Case 010264. Request for administration records of the Planning Tribunal - whether section 27(1)(b) applies to spreadsheets of monthly expenditure by the Tribunal and fee notes supplied by legal professionals - whether section 28(1) applies to names of individuals recruited through employment agencies

Case Summary

Facts

A request was made by the Irish Examiner for the administrative records of the Tribunal of Inquiry into certain Planning Matters and Payments (more commonly known as "the Mahon Tribunal").

The records at issue consisted of: (i) estimates of the costs associated with running the Tribunal; (ii) salary and pension arrangements for Mr. Justice Flood (retired member of the Tribunal); (iii) fee notes and invoices submitted to the Department by barristers and others supplying services to the Tribunal; and (iv) correspondence between the Department and the Office of the Attorney General.

The Tribunal and the Department objected to the release of the records on a number of grounds, including the need to keep confidential (i) the identity of witnesses to the Tribunal, (ii) the names of recruitment agencies used by the Tribunal, and (iii) any commercially sensitive or personal information in the records.

Decision

The Commissioner found, as a matter of fact, that access to the records concerned would not disclose the identity of witnesses to the Tribunal and, given the age of the records, that disclosure of the identity of the recruitment agencies would not lead to unscrupulous individuals "infiltrating" the Tribunal, as feared by the Tribunal. The Commissioner directed that access be granted to all the records sought with the exception of records created by the Office of the Attorney General [section 46(1)(b)], records seeking or providing legal advice [section 22(1)(a)], and the personal information contained in some of the records [section 28] including names of individuals recruited through recruitment agencies.

Having examined the fee notes and invoices held by the Department, the Commissioner was satisfied that their release would not result in any commercial damage to those mentioned. In coming to her conclusion, the Commissioner took into account the age of the records, and the fact that overall fees paid to barristers had already been made public. The Commissioner also commented that, even if she were to accept that the notes and invoices were commercially sensitive, the strong public interest in the accountability of public funds would warrant their release.

Date of Decision: 20.09.2006

Our Reference: 010264

20.09.2006

The Irish Examiner

Dear Irish Examiner

I refer to your application for review of the decision of the Department of Environment, Heritage and Local Government ("the Department") to refuse to grant your request under the Freedom of Information Act, 1997 and Freedom of Information (Amendment) Act 2003, ("the FOI Acts"). Your request was for access to certain administration records relating to the Tribunal of Inquiry into Certain Planning Matters and Payments ("the Tribunal").

Summary of Decision

In summary, I have decided to vary the decision of the Department and direct that access be granted to the administrative records sought by you with the exception of: (i) records created by the Office of the Attorney General, (ii) records seeking or providing legal advice, and (iii) personal information contained in some records. I have carefully examined the submissions from the Tribunal and I am satisfied that disclosure of the records would not be detrimental to the sensitive matters dealt with by the Tribunal or cause any of the harms identified by the Tribunal in its submissions.

Background

In your original request to the Department you sought access to all records held by it relating to the operation of the Tribunal, including any correspondence between the Department and the Tribunal between 1 January 1999 and 16 May 2001. The Department refused to grant your request and, following a further refusal under 'internal review', you applied to my Office for a review of the Department's decision. You have made it clear that you are seeking access only to administrative records and not records that would affect the business of the Tribunal. The records sought by you included several hundred pages of records. During the course of my review and following consultations between my Office, the Tribunal and the Department, the Department agreed to release approximately half of these records. These records were made available to you in September 2005. The Department continued to refuse access to the remaining records. In October 2005, you agreed to confine your request to the remaining records created during the above dates and held on the following files. I appreciate your co-operation in this regard:

'General Matters' - File number PL 4/18/1/5

'Pensions & Payments' - File number PL 4/18/2/9

'Legal Fees' - File number PL 4/18/1/7A Part 1

Scope of Review

My review is concerned solely with the question of whether the decision of the Department to refuse access to the records held on the files listed above and created between 1 January 1999 and 16 May 2001, is justified.

Process of Review

Conduct of the Department

While a backlog of cases with this Office was the main reason for the delay in dealing with your application, this delay was further exacerbated by the position adopted by the Department during the course of my review. Following an application for review of a decision of a public body under the FOI Acts, my Office routinely requests copies of the records to which access was refused. The vast majority of public bodies respond promptly to these requests. In a small number of cases I am required to bring the public body's attention to the provisions of section 37 of the FOI Acts. Section 37 provides that I may examine and take copies of any record which I believe is relevant to my review. Having regard to section 34(1)(dd) this includes records which a public body claims are not subject to the provisions of the FOI Acts by virtue of section 46.

