Whether the Department's decision to refuse access to records under sectiuons 21, 23, 26, 27 and 28 of the FOI Act was justified.

Case Summary

The Commissioner found that the Department's decision is not justified and annulled the decision of the Department in this case and directs the release of the information sought. 

Date of Decision: 22.09.2009

Review Application under the Freedom of Information Acts 1997 & 2003 ("FOI Act") to the Information Commissioner

Background:

By letter dated 14 February 2008, the Applicant requested the following records from the Department for the years 2005, 2006 and 2007:

• "copies of records showing detections of a failure by an employer to pay the minimum wage
• copies of records showing any reports carried out into same and any correspondence entered into with the employer or the employee. Please also include copies of any sanctions, prosecutions etc which may have been brought. In other words, please include the entire and unedited file on each breach which was detected."

In its decision dated 18 March 2008, the Department refused access to all records sought. The Applicant then made an internal review request dated 26 March 2008. In its internal review decision of 22 April 2008, the Department released the name of and some limited additional information about the one company prosecuted for a breach of the National Minimum Wage Act, 2000 (NMW Act). Apart from that, access to all other records sought was refused.

The Applicant then appealed the Department's decision to my Office on 23 April 2008.

Ms. Brenda Lynch, Investigator of my Office informed all potentially affected parties of her preliminary views on the records and gave them an opportunity to make submissions to my Office. Officials of my Office met with the Department twice during the course of the review. In arriving at my decision, I have taken account of the following:

• the provisions of the FOI Acts
• submissions received from the Applicant
• submissions received from the Department
• submissions received from third parties who may be affected by the release of the records sought.

Scope of Review

The Applicant's original request was as set out above. When the application for review was made to my Office, in accordance with the usual procedures for conducting reviews, copies of all records the subject of the request were sought from the Department. The Department responded advising that it estimated that the records encompassed by the request amounted to some 12,804 records and over 30,000 pages and that it would not be practicable to assemble, collate and copy all such records. The Department also advised that the records sought were held by Labour Inspectors attached to the National Employment Rights Authority (NERA), a part of the Department, in various regional locations. My Office engaged with both the Applicant and Department and following these discussions, a revised scope of the review was agreed. In this context some information was provided by the Department to the Applicant in August 2008. The scope of the review was initially reduced to only cover 2007 cases. The Applicant also accepted that she does not wish to identify individual employees affected by underpayments of the National Minimum Wage.

In September 2008, with the agreement of the Applicant, the scope of the review was further revised to include, for cases dealt with by NERA in 2007, only the names and addresses of employers who accepted that they had underpaid 10 or more employees (as provided for in the National Minimum Wage Act), and had paid arrears to those employees accordingly.

The scope of this review is such that it does not consider any breaches which may have occurred under employment rights legislation, other than the NMW Act.

Submissions

.

Findings

Preliminary Matters

Identification of Records Relevant to the Review

Having agreed the scope of the review, it was then necessary to establish the records encompassed by this revised scope. The Department was initially asked to provide copies of the records the subject of the review on 8 May 2008. It advised that given the volume and location of these records, it would not be practible to provide them to my Office. Following the initial reduction in scope of the review, it was agreed that records for 2007 cases would be sourced from the Department's Reconcile Computer System. These records were drawn from the Reconcile computer system used by NERA and were included in a spreadsheet which showed the relevant information. I have previously taken the view that where the information sought can be extracted from a computer system or database, that this is an appropriate means of providing such information. There is no question of having to "create" the records sought by the requesters. The records already exist and it is just a matter of extracting them.

