Whether the Commission was justified in refusing, under section 37(6) of the FOI Act, to confirm or deny the existence of records relevant to the applicant's request for records described by him as relating to a decision to grant a named former T.D. an illness pension

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 15 March 2017, the applicant made an FOI request to the Commission for "[a]ll records relating to the decision to grant [a named T.D] an illness pension and to increase the amount based on an assumption he would get re-elected. All records showing the financial cost of this decision to the state."

The Commission's decision of 5 April 2017 told the applicant it was refusing to confirm or deny whether relevant records existed, further to section 37(6) of the FOI Act. Section 37(6) is a provision that enables an FOI body to refuse to confirm or deny whether requested records exist, where to do so would itself disclose personal information about a party other than the person requesting the records. The applicant sought an internal review of this decision on 12 April 2017, which the Commission's internal review decision of 5 May 2017 affirmed.

On 16 May 2016, the applicant sought a review by this Office of the Commission's decision.

It should be noted that, on 13 March 2017, I made a decision on a similar request made by the applicant, regarding the same former T.D. (Case No. 160564 refers, which may be read at http://www.oic.gov.ie/en/Decisions/Decisions-List/Mr-Mark-Tighe-The-Sunday-Times-and-the-Houses-of-the-Oireachtas-Commission-FOI-Act-2014-.html). That request, dated 13 April 2016, sought "all records relating to the decision to grant [the named T.D] early retirement based on sickness and to give him an extra five years notional service. Please include any records showing the cost of this decision to the state and the financial benefit for [the named T.D.]".

Section 22(9)(a)(iii) of the FOI Act gives me discretion not to accept an application for review where the matter to which it relates has been the subject of another review under section 22. However, I decided to accept the application of 16 May 2016. This is because, after I had made my decision in Case No 160564, it transpired that the Commission had overlooked the internal review application made by the applicant in that case. I understand that this was because the applicant sent his application to a Commission staff member's personal email address rather than, presumably, the Commission's generic email address for FOI matters. I am pleased to note that the Commission told this Office that it was taking steps to ensure that submissions sent similarly in future would not be omitted from consideration.

However, while my decision in Case No 160564 did not consider all the arguments it otherwise would have done, I must make it clear that the applicant had an opportunity to make submissions to this Office in that case and did not do so. In fairness, he acknowledges that this was his own error, and also that his arguments would have been the same as those he made at appeal stage. However, I reject his comment that "[a] little bit more communication from the OIC and this case could have been properly considered.". The Investigator to whom Case No 160564 was assigned queried the purported internal review application with the Commission and asked for the actual application to be sent on. There was no reason for her to either dispute the Commission's response that the applicant had not submitted anything further, or to notify the applicant that this was what she had been told.

I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Commission, and the applicant. I have had regard also to the provisions of the FOI Act.

Scope of the Review

This review is confined to whether or not the Commission has justified its refusal to confirm or deny whether it holds the particular records requested by the applicant.

Findings

Decision in Case No 160564
At the outset, I will address any implications for the Commission's reliance on section 37(6) in this case, arising from its decision on the applicant's request of 13 April 2016. In refusing to grant that request, the Commission simply said that the records it had considered contained personal information and were exempt under section 37(1) of the FOI Act. I affirmed this in my decision in Case No 160564.

However, my decision also noted the Commission's position that, while it is publicly known that the named T.D. has resigned, the circumstances of his resignation have not been officially placed into the public domain. I did not describe the nature of the withheld records other than to say that they disclose the circumstances of the named T.D.'s resignation/retirement, and, essentially, that they contained personal information. I also made it clear that my decision "should not be taken as providing any confirmation that [the named T.D.] was granted "early retirement based on sickness.". Accordingly, the Commission was entitled to claim section 37(6) in this case.

Section 37(6)
Section 37(6) provides as follows:

"Where-
(a) an FOI request relates to a record to which subsection (1) applies but to which subsection (2) and (5) do not apply or would not, if the record existed, apply, and
(b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1),
he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists."

This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information. The usefulness of section 37(6) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist.

