Case Number: 160039

Whether the Service was justified in refusing access to a list of individuals who were signed into the Houses of the Oireachtas from 24 to 28 March 2014 either in their capacity as public servants or in a representative capacity by a TD or Senator

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 after notice of the decision was given to the person bringing the appeal.

Background

In a decision made in Case 140158, dated 10 July 2015, I directed the release of a list of individuals who were signed into the Houses of the Oireachtas ("the Houses" or "Leinster House") from 24 to 28 March 2014 either in their capacity as public servants or in a representative capacity by a TD (i.e. Deputy) or Senator (otherwise referred to as a "Member"). My decision in Case 140158 followed a review of a decision by the Service on a request made by the applicant for access to certain categories of records relating to access arrangements for Leinster House. However, by order of the High Court dated 14 December 2015, as perfected on 8 January 2016, the matter was remitted for a new determination on the ground that I had erred in law in arriving at my decision.

The error in law was the lack of fair procedures arising when my Office mistakenly invited submissions from the Service in relation to an incorrect date range (i.e. a different week than 24 to 28 March 2014). My Office has apologised to the parties for this error in law, which is deeply regretted. In its order, the Court set aside the decision directing the release of information relating to individuals who were signed into the Houses either in their capacity as public servants or in a representative capacity by a TD or Senator.

Accordingly, the review was reopened under a new reference number for the purpose of making a fresh determination on the question of whether the Service was justified in refusing access to the information concerned relating to individuals who were signed into the Houses from 24 to 28 March 2014 either in their capacity as public servants or in a representative capacity by a TD or Senator. I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Service on 3 March 2016, as well as the submissions previously made in September 2014, October 2014, and April 2015, respectively. Although the applicant was invited to make submissions following the reopening of the review, no submissions have been received from him to date.

In the interests of clarity, I should point out that this review has been 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 information concerned is contained in the relevant entries of the visitors register for Leinster House covering the period of 24 to 28 March 2014. The entries were listed in my previous decision, but according to the Service, four of the entries were misidentified. In the case of one of the entries (182440), the name of a town is given which had been misread as the name of an organisation. The other three entries (182543, 182594, and 182595) do not in fact relate to individuals who were signed in by a Deputy or Senator. I accept that these four entries do not fall within the scope of the applicant's request. Accordingly, my review in this case is concerned solely with the question of whether the Service was justified in refusing access to the following entries from the relevant logbooks:

 

Leinster House
182339, 182340, 182341, 182345, 182346, 182347, 182348, 182349, 182350, 182361, 182364, 182382, 182383, 182384, 182385, 182386, 182387, 182402, 184203, 182404, 182408, 182438, 182466, 182467, 182468, 182469, 182489, 182493, 182494, 182496, 182530, 182544, 182545, 182546, 182551, 182571, 182572, 182628.

Leinster House 2000
185655, 185676, 185678, 185683, 185721, 185729, 185731, 185733, 185737, 185739, 185740, 185742, 185743, 185774, 185775, 185784, 185788, 185789, 185790, 185791, 185792, 185794, 185796, 185805, 185810, 185811, 185812, 185822, 185823, 185824, 185825, 185826, 185839, 185840, 185842, 185843, 185844, 185845, 185847, 185848, 185855, 185857, 185859, 185894, 185906, 185928, 185929, 185930, 185939, 185940.

Preliminary Matter

Before setting out my findings, I should address the issue of granting 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. The Act specifies that this should be done if it is practicable to do so, provided that the copy of the record thus created would not be misleading. As stated in numerous previous decisions, however, I take 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, I am not in favour of the cutting or "dissecting" of records to such an extent.

In its recent submissions, the Service argues that granting access to the information concerned would not be practicable given the manner in which it is recorded in the visitors register. The relevant logbooks are manual records compiled on non-standard pages in excess of A4 in size. The date range of 24 to 28 March 2014 covers about 657 entries spread across 54 pages. The Service notes that granting access to the entries at issue "would mean that 96 entries would have to be selected, scattered across those 54 pages, and the remainder blacked out".

By my count, there are in fact 88 entries at issue, all of which are identified above. With the benefit of hindsight, I accept that it was not necessarily a practicable exercise to go through the visitors register for the purpose of identifying the individuals who were signed into the Houses either in their capacity as public servants or in a representative capacity by a TD or Senator. The process of deciphering, checking and re-checking the entries required a substantial amount of resources on the part of my Office, and as noted above, four of the entries initially selected as relevant were in fact misidentified; thus, the approach taken was not necessarily proportionate in the circumstances. However, the exercise is now complete. The entries are set out in a well-spaced grid with the relevant pass numbers appearing in an easy-to-read typeface in the last column of the grid. In the circumstances, I do not accept that it would be impracticable for a staff member of the Service to go through a copy of the relevant 54 pages of the visitor registers and redact the information that is either outside of scope or found to be exempt.