From the records available to my Investigator at that time, it appeared that there were five single enterprise employers encompassed by the revised scope of the review. During the course of the review, it became clear that not all relevant information was captured on the Reconcile system and some of the information in reports generated from that system was inaccurate. When this issue came to light the Department advised my Office that the Reconcile computer system is an old one which is being replaced and that there were "limitations as to the ability of the system to manipulate and extract data specific to the request". Given the inaccuracies which were identified, and while it is primarily a matter for the Department, I would be concerned if it is the case that a source of information that a public body accepts is inaccurate were to be used for reporting purposes. I understand from the Department that statistics included in the NERA Quarterly Bulletin are currently compiled manually. Given the inaccuracies identified, examination of the source files was required. My Office had to make six separate requests to the Department before all the relevant records were provided. Ultimately, in May 2009, this Office was required to seek relevant records for the purposes of the review directly from one employer.

The issue of the accuracy of the records was first noticed in October 2008, and it took protracted correspondence with the Department until May 2009 before the issue was resolved. This served to delay my Office's processing of the review by seven months.

Detailed examination of the source files provided by the Department showed that records relating to some of those five employers were not within the agreed revised scope of the review but other employers previously considered outside the scope of the review should in fact be within it. The outcome of this comprehensive examination of the source files is that five employers are considered to be encompassed by the scope of the review, three of which were among the original five whereas two others were not. In cases where a single employer operates multiple branches, these have been treated as one employer.

I will now outline the employers considered within the scope of the review. It should be noted that the number of employees affected are only some of the total number employed by each of these employers. While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3), as amended, that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record or of matter that, if it were to be included in a record, would cause the record to be an exempt record. This means that the description which I can give of the content of the records in this case is limited. I must refrain from disclosing information which any party contends is contained in an exempt record so as to preserve that party's right of appeal to the High Court.

Employer A:  A County Council Leisure Centre

Fourteen employees were affected and arrears were paid following the NERA inspection.

Employer B: A Hotel in Dublin

Eleven employees were affected. It appears from the records that the affected employees were underpaid from 1 Jan 2007 to 6 Feb 2007. The employer paid all employees at the correct rate from that date. The NERA inspection took place in August 2007 and arrears were then paid to 11 employees for the period 1/1/07 to 6/2/07.

Employer C: A Company in Co. Meath

Thirteen employees were affected. The breach was detected during a routine NERA inspection and arrears were paid. According to the employer, apprentices were paid at a percentage of the fully qualified worker rate and this had inadvertently slipped below the NMW as it rose. The situation was corrected following detection as part of a routine inspection by NERA.

Employer D: A Chain of Shops in Various Locations

Fifteen employees were affected. The breach was detected during a routine NERA inspection and arrears were paid. The employees affected were employed in multiple branches of the chain. According to the employer, the situation arose due to extended sick leave of the payroll manager when a substitute was filling in. No other breaches of employment legislation were found. The employer contends it provides a good benefits package for employees, and that adverse publicity could damage the business and jeopardise jobs in its consumer oriented business.

Employer E: A Fitness Club Operator

Eleven employees were affected in multiple branches. The breach was detected as a result of a complaint by an employee and arrears were paid following a NERA inspection. According to the employer, breaches related to sales staff, who receive bonus and commission on top of basic rate so when these are taken into account, rates of pay are above the minimum wage. However, when staff join or leave and earn little/no commission/bonus the basic rate was below the minimum age rate. This has now been corrected by the company and all employees earn at least the minimum wage rate.

It is relevant to draw attention to section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 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 on the Department the onus of showing, to my satisfaction, that the decision to refuse access to the records at issue in this case is justified in terms of the provisions of the FOI Act.

I also wish to point out that this review has been conducted in accordance with the provisions of the FOI Acts and in the context of this legislation. I have had regard to the different circumstances of the five employers in my consideration of the exemptions cited by the Department.

Analysis and Findings

In the Department's original decision, access to records requested was refused on the grounds of Sections 21(1)(a), 23(1)(a)(i), 23(1)(a)(iv), 23(1)(b), 26(1)(a), 27(1)(b) and 28(1). In the internal review decision, a small amount of information was provided and the same provisions, apart from 23(1)(b) were used as the grounds for refusing access to the remaining records. While sections 21(1)(b) and 26(1)(b) were not raised initially by the Department, they did arise in the course of the review. Having examined the Department's submissions, I am satisfied that all points made under Section 21 relate to Section 21(1)(a) and not to Section 21(1)(b). Therefore, I have considered these points under 21(1)(a) below and it is not necessary for me to make a finding in relation to Section 21(1)(b). As section 23(1)(b) was not relied upon in the internal review decision and the revised scope of the review is such that exemption from release under this section is not relevant, no further consideration of this section is necessary.

I will now address each of sections under which access was refused and set out my position in relation to the issues raised.

Section 21(1)(a)

Section 21(1)(a) provides for the refusal of a record where its release could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof".

Section 21(1)(a) envisages two potential types of "prejudice" which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the "effectiveness" of the tests etc. or that release will prejudice the "procedures or methods employed for the conduct thereof". The use of the word "effectiveness" in section 21(1)(a) of the FOI Act must be interpreted as the ability of the test, audit or inquiry to produce or lead to a result of some kind or the ability of the procedures or methods employed for the conduct of the test, audit or inquiry to achieve its purpose.

The harm test in section 21(1)(a) that must be considered is whether release of the record could reasonably be expected to "prejudice" the effectiveness of inquiries etc. conducted by the public body. A public body must firstly identify the potential harm that it considers might arise from disclosure of the records at issue to the inquiries, etc. that it conducts. Having identified that harm, it must then consider the reasonableness of any expectation that the harm will occur. In claiming that section 21(1)(a) applies, there must be a reasonable expectation of the anticipated harm arising from release.

Section 21(1)(a) is subject to the consideration of the public interest [section 21(2)], which provides that it shall apply where, on balance, the public interest in release outweighs the public interest in the records being withheld.

In its submissions, the Department outlined aspects of the operations of NERA which it contends could be prejudiced in the event that non-compliant employers were identified. The main concern relates to the voluntary cooperation of employers in rectifying an identified breach, including the payment of arrears due to the affected employees. While employers are required to provide inspectors with certain information under the NMW Act, when engaged in voluntary cooperation, NERA has advised that additional information, such as calculations of the arrears due, is usually provided. The Department stresses the importance of voluntary cooperation to it in the carrying out of its role and its view that release of the records though FOI will negatively impact on this cooperation as employers will not be incentivised to cooperate to the same degree if their names are likely to be published.

My understanding of the National Minimum Wage Act is that it provides formal powers to resolve cases where instances of non-compliance are identified. NERA inspectors have certain powers under the NMW Act which can be invoked by them for the purposes of the Act. These powers include, among others, requiring the employer to produce certain records and furnish information. Given that recourse to these powers is available to NERA inspectors when information is required from employers, I do not accept that the capacity of NERA to carry out its functions would be negatively affected by release of the identity of employers who have agreed to make restitution by payment of arrears to employees.

Other points raised about the potential impact on cooperation by employers with NERA can be addressed similarly - NERA has powers under the NMW Act and employers have no option but to comply should these powers be invoked. The Department's points out that the powers available to the inspectors under the Act do not include the power to order employers to comply with the legislation or to pay arrears, and where this happens as a consequence of the detection of a breach, it is due to voluntary cooperation by the employer. According to the Department, if this voluntary cooperation is not forthcoming, compliance with the legislation or payment of arrears can only be achieved by the Courts under Section 35 of the NMW Act or by the Rights Commissioner under Section 26 of the Act where a complaint is made to them. Section 26 of the NMW Act deals with the role of the Rights Commissioner. It provides that a decision of the rights commissioner may include an award of arrears and reasonable expenses and require an employer to remedy any breach of the NMW Act. This demonstrates that while the voluntary compliance of employers can achieve this outcome, there are alternative mechanisms provided for in the legislation which achieves the same effect. Sections 35 and 50 of the NMW Act are also of relevance. Section 50(2) provides that where there is a prosecution for an offence under the Act which results in a conviction, the Court may order the payment of arrears which it is satisfied are due to be paid. Therefore, where an employer does not engage voluntarily with NERA, there is a process in place to deal with the non-payment of arrears.

