Whether the Hospital was justified in its decision under section 37(1) of the FOI Act to refuse access to records showing the identity of the payee of specific funds designated "Secretarial" through the Beaumont Hospital payroll in connection with accounts bearing the name -�Neuroradiology Research Fund-� 

24/01/2018

Background

On 29 November 2016, the applicant made an FOI request to the Hospital for the following records:  

-�1. Copies of all bank statements for any and all accounts which contain monetary lodgements to and payments from such account or accounts that pertain to and/or are designated as and/or are classed as lodgements to or payments from the -�Neuroradiology Research Fund-� for the financial years 2010, 2011, 2012, 2013 and 2014 that illustrate such lodgements and payments;
2. Copies of all records (which may include statements referred to at 1 above) which evidence the identity of the source of donations and/or deposits to and the quantum of (whether individually or collectively) to the "Neuroradiology Research Fund-� and/or  monies classed as such by the Hospital for the financial years 2010, 2011, 2012, 2013 and 2014;
3. Copies of all records (which may include statements referred to at 1 above) which evidence the identity of payees to whom cheques were written and/or electronic fund transfers made and/or inter-account transfers made and/or cash withdrawals made in favour of, and where payment made by cheque, disclose the cheque number of such cheque, from any and all accounts which contain monetary lodgements to and monetary payments from such account or accounts that pertain to and/or are designated as and/or classed as lodgements to or payments from the "Neuroradiology Research Fund" for the financial years  2010, 2011, 2012, 2013 and 2014, where such cheques, transfers or withdrawals are effected in consideration of funds relating to the "Neuroradiology Research Fund-�, and amounts paid or transferred to and or withdrawn in favour of each beneficiary and the payment/transfer/withdrawal date pertaining thereto."

On 23 December 2016, the Hospital granted access to 20 pages of income and expenditure records relating to the Neuroradiology Research Fund for the years 2010 to 2014. On 31 January 2017, the applicant wrote to the Hospital and stated: "I am requesting an internal review on one specific ground. The identity of the payee of funds designated "Secretarial" through the Beaumont payroll in the sum of €30,926 has not been disclosed despite number 3 of my original request specifying same. Please furnish the identity of the recipient party of these funds." 

On 16 February 2017, the Hospital issued its internal review decision. The Hospital stated that the name of the person in receipt of the payment is a staff member who is on the Hospital payroll. It stated that the work was undertaken while the staff member was on secondment to the service. The amount was paid from the Hospital payroll and then payment was reimbursed from the Neuroradiology Research Fund. The Hospital refused to release records containing the identity of the staff member under section 37(1) of the Act, on grounds that release of this information would involve the disclosure of the personal information of the party concerned. On 14 August 2017, the applicant applied to this Office for a review of the Hospital-�s decision. Both the applicant and the Hospital made submissions during the course of this review. 

On 13 October 2017, the Hospital's FOI Officer wrote to the applicant and to this Office and stated as follows: "The secretarial duties were carried out by a clerical person on the Hospital payroll and because the research funds were held in the Hospital accounts an internal transaction was carried out to reimburse the Hospital. I confirm that this was paid to a clerical member of staff over monthly instalments through the Hospital payroll. The only record showing this monthly payment to the clerical member of staff would be on the staff member's payslip which is personal information of the staff member and therefore would not be available under section 37(1) of the FOI Act 2014."  

On 27 October 2017, this Office wrote to the applicant and asked whether, in light of the additional information provided by the Hospital, she wished the review to continue and to pursue her request for records containing the identity of the payee of funds designated "Secretarial". On 10 November 2017, the applicant made a submission raising various queries about payments made and arguing that the requested information should be released.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the contents of the records, to the submissions of the parties, and to the provisions of the FOI Act 2014. 

