Case 99591, 99594, 99596, 99598, and 99606. Names of recipients and amounts of top 10 payments under the Arable Area Aid (AAA) Scheme and the Suckler Cow Premium Scheme - whether release would result in disclosure of personal information relating to recipients - section 28(1) - consideration of the public interest - section 28(5)(a)

Case Summary

Facts

A request was made for a list of the names of the recipients and the amounts of the top 10 payments under various agricultural schemes funded by the European Union (EU). Following notification of the affected parties under section 29, the Department decided to grant the request in the public interest in accordance with section 28(5)(a). Five of the affected parties, who were recipients under either the AAA Scheme or the Suckler Cow Premium Scheme, applied for a review of this decision.

Decision

The Commissioner considered it a close question as to whether identifying the affected parties as recipients of their respective payments under the schemes met even the threshold of the definition of personal information. He observed that the payments did not derive from any particularly private aspect of any individual recipient's life, such as family circumstances or inadequacy of means, but rather were intended to sustain the recipients' farming businesses. He also noted that payments did not necessarily represent the income of the individual recipients as opposed to one source of the total gross income of the particular farming enterprise.

In any event, the Commissioner found that public bodies cannot reasonably be expected to treat information relating to the payment of public money to an individual as confidential unless the circumstances show that the information is of an intrinsically private nature. He found no such circumstances to be present in this case. Nevertheless, given the position taken by the Department in its submission, he accepted that there may have been an understanding of confidence between the Department and the recipients and considered the issue of the public interest.

The Commissioner stated that the release of information about significant payments by public bodies to business firms, sole traders, or individuals should be the norm unless it would involve the disclosure of personal information and the consequential intrusion on the privacy of the recipients would outweigh the benefits of openness and transparency. As the intrusion on the privacy of the recipients would be minimal in this case, he concurred with the Department's finding that the public interest in granting the request outweighed the public interest in protecting the right to privacy of the individuals concerned. Accordingly, the Commissioner affirmed the decision of the Department.

Date of Decision: 27.11.2001

DECISION UNDER SECTION 34(2) OF THE FREEDOM OF INFORMATION ACT, 1997 IN RELATION TO CASE NUMBERS 99591 - MR. & MRS. ACG / 99594 - MR. ACH / 99596 - MR. ACI / 99598 - MR. ACJ / 99606 - MESSRS. ACK AND THE DEPARTMENT OF AGRICULTURE, FOOD AND RURAL DEVELOPMENT

Background:

[1.] On 22 September 1999, a request was made under the Freedom of Information Act, 1997 ("the FOI Act"), for a list of the names of the recipients and the amounts of the top 10 payments made in 1998 and 1999 under each of the following schemes administered by the Department of Agriculture, Food and Rural Development: the Arable Area Aid (AAA) Scheme; the Suckler Cow Premium Scheme; the Special Beef Premium Scheme; and the Deseasonalisation Slaughter Scheme. The Department notified the affected parties of the request under section 29 of the FOI Act, which provides for formal consultation procedures where a decision-maker opines that certain third party information should be released in the public interest. Subsequently, the Department issued a decision dated 1 December 1999 to grant access to the list requested for 1998. In its letter notifying the affected parties of the decision, however, the Department specifically noted that the addresses of the recipients were not being made available.

[2.] Five of the affected parties applied to me for a review of the Department's decision in accordance with sections 34(1)(f) and (4)(a) of the FOI Act. The five affected parties, who are otherwise referred to as third party objectors, were recipients under either the AAA Scheme or the Suckler Cow Premium Scheme. Not all of the affected parties raised an objection to the release of the amounts of the payments made under the schemes, but the five objectors challenged the decision to release their names in relation to the payments. In notices dated 18 January 2000, 20 January 2000, and 10 July 2000, respectively, I accepted the five applications for review.

