Case 020248. Request for access to specific salary details of public sector employee - whether excluded from definition of personal information by virtue of exclusion at (I) - section 28

Case Summary

Facts

Mr X sought access to the contract of employment of Mr A, a journalist with RTE . The contract of employment detailed the specific salary of Mr A and his conditions of employment, which were similar to most journalists employed by RTE. RTE refused access to the contract under section 28(1) of the FOI Act but provided Mr X with a copy of a standard contract for journalists and the salary scale applicable to the position held by Mr A. Mr X applied to the Commissioner for a review of the decision of RTE.

Decision

While the Commissioner directed that access be given to most of the contract, the Commissioner's decision found that details of the specific salary of a public sector employee, who holds a position to which a published salary scale applies, are not excluded from the definition of personal information by sub-section (I), and that its release would involve the disclosure of personal information. The decision found that the salary scale and not the specific salary of Mr A, is information relating to the position held or the terms upon which the individual holds the position. There was no public interest strong enough to outweigh the right to privacy of Mr A in this case.

This decision has applications to most public sector positions to which a salary scale applies. It is possible that different considerations would arise if no scale applied to the particular position, or if the gap between the minimum and maximum of the scale was so large as to make it meaningless.

For research see also:
Rubin v Canada (Privy Council, Clerk (1993) 48 CPR (3d) 337)
Maeve McDonagh- FOI Law in Ireland : Page 278/279

Date of Decision: 18.07.2002

Our Reference: 020248

18.07.2002

Mr X

Dear Mr X

I refer to your applications for a review of the decisions of RTE in relation to access to records relating to guidelines that RTE news staff must comply with and to Mr A's employment contract with RTE.

Background

I have been authorised by the Information Commissioner to carry out this review on his behalf. I have now completed my review of RTE's decisions. In carrying out that review I have had regard to your submissions of 16 April (mistakenly dated 16 March), 13 June, 14 June (mistakenly dated 14 March) and 19 June 2002. I have also had regard to RTE's submissions of 4 April, 14 May, 28 May and 21 June 2002. As your requests overlap in respect of the records sought, I have decided to deal with both applications together in this decision.

Scope of Review

This review addresses the request you made under the Freedom of Information (FOI) Act dated 21 December 2001 and three separate requests dated 25 March 2002. I am satisfied that these requests can be summarised as requests for copies of:

• RTE's booklet prepared in accordance with section 15 of the FOI Act,
• records listed in your request dated 25 March 2002 and described in your subsequent request for internal review as "records about guidelines that RTE staff must comply with" and,
• Mr A's contract with RTE.

RTE has provided you with a copy of its 'section 15' booklet. Accordingly my review is concerned with whether RTE's decisions in relation to your request for access to records concerning guidelines that RTE staff must comply with and a copy of Mr A's contract, is justified.

Findings

Records concerning guidelines that RTE staff must comply with

[not relevant to published letter decision]

Mr A's contract of employment with RTE

RTE refused access to Mr A's contract under section 28(1) of the FOI Act. However RTE provided you with the standard contract for journalists commencing employment with RTÉ which, it has indicated, is identical to Mr A's contract with the exception of the precise salary being paid to Mr A. In addition RTÉ has supplied you with the salary scale applicable to the post held by Mr A. This scale details the minimum and maximum amounts payable, and the annual increments applicable, to the post held by Mr A. However it is clear to me that what you are seeking is a copy of Mr A's contract which was signed by Mr A and dated July 1999 and it is access to this record which my decision addresses.

Section 28(1) of the FOI Act provides that a public body should refuse to grant a request where access to the record would involve the disclosure of personal information about someone other than the requester.

'Personal information' is defined in section 2 of the FOI Act and includes 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,

and without prejudice to the generality of the foregoing, includes - ...

(ii) information relating to the financial affairs of the individual,...".

I have examined the contents of Mr A's contract and I am satisfied that the only part of the contract that meets the definition of personal information is the specific point on the salary scale that Mr A has been assigned to.

I have considered whether Mr A's specific salary is excluded from the definition of personal information by virtue of the exclusion at (I). Sub-section (I) provides that personal information does not include -

" in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,".

I have considered therefore whether Mr A's specific salary can be said to be "information relating to the office or position" held by Mr A or the "terms upon and subject to which" Mr A holds that office or position. It seems to me that the assigning of an individual to a particular point on a scale can often derive from some personal aspect of an individual's life. For instance, in the public service an individual is often assigned to a particular point on a scale having regard to their previous income or position. In other instances individuals can be allocated a point on a scale as a result of long service, performance or qualifications. Having considered the matter, I am satisfied that the salary scale applicable to the post, as opposed to Mr A's point on that scale, can be said to be information relating to the office or position held by Mr A and as such does not constitute personal information. I find that, in this case, access to Mr A's specific salary would involve the disclosure of personal information of Mr A.

Public Interest

Section 28(5) provides that personal information about an individual can be released to a third party without the individual's consent where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld.

I acknowledge the right to privacy of Mr A in relation to details of his earnings and recognise the importance attached to the protection of privacy. I also acknowledge that this case involves the expenditure of public funds by RTÉ. I consider that the public interest in openness about public expenditure is of very great significance. Mr A is employed under a contract to which a salary scale attaches. In this case, the salary scale that applies to Mr A has been made known and I consider that this sufficiently addresses the public interest in the use of public funds. Accordingly, I find in this case that the public interest in upholding the right to privacy of Mr A is not outweighed by the public interest that the request should be granted.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby vary the decision of RTE in this case in that I direct that access be granted to Mr A's contract with the deletion to the amount of his specific salary at paragraph 4.

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.

Yours sincerely

Senior Investigator