Whether the IDA was justified in refusing to release the names of a number of third parties from whom it leases properties.

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

Background

The relevant part of the applicant's FOI request to the IDA, dated 11 January 2011, sought, in a "specifically electronic ... nature", a "breakdown of all leases/rental agreements between [the IDA] and any third party, and vice versa" for the years 2007-2010. The request specified that this "should include but not be limited to lease term, the company with whom an agreement was entered into, and the cost of the lease/agreement."

The IDA's decision of 9 March 2011 partially released a number of spreadsheets it created further to the request. It withheld the names of certain individuals from whom the IDA leased properties under section 28(1) of the FOI Act, as well as details of the rent that the IDA charges its own tenants of these leased properties under sections 27, 21 and 31 of the FOI Act.

On 23 March 2011, the applicant sought an internal review of the IDA's refusal of those details it had withheld under section 28, which refusal the IDA upheld on 13 April 2011. The applicant sought a review by this Office on 29 May 2011.

In carrying out my review, I have had regard to the correspondence between the IDA and the applicant as detailed above; to details of various contacts between this Office and the applicant, particularly the letter sent to him by Ms Anne Lyons, Investigator on 11 July 2012, and his reply dated 1 August 2012; to details of letters sent by Ms Lyons on 17 October 2012 (and in one case, on 22 October 2012 further to clarification of certain details by the IDA) to the third parties whose interests are affected by the outcome of this review, and to details of the responses received; and to details of various contacts between this Office and the IDA, particularly Ms Lyons' letter to the IDA of 17 October 2012 and its reply dated 6 November 2012. I have also had regard to copies of the spreadsheets referred to above (which were provided to this Office for the purposes of the Commissioner's review, and upon which I make specific comment below). Finally, I have also had regard to the provisions of the FOI Act and the judgment of the Supreme Court issued on 19 July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner (to which I will refer as "the judgment").

Scope of the Review

Ms Lyons' letter to the applicant of 11 July 2012 explained that the FOI Act provides for a potential right of access to records that exist as at the date of a particular request, and that a public body is not required to create a record in order to grant a request for records under section 7 of the FOI Act. She told him that, accordingly, she considered this Office to have no legal basis to consider, or direct the release, of any details from the spreadsheets created by the IDA further to the request. She said that other, non-electronic records must be held by the IDA, from which those spreadsheets were compiled, and that the Commissioner's review and ensuing decision must legally therefore be concerned with such records, although presumably it was open to him and the IDA to come to some alternative arrangement regarding the provision of the details concerned in an electronic format if it were necessary.

The applicant replied that his request "relates to the underlying records which contain the information sought", rather than the "limited extracts which are derived from the records and were provided [to him] in redacted form". He said that he considered the IDA to have "significant documentation relating to lease and rental agreements and is highly likely to have a dedicated property register" and that "[i]t is access to these records that [he is] seeking", namely "all records which record the details of leases and rental agreements for the years cited; including but not limited to the IDA's property register for that period."

I do not intend to address whether or not the applicant's initial request (which specifically sought a "breakdown" of particular details) could reasonably have encompassed the entirety of all leases and rental agreements for the years at issue, and any property register that the IDA may hold. His internal review application was clearly limited to the IDA's decision to withhold the names of the individuals from whom it leased or rented properties. In turn, this Office's review can go no further than considering that decision.

Therefore, this review is limited to the consideration of whether or not the IDA's refusal to release the names of those individuals from whom it leased or rented properties from 2007 to 2010, as contained in any records held by it that existed as at 11 January 2011, is in accordance with the provisions of the FOI Act. I wish to make it clear that only these details were the subject of consultation with the third parties, and that the decision does not concern other details such as home addresses or bank account details. It should be borne in mind that the release of a record under the FOI Act is akin to its release to the world at large.

Findings

Relevant Legislation
Section 28(1)
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would "involve the disclosure of personal information" about an identifiable individual.

