Case 100110

The Senior Investigator decided to vary the Department's decision and found that the records should be released in the public interest with the exception of certain specified details.

Case Summary

Whether the Department is justified in withholding certain records on the grounds that they contain personal information and are exempt in accordance with section 28 of the FOI Act.

Date of Decision: 23.12.2010

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

Background:

On 17 December 2009, the applicant made an FOI request to the Department seeking sight of all documentation held by it relating to a third party's grant application for the Scheme of Investment Aid for Farm Waste Management (FWMS). In its decision of 25 February 2010, the Department refused this request in accordance with the exemption provisions of section 28(1) of the FOI Act.

On 1 March 2010, the applicant applied for an internal review of the Department's decision. In its internal review decision of 4 May 2010, the Department upheld its original decision. On 7 May 2010, the applicant applied to the Commissioner for a review of the Department's decisions.

On 21 September 2010, Mr. Colin Stokes, an Investigator with this Office, issued his preliminary view on the issues relevant to this case. In that preliminary view Mr. Stokes advised all parties that in his opinion the records should be released and that if anyone was dissatisfied with his view they were free to make a submission on the matter. The Department availed of this invitation and in its submission it restated its opposition to release of the records arguing that this Office had not given sufficient weight to the individual's right to privacy as opposed to the need for transparency in the expenditure of public funds. It also questioned the validity of the distinction made by Mr. Stokes between an individual and an individual acting as a sole trader. In making that distinction Mr. Stokes had stated that it was his view that much of the information relating to the business of farming is analogous to that of a sole trader - particularly where State or European Union (EU) funding is involved. He had pointed out that in previous cases, such as case number 98073, the then Commissioner had found that much information relating to the business affairs of a sole trader does not constitute personal information about the individual concerned. Mr. Stokes also made the point that in case numbers 99591 et al, the Commissioner had found for release of records such as the names of recipients and amounts of the top ten payments under various agricultural schemes funded by the EU. In the context of the records under review, Mr. Stokes stated that while he accepted that information, such as the third party's address, date of birth, tax clearance certificate and telephone numbers, is his personal information and may legitimately be withheld as such, nevertheless, it was his view that the rest of the information must be released.

The Department placed special emphasis on joined cases C - 92/09 and C - 93/09 that were then before the European Court of Justice (ECJ) and of the opinions of an Advocate - General involved in that case. This case was taken on behalf of various recipients of EU agricultural funds who claimed that the publication of data in relation to their receipt of such funds amounted to an unjustified interference with the fundamental right to the protection of personal data. The Department stated that the ECJ case would determine whether the correct balance had been struck between transparency, on the one hand, and privacy and the protection of personal information, on the other.

Because of the new arguments made by the Department in its submission, on 29 November 2010, Mr. Stokes issued a further preliminary view letter. Taking account of the Department's submissions he accepted the Department's contention that the information contained in the records constituted personal information. However, having agreed this point he was then obliged to consider the public interest arguments inherent in this case as provided for by section 28(5) of the FOI Act (see below). Having done so he concluded that the public interest would be better served by release of the records and that they should therefore be released. He did however, allow that certain specified personal details could be withheld.

On 13 December 2010, the Department's replied to this further preliminary view and again argued against release of the records. In addition, the ECJ had since given its ruling in the case quoted by the Department. Essentially, the ECJ found that while such information is personal information, it may still be released, subject to the principle of proportionality.

Given these circumstances, I have therefore decided that I should now proceed to a formal binding decision on the matter. For the sake of completeness I will inevitably be revisiting some of the issues already examined by Mr. Stokes in his preliminary view letters.

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 review is confined to the question as to whether the Department is correct in its interpretation that the FWMS records constitute the personal information of a third party and should therefore be withheld in accordance with section 28(1) of the FOI Act.  It does not address any issues of land ownership or use, or of the legitimacy of the criteria employed by the Department in assessing a person's entitlement to a grant.  In my decision I will be taking account of all relevant submissions and of the recent ECJ ruling as it applies to the FOI Act.

