Whether the Department was justified in its decision to refuse under section 37(1) of the FOI Act a request for access to fish quota entitlements of all vessels belonging to members of Fish Producer Organisations in Ireland in 2014.

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

Background

On 1 July 2015, the applicant made a request under the FOI Act for access to details of fish quota entitlements of all vessels belonging to each Fish Producer Organisation (FPO) in Ireland in 2014. The Department refused the request on the basis of section 36(1)(b) of the FOI Act. However, following an internal review, a more senior official refused the request under section 37(1) of the Act. Section 37(1) applies where access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. On 18 August 2015, the applicant made an application to this Office for a review of the Department's decision.

By way of context, my understanding is that there are several officially recognised FPO's representing their members' interests in issues such as annual quota negotiations with the EU commission and at quota management advisory meetings with Department. The EU allocates fishing opportunities to Ireland each year and the Department allocates some of these to fishermen by reference to such criteria as species, area and allowable landing. According to the Department, membership of an FPO has no impact on individual allocations.

In conducting my review, I have had regard to the submissions of the Department, the applicant and third parties as well as to correspondence between the applicant and the Department. I have also had regard to the content of the records at issue, and to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with whether the Department was justified in deciding to refuse access to the records on the basis of section 37(1) of the FOI Act. I note that the Department did not prepare a schedule of records for the applicant and originally informed this Office that a very large volume of records was at issue. Samples of authorisation records were provided for the purposes of this review; apparently these are held in respect of all entitlements authorised in the year. However, the position is that this FOI request is confined to fish quota entitlements of the vessels of FPO members. It does not extend to the names and addresses of the owners in the authorisation records. In the course of the review, the Department provided the Investigator with an electronic record listing the vessel name, port, quotas, species and related data. I take those parts of that record containing the information actually requested to be the record the subject of the review, since it contains information held by the Department that falls within the scope of the FOI request. Thus, references to the record in this decision are to that electronic record, as opposed to the individual authorisation documentation.

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to refuse access to the records at issue was justified. Furthermore, Section 13(4) of the Act provides that, subject to the other provisions of the Act, any reasons that the requester might have for the making of the request shall be disregarded.

This decision does not address each of the arguments made in detail; however, all the relevant submissions have been carefully considered.

Analysis and Findings

Section 37
The Department's sole reason for refusing the request is Section 37(1) of the FOI Act which 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 defined as 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 fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including "... (ii) information relating to the financial affairs of the individual..."

Contact with vessel owners
Although the FOI request did not seek the names of any individuals, it was accepted in the Commissioner's decision in Case 140074 (available on www.oic.ie) involving records of FPO membership, that the Irish Fleet Register allows vessel names to be linked to their owners. Given the Department's position that the records disclosed personal information relating to the financial affairs of the vessel owners, this Office decided to contact those individuals to give them an opportunity to comment on the potential release of the records under FOI. To this end, the Department provided the record which showed a total of 68 fishing vessels registered to owners who were members of an FPO and who were allocated fish quotas in 2014.

Vessels registered to companies
Of the 68 vessels, the Department identified 37 whose owners were listed as companies. In Case 140074 referred to above, the Commissioner found that the companies' information could not be held to be "about an identifiable individual". I adopt that position in this case and find that those parts of the record relating to the 37 vessels registered to companies do not contain personal information within the meaning of the definition detailed above. The Department argued that, in the circumstances of this case, "company affairs" are known in the community and are personal especially in the case of small family companies where owners would be easily identifiable. While I understand the Department's position, the fact remains that companies are distinct legal entities which normally carry on a trade or business. It is clear that the definition of personal information with its emphasis on "the individual" applies to a natural person, as opposed to a legal person. Therefore, I find that section 37(1) of the FOI Act does not apply to exempt those parts of the record which identify a company associated with a vessel or quota entitlement.

Vessels registered to individuals
The Investigator contacted the 26 individuals to whom the remaining 31 vessels were registered. He notified them of the review and invited them to make submissions. I should say here that the Department acknowledged that it did not maintain a historic record of the ownership status of vessels and that the information provided might not fully reflect the ownership status of vessels at the end of 2014. In other words, those contacted are on the current register.

Third party submissions
Following the 26 notifications, submissions were received from the owners of five vessels. Three submissions were in the same template form except for a handwritten reference to the name of the vessel registered to that owner. They stated that quota allocations were issued by the Department under authorisation of the Minister and that the "Quota share-out is agreed under a stakeholder forum and recommended to the Minister". They not did provide the owners' views on whether the information requested should be released or indeed whether it was their personal information. Notwithstanding that, I will proceed on the basis that those three owners objected to the release of the records. The fourth submission stated that the information was personal and was held by the Department on the understanding that it would be treated as confidential. The representative of a fifth owner contacted the Investigator by telephone and stated that they had no difficulty with the information requested being released.

Department's submissions
The Department stated that invariably vessels land more than 90% of the fish that they are authorised to land each year and that the landing price for every species is publicly available. Therefore, according to the Department, by having access to the authorisations a person may calculate quite readily the gross annual income for an individual. The Department's position is that, consequently, details of individual quota entitlements "can be said to be information relating to the financial affairs of those licence holders." However, the Department acknowledged that an allocation (quota) might not be the only catch for a vessel owner in a year.