During the course of this review the Department, on advice from the Tribunal, refused to provide me with copies of the records sought by you on the grounds that it believed such records were "records of the Tribunal", (section 46 of the FOI Acts). Staff of my Office reminded the Department of my powers under section 37 and asked that the records be forwarded to my Office as soon as possible. However, it was not until further exchanges of correspondence that the records were received - nearly two months after they had been requested.

I wish to make two points in relation to the conduct of the Department. First, it is clear that the FOI Acts provide that I may have access to, and take copies of, any record relevant to a review and that such records should be forwarded to me without delay. This does not mean that such records will automatically be released to a requester. However, it is clearly essential that, other than in exceptional cases, I as Information Commissioner examine the records to which access has been refused in order to determine whether a right of access under the FOI Acts exists. Secondly, the Department has stated that the original decision to refuse access and the decision not to forward the records to my Office was "based on the advice of the Tribunal...". It is clear from the provisions of the FOI Acts that the decision to refuse or grant a request for records held by a public body must be made by the Head (or a delegated official) of that public body. The Department is a designated public body for the purposes of the FOI Acts while the Tribunal is not. While a Head or delegated official may consult either informally or in accordance with the provisions of section 29, with a third party, it is clear that the final decision must be made by the public body to which the request is made. The position adopted by the Department is of some concern to me. I have written separately to the Department drawing its attention to the need to ensure that such a situation does not re-occur.

Consultations with Third Parties

As the records concerned are administrative in nature they include details of payments made to individuals who provided services to the Tribunal. I have proceeded on the basis that the Tribunal's submissions and the decision of the Department have borne this in mind and I have had regard to the arguments put forward in these submissions. Nonetheless, I considered it appropriate to consult directly with a number of these third parties during the course of my review particularly those individuals who supplied 'fee notes' to the Department for payment of legal services. Given the fact that the records involved were created some five or six years ago it was not possible to contact all individuals mentioned. However, the vast majority of those I contacted had no difficulties in release of information relating to them, particularly as similar information has already been released into the public domain. One individual objected to release of information relating to him and indicated that he was relying on the submissions made by the Tribunal. Two other individuals chose not to reply to my correspondence. All three individuals had supplied 'fee notes' to the Department. Therefore, I have addressed the question of access to these 'fee notes' separately in my decision.

Findings

Before I set out my findings I wish to make two points. Firstly, section 34(12)(b) of the FOI Acts provides that, in a review, "a decision to refuse to grant a request ... shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified". This places the onus on the Department of showing, to my satisfaction, that the decision to refuse access was justified. I have also taken into account the comments received from the Tribunal. Secondly, any review by me under section 34(2) of the FOI Acts involves a "de novo" decision. This means that my decision is based on the circumstances and the law as they pertain at the time of my decision.

For the purposes of my decision I have adopted the numbering system used by the Department in its schedule of records forward to this Office on 20 October 2004.

General arguments from the Tribunal

The Tribunal has presented a number of general arguments relating to the possible disclosure of information in the records sought. The Tribunal has indicated that it is anxious to keep confidential the identity of certain witnesses to the Tribunal and the location of interviews it has conducted in private. I appreciate the sensitive nature of the work undertaken by the Tribunal and the necessity for it to receive information on a confidential basis where appropriate. Having carefully examined the records in this case I am satisfied that access to them would not disclose such matters.

The Tribunal has also objected to disclosure of the names of recruitment agencies used by the Tribunal. These names are listed in certain invoices. The Tribunal argues that such disclosure could lead to a breach of security by enabling certain unscrupulous individuals "infiltrate" the Tribunal by seeking recruitment with those agencies. In response, I would say that I assume, given the sensitive nature of its work, that the Tribunal takes appropriate measures to ensure that staff recruited from such agencies, or indeed any other source, are vetted to ensure that their employment does not pose a security risk to the Tribunal. In any event, the agencies listed in these records are those that the Tribunal used in 1999 and 2000. There is no guarantee that the Tribunal still uses those agencies today. Therefore, their use to any individual contemplating such action is extremely limited.