[3.] In its decision, the Department did not explain its reasons for granting access to the list requested for 1998. I note that section 8(2)(d) of the FOI Act outlines specific requirements which apply to any decision to refuse a request for access, whether wholly or in part, but the FOI Act does not include a corresponding provision which relates to decisions to grant access. However, in The Freedom of Information Act - Compliance by Public Bodies, the recent report on my investigation into the practices and procedures adopted by public bodies generally for the purpose of compliance with the provisions of the FOI Act, I observed that "good administrative practice requires that users of public services should have the right to be given reasons for actions or decisions which affect them." Accordingly, I consider that, as a matter of good administrative practice, a decision affecting the interests of third parties should include an adequate statement of reasons.

[4.] In this case, my staff wrote to the Department to request information as to the rationale underlying its decision. Subsequently, my staff related the Department's response to the third party objectors. My staff also informed the third party objectors of the preliminary view that the Department's decision was justified and invited them to make submissions. One of the third party objectors argued that it was necessary to know the identity of the requester in order to make an informed submission, particularly in relation to his claim that the Department's decision to grant access to the list at issue was potentially harmful to him. However, my staff explained that it is not normally the practice of this Office to inform other parties of the identity of the requester, since the motivation of the requester is not relevant for the purposes of the review (section 8(4) refers). As no conditions are attached to the release of records under the FOI Act, the third party objector was advised to adopt the view that the release of information to a requester is the equivalent of placing the information in the public domain.

Submissions

The Department

[5.] In its submission, the Department confirmed that its decision to release the information requested was made in accordance with section 28(5)(a) of the FOI Act, which allows for the disclosure of personal information where the public interest in granting the request outweighs the public interest in protecting the right to privacy of the individual to whom the information relates. The Department stated that the public interest factors considered as weighing in favour of granting the request included:

• The public interest in the accountability of officials;
• The public interest in ensuring that public funds are being spent efficiently;
• The public interest in ensuring that public funds are being distributed equitably.

[6.] The Department stated that the public interest factors considered as weighing against the release of the information requested included:

• The public interest in protecting privacy;
• The entitlement of members of the public to a degree of personal privacy when they are dealing with government agencies.

[7.] The Department decided that, on balance, the public interest would be better served by releasing the information than by withholding it. The reasons for the decision were given as follows:

• "There is a strong public interest in the efficient and equitable distribution of all public monies, whether these are funded from the National Exchequer or funded by the European Union. Accountability for the payments of such monies rests with the responsible agent, in this case, the Department of Agriculture, Food and Rural Development. This accountability is best served where there is openness as regards the recipients of these funds and the amounts paid particularly when the sums of money involved are relatively large. (In this request, the Department was requested to release the names of the top ten recipients under the various schemes. Therefore, the sums involved are relatively large).
• The payment of the monies in question is the equivalent of the payment of an income for specific work carried out in accordance with set conditions by the recipients. Incomes paid from public funds are generally available to the public.
• From the point of view of ensuring the equitable distribution of public funds, and given that the amount of public monies distributed under the Schemes is significant (some £900 million per annum), there is a public interest in identifying where the public money is being expended. There is a general public interest in the distribution of public funds from both a regional and individual viewpoint. This is evident in Ireland from the public debate, particularly engaged in by farmers' representative organisations, on whether certain regions or certain farm sizes are being discriminated against. The disclosure of the information in question would inform this debate.
• There is a public interest in the disclosure of information that bears on the making and implementation of European Union policy. If the detailed information in respect of the recipients by way of region and farm size is available only to the policy makers, the value of the public debate prior to those policy decisions - on behalf of the possible recipients - is lessened in that key information is not available to all the interested parties. The availability in the public domain, of all information, which has a bearing on the outcome of policies to be implemented for the general good, is essential to the formulation of fair policy decisions."