Applicant's submissions
The applicant argued that a quota entitlement is not a quota uptake and that he was not looking for the actual landings of vessels. He stated that even though a vessel might be allocated a quota, it cannot be assumed that the vessel will capture the entire allocated quota in a season. He said that catch prices vary throughout the year. His position is that the information sought is not personal information relating to the financial affairs of the vessel owners or otherwise information coming within the definition of personal information. He said that he is not seeking details of the beneficiary of any fish sale and that, in any event, the financial beneficiary would not necessarily be the person to whom the vessel is registered. The applicant pointed out that individual vessel quotas are made available to the public in other EU jurisdictions including Scotland and Northern Ireland and, by way of illustration, he provided samples of the information from the UK's Fixed Quota Register. In relation to information on Irish vessels, he also submitted that Bord Iascaigh Mhara (BIM) publishes boat modernisation grant details which identify the vessels for which national and EU payments were made.

Personal Information and Identifiable Individuals
Following the decisions in Rotunda Hospital v Information Commissioner [2009] IEHC 315 and Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC26, (the Rotundacase), I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within the scope of either subparagraph (a) or (b) of the definition set out above or where it comes within one or more of the categories (i) to (xiv) which are non-exhaustive. Having considered the content and context of the record, I am not entirely satisfied that the quota entitlement of the vessels in the format set out in the electronic record, referred to in the scope section above, is information about identifiable individuals. I say this because the named individuals are not part of the information sought. The record sets out the vessel names by reference to entitlements to quotas and fish species. However, a vessel name can be linked to identifiable individuals by reference to the Irish Fleet Register. On this basis, I am prepared to find that the information in the record relating to the individual (as opposed to the companies dealt with above) is personal information for the purpose of section 37(1) of the FOI Act.

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case. Consequently, I find that section 37(2) does not apply here.

Section 37(5) of the FOI Act provides that a request which would fall to be refused under section 37(1), may still be granted where, 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, or (b) the grant of the request would benefit the individual concerned. I cannot see how the grant of the request would benefit the individuals to whom the information relates. Consequently, I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) The Public Interest
I must now consider whether under section 37(5)(a), the public interest in granting the request outweighs, on balance, the public interest in upholding the privacy rights of the individuals concerned. In its judgment of July 2011, in the Rotunda case referenced above, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual to whom that information relates. That judgment suggests that a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 37(5)(a), privacy rights will 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.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. I believe that there is a strong public interest in openness and transparency in relation to the allocation of national fish quotas by the Minister. Indeed, the Fisheries website of the European Commission (http://ec.europa.eu/fisheries/cfp/fishing_rules/tacs/index_en.htm) states as follows:

"Total allowable catches (TACs) or fishing opportunities, are catch limits (expressed in tonnes or numbers) that are set for most commercial fish stocks. TACs are shared between EU countries in the form of national quotas....
...EU countries have to use transparent and objective criteria when they distribute the national quota among their fishermen. They are responsible for ensuring that the quotas are not overfished. When all the available quota of a species is fished, the EU country has to close the fishery."

Furthermore, the Minister has confirmed in response to parliamentary questions that fish quotas are a publicly owned resource and that catch limits are made available in accordance with management policy. In addition, I am mindful that section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant here and that the matter at issue equates with "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law " as referred to by Macken J. in Rotunda.

The Department's submission that certain quotas are allocated following submission and consultation, including input from the FPOs, says that there are sufficient fully audited administrative procedures in place which would expose any over allocation to an individual. It also says that matters considered in the process are either available through FOI or are published. The Department acknowledges that FPOs have a role in quota management and that their views and recommendations are among the factors taken into account in licensing decisions although they have no "direct role" in allocation to individual vessels. I take this as an argument that the public interest in openness and transparency in how the Department conducts the process is satisfied through existing procedures. It seems to me that there is a significant public interest in optimising accountability in relation to the allocation of a valuable public resource and that it would be difficult to assess the robustness of the process without knowing which vessels, whether FPO members or not, benefit from the quota allocation at the conclusion of the process described by the Department. I stress that this should not be taken as any inference that there is inappropriate management of the fisheries policy or of the process of allocation by any of the parties concerned.

In his decision on Case No 140074 referred to above, the Commissioner dealt in some detail with the right to privacy in relation to business dealings and expressed the view that such rights are not particularly strong when they arise in a commercial context. I have carefully considered the submissions of the five respondents described above. I accept that some breach of privacy is involved in that disclosure of quota information linked to the vessels registered to those individuals would put some information relating to their financial affairs into the public domain. However, the submissions themselves and the fact that the remaining 21 whose views were sought by his Office did not respond, do not support a view that the quota information is regarded as a very substantial breach of privacy or a particularly private or sensitive matter in the context of business dealings with the State. Also, in its submission, the Department confirmed that "the relevant aspects of the authorisation, quota amount, species and fishing area, are not supplied by the licence holder but are computed by the Department". I note also that disclosure of the record would not, on the face of it, release the names and addresses or the actual income of the individuals. Neither the Department's nor the third parties' arguments have convinced me that in this case any breach of an individual's right to privacy would be substantial.

On balance, I find, therefore, that the public interest in optimising openness and transparency in relation to the management and allocation of a State resource, outweighs the public interest in protecting the right of privacy of the individual vessel owners.

I find therefore that the Department has not justified its decision to refuse access to the record on the basis that section 37(1) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department's decision and direct the release of the record.

Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator