Whether DPER was justified in refusing access, under various provisions of the Act, to records relating to the setting of a salary and other contractual arrangements for the appointment of a new Chief Executive Officer (CEO) of Ervia
OIC-104803-N9R9N2
Background
On 29 December 2020, the applicant submitted a request to DPER for copies of all records, from 1 June 2020 to the date of his request, relating to the setting of a salary and other contractual arrangements for the appointment of a new CEO of Ervia. On 27 January 2021, DPER decided to part-grant the request. Of the nine records it identified as falling within the scope of the request, it granted access in full to two records, partial access to a further three records, and refused access to four records. DPER cited sections 29(1), 30(1)(c), and 37(1) of the FOI Act as the basis for withholding, in whole or in part, the relevant records. In this decision I have adopted the numbering system used by DPER in its communications with the applicant and with this Office in relation to the records at issue.
On 27 January 2021, the applicant sought an internal review of DPER’s decision, following which DPER affirmed its original decision. On 1 March 2021, the applicant sought a review by this Office of DPER’s decision.
During the course of the review, the Investigator invited and received submissions from the Department of Housing, Local Government and Heritage (DHPLG) and Ervia on the matter. In their submissions, DHPLG and Ervia cited a number of other exemptions of the Act that it viewed as supporting the withholding of certain information. These exemptions are addressed further below.
It should also be noted that during the course of the review, DPER released part of a record to which access had been refused in full, namely page 4 of record 5, with a minor redaction. The applicant indicated that the partial release of the additional record was not, in his view, sufficient to settle the matter. As such, I have decided to conclude this review by way of a formal, binding decision. In the course of the review, I have had regard to the correspondence between the applicant and DPER, to the correspondence between this Office and both the applicant and DPER, and to the submissions made by DHPLG and Ervia. I have also examined the records at issue.
Scope of the Review
This review is concerned solely with whether DPER was justified, under various provisions of the FOI Act, in refusing access to Records 3, 4, and 8 and in granting only partial access to Records 2, 5, 7 and 9.
Analysis and Findings
Records 2, 3, 7, 8, and 9
DPER sought to rely on section 37(1) of the Act as the basis for partially withholding access to records 2, 7 and 9, and for refusing access in full to records 3 and 8. In its initial submissions DPER also indicated that it had applied section 29(1) of the Act to the records in full.
Records 3 and 8
Record 2 comprises a draft letter of consent from DHPLG conveying various consents relating to the appointment of CEO of Ervia, with the redaction of information relating to the contract of employment. Record 7 comprises the letter of consent from DHPLG to Ervia regarding the contract of employment, with sections redacted that contain essentially the same information removed from Record 2. Record 9 is a letter from DPER to DHPLG concerning the terms and conditions for the CEO, with redaction of details of a specific clause in the contract of employment. Record 3 comprises the proposed contract of employment for the CEO while Record 8 comprises a copy of the signed contract along with an accompanying cover letter.
Section 37(1) of the Act provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. The Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, (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), namely a personnel record. It is sufficient for the information at issue to fall within one or more of the fourteen categories for it to be deemed personal information for the purposes of the Act.
Certain information is excluded from the definition of personal information, including the name of a staff member of a public body or information relating to the position held or its functions or the terms and conditions upon and subject to which the individual occupies that position.
The records at issue contain details of the contract of employment of the CEO of Ervia and the terms and conditions of upon which he holds the post. As such, I am satisfied that it is personal information for the purposes of the Act. It is worth noting that Ervia is listed in Schedule 1, Part 2 of the Act as an exempt agency. As such, the exclusion to the definition of personal information outlined above does not apply as Ervia is not a public body for the purposes of the Act. I find, therefore, that section 37(1) applies to the details of the contract of employment of the CEO of Ervia and the terms and conditions of upon which he holds the post.
However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37. Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.
Section 37(5) 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. I am satisfied that the release of the information at issue in this case would not be to the benefit of the individual to whom the information relates.
On the matter of the applicability of section 37(5)(a), DPER submitted that it had weighed the public’s right of access to records and the benefit of increased transparency from public service bodies as two matters in favour of release. Against release, it said it had considered the individual’s right to privacy and took the view that the public interest associated with the granting of the records did not outweigh the individual’s right to privacy. In its submission, DHPLG stated that while it accepted that transparency and accountability were relevant issues to the public interest consideration, it did not believe this warranted the release of the personal information at issue in this case.
