Whether the Department was justified in deciding to refuse access to correspondence between the Minister and members of the judiciary on the ground that the records are exempt from release under sections 20(1), 26(1) and 28(1) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant made an FOI request to the Department on 1 March 2014 for access to records itemised under five different apparently unrelated headings spanning five divisions across the Department. As no decision was received, the applicant wrote to the Department on 17 June 2014 requesting an internal review on the basis that he had not received a decision on his request. On 12 September 2014 the Department issued an internal review decision on one part of his request (numbered 3) for all correspondence between the Minister and members of the judiciary from 2012 to date and memos of any meetings involving the Minister and the judiciary. The Department granted his request in part by releasing copies of some records and refusing access to certain other records.
The applicant wrote to this Office on 7 October 2014 seeking a review of the Department's decision "to withhold a series of documents and correspondence regarding communication between Alan Shatter and the judiciary". During the course of this review, following the intervention of this Office, the Department released additional records. On 12 May 2015, in communications with Ms Alison McCulloch, Investigator in this Office, the applicant requested a formal, binding decision on the remaining withheld records.

In reviewing this case I have had regard to the following:
the Department's decision on the matter,
the Department's communications with this Office,
the applicant's communications with this Office,
communications between the applicant and the Department on the matter,
the content of the withheld records provided to this Office by the Department for the purposes of this review.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The Department identified 19 records which were relevant to this review and as described above, released some records following correspondence with Ms McCulloch. The remaining records were number 11 - pages 23 (small redaction), 24, 25 and 26 and record number 16. One of the records comprises a letter (record number 16) which is dated 3 March 2014. As the original FOI request is dated 1 March 2014, this record is, therefore, outside the scope of this review. My review is, therefore, concerned solely with the question of whether the Department was justified in refusing access to record numbered 11 - pages 23 (small redaction), 24, 25 and 26 on the basis of section 28 of the FOI Act.

Preliminary Matters

Section 13
I should explain the approach to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 13 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Section 43(3)
Section 43(3) of the FOI Act requires the Information Commissioner to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description I can give of the records themselves is very limited.

Analysis and Findings

Section 28
Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details twelve specific categories of information which is personal without prejudice to the generality of (a) and (b) above, including (ii) information relating to the financial affairs of the individual. When a record is released under the FOI Act, this, in effect, amounts to disclosure to "the world at large", as the Act places no restrictions on the subsequent uses to which the record may be put.

In record numbered 11, pages 24, 25 and 26 comprise a letter to the Minister for Finance concerning the salary of a named member of the judiciary and page 23 is an acknowledgement of that letter, which was released with the name of the judge redacted. Section 43(3) as detailed above prevents me from giving further details of the content of the record. However, I can say that the content includes, inter alia, details of a particular set of circumstances involving the calculation of an individual judge's salary and related issues. In light of the above definition, I accept that the records in this case contain personal information relating to an individual who is a member of the judiciary. I am satisfied that these records contain information which constitutes personal information relating to a person other than the applicant. Therefore, I conclude that, subject to the provisions of section 28(2) and section 28(5) which I examine below, the records are exempt from release on the basis of section 28 of the FOI Act and I find accordingly.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) and/or section 28(5B) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of that information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 28(2) does not apply to the records at issue here.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I do not believe that the grant of the information would be to the benefit of the third party concerned.

In relation to the question of where the public interest lies, I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

I accept that there is a public interest in public bodies demonstrating their accountability for the use of public funds by release of information concerning salaries paid to officials. The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. The FOI Act further recognises the public interest in persons being able to exercise their rights under the FOI Act, although this alone would not be sufficient, in my view, to warrant the breach of an individual's right to privacy. On the other hand, the FOI Act also 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 (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). It is worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. In this case involving information concerning potential expenditure of public funds by the Courts Service, I consider that the public interest in openness about public expenditure is of significance. On the other hand, the salary scales applicable to members of the judiciary serving in the various courts are well publicised which goes some way to addressing the public interest in accountability of public funds. The content of the particular record at issue discloses matters relating to the personal circumstances of the individual concerned and is not restricted to the particular salary scale applicable to the individual. As the former Commissioner's designated officer said in case no. 020248, (available on www.oic.ie), the assigning of an individual to a particular point on a salary scale can often derive from some personal aspect of an individual's life. For instance, it might have regard to a public servant's previous position. I consider that, in the circumstances of this case, the public interest that the right of privacy of the individual should be upheld outweighs the public interest in granting the applicant's request. I find accordingly.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department to refuse access to the withheld record on the basis of section 28(1).

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. Any such 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.

Elizabeth Dolan
Senior Investigator