Whether the NTMA was justified in refusing the applicant’s request for information relating to a named employee and the department in which he works under sections 15(1)(a) and 30(1)(b) of the Act and pursuant to Schedule 1 Part 1(w)(iii) of the Act

8 February 2021

Background

In a request dated 22 June 2020, the applicant made a request to the NTMA for the following information:

1. The employment remuneration details of a named employee of the NTMA, namely salary, contract, pension and expenses,
2. Is that individual subcontracted out by the NTMA to the Strategic Banking Corporation of Ireland (SBCI)?
3. What payments were made to the individual by the SBCI as an employee of the NTMA?
4. Does the individual have a separate contract with the SBCI or is all remuneration via the NTMA?
5. Does the individual have a shareholding or is he employed by any company, sole trader, or any other legal entity, to whom the SBCI made payments as a result of subcontracting from the NTMA?
6. How many people are employed in the department in which the individual works in the NTMA?
7. What is the NTMA’s Budget for that department?
8. How much in NTMA costings is allocated for office space, light and heat, canteen facilities, parking facilities, toilet facilities, toilet paper, washing up liquid, what in the accounts is the breakdown of the costs of the department, in the workings of the accounts of the NTMA?

In its decision dated 17 July 2020, the NTMA refused the request. It refused part 1 on the basis that the NTMA is not a public body for the purposes of the FOI Act in relation to this information, pursuant to paragraph (w)(iii) of Schedule 1, Part 1 of the Act. It refused parts 2, 3, 4 and 5 of the request under section 15(1)(a) on the ground that no relevant records exist. The NTMA explained its working relationship with the SBCI and said that the named individual has a contract of employment with the NTMA and is remunerated by the NTMA. In response to part 6, the NTMA said that the relevant team has four members of staff, which forms part of a wider business unit. It refused the budgetary information requested in parts 7 and 8 of the applicant’s request under section 30(1)(b) of the Act and pursuant to paragraph (w)(iii) of Schedule 1.

The applicant sought an internal review of that decision, following which the NTMA affirmed its original decision. In relation to part 5 of the request, the NTMA nevertheless clarified that the individual confirmed that he has no shareholding in nor is he employed in any entity outlined in the request. On 30 October 2020, the applicant sought a review by this Office of the NTMA’s decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting the review, I have had regard to correspondence between the applicant and the NTMA as outlined above and to communications between this Office and both parties on the matter. I have also had regard to the content of the records identified by the NTMA as falling within the scope of parts 7 and 8 of the applicant’s request. I have decided to conclude this review by way of a formal, binding decision.

Scope of this Review

This review is concerned solely with whether the NTMA was justified in refusing the applicant’s request for information relating to a named employee and the department in which he works under sections 15(1)(a) and 30(1)(b) of the Act and pursuant to Schedule 1 Part 1(w)(iii) of the Act.

Preliminary Matters

In his submissions to this Office, the applicant raised concerns about expenditure at the NTMA and SBCI and an alleged lack of transparency in relation to the information he requested. It is important to note that this Office does not examine complaints about the manner in which public bodies conduct their business generally. In conducting this review, I am confined to considering whether the NTMA was justified in refusing access to the records concerned under the provisions of the FOI Act.

Furthermore, Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that a requester gives for his or her request shall generally 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 where the Act requires a consideration of the public interest.

Finally, for the benefit of the applicant, I should explain that requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.

Analysis and Findings

Part 1

Section 6(2)(a) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of certain specified records that are excluded. If the records sought come within the description of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Part 1(w)(iii) of Schedule 1 provides that the NTMA is not a public body for the purposes of the Act in relation to records concerning the terms and conditions on which a person holds a position as a member of staff of the Agency, other than when that information is contained in records in summary or collective form such that individuals cannot be identified from the record.

The information sought at part 1 is information concerning the terms and conditions on which a named individual holds a position within the NTMA as a member of its staff. I find, therefore, that that the NTMA was justified in refusing that part pursuant to Part 1(w)(iii) of Schedule 1.

