Whether the Department was justified in refusing access to correspondence between a staff member of a public body and the Department’s Outside Appointments Board under section 37(1) of the FOI Act

18 July 2019

Background

This review has its origins in a three part request the applicant made to the Department of Finance on 24 July 2018. He subsequently narrowed the request to the following records:

i) a copy of any referrals by civil servants from Kilkenny County Council (the Council) to the Outside Appointments Board (the OAB) below the grade of designated positions (as understood by the Ethics in Public Office Act 1995), to include the entire file on each case where applicable, and

ii) a copy of any referrals to the OAB by serving or former civil servants of the Council holding or having held designated positions, to include the entire file on each case where applicable.

The Local Government Act 2001 (the 2001 Act) sets out an ethical framework for the local government service. The Code of Conduct for Local Authority employees was drawn up pursuant to the 2001 Act.

Under the Code, employees to whom Part 15 of the 2001 Act applies must not, within twelve months of resignation or retirement, accept an offer of employment or consultancy engagement where the nature and terms are such that the question of a conflict of interest could arise without obtaining the approval of the appropriate authority. In the case of employees at or above Director of Services level (including City and County Managers), the appropriate authority is the OAB.

The Department of Finance subsequently transferred the request to the Department of Housing, Planning and Local Government (the Department) under section 12 of the FOI Act as the relevant body with responsibility for matters relating to the subject of the request.

On 22 August 2018 the Department refused the request under section 37(1) of the FOI Act on the ground that access to the records would involve the disclosure of personal information relating to a third party. The applicant sought an internal review of that decision, following which the Department varied its original decision, releasing two records and refusing access to two others under section 37(1). On 14 September 2018 the applicant sought a review by this Office of the Department's decision.

During the course of the review, Mr O'Gorman of this Office notified the relevant third party of the review as an affected third party. The individual in question made a submission on the Department’s refusal of the records.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the Department's correspondence with the applicant as outlined above, to the communications between this Office and both the applicant and the Department on the matter, and to the submission received from the third party. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified in refusing to grant access to the two records at issue under section 37(1) of the FOI Act.

Analysis and Findings

Section 37

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 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a), i.e. personnel records of staff of FOI bodies.

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 records at issue relate to an application submitted by a then serving staff member of the Council to the OAB pursuant to the Code of Conduct for sanction to take up certain employment following the cessation of his/her employment with the Council. Record 3 comprises the letter of application for sanction while record 4 comprises a summary note of the background to the individual's application and the OAB’s response.

In its submission to this Office, the Department argued that the records pertain to the process of applying for employment and do not relate to the office or positions held by the individual in question but rather relate to his/her employment or employment history.

The Department acknowledged that the requirement on senior public sector staff to engage with the OAB could be said to form part of the "terms upon and subject to which the individual holds or held that office or occupies or occupied that position", as referenced in the exclusion to the definition of personal information in Paragraph (I). It argued however that the specific details of compliance with those requirements was personal information within the meaning of section 2.

The applicant argued that the matter is fundamentally about conflicts of interest and senior employees and review by an outside independent agency. He argued that the records do not contain information that is captured by parts (a) or (b) of the definition of personal information. He further argued that the information at issue is captured by the exclusion to the definition of personal information at Paragraph (I) which excludes information relating to the office or position or its functions and anything written or recorded in any form by the individual in the course of and for the performance of his or her functions.

The individual to whom the records relate argued that his/her privacy rights should be protected. S/he argued that the correspondence containing information of a private nature should not be disclosed, including information relating to potential future employment or any potential terms and conditions of such employment.

The applicant argued that the information at issue does not fall within paragraph (a) or (b) of the definition of personal information. 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), the Supreme Court held that once the information falls within one of the 14 listed categories it is personal information for the purposes of the FOI Act and there is no requirement for such information also to meet the requirements of either paragraph (a) or (b).

