Whether the Council was justified in refusing access to records relating to the award of the Irish Laureate for Fiction under the provisions of sections 30, 35, 36 and 37 of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 31 January 2015 the applicant submitted a request to the Council for records relating to the award of the inaugural Irish Laureate for Fiction. On 9 March 2015 the Council issued its decision on the request. Of the 17 records identified as coming within the scope of the applicant's request, the Council released four records in full, five in part and refused access to eight records.

The applicant sought an internal review of the Council's decision on 12 March 2015. By letter dated 30 March 2015, the Council affirmed its original decision. The applicant subsequently applied to this Office on 31 March 2015 for a review of the Council's decision.

In a submission to this Office dated 22 June 2015, the Council varied the exemptions relied upon in relation to a number of the records that had been refused in whole or in part. I note that Mr Art Foley of this Office wrote to the applicant on 27 July 2015, in which he detailed the alterations that been made to the exemptions that the Council considered to apply to the records at issue, and informed the applicant that in his view, the Council was justified in its decision to refuse access to the records. He invited the applicant to make any further submission he wished if he disagreed with this view. On 4 August 2015 the applicant indicated that he required a binding decision on the matter. I therefore consider that this review should now be brought to a close by issue of a formal, binding decision.

In conducting this review, I have had regard to correspondence between the Council and the applicant as outlined above. I have also had regard to communications between this Office and the applicant, to communications between this Office and the Council, and to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the Council in the schedule it issued with its internal review decision

Scope of Review

This review is concerned with whether the Council was justified in refusing access to records 3, 4, 9, 11, 12, 14, 15 and 17 and in granting only partial access to records 1, 5, 7, 8 and 16.

Preliminary Matters
At the outset I should explain that a review under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In a more recent judgment, The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained: "The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of his decision]". As this review is considered to be de novo,the Council is entitled to argue during the course of a review by this Office that exemptions not originally applied support its refusal of access to a record.

It is also relevant to note that the release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Records 3, 4, 9 and 12 are emails from writers that contain information relating to their personal circumstances. Record 11 contains information relating to certain writers that was provided to the final selection panel to inform its deliberations and decision. Records 14, 15 and 17 comprise email correspondence between the Council and a writer who was not short-listed.

Record 1 is a scoresheet containing the marks awarded by the selection panel for each of the nominated writers and an indicator as to whether or not each writer was short-listed. The names and associated scores of the writers have been redacted, as have the details of those short-listed. Record 5 is an email to a short-listed nominee, from which the name and email address of the writer have been redacted, as have details of the number of writers who were short-listed. Records 7 and 8 comprise email correspondence with nominees, from which the personal email addresses of the writers have been redacted. Record number 16 is an email to a writer who was not short-listed, from which the name, personal email address and other information that might lead to the revelation of the identity of the writer has been redacted, as have details of the number of writers who were short-listed.

Having regard to the contents of the records to which the applicant has been refused access either in whole or in part, I am satisfied that the exemption set out in section 37 is of most relevance in this case. Section 37 provides that access to a record shall be refused if access would involve the disclosure of personal information of parties other than the requester. 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 FOI Act details twelve specific categories of information that is personal without prejudice to the generality of the foregoing definition, including "... (iii) information relating to the employment or employment history of the individual, ... [and] (xii) the views or opinion of another person about the individual".

While I note that the Council has published the names of the nominees, the names of those short-listed have not been published. I am satisfied that the disclosure of the names of those who were short-listed would involve the disclosure of personal information relating both to those who were short-listed and to those who were not. I am also satisfied that the disclosure of the scores obtained by each nominee would involve the disclosure of personal information about those nominees. Indeed, with the exception of the details of the number of writers short-listed, I am satisfied that the disclosure of all remaining withheld information in the records at issue would involve the disclosure of personal information relating to the individuals to whom the information relates and I find, therefore, that section 37(1) of the Act applies.

However that is not the end of the matter as the Act contains a number of provisions that allow for the release of information to which section 37(1) applies in certain circumstances. In my view, the only such provision of relevance in this case is that set out at section 37(5)(a). That section provides that access to the personal information of a third party may be granted where, on balance, the public interest that the request should be granted outweighs the public interest in upholding the privacy rights of the individual to whom the information relates.

The FOI Act recognises a public interest in ensuring the openness and transparency of public bodies in how they perform their functions and in the promotion fo accountability in the use of public funds. However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 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 also worth noting that the right to privacy 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.

It seems to me that the public interest in openness, transparency and accountability has been served to some extent by the publication of certain information concerning the laureateship, including the list of nominees, details of the selection process, details of the successful nominee, and details of the amount of funding attaching to the laureateship. While I fully accept that the disclosure of the remaining information at issue would further serve those public interests, I am satisfied that the public interest in doing so is not sufficiently strong to outweigh the public interest in protecting the privacy rights of the individuals concerned. I find, therefore, that the Council was justified in refusing access to the records at issue, apart from the details of the number of writers short-listed.

As I have indicated above, I do not believe that the disclosure of the number of writers short-listed would involve the disclosure of personal information relating to identifiable individuals. Indeed, I note that the guidelines for short-listing, as released to the applicant, indicate that the short list should consist of no fewer than five, and no more than eight, names. While the Council has cited a number of other exemptions for withholding the records it has presented no specific arguments for withholding the details of the number of writers short-listed. Rather, its arguments relate to its desire to withhold the names of those short-listed and I have already found such information to be exempt from release. Accordingly, having regard to the provisions of section 22(12)(b) of the Act which places the onus on the public body of satisfying this Office that its decision to refuse a request was justified, I find that the Council has not justified its decision to refuse access to the number of writers short-listed.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council. I find that the Council was justified in refusing access to the records at issue, apart from the details of the number of writers short-listed, as contained in records 5 and 16. I direct that details of the number of writers short-listed be released to the applicant.

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 by the applicant not later than eight weeks after notice of the decision is given to him, and by any other party not later than four weeks after notice of the decision is given to that party.

Stephen Rafferty
21 August 2015