Section 46(1)(a)

The Department refused access to all records under section 46(1)(a). Section 46(1)(a) provides that the FOI Acts do not apply to records held by a tribunal and relating to proceedings in a tribunal, other than a record relating to the general administration of a tribunal. Your request was made to the Department for access to records held by the Department. The submission from the Tribunal of 21 September 2004 claims that the records are exempt from disclosure under section 46(1)(a) as they are also held by the Tribunal and, in this regard, it has referred to the definition of "a record" in the FOI Acts. However, the Tribunal has misinterpreted the definition. The definition of a record in the Acts includes a copy of a record. This means that an original and a copy are two separate records for the purposes of the Acts. Clearly, none of the records sought by you are held by the Tribunal, although separate copies and/or originals of these records may be held by the Tribunal. Therefore, I am satisfied that section 46(1)(a) does not apply in this case. In any event, it is clear from the nature of your request that you are seeking access to records which can be described as records relating to the general administration of the Tribunal.

Section 22(1A)

In its submission the Tribunal claims that section 22(1A) also applies to prevent release under the FOI Acts. Section 22(1A) provides that a public body may refuse to grant a request if the record concerned "relates to...the business or proceedings, of", a tribunal. However, section 22(1B) provides that subsection (1A) does not apply to "a record in so far as it relates to the general administration of, or of any offices of, a tribunal ...". Therefore, section 22(1A) does not apply in this case.

'General Matters' - File number PL 4/18/1/5

There is one record on this file which falls within the scope of your request. Record numbered by the Department as number 1 sets out the 'estimates' of costs associated with the running of the Tribunal for the period 1999 to 2001. The record does not name any individuals or contain any commercially sensitive information. Having examined the 'estimates' I am satisfied that none of the exemptions claimed by the Tribunal or the Department apply to the record and therefore I direct that access be granted to this record.

'Pensions & Payments' - File number PL 4/18/2/9

There are 47 records listed on this file which fall within the scope of your request. The records on the file concern the salary and pension arrangements for Mr Justice Flood, then "Sole Member" of the Tribunal. The records also contain information relating to the various increases due to Mr Justice Flood in line with the standard increases for his position, his salary on retirement, calculations regarding arrears of salary, relevant Department of Finance circulars and administrative arrangements for payment of the salary. Much of the information is repeated in the various records. The Tribunal claims that access to all these records should be refused as they contain the personal information of Mr Justice Flood.

Section 28(1) of the FOI Acts 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. However, such information can be released if the person to whom it relates consents to release.

Much of the information such as salary scales applicable to High Court judges, percentage pay increases due under the national wage agreements, etc. would not amount to personal information about Mr Justice Flood. However, a sample of the records was forwarded to Mr Justice Flood during the course of my review. Mr Justice Flood indicated that he had no difficulties with the information being released. Accordingly, I find that access should be granted to the 47 records on this file with the following exceptions:

• A number of the records contain Mr Justice Flood's bank account details, home address and personal tax details. I find that this is Mr Justice Flood's personal information and there is no public interest in its disclosure. Accordingly, access should be refused to the following records: 8 (section (e)), 12, 15, 18 (4th pgh, second line) 19, 20 (address), 21 (address ), 23 (eighth line re. PAYE/PRSI), 24 (address and 7th pgh. re bank account), 25 (address), 32 (address and customer number), 34 (address), 35 (address), 36 (address) and 37 (address).
• Record 38 is a Memorandum for Government dated 12 June 2000. Section 19(1)(a) provides protections for a record which "has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General and was created for that purpose,". I am satisfied that the Memorandum for Government is exempt from disclosure under section 19(1)(a).
• Record 44 contains information relating to an individual who is not connected with the Tribunal. While the record also contains passing references to Mr Justice Flood this latter information is reproduced in other records which I have found should be disclosed. Accordingly, I have considered this record as being outside the scope of your request.
• Record 47 is a copy of the Order establishing the Tribunal in November 1997. As this record was created before the commencement of the FOI Acts no right of access exists to it under the Acts.

'Legal Fees' - File number PL 4/18/1/7A Part 1

There are 26 records from this file which are listed on the Department's schedule and which fall within the scope of your request. These include 'fee notes' submitted by barristers working on behalf of the Tribunal. There are also eight records labelled as "Correspondence with the Office of the Attorney General", which are held on the Department's file and which are not scheduled.

The 26 records consist of (i) correspondence between the Department and the Office of the Attorney General/Department of Finance/the Tribunal concerning staffing, costs and resources of the Tribunal, (ii) discussions on increases in payment for solicitors/barristers used by the Tribunal and (iii) legal fees/fee notes submitted by barristers and solicitors employed by the Tribunal.