As I have outlined above, the 14 categories deemed to comprise personal information include

(iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a), i.e. personnel records of staff of FOI bodies.

The applicant also argued that the information at issue is captured by the exclusion to the definition of personal information at Paragraph (I). The exclusion does not exclude all information relating to staff members. It 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.

I accept that the records at issue relate to the independent oversight of potential conflicts of interest. However, I must also consider the precise nature of the information contained within the records. While the purpose of the correspondence was so that the individual concerned could obtain sanction, pursuant to the Code of Conduct, to take up specified future employment, the records at issue contain specific details about the individual and the nature of the proposed employment.

Having regard to the specific nature of the information contained within the records at issue, I am satisfied that it is not captured by the exclusion at Paragraph (I). I find, therefore that the release of the records would involve the disclosure of personal information relating to the individual in question.

I find, therefore, that section 37(1) applies to the records.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act provides that a request that 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 right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.

As no evidence has been presented to this Office to suggest that the grant of the request would be to the benefit of the individual concerned, I am satisfied that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

The Public Interest

In considering the public interest test at section 37(5)(a), it is important to have regard to the comments of the Supreme Court in 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. Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act. In the context of determining whether to grant a request in the public interest under section 37(5)(a) of the FOI Act, this means that the reasons given for the request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Indeed, an FOI body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies (section 11(3) refers).

On the other hand, the Act also recognises the public interest in the protection of the right to privacy. This is evident 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.

According to the Code of Conduct, its purpose is to set out principles and standards of conduct and integrity for local authority employees, to inform the public of the conduct it is entitled to expect and to uphold public confidence in local government. Given its purpose, it seems to me that there is a strong public interest in enhancing the transparency and accountability of the manner in which the OAB performs its functions.

Indeed, while the individual to whom the information relates argued for the protection of his/her privacy rights, s/he acknowledged that there is a clear public interest in the public knowing that someone applied to the OAB and whether or not permission was granted. However, s/he argued that while the public should know that permission was granted, they are not entitled to know any aspects beyond that relating to personal terms and conditions.

The question I must consider is whether the public interest in enhancing the transparency and accountability of the Department's OAB function, outweighs, on balance, the significant public interest in protecting the privacy rights of the individual concerned.

In this case it seems to me that the partial release of the records at issue which discloses the identities of the individual concerned and of the proposed future employer along with the outcome of the OAB’s consideration of his/her application for sanction would serve to enhance the accountability and transparency of the Department while at the same time protecting the more sensitive personal information relating to the individual in question and his/her proposed future employment. While I accept that even partial access serves to impact on the applicant’s privacy rights, I am conscious that the public interest in enhancing transparency and accountability is strong, given the purpose of the Code of Conduct. I am also of the view that disclosure of such limited information would not disclose any inherently sensitive information relating to the individual.

However, I do not believe that the public interest in release is so strong as to require the release of the records in their entirety which would include more specific details as to the nature and terms and conditions of the individual’s employment. As I have outlined above, the Act provides strong protection for the privacy rights of individuals.

In the circumstances, I find that the public interest in granting partial access to the records at issue outweighs, on balance, the privacy rights of the individual concerned. I direct the release of the records subject to the following redactions:

Record 3. Page 1:

• The individual’s address
• The first two sentences of paragraph 2
• The last five words in sentence three of paragraph 2
• The remainder of paragraph 2
• All of paragraph 3

Record 3, Page 2:

• All of paragraph 1
• All of paragraph 2
• The individual’s signature

Record 4, Page 1

• The individual’s address
• All text after the word “post” in the main body of the letter

Record 4, Pages 2 and 3:

• The entirety of pages 2 and 3

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. While I find that it was justified in refusing access to the majority of the two records at issue under section 37(1) of the FOI Act as described above, I find that the public interest in granting partial access to the records at issue outweighs, on balance, the privacy rights of the individual to whom the information relates.

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 

 

 

Stephen Rafferty

Senior Investigator