Section 28(2)
Section 28(2) provides for the release of a record to which section 28(1) applies in a number of circumstances. These are: where the record relates to the applicant; where the third party consents to the release of the records to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or, finally, where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, 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, or (b) the grant of the request would benefit the individual. I do not consider section 28(5)(b) to be of relevance in this case as I do not consider that release of the information at issue would benefit the individuals to whom it relates as envisaged by section 28(5)(b) of the FOI Act.

Application of Section 28
Section 28(1)
The IDA has already released details of the locations of the properties it rents from the third parties; the size of the properties concerned; the start and end dates of the relevant rental agreements or leases; and the rent payable for those properties in each year specified in the request.

Ms Lyons' letter to the applicant of 11 July 2012 outlined a preliminary view that, having regard to the information already released by the IDA, release of the names of the third parties would disclose to the world at large a number of combined facts about those parties i.e. (i) that they own a particular property (ii) that they have rented or leased these properties to the IDA and (iii) the yearly rental income they receive accordingly. Noting that the FOI Act defines personal information as including information relating both to the financial affairs and property of the individual, Ms Lyons told the applicant she considered the details to be exempt under section 28(1) of the FOI Act. Having regard to the definition of personal information as provided for by the FOI Act, and being satisfied that the release of what appears, on the face of it in the case at hand, to be one piece of personal information about the parties concerned would, in fact, result in the disclosure of other personal information to which it is inextricably linked, I agree with Ms Lyons' views.

I note that the applicant's response of 1 August 2012 said he "agree[d] that the records sought contain personal information of identifiable individuals" but also went on to contend that, as the IDA had arbitrarily released information relating to both companies and individuals that it considered to "appear to work in the sector", the IDA must therefore accept that "personal information relating to leases is not exempt under the Acts". He also argued that "a person who enters into a commercial lease with the IDA is involved in the business of property rental". These comments may or may not be arguments that the details at issue are not exempt under section 28(1) of the FOI Act in the first place.

Just because the IDA appears not to consider section 28 to be applicable to certain names in the records does not set a precedent that must be followed in respect of the remaining names. It remains that section 28(1) is a mandatory exemption (a fact actually noted by the applicant in his response of 1 August 2012) and thus must be applied to a record which, if released, would "involve the disclosure of personal information". I have explained why I consider that the release of the details at issue would involve the disclosure of personal information, and I find accordingly that section 28(1) of the FOI Act applies to such details.

Section 28(2)
The applicant argued that even if section 28(1) applies to the withheld details, section 28(2)(c) of the FOI Act is relevant in any event. He contended that the details at issue are available to the general public because information relating to commercial leases "is available to the public through the Property Registration Authority in the case of registered land or the Registry of Deeds in relation to unregistered land", albeit at a cost of paying search fees.

However, I have already found that disclosure of the names at issue would, in addition to disclosing details of the third parties' property interests, also "involve the disclosure" of inextricably linked elements of their financial affairs. I am satisfied that such financial details in particular are not available to the general public. In the circumstances of this particular case, I am satisfied, and find, that section 28(2)(c) does not apply to the withheld details, with the exception of certain details pertaining to one of the parties involved. The applicant has not argued that any other element of section 28(2) is relevant to the details at issue, nor do I consider this to be the case. I find accordingly.

The above mentioned exception derives from correspondence received from one of the third parties consulted in the course of this review. Further to that party's letter to this Office of 5 November 2012, it transpired that the IDA had inadvertently released his name and home address when responding to a query, regarding its 2010 expenditure on leases, which arose from another FOI request. Ms Lyons told the party concerned that this review had to take account of the fact that his ownership of the particular property is now a matter of public record, as was the fact that he had leased the property concerned to the IDA, and received a particular amount of income accordingly in 2010. I concur with her view, to which I note the third party has not objected. I find that these particular details to be excluded from the application of section 28(1), in accordance with section 28(2) of the FOI Act.

