Whether the Service was justified in withholding the identities of former members of the Houses of the Oireachtas who had outstanding Oireachtas bar/restaurant balances written off

11 July 2018

Background

On 10 November 2017, the applicant sought access to a breakdown of bar/restaurant debt that was written off earlier in 2017, to include the name of the person/organisation who owed the money along with the amount they owed.

On 7 December 2017 the Service decided to part-grant the request. It released three tables consisting of the breakdown of the amounts of the outstanding bar and restaurant balances of former members of the Houses of the Oireachtas (as no currently serving members had balances written off), government departments and a number of committees and other organisations/Offices that had outstanding debts written off. The identities of the former members were withheld under section 37 of the FOI Act.

On 21 February 2018, the applicant sought an internal review of the Service's refusal to release the identities of the former members. On 6 March 2018, the Service issued an internal review decision in which it affirmed its original decision but varied the basis on which it did so. The internal reviewer categorised the request as comprising two elements, namely the breakdown of the debt written off and the names of the persons/organisations involved. He purported to refuse access to all records not already released coming within the scope of the first element of the request under section 42(k), notwithstanding the fact that the breakdown of the amounts of the outstanding balances had already been released. He affirmed the original decision to refuse access to the identities of the former members under section 37(1).

On 8 March 2018 the applicant sought a review by this Office of that decision. In carrying out my review, I have had regard to the correspondence between the Service and the applicant and to the submissions made by both the applicant and the Service to this Office. 

Scope of the review

Only the identities of the former members who had outstanding bar/restaurant balances written off, associated with the amounts in question, have been withheld in this case. This review is therefore concerned solely with whether the Service was justified in refusing access to the identities of those former members under section 37.

Analysis and Findings

Section 37(1) provides for the mandatory refusal of a request where the public body considers that access to the record sought would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual. Personal information is defined, at 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 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. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "information relating to the financial affairs of the individual". Once information falls within one of the 14 listed categories, it is personal information for the purposes of the Act. There is no requirement for such information also to meet the requirements of either paragraph (a) or (b).

Disclosure of the information sought would disclose the identities of the former members and their outstanding bar/restaurants amounts that were written off. I am satisfied that the disclosure of this information would involve the disclosure of personal information relating to individuals other than the applicant and that section 37(1) applies.

Section 37(2) and 37(5)

There are certain circumstances, provided for under section 37(2) and 37(5), in which the exemption set out in section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides that a record which is otherwise exempt under section 37 may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the former members concerned, as envisaged by section 37(5)(b) of the FOI Act.

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the former members to whom the information relates.

In his submission to this Office the applicant drew parallels between this review and one of the earliest cases of this Office (Case 99168 -Mr. Richard Oakley of The Sunday Tribune Newspaper & the Office of the House of the Oireachtas). In that case, the then Commissioner directed the release of the identities of the members of the Houses who had claimed various expenses. He found that the public interest in ensuring accountability for the use of public funds greatly outweighs any right of privacy which the members might enjoy in relation to details of their expenses claims.

In this case, the applicant argued that material related to unpaid debts at the Dáil bar and restaurant falls into the same category of information. He argued that the provision of a credit facility at the bars and restaurant specifically arises because of the status of the individuals concerned as members and noted that it is not provided to other civil service staff working in Leinster House.

The applicant also argued that the public interest in ensuring accountability for the use of public funds would be best served by releasing the names of the members as it would make it more likely that attempts would be made to pay the money back and make it less likely that such debts would be run up in the future. He argued, therefore, that the public interest in granting the request in full outweighed the public interest in the right to privacy of the former members.

The Service, in its submission, stated that the debts were incurred by the members concerned in a private capacity and were deemed payable by them in a private capacity. It stated that the provision of credit had been a service provided by it to members in order to accommodate this private activity and that, under normal circumstances, the outstanding debt would not be paid by taxpayers. It stated that the pathway to how and why the balances came to be written off had already been publicised widely and that a press release also issued in August 2017.

In arguing that the public interest in the right to privacy outweighs the public interest in transparency and accountability, the Service argued that release of the identities of the former members could unfairly and perhaps irreversibly affect the good name of innocent individuals. It stated that there was evidence that strongly suggested that the identities of the members in question may have been incorrectly associated with the non-payment of bar and restaurant bills and that in several cases where its accounts had indicated that bills had gone unpaid, it could actually be shown that payment had in fact been made but that the Service itself had failed to properly record those payments at the time. It stated that in those instances the amount at issue remained on its accounts as an outstanding balance. It further stated that several of the persons to whom the records relate (along with public bodies that have already been identified in the information released to the applicant) have disputed the accuracy of the records. It therefore concluded that given the significant doubts as to the reliability of the accounts, the public interest in protecting the privacy rights of the former members outweighed the public interest in releasing their identities.

In my view, the facts of this case are distinguishable from those of Case 99168. I do not agree with the applicant's argument that the material at issue falls into the same category of information that was at issue in Case 99168. In the earlier case, the payments claimed were in respect of expenses incurred by the members in the performance of their functions. In this case, the debts were incurred by the former members in a private capacity.

In Case 99168, the then Commissioner noted that members are already required by law to disclose significant aspects of their private financial affairs. The Ethics Acts require members to disclose a wide range of registrable interests. The Commissioner noted that the existence of this requirement is a recognition that the need to preserve and enhance public confidence in the integrity of public office holders can require an encroachment on the privacy of such persons which would be neither necessary nor appropriate in the case of the ordinary citizen.

Nevertheless, it seems to me that such encroachment is not without its limits. There is no requirement on members to disclose the type of information that is at issue in this case. Furthermore, while such information may be of interest to the public in the sense that it may satisfy public curiosity, I do not accept that this means that there is a public interest in disclosing the information which outweighs the privacy rights of the individuals concerned.

While there is a strong public interest in the Service being open, transparent and accountable in the manner in which it performs its functions, the FOI Act also recognises the public interest in the protection of the right to privacy, both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy 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 seems to me that the public interest in enhancing the transparency and accountability of the Service in the manner in which it wrote off the outstanding debt of the former members concerned has been served to some degree by the release of the amounts owed and by its disclosure of the details surrounding the circumstances in which the debts were written off. On the matter of the applicant's argument that releasing the names of the members would discourage future debts, I understand that the Service has since abolished the bar and restaurant credit system that existed at the time the debts were accrued, and has replaced it with an automatic deduction system.

In balancing the competing public interests at issue in this case, I have not placed significant weight on the claims of the Service concerning the accuracy, or otherwise, of the amounts concerned. Rather, I consider that the public interest in enhancing transparency and accountability in the use of public funds (by writing off the debts) has been served to a significant degree by the release of the information provided to date and while I accept that the disclosure of the identities of the members concerned may further enhance that transparency and accountability, I don't believe that the public interest in doing so is sufficiently strong, on balance, to outweigh the privacy rights of the members concerned, given that the debts were incurred in a private capacity. I find that section 37(5)(a) does not apply. Therefore, I find that the Service was justified in its decision to refuse access to the identities of the former members who had outstanding bar/restaurant balances written off, associated with the amounts in question.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Service to refuse access to the identities of the former members who had outstanding bar/restaurant balances written off, associated with the amounts in question, under section 37(1) of the FOI Act.

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