The Senior Investigator affirmed the Department's decision.

Case Summary

Whether the Department is justified in withholding certain parts of records on the grounds that they contain personal information of persons other than the Applicant.

Date of Decision: 21.05.2010

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

Background:

On 2 July 2009, the Applicant made an FOI request to the Department seeking various details of appointments to the Board of Governors and Guardians of the National Gallery of Ireland ("the Board").

In its decision of 10 August 2009, the Department agreed to release certain records in full or in part and withheld certain records and parts of records on the grounds that they constituted the personal information of identifiable individuals. The Department quoted section 28 of the FOI Act in support of its decision.

On 3 September 2009, the Applicant requested an internal review of the Department's decision in relation to the following records and parts of records that had been withheld, as listed by the Department in its correspondence with the Applicant:-

8, 29, 30, 33, 37, 47, 48, 50, 51, 52, 54, 55 and 70.

On 24 September 2009, in its internal review decision, the Department upheld its original decision save for record number 33 which it agreed to release redacting only the name of a board member whose membership preceded the time frame of this FOI request. On 9 October 2009, the Applicant sought a review by the Commissioner of the Department's decisions. In making his request the Applicant confirmed that he accepted the Department's decision to withhold private addresses, phone numbers, mobile numbers and email addresses. However, he also indicated that he considered that it is in the public interest that the other records, relating to both those actually appointed to the Board and also those considered for appointment, should be released. These records include the curriculum vitae (CV) of one person who was appointed to the Board and also CV type information notes on several other people, prepared by Department officials, to inform consideration of the possibility of their appointment.

These other people were not subsequently appointed to the Board and the Department's decision to withhold these records is considered below.

In relation to the CV of the person appointed to the Board, following correspondence with this Office, and with the agreement of the person concerned, the Department agreed to the additional release of those parts of the appointee's CV which it was considered were relevant to his appointment. The rest of the CV however continued to be withheld on the grounds that it was the personal information of the appointee and was not relevant to his appointment as a Board member. In addition, the Department has confirmed that it is prepared to release in its entirety record number 37.

The Applicant, as is his right, confirmed that he felt it was in the public interest that there be full disclosure including the details of those considered for but not subsequently appointed to the Board. I am therefore now proceeding to a formal binding decision which can be appealed to the High Court.

Conducted in accordance with section 34(2) of the FOI Act by Mr Seán Garvey, Senior Investigator, Office of the Information Commissioner, (authorised by the Information Commissioner (" the Commissioner" ) to conduct this review).

Scope

This decision is confined to the question as to whether the Department is correct in withholding information which it deems to be personal. This information consists of that portion of the Board member's CV which has been withheld and also the names and details of people considered for but not subsequently appointed to the Board, including some former Board members who were not re-appointed on completion of their term of service. Specifically, the applicant has accepted the redaction of addresses and telephone numbers on the grounds that they constitute the personal information of the individuals involved. The Department has confirmed it is prepared to release record 37 in full, and the redacted portion of record 33 is outside the time frame of the applicant's original FOI request. Accordingly, both these records are outside the scope of this review and there is no need for me to consider them further.

Accordingly, the scope of this review is confined to:-

8, 29, 30, 38, 47, 48, 50, 51, 52, 54, 55 and 70.

I would like to make the point that while I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the content of an exempt record in providing such explanation. This is to preserve the right of appeal of all parties to the High Court in cases where there is disagreement with a decision I might make.

In reaching my conclusion I have taken account of all submissions made.

Submissions

.

Findings

Section 28

As stated above, the Department has withheld the information in question on the grounds that it is personal information and is therefore exempt in accordance with section 28 of the FOI Act.

Section 28(1) provides that:-

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

Section 2

Personal information is defined in Section 2 of the FOI Act as:-

"...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, "

As well as this definition the FOI Act goes on to list a non-exhaustive list of 12 categories of information that constitute personal information. This list includes information relating to an individual's employment or employment history. It also includes "the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual."

I am satisfied that the fact that a person was being considered for appointment to the Board is their personal information, particularly since it is clear that in many cases the people being considered may not have sought such an appointment and may not even be aware that they were being considered. It is also clear that in most cases it had not even been established that they would be available to serve on the Board should they be invited. Therefore I find that this information is personal in accordance with the definition as set out above. Similarly, in relation to the CV of the appointee to the Board, I am satisfied that it too constitutes personal information, notwithstanding the fact that the person involved and the Department have agreed to release those parts of the CV that are relevant to his appointment to the Board. Since I find that the information is personal I am satisfied that the Department is correct in finding that section 28(1) applies to it.

The Public Interest

That is not the end of the matter, however, and I must now consider the Applicant's argument that the personal information should be released on public interest grounds as provided in section 28(5).

Section 28(5)

This section provides for the release of personal information 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.

The public interest arguments in favour of granting access to the records include that of requesters exercising their rights under the FOI Acts to the maximum possible extent and the desirability of openness and accountability on the part of public bodies in the exercise of their functions and in the expenditure of public funding. The Applicant also argues that release would illuminate the entire process whereby appointments to the Board are made. The question for me to consider is whether these factors are of sufficient significance to outweigh the right to privacy of the individuals concerned, particularly as in this case no appointments were made.

Having considered the matter, I do not accept that the unilateral mention by the Department of someone for possible consideration of a position within its gift is enough to displace that person's right to privacy. Also, this Office has not been presented with evidence that any of the people concerned presented themselves as suitable candidates for appointment as Board members. I therefore find that the public interest in release does not outweigh the right to privacy of the individuals to whom the information relates. Accordingly, I find that the withheld information is exempt from release in accordance with section 28(1) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department and decide that the parts of the records containing personal information should be withheld.

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 an appeal must be initiated not later than eight weeks from the date of this letter.

Seán Garvey

Senior Investigator

21 May 2010