The review concerns only those records created on or before 17 December 2009, the date on which the original FOI request was made.

Submissions

.

Findings

The Department has invoked section 28(1) in its decision to withhold the requested records.  While the ECJ's finding relates to a Data Protection ruling, nevertheless on balance I accept Mr. Stokes's revised preliminary view that the information involved constitutes the personal information of the third party.   However, that is not the end of the matter as under section 28(5) there is a public interest test to this exemption that I must now consider.

Section 28(5)

Section 28(5) provides that a record which is exempt from release in accordance with section 28(1) may be released when, in the opinion of the head concerned, on balance -

"(a) 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, "

To apply section 28(5), it is necessary to identify the various public interests served by the release of the particular records as well as those served by the withholding of those records.

Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

I accept Mr. Stokes's summary of the public interest considerations in favour of the release of the records as follows:-

• the public interest in individuals being able to exercise their rights under the FOI Act in order to enhance their understanding of the reasons for actions taken by a public body,
• the public interest in members of the public knowing how a public body performs its functions and being able to form an opinion as to whether those functions are being properly discharged.
• the public interest in the transparency of all matters involving the expenditure of national and EU funding.

while those that favour withholding the records include:-

• the public interest recognised by the FOI Act itself, in protecting the Constitutional right to privacy of members of the public,
• the public interest in members of the public being able to communicate in confidence with public bodies without fear of disclosure in relation to personal matters.

As he pointed out in weighing up the relative strengths of these opposing public interests, an attempt must be made to measure the actual benefit of release to the applicant and to the general public as opposed to any detrimental effect on the third party.  

At the outset, I wish to emphasise that, under section 34(12)(b) of the FOI Act, a decision to refuse to grant access to a record:-

"shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

On balance, I consider that it has not been demonstrated that release of the records will have a detrimental effect on either the third party concerned or on the Department.   On the other hand, I consider that there is a very real benefit in enhancing the transparency in how the Department administers publicly funded schemes such as that in question.  In this regard, it is important to take into account the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies.  As Mr. Stokes pointed out this right has been expressly vindicated by the Courts.  For example, Mr. Justice McKechnie., declared in relation to the FOI Act:

"[The Act's] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of   - 5 -   its enactment was to create accountability and transparency and this to an extent not heretofore  contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further  public confidence in the Constitutional organs of the State.  

[T]he clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy." 

-   Mr John Deely v. The Information Commissioner  [2001] IEHC 91

This view of the comprehensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, where Mr Justice Fennelly declared:   

"The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of  openness. It is designed to open up the workings of  government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen." 

- Barney Sheedy v. The Information Commissioner [2005] IESC 35   

Taking account of the foregoing, it is my view that the public interest considerations in favour of release of these records outweigh those in favour of their being withheld and that such release is consistent with the principle of proportionality.

Notwithstanding the above, I have also considered the Department's argument that release of the details relating to the agricultural consultant employed by the third party and of nine other suppliers/contractors would be an invasion of their privacy rights and I accept that, in this instance, their privacy rights outweigh the public interest in release and that their names and identifying information may also be withheld.

Summary

While I accept that the relevant records constitute the personal information of the third party, nevertheless, I am satisfied that the public interest requires that they should be released. 

However, the public interest does not extend to intensely personal information items such as the address, signature, tax clearance certificate and telephone numbers of the third party or of other third parties and these details may be withheld. (I have listed on the attached "Schedule 1" the records where such references occur, using the Department's numbering system). 

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Department and decide that the records should be released with the exception of personal information described above.

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.

Schedule 1

Records containing some personal information

Record number

2.8; 1.36; 1.33; 1.32; 1.31; 1.30; 1.29; 1.28; 1.27; 1.26; 1.25; 1.24; 1.23; 1.22; 1.21; 1.20; 1.19; 1.18; 1.17; 1.16; 1.15; 1.14; 1.13; 1.12; 1.11; 1.10; 1.8; 1.7; 1.6; 1.5; 1.4; 1.3; 1.2; 1.1.

Seán Garvey

Senior Investigator

23 December 2010