Case Number: 170018

Whether the HSE was justified in its decision to refuse access to records relating to salary and other payments made to a named consultant under section 37 of the FOI Act on the ground that the information sought is personal information relating to the consultant

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

The applicant submitted a request to the Health Business Services division of the HSE on 17 June 2016 for records relating to salary and other payments for the year 2012 for a named consultant. On 19 July 2016, the HSE refused the request on the grounds that the information sought was personal information relating to the consultant. The applicant sought an internal review of that decision on 26 July 2016. Following correspondence between the HSE, the applicant, and this Office concerning the HSE's failure to issue an internal review decision, the HSE wrote to the applicant on 2 December 2016 affirming its original decision to refuse his request. The applicant was dissatisfied with the HSE's response and on 10 January 2017, he sought a review by this Office of the HSE's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the correspondence between the HSE and the applicant. I have also had regard to the communications between this Office and both the applicant and the HSE on the matter.

Scope of Review

This review is solely concerned with whether the HSE was justified in its decision to refuse the applicant's request under section 37 of the FOI Act.

Preliminary Matter(s)

The HSE's decision letters fell well short of the requirements of the FOI Act in this case. They did no more than cite the exemption on which the decision to refuse access was based. Under section 13, where a request is refused, the decision notice must contain, among other things, the reasons for the refusal, any findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. The HSE has been subject to the FOI Act for more than 18 years and it is unacceptable that such poor quality decision letters continue to issue. The HSE must encourage its decision-makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by this Office, to assist them in properly processing FOI requests.

Analysis and Findings

The HSE refused the applicant's request under section 37(1) of the FOI Act on the ground that the records sought contain personal information relating to the named consultant. The applicant argued that the information is not personal information as the consultant in question is a member of staff of the HSE.

Section 37(1) provides that access to a record shall be refused if granting access would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The section 2 further details fourteen specific categories of information in the definition of personal information, including (ii) 'information relating to the financial affairs of the individual' and (iii) 'information relating to the employment or employment history of the individual'. I am satisfied that the information sought in this case relates to the financial affairs of the named consultant.

Paragraph I of section 2 excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a 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.

I note that the salaries of consultants such as the named individual in this case are governed by set salary scales which are publicly available. As this Office has noted in previous decisions, the assigning of an individual to a particular point on a scale can often derive from some personal aspect of an individual's life. For instance, in the public service an individual is often assigned to a particular point on a scale having regard to their previous income or position. In other instances individuals can be allocated a point on a scale as a result of long service, performance or qualifications. There is a distinction between the terms upon which an employee holds a position and the actual payments received in the course of his or her employment. While the terms of the employment might include details of an individual's grade and the general pay scale applicable to that grade, they do not, in my view, include specific payments made to the individual in the course of his or her employment, or the specific scale to which the individual is assigned. I do not consider that the individual salary details of the individual in question (as opposed to a salary range for a particular grade or post) fall within the categories of information in paragraph I of section 2 of the FOI Act, and therefore I find that the exclusion does not apply to the information in question.

I find, therefore, that section 37(1) applies to the records sought. I will now consider whether any of the other relevant provisions in section 37 might serve to disapply the exemption in section 37(1).

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information which I have found to be exempt under section 37(1). Section 37(5) of the FOI Act provides that 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 request would benefit the person to whom the information relates.

It has not been argued that releasing the records would benefit the person to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to where the balance of the public interest lies, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, 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.

In my view, the public interest in ensuring transparency and accountability has been met to some degree by the publication of employee pay scales on the HSE website, including the pay scales of consultants such as the individual in question. On the other hand, I consider that release of the information sought would involve a significant breach of the individual's privacy rights. I find, therefore, that the public interest in granting the request does not, on balance, outweigh the privacy rights of the individual concerned, and that section 37(5)(a) does not apply in the circumstances.

I therefore find that the HSE was justified in refusing to grant the request under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the HSE in this case.

Right of 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.

Stephen Rafferty
Senior Investigator