Whether the Institute was justified in deciding to refuse access, under section 37(1), to details of the salary scales for a specified post held by named individuals and details of whether a pension contribution was included

10 December 2018

Background

On 8 June 2018 the applicant sought access to the salary scales for a specified position (post A) within the Institute from 2010 to 2012 and he identified four individuals who held that post. He also sought access to the salary scales for a second specified position (post B) from 2013 to the present and he identified 2 individuals and himself as holding or having held the post. He also sought details of whether pension contributions were included in respect of the posts in question.

On 4 July 2018 the Institute released a record containing the applicant's salary details but refused access to certain information under section 37 of the Act on the grounds that it comprised personal information relating to third parties. The applicant sought an internal review of that decision in which he indicated that he was happy to confine the request to one for details of the salary scales of post B for the years 2012 to 2017 inclusive and for details of whether a pension contribution was included in the scales.  On 21 August 2018 the Institute affirmed the decision to refuse access to the information sought under section 37. On the same day, the applicant sought a review by this Office of the Institute-™s decision.

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the Institute-™s correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the Institute on the matter. I have also had regard to the contents of the records identified by the Institute as containing personal information of third parties.

Scope of Review

This review is solely concerned with whether the Institute was justified in deciding to refuse access to details of the salary scales for post B and details of whether a pension contribution was included in the scales.

Preliminary Matters

While the applicant has outlined his reasons for seeking access to the withheld information, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information.

It should also be noted that in making my decision, I must comply with section 25(3) of the FOI Act, which requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, I am constrained in the description I can give of the information to which the Institute has refused access and in the detail that I can give in my analysis. I must also take account of the fact that the grant of access to a record under the FOI Act is understood, effectively, to be equivalent to the record's release to the world at large given that the Act places no restrictions on the use to which records released under the Act may be put.

Analysis and Findings

Section 37(1) 
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual and (iii) information relating to the employment or employment history of the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

The applicant argued that the information sought is of a general nature as he asked for the salary scales related to the two named positions and whether a pension contribution was included for each, and not for the point on the scale of each individual employed in those positions. He argued that if individuals were employed in positions that had the same name then a general salary scale would or should apply and such salary scale(s) should be released to him. He noted that what point on such a scale an individual was on would be personal information under the FOI Act and therefore he understood that this specific information would not be released to him on foot of his request.

In its submissions to this Office, the Institute stated that the records withheld concerned individuals identified in the applicant's request as being employed in the named positions. It stated that no government pay scales were in place at the time of appointment for the positions, some of which dated back to 2008, and that no sector norm existed for benchmarking purposes. It stated that a set "Personal Grade" salary was therefore applied. The Institute further stated that a personal grade is specific to an individual due to the historical or specific circumstances of that individual, and is at rate rather than a salary scale. It stated that there was no pay scale and it argued that releasing the salary information would constitute releasing personal information relating to the individuals in question.

The Institute stated that the individual posts were advertised with indicative salary ranges in order to limit open negotiation on salaries, but these were not definitive and these indicative ranges could change if the post were to be advertised again following a vacancy due to promotion, transfer, or retirement, etc. It added that in 2013, Enterprise Ireland, through the Technology Gateway Programme, identified a specific position (post B), and that future appointments to these roles will have a predetermined scale applied, but that the employments identified predate the post identified by Enterprise Ireland.

Having regard to the Institute's explanation of the manner in which the individuals concerned were assigned to the posts in question, I am satisfied that the salary details of the named individuals and details about whether they make a pension contribution is personal information for the purpose of the FOI Act and that it does not come within the exclusion in paragraph (I). I find, therefore, that section 37(1) applies to the records sought.

Section 37(5) - Public Interest
Section 37(1) is subject to other provisions of the section. In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.

I must therefore consider whether the public interest in releasing the records at issue, on balance, outweighs the right to privacy of the individuals concerned.  In considering the public interest test at section 37(5)(a), 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''). In that judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

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.

It seems to me that the public interest in openness and transparency surrounding post B is served, to some extent, in so far as future appointments to the role will be on the basis of a predetermined, advertised salary scale. The question I must consider is whether the public interest in enhancing the accountability and transparency of the Institute in respect of the historic appointments on a "personal grade" basis is sufficiently strong to outweigh, on balance, the privacy rights of the individuals concerned. In my view, it is not. In holding this view, I have had regard to the Institute's explanation of how further appointments to the post will be made. I find, therefore, that the public interest in the release of the information sought does not, on balance, outweigh the privacy rights of the individuals concerned, and that section 37(5)(a) does not apply in the circumstances.

In conclusion I find that the Institute was justified in refusing access to details of the salary scales for post B and details of whether a pension contribution was included, under section 37(1).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Institute to refuse access, under section 37(1), to details of the salary scales for post B and details of whether a pension contribution was included.

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