Scope of Review

In submissions to this Office, the applicant states that the €30,926 paid out under 'Secretarial' was not shown with a specific date, but within the period January 2010 - March 2012. She submits that a breakdown showing the amounts paid, the dates of such payments and how payments were made is not personal information and can be provided. However, in her internal review application, the applicant confined the scope of her request to the identity of the payee of funds designated "Secretarial". Accordingly, the scope of this review must be confined to whether the Hospital has justified its decision to refuse to release records containing the identity of the payee of funds designated "Secretarial" through the Beaumont payroll in the sum of €30,926 on the basis that these records are exempt under section 37(1) of the FOI Act.  

Preliminary Matters

Before I make my findings in this case, it is useful to summarise this Office's position on certain issues arising in this case. The FOI Act provides for a right of access to records held by FOI bodies (section 11). Under section 12 of the Act, a person who wishes to exercise the right of access must ensure that the request contains sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.

However, requests for information, as opposed to requests for records, are not valid requests under the Act. The FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. Furthermore, the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. 

Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request. 

In this case, the Hospital identified the information specified by the applicant in her internal review request as being held in its electronically generated payroll details. Therefore, as set out under the Scope of the Review above, the records at issue are those furnished to this Office by the Hospital showing the identity of the payee. 

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

Under FOI, records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large. 

 
Analysis and Findings

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. The definition of "personal information" is contained in section 2 of Act:

"Personal information means information about an identifiable individual that, either -�
(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 an FOI body on the understanding that it would be treated by that body as confidential,

and, without prejudice to the generality of the foregoing, includes -�

(ii) information relating to the financial affairs of the individual;
(iii) information relating to the employment or employment history of the individual;
(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure  of the name would, or would be likely to, establish that any personal information held by the FOI Body concerned relates to the individual."

I am satisfied that the records contain personal information. However, that is not the end of the matter as the individual to whom the information relates is a member of the Hospital's staff. Section 2 states that the definition of personal information "does not include" the information specified at (I), (II) and (III). The exclusion at (I) excludes from the definition of personal information certain information relating to an individual who holds or held a position as a member of staff of an FOI body. The information excluded includes the name of the individual and the terms upon and subject to which the individual occupies/occupied that position. The exclusion at (I) does not provide for the exclusion of all information relating to such staff members. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. 

The exclusion to the definition of personal information at (I) does not deprive staff members of the right to privacy generally. For example, the Commissioner considers that where a salary scale applies to a position, the assigning of an individual to a particular point on the 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. The Commissioner takes the view that the salary scale applicable to the post, as opposed to the individual's point on that scale, can be said to be information relating to the position held by that individual and as such does not constitute personal information; however, the specific salary of the individual would constitute personal information. 

In this case, the records contain the hourly rate of pay and specific monthly salary of an identified staff member and I do not consider that the exclusions cover the information in them. I am satisfied that the records are exempt from release on the basis of section 37(1) subject to the provisions of section 37(2) and section 37(5) which I examine below. 

Section 37(2) 
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. In particular, I do not consider that it is appropriate to seek the consent of the individual concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue here. 

Section 37(5) The Public Interest
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. In my view, the grant of the request would not benefit the individual to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is important to take note of the obiter 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] IESC 26 ("the Rotunda case"). Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest." Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Thus, 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.

The applicant states that as the Neuroradiology Research Fund is "allegedly resting with the Hospital's General Account", the public interest test is met where monies are discharged from the Hospital's General Account to a third party supplying services. 

I have no remit to consider, or make findings on, the management by the Hospital of the matters at issue or any elements of the accounting process detailed by the applicant. It would not be appropriate for me to direct the release of exempt information in the public interest, effectively to the world at large, on the basis of assertions that the process might be flawed. 

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is worth noting that the right to privacy also 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 is hard to see how the grant of access to the identity of a staff member providing secretarial assistance would add anything further to the general understanding of how the Hospital handled the matter. On the other hand, I accept that the grant of access to the record would result in a significant invasion of the individual staff member's privacy.

I find that, in the circumstances of this case, the right to privacy of the third party whose personal information is in the records outweighs the public interest in granting the applicant's request.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm the Hospital's decision to refuse access to the requested records on the basis that section 37(1) of the FOI Act applies.

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