Analysis and Findings

Section 34(12)(b) of the FOI Act provides that 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." It should also be noted that a review under section 34 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.

Section 28
In its recent submissions, the Service's primary claim for exemption is section 28 of the FOI Act. Section 28(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual). Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their 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 which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual" and "(x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual". I further notes that section 2 excludes certain information from the definition of personal information, such that the definition does not include, in pertinent part, in a case where an individual occupies or occupied a position as a member of staff of a public body, the name of the individual or information written or recorded by the individual in the course of and for the performance of his or her functions.

The Service characterises the information at issue as follows:
- that a named individual
- associated with a particular company or organisation
- is likely to have met another individual (a Member of a House of the Oireachtas)
- at a particular place (Leinster House)
- at or about a particular time.
The Service refers to the right of members of the public to contact a public representative in relation to matters that may be of a private, confidential nature, including a possible "protected disclosure" within the meaning of the Protected Disclosures Act 2014, otherwise known as the whistleblower legislation. The Service acknowledges, however:
"Of course, the most fundamental point is that the Service does not have the slightest notion of what the topic of discussion on any visit was. For the Service or the Commissioner's office to make an inference about that topic would be pure speculation, and an insufficient basis for the Commissioner to detract or dilute any privacy based exemption from release that would otherwise apply."
Regardless of the topic of discussion, however, the Service argues that the information sought is personal information within the meaning of the Act. It argues that no exclusion applies, even with respect to individuals connected with public bodies, because the information does not relate to the performance of the functions of the office concerned; rather, an officer of a public body who is visiting a Member in Leinster House signs the register because it is a security requirement for every visitor signed into Leinster House. The Service states that "release of the information in question, though it adds nothing meaningful to the transparency of the person's public office or how (s)he discharges its functions, does have the effect of placing the official in a particular place at a particular time with the probable view to meeting a particular person. It is respectfully submitted that this is 'personal information' and that it does not fall within the exclusion in question." The Service also suggests that the purpose of a visit to a Member by a public servant may be unrelated to the performance of his or her functions, for instance, the visit may be in the capacity of a constituent, for the purpose of making a "confidential communication" within the meaning of section 104(a) of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013, or to make a "protected disclosure" under the Protected Disclosures Act 2014.
In Rotunda Hospital v The Information Commissioner[2011] 1 IR 729, [2011] IESC 26, the Supreme Court found that it is sufficient for information to fall within one of the specified categories which are deemed to be included in the personal information definition in order for section 28 of the FOI Act to apply. In my previous decision, I found that disclosure of the records concerned would do no more than indicate that a certain individual visited Leinster House as a representative of a particular entity. However, having reconsidered the matter in light of the Service's recent submissions and my Office's fresh investigation of the entries, I accept that the context in which the names of the individuals appear is sufficient for the names to qualify as personal information within the meaning of the Act. As the Service points out, the relevant entries reveal more than that a certain individual was signed into the Leinster House in a representative capacity. It documents that the person was signed in on a certain day, at a certain time, and by a particular Member. In most instances, it is reasonable to infer that the information relates to the employment or employment history of the individual. In some instances, the entries may also relate to matters such as the political affiliation or ethnic origin of the individual concerned. Moreover, my Office has discovered that, at least in some instances, it is possible to pool the information together with other information that is available from other sources to reveal information of a private nature, such as the circumstances of a resignation.
In relation to the names of the public servants appearing in the visitors register, I note that the pertinent exclusion to the definition of personal information is intended, in essence, to ensure that section 28 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. The entries at issue in this case do not relate to regular pass holders who visit Leinster House on a regular basis in the course of their employment; such individuals do not need to be signed in by a Member. Thus, the entries, by their very nature, relate to exceptional visits by the public servants concerned. As the register says nothing about the reasons for the visits, it is simply not possible to determine whether one of the exclusions to the definition of personal information may potentially apply without consulting directly with the individuals concerned. Having regard to section 13 of the Act, the passage of time since the visits took place, and the resources already devoted to this case, I do not consider that such a consultation exercise is practicable in the circumstances.
I am therefore satisfied that the names of the individuals concerned, as they appear in the entries at issue, qualify as personal information within the meaning of the Act. Subject to section 28(2) and section 28(5), I find that section 28(1) applies to the names, but not the remainder of the entries of the visitors register. The name of a particular company or organisation is not personal information where it is disassociated from any identifiable individual purporting to represent the company or organisation. In other words, if the column listing the names of the individuals concerned is redacted in full, the entries would simply reveal that an unidentifiable individual purporting to represent a particular company or organisation was signed into Leinster House on a certain day, at a certain time, by a particular Member. In the circumstances, I find that section 28(1) does not apply to the entries at issue where the name of the individual is redacted.