While no specific exemption has been quoted by the Tribunal, the Department claims that the records are exempt as they are communications with the Office of the Attorney General. I assume the Department is referring to section 46(1)(b) which excludes from the FOI Acts records created or held by the Office of the Attorney General other than a record concerning the general administration of that Office. None of the records were created or are held by the Office of the Attorney General. While some of the records can be described as communications to the Office of the Attorney General, they are concerned with administrative matters only and are not concerned with any other matters, such as requests for legal advice, for example. I have carefully examined each of the records and considered whether any other exemption may apply. However, I am satisfied that, other than the records described below, access should be granted to the 26 records on this file which fall within the scope of your request.

A small number of records contain comments about the level of skill and experience of some members of staff of the Tribunal and their relative rates of pay. I consider this to be personal information of those individuals and that the public interest in releasing the information does not outweigh the right to privacy of the individual concerned in these instances.

The references are contained in :

• Attachment to record 5 - a letter dated 2 November 1999, to the Secretary General, Department of Finance from a Principal Officer in the Department of Environment and Local Government (3rd para. 5th sentence commencing "It should be noted, ...").
• Record 12 (name of the senior counsel in 6th para.).
• Record 14 (second last paragraph),
• Record 17 and 29 (delete name of individual in the record and other identifying information in 1st para).
• Records 19 to 21 (private address)
• Record 38 (Delete from 3rd sentence, 2nd para to 1st sentence, 8th para.)

Fee Notes

The records on the file include a number of 'fee notes' submitted for payment by barristers representing the Tribunal during various legal proceedings in 1999 and 2000. The fee notes typically detail the total amount payable, the proceedings to which the fee relates and the nature of the fee, for example, a 'brief fee', 'refresher fee' or 'sitting day fee'. Some of the fee notes contain the home address of the barristers concerned and I find that this information is exempt from disclosure under section 28 of the Acts. As mentioned above, no specific exemption has been claimed by the Department or the Tribunal in relation to the substantive information in the notes. Nonetheless, for the sake of completeness I have considered whether section 27(1)(b) of the FOI Act can apply to the fee notes.

Section 27(1)(b) provides that a head shall refuse access (subject to the public interest test in section 27(3)) if access could reasonably be expected to result in a material financial loss to the person to whom the information relates or could prejudice the competitive position of the that person in the conduct of his or her profession. Given the nature and age of the information in question, together with the fact that overall fees paid to each barrister have been made public, I do not accept that disclosure of the information in the fee notes could cause the harms envisaged in section 27(1)(b). Even if I were to accept that section 27(1)(b) applies, section 27(3) provides that the subsection does not apply in relation to a case in which, the public interest would, on balance, be better served by granting than by refusing to grant the request. Given the very strong public interest in ensuring the openness and accountability in the expenditure of public funds I would find that the public interest in disclosure of the information in the fee notes outweighs any harm that could be caused to the individuals concerned.

Correspondence with the Office of the Attorney General

As mentioned above, there are eight records labelled as "Correspondence with the Office of the Attorney General" which are also held on the Department's file. As these records are not listed on the Department's schedule I have listed them in the Appendix to this decision. Six of the records consist of requests for legal advice and subsequent legal advice received from the Office of the Attorney General. I am satisfied that the correspondence from the Office of the Attorney General would be exempt from disclosure under section 46(1)(b) which excludes from the FOI Acts records created or held by the Office of the Attorney General other than a record concerning the general administration of that Office. The legal advice would not be regarded as concerning the general administration of the Office of the Attorney General. The requests for legal advice from the Department would be exempt from disclosure under section 22(1)(a) which protects records which would be exempt from production in proceedings in a court on the ground of legal professional privilege.

There are two other records also headed "Correspondence with the Office of the Attorney General". I have numbered these records as 'AG1' and 'AG2'. These are letters to the Office of the Attorney General dated 24 January 2001 (enclosing a fee note dated 19 January 2001) and 8 May 2001. These are not requests for legal advice but are concerned with sanction for fees charged by a barrister to the Tribunal. However, parts of record 'AG1' contain comments about the relative rates of pay of some members of staff. As explained above, I consider this to be personal information of those individuals and that the public interest in releasing the information does not outweigh the right to privacy of the individual concerned in these instances.

The references are contained in:

• 'AG1' - Letter dated 8 May 2001, (2nd pgh. last sentence and all of 3rd pgh.) listed on the Department's file 4/18/1/7A Part 1 as "Correspondence with the Office of the Attorney General".

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, as amended, I have decided to vary the decision of the Department in the manner described above.

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 a review must be initiated not later than eight weeks from the date of this letter.

Yours sincerely

Emily O'Reilly
Information Commissioner