My consideration of section 37(6) must be conducted on the basis of what would be the case were the Commission to hold records of the specific kind requested, rather than on whether or not such records are actually held. Furthermore, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Therefore, I cannot outline in detail the reasons for certain aspects of my decision in the circumstances of this case. Neither can I disclose whether the specific records sought by the requester do, or do not, exist.

For section 37(6) to apply, the following requirements must be satisfied:
the records sought must be of a type which disclose the personal information of a third party and which, on the face of it, are exempt from release under section 37(1) of the FOI Act;
none of the exceptions to section 37(1), as contained in sections 37(2) and 37(5) of the FOI Act, apply or, in the case where relevant records do not exist, would apply if such records did exist, and
the head of the FOI body must form the opinion that to state whether or not relevant records exist would in itself be to disclose the personal information of a third party.

1. Would the Records Constitute "Personal Information"?

Section 2 of the FOI Act defines "personal information" as

"information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential" ...

Section 2 also lists 14 specific examples of personal information, including (i) information relating to the medical history of the individual, (ii) information relating to the financial affairs of the individual, and (iii) information relating to the employment or employment history of the individual. Information is personal information where it can be classified as any one of these 14 examples, or as meeting the requirements at (a) or (b) of the definition.

The applicant believes that the T.D. sought and was granted an illness pension and was also awarded additional notional service. He says that the T.D. put his health issues into the public domain and made public comments about his entitlement to a pension. He supplied various material in support of his views, the provenance of some of which is unclear. He also asserts that the circumstances of the T.D.'s retirement have been confirmed to him.

The applicant seems to be arguing that release of the records will not lead to any further disclosure of the T.D.'s personal information beyond what he says is already public. While he has not taken issue with the Commission's reliance on section 37(6), such an argument is relevant to my consideration of this provision of the FOI Act.

It is a matter of fact that the T.D. has resigned from the Dáil. However, and even if the T.D. has placed details about his health in the public domain, the request seeks records that confirm the actual circumstances of the T.D.'s resignation/retirement. Questions over its provenance aside, the material supplied by the applicant does not support his contention that the T.D. disclosed such details to the general public. Neither have I reason to dispute the Commission's position that there is no record of it, or any other party, officially placing the circumstances of the named T.D.'s resignation/retirement in the public domain.

I am satisfied that the requested records would, if they exist, meet both elements of the definition of "personal information". Although not necessary to go further, I also consider that if they existed, the requested records would fall into the three examples of personal information mentioned above. I find, therefore, that the records sought, if they existed, would be of a type which disclose the personal information of a third party and, on the face of it, would be exempt from release under section 37(1) of the FOI Act (which provides for the mandatory refusal of personal information about an individual other than the requester).

2. Do any of the Exceptions to Section 37(1) Apply?

While section 37(1) prohibits the disclosure of personal information, this is subject to consideration of sections 37(2) and (5).

Section 37(2) provides that section 37(1) does not apply to a record if (a) the details concerned relate solely to the applicant; (b) the third party has consented to the release of their personal information; (c) the information is of a kind that is available to the general public; (d) the information at issue belongs to a class of information which would or might be made available to the general public; and (e) disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual. I am satisfied that none of these provisions would have relevance in the present case. I find that section 37(2) would not apply to the requested records, if they existed.

Sections 37(5)(a) and (b) provide that a record, which is otherwise exempt under section 37(1), may be released in certain limited circumstances. The effect of section 37(5)(b) is that such an exempt record may be released if it can be demonstrated that the grant of the request would benefit the third party whose personal information is contained in the records. There is no obvious case, nor has such a case been made, that the named T.D would benefit from the release of relevant records (if such records exist). Thus, I find that section 37(5)(b) would not apply in this case, if the requested records existed.

Section 37(5)(a) - The Public Interest

The effect of section 375)(a) is that a record, which has been found to be exempt under section 28(1), may be released if it can be demonstrated that, on balance, "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".

On the matter of where the public interest would lie if the requested records exist, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26) (the Rotunda case). It is noted 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") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.

The applicant makes two main arguments. Firstly, that there should be transparency regarding the decision he believes was made to "facilitate" the T.D., by granting him a "huge increase in his pension arrangements" through awarding him an illness pension and notional service, and in relation to the amounts involved. Secondly, that there should be transparency regarding what he says was the T.D.'s "u-turn on his publicly stated position in a matter of weeks".

In essence, the applicant is arguing that there is a public interest in ensuring the openness and accountability of the Trustees of the Oireachtas Members' Pension Scheme regarding their treatment of any pension application that the T.D. may have made. I accept that the FOI Act itself recognises a public interest in promoting the openness and accountability of FOI bodies, particularly where any payment of public monies is concerned.

In my decision in Case No 160564, I noted that the Commission had acknowledged this public interest and said it had provided the applicant with copies of Statutory Instruments 354/1992 and 78/1998, which relate to members' pension entitlements. I said that I considered the details in these Statutory Instruments to partially serve the public interest in release in that case. In particular, Clause 5K of SI 354/1992 ("The Houses of the Oireachtas (Members) Pensions (amendment) (No.2) Scheme 1992") details the provisions applicable to all members of the Oireachtas in relation to any calculations of notional service for pension purposes. These matters are equally relevant to my consideration of the public interest in this case.

The applicant is also arguing that there is a public interest in disclosing the T.D.'s subsequent, personal, actions. I do not accept that this is a "true public interest" that I must consider. FOI is concerned with the activities of public bodies generally and is not necessarily a means by which all information about the activities of serving or former individual public servants, or T.D.s, is intended to be made known to the public at large. While sometimes personal information relating to such individuals should be released in order to promote the openness and accountability of an FOI body, such release also depends on the sensitivity of that personal information. I accept that the requested records, if they exist in this case, would relate to the T.D. in his capacity as a former T.D. However, they would also clearly relate to private aspects of his life. While pensions are, I accept, payable from public monies, it seems to me that the requested records, if they exist, would be much more sensitive from a personal perspective that would be, say, information about mileage or expense claims incurred when carrying out official duties.

Furthermore, there is 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). This is recognised by the language of section 37 and also by the Long Title to the FOI Act. 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. I do not agree with the applicant's view that "most of the privacy concerns .... do not hold water." As already noted, I do not consider either the T.D, or the Commission, or any other party, to have placed the circumstances of the T.D.'s retirement in the public domain. T.D.s and former T.D.s are entitled to the same rights to privacy in relation to sensitive personal matters as any other person. I consider that a significant invasion of privacy would occur if information about the exact nature of the T.D.'s retirement, about whether he applied for an illness pension, and about the outcome of any such application made, was disclosed to the world at large, which is the effective result of releasing records under FOI.

If the requested records exist, it seems to me that it would not be possible to serve the public interest in ensuring the Commission's openness and accountability without also breaching the T.D.'s Constitutional right to privacy regarding sensitive personal matters. Having considered the matter carefully, and based on all of the information available to me, I find that if records of the type sought by the requester exist, the public interest served by their release would not outweigh the public interest in upholding the right to privacy of the T.D. concerned.

In summary, therefore, I find that if the requested records exist, none of the exceptions to section 37(1), as provided for in sections 37(2) and 37(5), would apply in this case.

3. Would Disclosure of Existence or Non-Existence of Records Amount to Disclosure of Personal Information?

One possibility is that the Commission does, in fact, hold records of the type sought by the requester. In that event, disclosure of their existence will convey that the T.D. sought to retire on ill health grounds, that his application was approved, and that he was awarded additional service. The alternative possibility is that the Commission does not hold records of the type sought by the requester. Disclosing this would disclose that the applicant did not seek retirement on ill health grounds and/or that his application was not approved and/or that no additional service was awarded. I am satisfied that to disclose that records exist, or do not exist, would be to disclose personal information.

Section 37(6) - Summary

I find that each of the three requirements for the application of section 37(6) is satisfied in this case, having regard to the specific nature of the applicant's request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Commission's refusal, under section 37(6) of the FOI Act, to confirm or deny whether the specific records requested by the applicant exist.

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.

Elizabeth Dolan
Senior Investigator