I note that section 28(2) of the FOI Act sets out certain circumstances in which the exemption at section 28(1) does not apply to information that otherwise qualifies as personal information. I am satisfied that none of those circumstances arises in this case in relation to the names of the individuals as they appear in the entries. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals concerned have not consented to the release of that information; (c) the information in this context is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Under section 28(5), access to the personal information of a third party may be granted where, on balance, (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. No argument has been made, nor do I find any other basis for concluding, that the release of the names recorded in the relevant entries would be to the benefit of the individuals concerned. On the question of the public interest, I find that there is a strong public interest in openness and transparency with respect to the workings of government at Leinster House. However, as the visitors register says nothing about the reasons for the contacts with the Members, I accept that the public interest would be satisfied to a sufficient extent by the release of the entries showing the names of the companies and organisations listed with the names of the individuals redacted. Thus, while the intrusion on the right to privacy might be minimal in many instances, I find nevertheless that the public interest served by granting access to the names of the individuals as they appear in the entries at issue does not outweigh the public interest in upholding the right to privacy of the individuals concerned. I therefore find that the Service was justified in refusing access to the names of the individuals under section 28(1) of the Act.

Section 26(1)(a)
The Service also argues that the relevant entries in the visitors register are entitled to protection on the grounds of confidentiality under section 26(1)(a) of the FOI Act. The Service refers to its statutory duty to provide support services to the Members of each of the Houses of the Oireachtas and notes that it engages with those Members on a daily basis. Based on its role and experience, the Service says that "Members sign visitors in on the expectation of all three of the Service, the Member, and the visitor that the information entered into the visitors' log is supplied in confidence and on the understanding that the entries will be kept confidential".

Section 26(1)(a) is a mandatory exemption that applies where the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body. Under section 26(2), the confidentiality exemption does not apply to a record prepared by a staff member of a public body, or a person who is providing a service for a public body under a contract for services, in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services". It is the position of the Service, however, that an entry in the visitors' log is created in compliance with the Service's security measures and not in the discharge of the visiting public servant's duties. In addition, section 26(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 26(3) refers).

I do not dispute that the Service has ample experience in engaging with the Members it serves. Nevertheless, I do not regard it as plausible that the name of a company or organisation alone, as recorded in a visitors register for the purpose of a meeting with a Deputy or Senator in a public building such as Leinster House, is information given in confidence even if it is treated as such by the Member and the Service. I therefore do not accept that the first requirement of section 26(1)(a) is met. I also do not consider it plausible that companies or organisations would be deterred from sending representatives to meet with Members at Leinster House by reason of the disclosure of the entries concerned. Alternatively, as a general matter, I do not accept that it is of importance to the Service that meetings continue to be held at Leinster House that are so secretive in nature that a representative would be reluctant to give the name of the organisation or company being represented for fear of disclosure. Where exceptions arise, for instance, in relation to a meeting held for the purpose of a protected disclosure, I accept that the visitor would be more likely to give a generic "personal" address (e.g., town and county), as do the vast majority of visitors to Leinster House. However, given the nature of the majority of the addresses listed in the visitor registers, it is evident that it is not of any importance to the Service that a precise name and address are recorded. In the circumstances, I am not satisfied that section 26(1)(a) applies. For the sake of completeness, I note that no argument has been made, nor am I aware of any other basis for finding, that a duty of confidence exists for the purposes of section 26(1)(b) of the Act.

Other
In its previous submissions, the Service also argued that the FOI Act does not apply to the visitor registers by virtue of section 127 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 and Article 15.10 of the Constitution. Having considered the matter afresh, however, I find no reason to depart from the conclusions I previously reached in relation to these claims.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Service. I affirm its decision to refuse access to the names of the individuals listed in the relevant entries of the visitors register for Leinster House under section 28(1) of the Act. I annul its decision in relation to remaining records at issue and direct that access be granted to the relevant entries of the visitors register for Leinster House subject to the redaction of the names of the individuals concerned.

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 after notice of the decision was given to the person bringing the appeal.

 

Peter Tyndall
Information Commissioner