Mr. & Mrs. ACG

[8.] The preliminary view letter issued by my staff suggested that the Department's decision was justified, because the intrusion on the recipients' privacy would be minimal in comparison to the degree to which disclosure would enhance openness and accountability in relation to the use of public funds under the schemes. In response, Mr. and Mrs. ACG maintained that information relating to income, including supplementary income, is a very private matter in Ireland and that disclosure would be intrusive and distressing to them. Mr. and Mrs. ACG acknowledged that there is a need to ensure that public funds are being used equitably and efficiently, but they indicated that the public interest in accountability is outweighed by the public interest in the protection of privacy in this case.

[9.] Mr. and Mrs. ACG also stated that their family farming business consists of five families with three herd numbers. Acting on legal advice, they used only one herd number for the purposes of their application under the AAA Scheme, which accounts for their position as one of the top 10 recipients. In their view, the disclosure of the requested information insofar as it pertains to them would therefore "give a distorted picture of the allocation of funds".

Mr. ACH

[10.] Mr. ACH, through his solicitors, also strenuously objected to the position taken in the preliminary view letter and took particular issue with the reliance placed in the letter on my decision in Mr. Richard Oakley, The Sunday Tribune Newspaper and the Office of the Houses of the Oireachtas, Case Number 99168, 3 OIC Dec. 26 (1999). He suggested that expectations of privacy are greater in rural areas than in a city centre. He also remained wholly unconvinced that there was any public interest to be served by the disclosure of the names of the recipients, stating that "such disclosure serves nothing but prurient interest and is the very stuff which furthers the sale of newspapers only, with no consequent benefit to society". In his view, the public interest in openness and accountability is sufficiently served by the information which is already available about his respective scheme, which includes the precise amount of the payment rates under the scheme. He stated that, in contrast to Case Number 99168, "there is no necessity whatsoever for a breakdown of a 'lump' of expenses" in view of the information available about the payments rates.

Mr. ACI

[11.] The preliminary view letter noted, among other things, that participation in the various schemes was widespread, with the top ten recipients representing a mere fraction of the total number of participants. In response, Mr. ACI argued through his solicitors that the release of the requested information would violate his constitutional right to privacy and potentially cause him harm without necessarily benefiting any "genuine" public interest. As the information sought about the various schemes is merely "a minute fraction of the whole", it is, in Mr. ACI's view, "the type of select information that is most often used to harm the people it relates to, by focusing on sensational shards of fact, rather than underlying trends and items of real importance".

Mr. ACJ

[12.] Mr. ACJ did not respond to the preliminary view letter, but in his application for review, he stated through his solicitors that the release of his name in relation to the payments would violate his right to privacy, particularly in relation to his financial and business affairs. He accepted that there could be a public interest in relation to the operation of the schemes. He therefore did not object to the Department's decision to release the amounts of the highest payments made under the schemes. However, he disputed that the release of the names of the recipients could be of substantive benefit to "any genuine and reasonable examination of the operation of the system" or that it could "assist at all in any objective analysis of the operation of the scheme." He suggested that, on the contrary, this information could sensationalise the issue and detract from any ensuing debate.

Messrs. ACK

[13.] Messrs. ACK responded through their representative by urging that further consideration be given to the uniqueness of their combined names. Previously, their representative had argued that the release of his clients' names would effectively nullify the Department's decision not to release the addresses of the recipients in their case. To support this contention, it was brought to my attention that the surname appears rarely in the various telephone directories.

Findings

Burden of Proof

[14.] Under section 34(12)(a) of the FOI Act, a decision to grant a request to which section 29 applies is presumed to have been justified unless the person concerned shows to my satisfaction that the decision was not justified. This provision has the effect of placing the burden of proof on the third party objectors to show that the names of the recipients and the amounts of the top 10 payments under the AAA Scheme and the Suckler Cow Premium Scheme should not be released.

Personal Information

[15.] Section 28 of the FOI Act prohibits the release of personal information about third parties unless the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the FOI Act, personal information is information about an identifiable individual that would ordinarily be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition, including "(ii) information relating to the financial affairs of the individual, . . . [and] (xi) information relating to the property of the individual (including the nature of the individual's title to any property)".

The Threshold Requirement

[16.] In this case, I consider it a close question as to whether identifying the third party objectors as recipients of their respective payments under the schemes meets even the threshold of the definition of personal information by qualifying as information about identifiable individuals. I note that the AAA Scheme is an income support measure which provides direct payments for eligible land used to grow cereals, oilseeds crops, and protein crops, provided that the applicable set-aside requirements are met. Likewise, the Suckler Cow Premium Scheme is an income support measure which provides direct payments to herdowners in the form of headage premiums for eligible animals. Under the Suckler Cow Premium Scheme, any participating herdowner who meets certain specified criteria receives a pre-determined premium per animal, subject to the applicable quota. Both the AAA and Suckler Cow Premium Schemes are funded by the European Union (EU) through taxpayer money, and in Ireland are administered by the Headage and Premia Division of the Department, which requires applicants under various schemes to submit an area aid application.

[17.] The purpose of these and other EU-funded agricultural schemes is to compensate the farming community for the reductions in market support prices which have resulted from reforms of the Common Agricultural Policy (CAP). Accordingly, participation in the various schemes is widespread, with 133,000 area aid applications having been received in 1998. I note that many of the applications relate to more than one scheme and that, for instance, in the case of the AAA Scheme, only 10 percent of recipients apply solely for that particular scheme; 90 percent of recipients apply for at least one other scheme. I further note that, as indicated by the third party objectors, the payment rates under the schemes are publicly available. In 1998, payments under the General AAA Scheme ranged from £274.06 to £530.06 per hectare, depending upon the use made of the land, and the premium for suckler cows was £140.23 per eligible animal. I am also informed by the Department that the total amounts of the payments in 1998 under the AAA and Suckler Cow Premium Schemes were £94 million and £150 million, respectively. The particular payments at issue in this review are in the hundreds of thousands for the AAA Scheme and in the tens of thousands for the Suckler Cow Premium Scheme.

[18.] It should be apparent from the above description of the schemes that the payments do not derive from any particularly private aspect of any individual recipient's life, such as family circumstances or inadequacy of means. This case is therefore distinguishable from other cases involving, for instance, social welfare payments or third level education grants. Rather, as stated in an EU publication entitled CAP Reform - A Policy for the Future, payments under the agricultural schemes, being part of the CAP reform, are intended "to ensure that agriculture can be maintained over the long term at the heart of a living countryside". In other words, the schemes are concerned with sustaining the recipients' farming businesses. In relation to a similar scheme in Queensland, the Queensland Information Commissioner stated in Pearce and Qld Rural Adjustment Authority; Various Landholders (third parties), [1999] QICmr 8 (4 Nov. 1999): "The grant of money was provided to each of the third parties for the purposes of assisting and supporting their farming or rural businesses, i.e., for business rather than personal purposes."

[19.] In Mr. AAZ and the Department of Enterprise, Trade and Employment, Case Number 98073, 2 OIC. 42, 47-48 (1999), I stated that, "[a]s 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." I noted some exceptions, however, including information which discloses the individual's income. In this case, the payments under the schemes do not necessarily represent the income of the individual recipients as opposed to one source of the total gross income of the particular farming enterprise. I am informed that a particular payment amount under the schemes could nevertheless reveal certain other information about the farming enterprise, such as an estimate of the size of the farm or, in the case of the Suckler Cow Premium Scheme, the amount of the suckler cow quota. However, I consider this type of information to be more in the nature of business information than personal information about an identifiable individual. Indeed, as in the case of Mr. and Mrs. ACG, the information may not even relate solely to the farming business of the individuals named as the recipients of the payments, but rather to other individuals involved in the business as well.

[20.] It is noteworthy that the FOI Act specifically excludes from the definition of personal information, information about an identifiable individual where that individual provides a service for a public body under a contract for services. Under the Criminal Legal Aid Scheme, payments are made to solicitors and barristers to compensate them for providing legal aid to defendants in criminal cases. Even before the enactment of the FOI Act, the Department of Justice, Equality and Law Reform had a policy of releasing upon request lists of the recipients under the Criminal Legal Aid Scheme and the amounts received. The lists are released in their entirety, without consultation with the recipients and irrespective of whether the recipients are located in rural or urban areas. The Department of Health and Children also publishes the fees paid to medical doctors participating in the General Medical Services (GMS), or "medical card", Scheme. I make this point simply to illustrate that the dividing line between personal information and business information is not always clear-cut. In short, I have reservations about whether the information requested in this case meets the threshold of the definition of personal information.

Understanding of Confidence?

[21.] Even assuming that what is at issue qualifies as information about identifiable individuals, the Department's administrative functions in relation to the schemes and the processing of claims and payments means that it is not information that would, in the ordinary course of events, be known only to the individuals concerned or members of their family or friends. Therefore, I must determine whether it is information that is held by the Department on the understanding that it would be treated as confidential.

[22.] In Case Number 99168, which involved a request for access to the total expenses paid to each member of the Houses of the Oireachtas, I observed that, as a general matter, "the FOI Act does not affect existing understandings that information about an individual of an essentially private character be treated as confidential." I queried whether such an understanding exists in relation to the payment of public money to individuals, be they members of the Oireachtas or employees of a public body. I considered it noteworthy that the payments to the members of the Oireachtas did not arise out of some private activities or private aspect of their lives. Ultimately, however, I accepted the representations of the Office of the Houses of the Oireachtas that there was an understanding with the members that details of their expenses would be treated as confidential. Nevertheless, I found that the information should be released in the public interest.

[23.] In light of my decision of Case Number 99168, I do not consider that public bodies can reasonably be expected to treat information relating to the payment of public money to an individual as confidential unless the circumstances show that the information is of an intrinsically private nature. No such circumstances are present in this case. As discussed above, the payments under the agricultural schemes do not necessarily represent the total gross or net income of the recipients from their farming businesses and, thus, are not even analogous to salary information.

[24.] Most payments by public bodies to individuals, as distinct from businesses (including sole traders), are usually related to the personal circumstances of the recipients. Examples include social welfare payments and third level education grants, which I referred to earlier. It is difficult to find examples outside of agriculture where grants are paid to individuals without reference to the private aspects of their lives. One such example, however, is the Equal Opportunities Childcare Programme administered by the Department of Justice, Equality and Law Reform, under which grants are made available to the childcare sector, including private childcare providers. Significantly, as with the Criminal Legal Aid Scheme, the policy of the Department of Justice, Equality, and Law Reform is to release upon request the entire list of recipients of the childcare grants. Another such example is the International Carding Scheme, which until recently was administered by the Department of Tourism, Sport and Recreation. Under the International Carding Scheme, the Department of Tourism, Sport and Recreation paid grants to individual athletes and published details of the payments in its annual reports. These examples show that the payment of public money to private individuals does not necessarily carry with it an understanding of confidentiality. I also do not accept that, as a general matter, expectations of privacy are higher in rural areas than in city centres, where there is often a higher rate of mobility and less intimacy among neighbours.

[25.] However, in this case, the position taken by the Department in its submission indicates that it understood the names of the recipients and the amounts of the top ten payments under the agricultural schemes to be personal information about the recipients. I also note that the payments were made prior to the decision in Case Number 99168. In the circumstances, I accept that there may have been an understanding of confidence between the Department and the recipients. Therefore, while I do not necessarily agree with the Department's approach, I will nevertheless address the issue of the public interest as it arises under section 28(5) of the FOI Act.

The Public Interest

[26.] For the reasons stated above, I am not persuaded that the information requested is of an intrinsically private nature. Briefly, payments under the agricultural schemes are intended to sustain the farming businesses of the recipients in accordance with EU policy, and eligibility does not depend upon any means test, family circumstances, or other particularly private aspect of the recipients' lives. Moreover, given the widespread participation in the various agricultural schemes, I see no basis for concluding that any stigma or embarrassment would be associated with the payments. Accordingly, I am of the view that disclosure would involve, at most, a minimal intrusion on the privacy of the individuals concerned.

[27.] On the other hand, my decisions in Case Number 99168 and other cases involving the use of public funds (see Telecom Éireann and Mr. Mark Henry, Case Number 98114, ___ OIC ___ (13 Jan. 2000); Henry Ford & Sons Limited, Nissan Ireland, Motor Distributors Limited and the Office of Public Works, Case Number 98049, 2 OIC Dec. 144 (1999)) show that I attach great weight to the public interest in ensuring maximum openness in relation to public expenditure. Accordingly, I believe that any recipient of a large amount of public funds should have a diminished expectation of privacy or confidentiality in relation to those funds. Although area aid applications are subject to controls and inspections, this does not negate the need for openness about the administration of the schemes.

[28.] In relation to the reasons given by the Department in support of its decision, I note that information about the amounts of the payments and their distribution by farm size and geographic area is essential to any analysis or scrutiny of the economic and social effects of agricultural policy. The effects of agricultural policy on farming income, the economics of farming, and on regional distribution of income are clearly important considerations. Accordingly, I agree strongly with the Department's decision so far as the release of information about the payment amounts is concerned.

[29.] As for the benefit of releasing the names of the recipients, the Department argues that accountability is best served where there is openness about the recipients of public funds and the amounts paid, particularly where the sums of money involved are relatively large. Again, I agree. As I have already stated in Case Number 99168:

"On a general level, I do not accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against fraud, waste and misuse of funds. I consider that the public interest in openness about public expenditure is of very great significance."

In Case Number 99168, I also explained that I do not accept that true accountability for the use of public funds can be achieved through disclosure of expense details on an anonymous basis. In my view, the release of information about significant payments by public bodies to business firms, sole traders, or individuals should be the norm unless it would involve the disclosure of personal information and the consequential intrusion on the privacy of the recipients would outweigh the benefits of openness and transparency. In this case, I have already found that the intrusion on the privacy of the recipients would be minimal.

[30.] As for the concerns raised by Mr. and Mrs. ACG, I point out that I have stated in numerous cases, including Case Number 99168, that I not accept that the possibility of the public misunderstanding information is, generally speaking, a good cause for refusing access to the records of public bodies. In this case, the lists of recipients have not been shown to be inaccurate. For instance, it is my understanding that Mr. and Mrs. ACG are the only registered recipients of the top 10 payment they received in 1998. Moreover, I trust that the Department is capable of explaining that the payments relate to the recipients' farming businesses, which may involve other individuals.

[31.] In short, I concur with the Department's finding that the public interest in granting the request for the names of the recipients and the amounts of the top 10 payments under the AAA and Suckler Cow Premium Schemes outweighs the public interest in protecting the right to privacy of the individuals concerned. I emphasise that, as the public interest in accountability requires the disclosure of identifying information about the recipients, the purported uniqueness of Messrs. ACK's combined names does not alter my conclusion. Accordingly, I find that the third party objectors in this case have not discharged the burden of proof under section 34(12)(a) of showing to my satisfaction that the Department's decision was not justified.

[32.] Before rendering my decision, I will address briefly the claim that affirming the Department's decision would violate the recipients' constitutional right to privacy. The plain language of section 28(5) recognises that the right to privacy is limited by allowing it to be overridden by countervailing public interest factors in favour of release of the personal information at issue. To the extent that the validity of this provision is being questioned, I add that I do not consider it within my remit as Information Commissioner to entertain constitutional challenges to the statute that I am charged with administering.

Decision

[33.] Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department of Agriculture, Food and Rural Development.

Emily O'Reilly

Information Commissioner

27 November 2001