Ms Lyons explained to the party why she also considered the details regarding his lease of the property in 2007-2009, and his receipt of rental income accordingly, to be effectively in the public domain. Again, I concur and note the third party has not objected to those views. Thus, I find these particular details also to be excluded from the application of section 28(1), in accordance with section 28(2) of the FOI Act.

Section 28(5)(a)
Arguments Made
In a letter of 11 July 2012, Ms Lyons drew the attention of the applicant to certain comments expressed by the Supreme Court in the judgment referred to earlier. She noted that, in particular, the Court said that any public interest cited in favour of granting access to an otherwise exempt record under the FOI Act would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." She noted that the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. On the other hand, she also noted that the Act recognises a very strong public interest in protecting privacy rights - in both in the language of section 28 and in the Long Title to the Act. She informed the applicant that, thus, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy.

Having regard to the arguments contained in the applicant's internal review application regarding the case at hand, Ms Lyons told him that she considered there to be sufficient details in the public domain by which one can hold the IDA accountable for its expenditure of public monies, and value for money achieved, on the rentals concerned, and that she did not consider that disclosure of the identities of the third parties would further serve this public interest. She also told the applicant that the burden of demonstrating that there was a true positive public interest(s), which outweighed the right to privacy of the third parties whose personal information is at issue, fell on him as the party seeking that information.

The applicant's response of 1 August 2012 argued that, in the first place, the Commissioner should not give much weight to the Supreme Court comments as quoted by Ms Lyons, given that they were purely obiter. I disagree with this view. I consider the comments to have been made with the intent of providing guidance to this Office, and public bodies, as to how to approach public interest balancing tests. Albeit the comments were made in respect of the public interest test at section 26(3) of the FOI Act, I feel that they have some relevance to the consideration of all public interest tests contained in the FOI Act and that I should have regard to them, accordingly.

The applicant argued that accountability for the IDA's expenditure of public monies was not the only relevant consideration. He said that there is a "strong public interest in public bodies being transparent in their dealings with land", which "goes far beyond" accountability for expenditure. He referred to a "clear policy adopted by the Oireachtas in favour of public disclosure of details relating to land tenure", i.e. the Property Services (Regulation) Act 2011, section 87 of which provides for a register of commercial leases in order to provide a better functioning property market. In this regard, he notes the existence in Ireland since the 18th Century of a land registration system in which freehold and leasehold interests are publicly available, and that it "goes without saying that transparency and certainty in relation to land tenure is one of the pillars of a modern market economy". I am conscious, however, that the disclosure of the withheld details in this case would, as I have already indicated, disclose more than simply the details of ownership of certain properties. It would also disclose information relating to the financial affairs of the owners. The applicant also noted that "given our recent history there is also a very strong public interest in having full disclosure of the dealings of public bodies in land transactions with third parties", which I presume to be an argument that there is a public interest in preventing corruption.

Ms Lyons, having reconsidered the balance of the competing public interests raised, then sought views from the third parties and the IDA. She noted the argument outlined earlier, regarding the extent to which it could be argued that the details released to date adequately serve the public interest in ensuring the IDA's accountability for its expenditure of public monies and value for money achieved accordingly. However, she then drew attention to previous decisions from this Office, which had expressed a view that one who enters into business arrangements with public bodies should have a diminished expectation of privacy or confidentiality in relation to those arrangements, particularly with respect to the payment to them of public monies. Ms Lyons told the parties concerned she considered there to be a very strong public interest in ensuring that the IDA is open as to with whom it has entered into any business arrangements which involve the expenditure of public monies, and, in turn, in ensuring that it can be held accountable for such decisions, particularly as public monies are payable in respect of the rental properties over a 35-year period (21 years in the case of one lease taken out in 2007).

Ms Lyons said that the strength of the countervailing public interest in protecting privacy rights depended on the extent to which the details at issue can be said to be truly private and sensitive. Noting a view that details of a person's business arrangements with a public body, into which arrangements the person voluntarily chose to enter, were much less private and sensitive than details of a person's applications for Social Assistance deriving from unexpected circumstances, she said that she felt that there would be, at most, a minimal breach of the third parties' rights to privacy by the release of the withheld details. Ms Lyons said that, thus, she felt there to be an equally minimal public interest in protecting against such a breach and, having considered the relative strengths of the competing relevant public interests, she felt the public interest to weigh in favour of release of the withheld details.

The son of one of the third parties contacted Ms Lyons on 22 October, on his father's behalf, to say that there was no particular objection to release of his father's details. However, because the property concerned is jointly owned and because the other joint owner did not express a view one way or another, the relevant details must remain under the scope of the review (thus, it was not necessary to seek written confirmation of the telephone conversation). Another party telephoned Ms Lyons on 24 October to say that he did not have the slightest difficulty with the release of his details and that he would have consented to such release if the IDA had contacted him in the first place. Although he was asked to confirm this in writing, the resulting letter confirmed only that the details were correct. Therefore, I am erring on the side of caution in including that party's details in the review, although in all likelihood I need not do so.

I have already referred to correspondence received from a further party, dated 5 November. While I could disregard the arguments made therein given my findings on section 28(2) in respect of that person's details, I have decided to consider them in case the party enjoys any residual right to privacy in respect of the details concerned. Furthermore, the arguments made may also be relevant to my consideration of the public interest in protecting the general rights to privacy of the other parties whose interests will be affected by the release of the details at issue.

One concern related to any ensuing media reports being misunderstood and his potentially being subject to embarrassing public, and private, comment. In this regard, he referred to an article that had appeared in a local newspaper further to the IDA's release of the 2010 details already mentioned above, as a result of which he said he was subject to comment by individuals on the income that he was accordingly perceived as receiving from other, similar, units not leased to the IDA. He argued that release of the details at issue in this review will result in members of the public determining the rent he receives for other such properties and thus disclose further information about his financial affairs.

The third party went on to argue that his rental income is less than 0.5% of the total rental income paid by the IDA in respect of all units it leases - essentially that release of the details at issue in this case is disproportionate having regard to the sums of money involved. In this regard, he referred to the composite decision issued in respect of cases 99591 (Mr & Mrs ACG), 99594 (Mr ACH), 99596 (Mr ACI), 99598 (Mr ACJ), 99606 (Messrs ACK) and the Department of Agriculture, Food and Rural Development, which is available on the Office website at www.oic.gov.ie. (I will refer to this decision in the remainder of this letter as that on "the Arable Aid Case".) The third party noted the decision said that only those in receipt of "a large amount of public funds" ("relatively large"; "significant" payments) should have a diminished expectation of confidence in relation to those funds. He also argued that the IDA is not at any loss for the rent paid to him, given that his unit has been sub-let by the IDA.

He also outlined the background to the lease arrangement in the early 1980s, and said that he had never expected a diminished right to privacy or confidentiality in respect of a lease agreement that, at the time it commenced, he says was considered to be a "very confidential document."

The party also argued that he and his wife are elderly and live in a relatively rural area and that release of the details at issue could increase the risk of burglary, given the likelihood of members of the public determining rental income from similar units. Finally, whilst he refers to section 28(3)(b) of the FOI Act (in so far as it refers to the release of a record having a prejudicial effect on a person's physical or mental health, well being or emotional condition) as having potential relevance, this provision only potentially applies to records of a psychiatric or social work nature.

Letters were received from another party on 23 October and 12 November 2012, which raised similar points about the relevant lease having been entered into long before the enactment of the FOI Act and about the impact of release of the details at issue on the party's personal security and safety. The party also raised concerns over the release of details which are not the subject of this review, and which are thus irrelevant. The remaining parties did not respond to Ms Lyons' views.

The IDA's submission of 6 November 2012 said that, in the 1980s, it did not have the resources to build properties that it required for clients and prospective clients. It says it drafted up plans for factories in certain key locations, which were built by companies and individuals in accordance with IDA specifications, and then agreed to lease these properties on 35-year leases. While noting Ms Lyons' argument that the individuals whose details are at issue are involved in business dealings with a public body, the IDA also noted the expectation that the individuals would have had regarding the confidentiality of their dealings at a time pre-dating the FOI Act. It contends that the release of the details would breach its duty to protect the Constitutional right to privacy as encompassed by section 28; would provide no insight into the workings of public bodies; and that release of details of private financial affairs would cause undue stress and worry to the elderly individuals concerned.

Consideration of Arguments Made
I should explain at the outset that any possibility that the general public may either misunderstand or draw particular inferences from media articles that might result from the release of records under FOI (or even the possibility that such articles may be inaccurate) are, of themselves, not appropriate reasons for me to determine that any record should be withheld. Furthermore, I do not feel it is appropriate for me to make a general finding as to an amount of public monies that might qualify, in this or any other case, as "significant". It must be borne in mind that the comments in the Arable Aid decision reflected the fact that it concerned the details of the top ten recipients in Ireland of the relevant aid monies.

Neither do I feel it appropriate to consider whether or not the IDA is at a loss or otherwise in respect of the rents payable to any landlord vis a vis any sublease of their property, and to direct release of particular details accordingly. For one matter, such a determination would disclose a certain amount of information about the rents that the IDA receives from its subleases (and thus breach section 43(3)). Furthermore, what might be deemed to be a relatively insignificant amount of rent might be payable by the IDA in respect of a property that may never have been sublet, and vice versa. Situations could also arise where a property was sublet one year, and not sublet the next, or where the rent payable to the IDA might exceed the rent payable to the landlord in one year but not in others.

As regards the proportionality of release of the details at issue to the world at large, I am aware of a decision issued by the European Court of Justice (ECJ) on a Data Protection matter, which concerned 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 joined cases C - 92/09 and C - 93/09 refer). I understand that the ECJ found that, in publishing information, a public body had to strike a correct balance between transparency, on the one hand, and privacy and the protection of personal data, on the other. Thus, in seeking to meet what the ECJ recognised as an "objective of general interest" that was necessary to enhance transparency regarding the use of Community funds, and to improve the management of such funds, it was said that the European Council and Commission should have considered whether that objective might be met by "limiting the publication of data by name relating to those beneficiaries according to the periods for which they received aid, or the frequency or nature and amount of aid received."

However, there are no provisions under the FOI Act by which I can "limit the publication of data by name relating to those beneficiaries according to the periods for which they received aid, or the frequency or nature and amount of aid received." The only options open to me are to direct that the withheld details either be fully released or fully withheld. The question is whether or not the extent to which the public interests in release of the details at issue in this case would be served by the disclosure thereof to the world at large outweighs the public interests in protecting the Constitutional rights to privacy of the parties to whom those details relate. I also note that the disclosure of the withheld details in this case would not involve the disclosure of information concerning grant aid; rather it would disclose details of income received from a commercial transaction.

Although I agree with Ms Lyons' view that the public interest in accountability for the expenditure of public monies, in terms of value for money achieved, would not necessarily be further served by release of the details at issue, a key issue in this case is the fact, as pointed out to the IDA and the third parties by Ms Lyons, that the rental monies in this case are payable over a 35-year period (or 21 years in the case of one lease). Such payments must be made even if the premises are not sublet at all, or are sublet for a rental amount that is less than that payable to the IDA to the landlord. I am of the view that public bodies should be open as to with whom they do business and to whom state monies are paid, and to show that they are ready to be held accountable, if necessary, as regards those arrangements (which view was, I note, put by Ms Lyons to the third parties and the IDA). This is also the case even if it were to be argued that the arrangements concerned relate more to investment choices of the third parties rather than to their dealings in the "business" of property rental (having regard to the fact that the IDA has released details of those it considers to "appear to work in the [property rental] sector"). These views derive from the general public interest in preventing corruption in any arrangements that require the expenditure of State monies, whether arrangements concerning land or otherwise, although this should not be taken as any inference that there is evidence before me of any untoward dealings in the leases concerned. Thus, I consider there to be some substantial public interests that favour release of the details at issue.