In her preliminary views, my Investigator made the point that there are other situations where names of individuals/companies are published where they accept that they are in breach of a statutory obligation. In its response, the Department made the point that with, for example the Revenue defaulters list, publication of names is subject to the sum involved being in excess of €30,000 and that the value of arrears in each case here is substantially less. While this may well be the case, there are other instances where adverse inspection reports have been released as a result of FOI and the inspection report relates to the situation as found by the inspector at a point in time. Similarly, where closure orders, which are publicised by the Food Safety Authority of Ireland, are served on food premises by Environmental Health Officers, this also relates to the situation at a point in time, regardless of whether the situation found reflects the prevailing situation. I do not consider therefore that the fact that the amount of arrears paid may not be particularly large is a valid basis for exempting the records. I have, however, as outlined above and below taken account of the number of employees affected.

It could be argued that if NERA were to adopt a policy of publicly identifying those employers who accepted that they were in breach of the legislation, it could have a positive effect in enhancing the ability of NERA to ensure compliance by employers with the terms of the NMW Act if such employers knew non-compliance could result in details of their non-compliance being published. Concern on the part of employers about being identified, whether through FOI or adoption of such a policy on the part of NERA, could incentivise employers to proactively ensure that they are fully compliant with the relevant employment rights legislation. The Department strongly expressed the view that employers would be less likely to cooperate with NERA in rectification of breaches of the NMW Act, if they are likely to be named anyway. However, it did not provide my Office with evidence to justify this position. NERA cite the example of two employers who, following the issue of summons, have approached them seeking to avoid court proceedings to support the contention that voluntary compliance works better. I would argue the opposite, however, as in a situation where the employers concerned did not act until faced with court proceedings, it appears to me they were more concerned about possible negative publicity than the fact that their employees had been underpaid. Therefore, if such negative publicity were to follow release through FOI, it would, in cases such as those cited by NERA, in my view be more likely to lead to increased rather than decreased compliance with the NMW Act.

Given the revised scope of the review at this time for the reasons set out above, I do not accept that release of records would prejudice the methods employed by NERA or the Department. Furthermore, the Applicant has made it clear on a number of occasions that they did not wish to obtain this information from the Department. Therefore, I find that Section 21(1)(a) is not a basis for refusing access to the records concerned.

The Public Interest

As I have found that section 21(1)(a) do not apply to the records, it is not necessary for me to consider the public interest test in Section 21(2). Were I to do so, however, I would find that there is a strong public interest in public bodies abiding by fair procedures in the manner in which they conduct their business in relation to individual persons. There is also a very strong public interest in transparency in relation to the manner in which public bodies conduct their business and in their being accountable for their actions which, after all, are taken on behalf of the public. On balance, I would find that the public interest would be better served by granting than by refusing the request.

Section 23(1)(a)

Section 23(1)(a) of the FOI Act provides that a public body may refuse access to a record if it considers that access could reasonably be expected to

(a) prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters...

(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal.

In the case of The Sunday Times Newspaper & Others and the Department of Education and Science (Decision No. 98104), the approach taken by this Office to interpreting the words "could...reasonably be expected to..." in the context of section 21 of the Act was explained. It stated that "in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur." In the case of Mr ABM & Others and the Office of the Revenue Commissioners (Decision No. 99017), this approach was adopted in reference to section 23(1)(a).

In its submission in relation to this section, the Department again made the point that the failure of employers to cooperate in the rectification of breaches of the NMW Act is a specific harm it envisages arising from the release of the records. This aspect has been addressed above in relation to Section 21.

While it does appear to be the case that a prosecution cannot be bought for the purposes of recovering arrears owed to employees, Section 50 of the NMW Act does provide for the Courts to order the payment of arrears where a prosecution leads to a conviction. The material on the one case where a prosecution was brought demonstrates that bringing such prosecutions can be successful, though I accept that in that case, the Court did not order the payment of arrears. Therefore, given the powers conferred on NERA in the NMW Act, I find that the Department has not provided me with sufficient evidence to justify a decision under section 23(1)(a)(i) of the FOI Act to refuse access to the records.

Furthermore, the point made that employers who do not pay arrears and are not prosecuted are "rewarded" does not seem to me to be a reasonable basis for refusing access to the records sought. This issue would more appear to be one for NERA to address in the way it goes about fulfilling its functions. It should also be pointed out that records relating to such cases where breaches of the NMW Act were detected but arrears were not paid were within the scope of the original request submitted to the Department, and it is open to the requester to submit a fresh request for this information.

As regards the reliance on the provisions of Section 23(1)(a)(iv) for refusing access to the records sought, the Department has advised that all the cases now within the revised scope of the request are now closed and so there are no ongoing proceedings which could be affected by the release of the records at this time. Therefore, I find that this basis of exemption is no longer relevant to this review.

Section 26(1)(a)

Section 26(1)(a) of the FOI Act provides that a record shall not be released pursuant to the FOI Act where the record containing the information was:

• given to the public body concerned in confidence, and
• on the understanding that it would be treated by it as confidential, and
• its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Section 26(3) requires the consideration of the public interest in respect of a record to which section 26(1)(a) applies.

The position adopted by this Office is that all four of these tests must be satisfied in order for a record to be considered exempt from release under this section of the FOI Acts. Given the statutory provisions available to NERA under the NMW Act, I do not accept that release of the records in this case would lead to refusal of other employers to provide NERA with relevant information. Therefore, I find that the third test of 26(1)(a) is not met in respect of any of the records concerned in this review, either in the original or revised scope. As in my view the records are not exempt under the third limb of 26(1)(a), I do not need to deal with any of the other aspects as all of the tests must be met in order for a record to be considered exempt.

Furthermore, as I do not consider the records exempt under Section 26(1)(a), I do not need to consider the public interest in the release of these records as provided for in Section 26(3).

Section 26(1)(b)

Section 26(1)(b) states that:

"(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if_

(a) [...], or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law."

The question is whether or not the NERA owes an equitable duty of confidence to the companies in respect of the record at issue. NERA accepts that there is no specific agreement or enactment covering confidentiality of the record, it follows that, in the absence of such agreement or enactment, section 26(1)(b) cannot apply. However, in the interests of completeness I have considered the NERA's contention that there is an equitable duty of confidence in this case and that release of the record would breach that duty.

The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611) in which Megarry, J. stated as follows:

'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'

All three of these elements must be met before disclosure would amount to a breach of an equitable duty of confidence. I will deal with each in turn.

(i) the information itself...must have the necessary quality of confidence about it:

The information at issue is the identity of the companies as having agreed to pay, and paid, arrears in lieu of their underpayment of wages in line with the provisions of the National Minimum Wages Act, 2000. I do not accept that recording the identity of an employer who accepted that underpayment of wage rates established by statute took place is undertaken in a context of confidence - such recording is an integral part of the NERA's statutory remit in ensuring compliance with the provisions of the National Minimum Wages Act, 2000.

(ii) that information must have been imparted in circumstances imposing an obligation of confidence:

The Department, in its submission to this Office on this case, has confirmed that there is a statutory requirement on employers to provide NERA inspectors with information on payment rates. Also, there is nothing in the NMW Act that requires such information to be treated as confidential by NERA. Given that this is a legal obligation the National Minimum Wages Act, 2000, places on employers, I do not accept that provision of such information imposes an obligation of confidence on NERA.

(iii) there must be an unauthorised use of that information to the detriment of the party communicating it:

The FOI Act provides a statutory right of access by members of the public to records held by public bodies, and places no restrictions on what a requester might do with records he or she receives in exercise of that statutory right of access. Accordingly, release of information under FOI is authorised and, therefore, the first part of this test can not apply as the use of information sourced under FOI is not unauthorised.

On this basis, I find that section 26(1)(b) does not apply to the record at issue.

The Department drew my attention to a recent decision of the Supreme Court, where it ruled that a report prepared by a NERA inspector could not be published, even though the Department wished to publish it. It contends that the effect of the Supreme Court decision is to prevent publication of a report and/or information where the legislation empowering a public body to carry out certain functions does not also contain any powers of general publication. Therefore, the Department submits that this should serve to prevent the release of the information sought under FOI. Were I to accept this position, it would mean that no information acquired by a public body in carrying out its statutory function would be released, save where there is a specific provision in the relevant legislation for such publication or release. This would negate the whole purpose of the FOI Acts which is according to the long title of the Act

"to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies.........."

Having considered the matter, I am satisfied that the Supreme Court judgement referred to by the Department applies to the circumstances of the particular case on which the Court made its decision, and does not have the wider implications submitted by the Department. Therefore, I do not accept the Department's contention on this point.

Section 27

Section 27(1) of the FOI Act provides that "subject to subsection (2), a head shall refuse to grant a request for a record if the record concerned contains

(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or

(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."

The essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The provision protects information whose disclosure:

• could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or
• could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation.

The word "could" in the provision allows for more generous latitude in refusing to grant access on the ground of perceived harm than the word "would". In relation to the second bullet point above, it should be noted that this part of section 27(1)(b) can apply even where such harm is not certain to materialise but might do so. However, in invoking the phrase "prejudice", the damage likely to occur as a result of disclosure of the information sought must be specified with a reasonable degree of clarity.

While I accept that the employers involved may be concerned that they may suffer some harm if their identities were disclosed, it is the case that no details of for example, the wage structure, hourly rates paid to employees, etc is being considered for release. The only information being considered at this stage is the name and business address of the employers where the number of employees affected exceeds 10, as the other information in the record has already been released to the Applicant.

In submissions to this Office, a number of the affected third parties outlined the circumstances in which they contend the breach of the minimum wage arose. In some cases it is contended that the breach was due to an inadvertent oversight or temporary absence of a key person with payroll responsibility. In previous decisions of the Information Commissioner dealing with access to nursing home inspection records, it was pointed out that the inspection report reflected the views, opinions and findings of the members of the inspection team at the time of the visit to the home. The Commissioner directed the release of such reports. Similarly, in this case, the request was for records held by the Department which met the scope as outlined earlier. Therefore, whatever the circumstances of the situation arising, the position is that five employers fall within the scope of the review on the basis of the findings of a NERA inspector. In each of these five, the employer has not disputed the findings when consulted by this Office.

I have had regard to the particular circumstances of each of the employers who fall within the scope of the review. Having considered the records all of the above, I find that Section 27(1)(b) applies to the information relating to four of the employers in that, in my view, the release of the information could prejudice the competitive position of the employer. The remaining employer is a public sector organisation and I find that Section 27(1)(b) does not apply to this employer. Having accepted that section 27(1) applies, I am required to consider the public interest in accordance with section 27(3).

In her preliminary views to the Department, my Investigator took the view that the public interest in this instance is better served by releasing this information than in withholding it and identified the factors considered. In its response, the Department set out a number of additional factors which, in its view, should be considered against release. I have listed and commented on those I consider most relevant below:

• the level of voluntary cooperation achieved by NERA to date. In my view, the release of employer identities under FOI would encourage, rather than discourage, greater proactive compliance which would better serve the interests of low paid employees.
• the fact that employees are more likely to obtain arrears owed as a consequence of how NERA conducts its business. I am not convinced that this is the case and there are other statutory avenues though which arrears may be obtained. Again, proactive compliance in the first place would be better and in my view this is more likely to be achieved by release than by non-release of the records.
• the publication of the five employer identities would achieve nothing further for the employees. While this is true, FOI provides for the release of information sought unless an exemption provided for in the FOI Act is found to properly apply. There is no requirement for the release to confer a benefit on the Applicant or the parties to whom the records relate.
• Publication of the names appears to be a disproportionate penalty given the amounts involved. I do not agree that this is so and would make the point that it remains the case that employees were being paid less than the minimum amount they were entitled to under the NMW Act.
• the cost of litigation as a consequence of employers refusing to cooperate with NERA. While litigation would be more costly than voluntary compliance, proactive compliance with the NMW Act would mean that neither inspection nor litigation costs would arise.

I have also considered the following public interest factors in favour of release:

• openness and transparency as to how public bodies conduct their business. NERA commented that the Quarterly Bulletin published by them adequately addresses this point in their case. However, in my view, this does not address the issue from the perspective of the employees affected.
• demonstrates that NERA have carried out their functions and have identified and addressed instances where the employer has accepted that underpayment has occurred under the NMW Act
• redress has been provided for employees concerned
• requesters exercising their rights of access under the Freedom of Information Act
• employers more aware of NMW provisions and ensure application of same and other employment rights legislation

Public Interest factors against release in my view include the following:

• these employers represent only a very small number of NERA inspections in any year
• information on NERA activities available through other channels
• employers level of voluntary cooperation with NERA

Having considered the matter, I find that on balance the public interest would be better served by granting than by refusing the information in each of these four cases.

Section 28(1)

Section 28(1) of the FOI Act provides:

"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".

Personal Information about Parties other than the Requester

Such information is exempt from release under section 28(1) of the FOI Act. There is a limited number of exceptions to this provision of the FOI Act. One exception is where the person (or persons) to whom the information relates has consented to its release, as provided for at section 28(2)(b) of the FOI Act.

While I accept that the Department was justified in relying on this provision to refuse access to some of the records sought in the original request, the current position with the revised scope of the request in that no personal information falls to be released and so it is not necessary to deal with the scope for exemption under this section in detail. I would also offer the view that, even if it were the case that release of the records would allow the employees to be identified, such information would be exempt from release under this section and such exemption would not be outweighed by the public interest in the circumstances of this case. If the names of the five employers along with the total amount of arrears paid is released, it would, in my view, not be possible to determine the amount of arrears paid to any identifiable employee. I accept that the potential to identify the employees affected could be an issue where only one or a very small number of employees were paid arrears on the basis of the employer accepting that there had been underpayments of the national minimum wage as provided for in the NMW Act. I am satisfied that the agreed confinement of the scope of the review to the identity of single enterprise employers where ten or more employees were affected means that individual employees could not reasonably be identified by the release of the identity of their employer.

Personal Information of the Employer

The Department has suggested that the information being considered for release could be regarded as personal information of the employer. My predecessor as Information Commissioner has considered the issue of whether the commercial activities of an individual can be regarded as personal information of that individual. In Case No. 98073, my predecessor 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. I agree with that view and am satisfied that the information in the current review is not personal information of the employer.

The Department also contends that the rate of pay to employees is also the personal information of the employer. I do not accept that this the case. Even if I were to accept this, in circumstances where the rate paid is less than the statutory minimum wage, it is likely that the public interest in favour of releasing the information would outweigh that against release.

Decision

I find that no exemption applies to the name and business address of Employer A as it is a public body. In view of my analysis set out above, I find that the only exemption which applies directly to the records of Employers B, C, D & E, which contain the names and business addresses of the employers who accepted that there had been underpayments of the National Minimum Wage and arrears have been paid, is Section 27(1)(b). I find, having considered the factors outlined above in the analysis of Section 27, that on balance the public interest is better served by granting than by refusing the records and therefore, the records should be released.

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Department in this case and direct the release of the records which contain the names and addresses of the five employers identified as being within the scope of this review.

Right of Appeal

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.

Emily O'Reilly

Information Commissioner

22 September 2009