this relationship. This discloses no information about Mr AAZ other than that he sought assistance under this scheme at various times. This does not constitute personal information about him.

Paragraph 8, while not specifically mentioning Mr AAZ, discloses that FÁS and the Department had reservations with regard to Mr AAZ's management of these applications and, in line with my earlier general comments on the meaning of the term "personal information", I consider that the views expressed disclose personal information about Mr AAZ.

Paragraphs 9,11 and 12 refer to the efforts of FÁS and the Department to establish the nature of the entity ABA Associates either as company or co-operative. Any reference to Mr AAZ discloses no information about him and therefore does not contain personal information.

Paragraph 10 refers briefly to Mr AAZ's employment history as a temporary employee with FÁS and as such contains personal information about him.

Paragraphs 13-19 deal with an application for funding in respect of what is referred to as a Measure 5 project. Of the seven paragraphs which refer to this matter, only three relate to Mr AAZ. Paragraph 13 documents FÁS expectations of how Mr AAZ will manage his application in light of their past experience of him. Paragraph 15 refers to suggestions made by Mr AAZ in relation to the running of Measure 5 projects and expresses an opinion about how Mr AAZ conducted some previous business dealings. Paragraph 19 expresses the views of FÁS and the Department in relation to the information which he provided in his previous applications. Having regard to my earlier general comments on the meaning of the term "personal information", I am of the view that the comments in paragraphs 15 and 19 disclose personal information about Mr AAZ. In coming to this conclusion I have taken into account the fact that the comments are not related to the merits or otherwise of the particular project. They are concerned with questions about the propriety of some of Mr AAZ's actions. I find that the comments are views or opinions about Mr AAZ and are therefore personal information about him.

Paragraphs 20-22 relate to the matching funding requirement for Measure 5 projects. Paragraph 20 details the views of FÁS in relation to the provision of matching funding for Mr AAZ's project. Paragraph 21 details how it came to this view. On the face of it these paragraphs are concerned with how Mr AAZ will fund the Measure 5 project. However, some of the comments in these paragraphs could be read as calling into question the propriety of some of Mr AAZ's actions. I find that the first sentence of paragraph 20 and that portion of paragraph 21 from the word "might" in line 6 to the end of the paragraph, contain personal information about Mr AAZ. I find that paragraph 22 does not contain any information about Mr AAZ.

Paragraph 23 details the views of the Department in relation to Mr AAZ's abilities to manage the Measure 5 project and contains references to Mr AAZ's employment history. I find that this is personal information about Mr AAZ. Paragraphs 24-26 of the memorandum contain suggested courses of action for dealing with Mr AAZ in the future. In my view, this material does not disclose any personal information about Mr AAZ.

Record number OIC 114

This is an internal memo which is concerned with a complaint made by Mr AAZ on behalf of a client. I have examined the record and consider that the only information regarding Mr AAZ contained in the record relates to his acting on behalf of his client. As I outlined above in my discussion on the meaning of personal information, I do not consider that the existence of a particular client relationship constitutes personal information about Mr AAZ. Accordingly section 6(5)(b) of the Act does not apply to this record and the Department is entitled to refuse access.

Record number OIC 168

This is a background note for the Tánaiste on a parliamentary question and refers to the complaints which Mr AAZ made to the Department on behalf of a client. Most of the information contained therein referring to Mr AAZ relates to his representative role on behalf of the client and the views of the officials as to the merits or otherwise of the complaints. This is not personal information about Mr AAZ. The record also refers to the ongoing dispute between Mr AAZ and the Department and indicates the approach which FÁS intends to take in dealing with Mr AAZ in the future. Neither is this personal information about Mr AAZ. Accordingly section 6(5)(b) of the Act does not apply to this record and the Department is entitled to refuse access.

Record number OIC 212

This record is an internal memorandum of the Department and it refers to a draft reply to a Dáil Deputy regarding representations made by him on behalf of Mr AAZ. These representations relate to the ongoing dispute which Mr AAZ was pursuing with the Department and FÁS. The memorandum provides background to the drafting of the reply to Mr AAZ. I do not accept that these matters constitute personal information about Mr AAZ. Accordingly, section 6(5)(b) of the Act does not apply to this record and the Department is entitled to refuse access.

Record number OIC 226

This is a copy of an e-mail dated 20 February 1998 which contains a note of a meeting between FÁS and the Department. I have examined the document and find that there is no personal information about Mr AAZ therein. Accordingly, section 6(5)(b) of the Act does not apply to this record and the Department is entitled to refuse access.

Record number OIC 234

This is an e-mail note of messages dated 8 April 1998 and 15 April 1998 which indicate that Mr AAZ had contacted the Gardaí in relation to the Official Secrets Act. I am of the view that, in certain circumstances, a record of the making of a complaint by an individual to the Gardaí could constitute personal information about the individual, because it could be argued that there is an implicit requirement that the record would be held by the public body on the understanding that it would be treated as confidential. However, given the nature of the complaint viz. that the Department was in breach of the Official Secrets Act, I am satisfied that the matter was not intended to be treated as confidential by the Department. I am also satisfied that it is not information which in the ordinary course of events would be known only to the individual and his/her friends and family. Therefore, having examined the record, I consider that section 6(5)(b) of the Act does not apply to this record and the Department is entitled to refuse access.

Decision

Having carried out a review of the decisions of the Department and having regard to the agreement on the scope of the review which was reached with Mr AAZ, I have decided to vary the decision of the Department in so far as it relates to records nos. OIC 105 and OIC 109.

With regard to OIC 105, I consider that paragraphs 1 and 2 disclose personal information about Mr AAZ and find that he has a right of access to this information having regard to section 6(5)(b). I direct that record number OIC 105 be released to Mr AAZ in accordance with section 13 with the non-personal information contained therein deleted.

With regard to OIC 109, I consider that the second sentence of paragraph 4, paragraphs 8, 10, 15 and 19, the first sentence of paragraph 20, that portion of paragraph 21 from the word "might" in line 6 to the end of the paragraph, and paragraph 23 disclose personal information about Mr AAZ. I direct, therefore, that this record be released to Mr AAZ, in accordance with section 13, with the deletion of the non-personal information contained therein.

I affirm the Department's decision in all other respects.

APPENDIX OF RECORDS CONSIDERED.

1. Record no. OIC 62 is a copy of letters given to the Department by the managing director of ABB Ltd. and noted received at a meeting of 27/2/98.
2. Record no. OIC 105 is a background note dated 18/12/96 from the Department to the Minister's Private Secretary outlining Mr AAZ and ABA Associates's relationship with the Department to date.
3. Record no. OIC 108 refers to a letter from ABA Associates regarding a scheduled meeting with FÁS and is a hand-written note regarding the Department's position or "concerns". Record no. OIC 109 contains notes of a meeting between FÁS and the Department dated 24/1/97.
4. Record no. OIC 114 is an internal Department memorandum dated 31/1/97 and relates to a client of ABA Associates.
5. Record no. OIC 168 is a background note to a parliamentary question for reply on 9/7/97.
6. Record no. OIC 212 is an internal memorandum of the Department and refers to the draft reply to representations made on behalf of Mr AAZ.
7. Record no. OIC 226 is a copy of an e-mail dated 20/2/98 which records events at a meeting with FÁS concerning an impending court case.
8. Record no. 234 is a note of e-mail messages dated 8/4/98 and 15/4/98.

Information Commissioner

01 February 1999