On the other hand, I must consider the extent to which the rights to privacy of the third parties would be breached by release of the details at issue (although it is the case that certain, if not all, of the details regarding one of the third parties is already in the public domain, and accordingly it is difficult to see how any further, or at least any substantial, breach of that person's right to privacy can occur as a result of this decision). I note and empathise with the concerns expressed as to the potential impact of release on the personal safety of the third parties. I certainly accept that the elderly are generally more vulnerable and more likely to be targets of burglary than younger people. Thus, I can also accept that the breach of privacy that arises in the cases of those who leased properties to the IDA in the 1980s may be somewhat more than minimal.

Nevertheless, I do not consider that I can appropriately accept that any particular class of citizen, or age group, should have a greater right to privacy than any other class or age group. I am also aware, following clarification received from the IDA, that while the third parties concerned may well have entered into the various lease arrangements when the possibility of release of details under FOI was not contemplated, they have the right to seek rent reviews and the records indicate that each of the third parties who entered into lease arrangements in the 1980s sought such a review in either 2007 or 2008, 10 years after the passing into law of the FOI Act. As such, it is difficult to accept that the third parties could have had any justifiable belief that details of annual payments they were due to receive from the State, further to arrangements entered into for commercial advantage, would be kept secret indefinitely. In my view, the expectation of a diminution of privacy rights, at least in relation to the disclosure of details of commercial transactions with public bodies, is a necessary consequence of entering into such arrangements. Furthermore, I would be concerned as to the implications of accepting that the details at issue should not be released on the basis of the vulnerability of a particular class of citizen, given the potential for abuse of such an arrangement.

I also note that all but one of the third parties were silent as to whether the release of the details at issue could disclose their total gross or net income. The person that did comment (and whose details are, as noted earlier, either already fully or substantially in the public domain) argued that the release of the details at issue will increase the chance of persons unknown commenting on the amount of income he is perceived to derive from other, similar, units not leased by the party to the IDA. It seems to me that the extent to which such comment might occur is where a party's ownership of such properties is for some reason already in the public domain through means other than the FOI Act. Thus, I consider there to be no relevant arguments before me to support any contention that release of the details at issue could disclose the total gross or net income of any of the third parties.

Accordingly, whilst I empathise with the affected third parties in relation to any concerns they might have over their personal safety in particular, I consider that the public interest in optimising openness and transparency in relation to the use of public funds outweighs, on balance, the public interest in protecting the right to privacy of the individuals in question.

Summary
I find that the information at issue comprises the personal information of the parties to whom it relates, and is exempt from release under section 28(1) of the FOI Act. However, having considered the various factors that weigh in favour of, and against, release of the details concerned, I am satisfied that the former outweigh the latter. Thus, I find that the public interest warrants the release of the details concerned.

In so far as the details concern the party whose ownership of a particular property is now a matter of public record, along with the fact of his lease arrangement with the IDA and the amount of rent received in 2010, I find the details concerned no longer to be exempt under section 28(1), and I find similarly in relation to the same details in so far they pertain to the years 2007-2009. However, if I am incorrect in either regard, I would in any event find that the public interest lies in favour of release of the details concerned, in the same manner as the details pertaining to all other third parties whose details are at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the IDA's refusal of the details it had withheld under section 28 of the FOI Act, and direct their release. As already suggested by Ms Lyons, it is open to the IDA and the applicant to come to some agreement regarding the electronic provision of such details.

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 on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
11 December 2012