Parts 2 to 5

As noted above, the NTMA refused access to parts 2 to 5 of the request under section 15(1)(a) of the Act on the ground that no records containing the information sought exist. That section provides for the refusal of a request where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

Our role in such cases is to review the decision to refuse the request and to decide whether that decision was justified. In doing so, we have regard to the relevant information available and assess the adequacy of the searches conducted by the FOI body. The relevant information generally consists of the steps actually taken to search for the records and information about the record management practices of the FOI body, insofar as those practices relate to the records in question.

Parts 2, 3 and 4 comprise questions about the named individual’s working relationship with the SBCI. The NTMA explained that it provides business services to the SBCI pursuant to Section 10 of the SBCI Act 2014. It said that this section also provides that the SBCI “shall reimburse the NTMA for the costs incurred by the NTMA in consequence of services provided to the SBCI.”

The NTMA said that this reimbursement is undertaken at a functional level. It said any reimbursement of this nature would not be at an individual level and would not be reflected in an individual’s employment records. It said that searches it carried out confirmed that this was the position and, accordingly, no relevant records were located relating to the SBCI ‘sub-contracting’ or making ‘payments’ to the named individual. It said the individual has a contract of employment with the NTMA and is remunerated by the NTMA. It seems to me that by providing that explanation, the NTMA has essentially addressed the questions raised at parts 2, 3, and 4 of the request. Regardless, in light of the explanation given of the manner of the services provided to the SBCI, I find that it was justified in refusing those parts under section 15(1)(a).

At part 5, the applicant requested information about any shareholding or other employment the named individual has. As noted above, the NTMA informed the applicant that the individual in question confirmed that he has no such shareholding or other employment. As such, while the NTMA has provided the answer sought, I find that it was justified in refusing the request for relevant records under section 15(1)(a) on the ground that no such records exist.

Part 6

The NTMA provided details of the number of staff on the relevant team. The applicant did not raise any specific concerns about this part of the request, Accordingly, as it seems to me that the NTMA did, in fact, grant this part of the request in answering the question posed, I do not propose to give any further consideration to this part. 

Parts 7 and 8

The NTMA refused access to two records it identified as falling within the scope of parts 7 and 8 of the request, concerning the budget/costs of the particular area of the NTMA where the named individual works, under section 30(1)(b) of the Act and pursuant to Part 1(w)(iii) of Schedule 1.

Record 1 comprises an extract from the NTMA’s financial systems and details the non-staff costs of a particular business unit. The NTMA explained that the team of which the named individual is a member forms part of that wider business unit. The NTMA considers this record to fall within the scope of the applicant’s request. I accept this to be the case.

Section 30(1)(b) provides for the refusal of a request where the body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(2) provides that section 30(1)(b) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record. 

This Office expects an FOI body relying on section 30(1)(b) to identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure. Having identified that harm, it must consider the reasonableness of any expectation that the harm will occur, which must be of a “significant, adverse” nature. The FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.

In its submissions to this Office, the NTMA said that while total NTMA expenditure is routinely published in the NTMA Annual Report, a breakdown of expenditure by reference to category and unit is not publicly available. It said that the business units within the organisation vary significantly in size and scope of functions and it is considered that the release of expenditure information at unit level would have an impact on functions relating to management. 

It is relevant to note that in the Supreme Court case of Sheedy v the Information Commissioner ([2005] 2 I.L.R.M. 374, [2005] 2 IR 272, [2005] IESC 35) Kearns, J. made it clear that a general prediction without any supporting evidence is not sufficient to satisfy the requirement that access to a record could reasonably be expected to result in the outcome envisaged. He stated that “[a] mere assertion of an expectation of [prejudice] could never constitute sufficient evidence in this regard”.

The NTMA has not explained how the release of the information in the record at issue could reasonably be expected to have a significant adverse effect on its functions relating to management, nor is it apparent to me how such harm might arise from the release of the record. In the circumstances, I find that section 30(1)(b) does not apply in this case. As I have found that section 30(1)(b) does not apply to the record, it is not necessary for me to consider the public interest test provided for under section 30(2). Accordingly, I direct the NTMA to release record 1 to the applicant.

Record 2 is an extract from a spreadsheet that contains remuneration details of the various members of the team of which the named individual is a member. I find that the Act does not apply to this record pursuant to Part 1(w)(iii) of Schedule 1.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the NTMA and I direct the release of the record 1, comprising an extract from the NTMA’s financial systems and details the non-staff costs of a particular business unit.

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