In submissions received from Ervia, it identified as factors in favour of release the public interest in individuals being able to exercise their rights under the FOI Act to the greatest extent possible; the public interest in members of the public knowing how a public body performs its functions and being able to form an opinion as to whether those functions are being properly discharged; and the public interest in increasing the openness and transparency of decisions taken by public bodies. Against release, Ervia identified the fact that the substantive information as to the CEO’s terms and conditions and tenure were already in the public domain (noting that CEO appointments may be five to seven years and his salary was published in its annual report); that what had been redacted was information particular to the circumstances of the CEO; the CEO’s right to privacy; the public interest in ensuring that Commercial State Bodies could attract candidates for roles on the basis that their personal information will not be divulged, albeit that certain terms and conditions would be in the public domain; and the fact that release of a record under FOI was deemed to be released to the world at large. In sum, Ervia argued that the public interest in respecting the CEO’s right to privacy outweighed the public interest in specific details of his appointment having regard to his personal circumstances.
In his application for review, the applicant argued that there was a strong public interest in the right to know how money is spent in public bodies and commercial semi-state organisations. He argued that there was also a strong public interest in understanding how such decisions are made within departments and by government ministers. He suggested that the terms and conditions surrounding the appointment of officeholders, directors, and senior management of organisations were quite different to those of an ordinary member of staff in an organisation.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet Case”), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In relation to the issue of the public interest, it is also important to have 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] IESC 26 (“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.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
In respect of Record 3 (the proposed contract of employment for the CEO of Ervia) and Record 8 (a copy of the signed contract along with an accompanying cover letter), I would note that this Office has previously held that that persons in receipt of remuneration sourced from public funds should have a diminished expectation of privacy or confidentiality in relation to that remuneration. Indeed, I note that by releasing to the applicant the letter from DPER to DHPLG dated 31 May 2019 (page 4 of record 5), DPER has already released certain details relating to the CEO’s appointment, including the term of appointment and basic salary details. However, the release of Records 3 and 8 would involve the disclosure of significantly more information about the terms and conditions of the CEO’s employment, which I accept to be personal information. Having regard to the nature of the information at issue and to fact that the release of information under the FOI Act is, in effect, release to the world at large, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the public interest in upholding the right to privacy of the individual to whom the information relates. I find that section 37(5)(a) does not apply in this case. I find, therefore, that DPER was justified in refusing access, under section 37(1), to Records 3 and 8.
Records 2, 7, and 9
The matter is less straightforward in respect of Records 2, 7, and 9. DPER redacted information from these records pursuant to section 37(1). However, on an initial analysis of the content of these records, this Office formed the preliminary view that certain of the personal information contained therein – namely, information relating to the length of appointment to position of CEO of Ervia – was the same personal information that DPER had released to the applicant by way of page 4 of Record 5. In addition, certain of the other information that DPER indicated was redacted under section 37(1) from Records 2, 7, and 9 – specifically, information relating to consents sought and obtained by DPER for certain technical amendments of the terms and conditions of the appointment – did not, on the face of it, appear to be matters that were inherently private and related to the individual incumbent of the role, so as to fall within the scope of section 37(1) of the Act. In those circumstances, it was not immediately apparent to this Office as to the basis on which DPER considered that the release of this information could give rise to the harms it had identified.
This Office raised this issue in correspondence with DPER, Ervia and the DPHLG, and invited each to make any additional submissions that it wished in this regard. DPHLG made no further submissions on this point. In DPER’s response, in relation to the terms and conditions of appointment that had already been released to the applicant by way of page 4 of Record 5, DPER noted the release and made no further arguments pursuant to section 37(1) as it related to that information. In relation to the technical amendments, DPER stated that it considered that this information, in so far as it related to arrangements for the particular appointee’s continuity of tenure in the event of the reconstruction or Ervia, fell to be refused or redacted under Section 37(1) and Section 37(5), as the information was confidential and/or personal information specific to the appointee’s tenure, and the aim of retaining the appointee in the event of restructuring.
In submissions received from Ervia on this point, it argued that that the term of the current CEO’s contract and the manner in which his contract would be dealt with in the event of the reconstruction of Ervia constituted his personal information, as it related to his financial affairs and employment or employment history. In addition, it stated that such matters related to modifications made to the Template Employment Contract for Chief Executives of Commercial State bodies, which was published on the DPER website. Ervia stated that these changes were negotiated by the Ervia in consultation with relevant Government Departments to take account of the current CEO’s specific circumstances in taking up the role. Ervia stated that these changes made were within the scope of the Minister’s and Ervia’s discretion, but were specific to the current CEO, and moreover that the nature of the assurance provided to the current CEO regarding the reconstruction of Ervia was also specific to him. Ervia stated that it considered that this fell squarely within the definition of personal information in the Act. It added that, although subject to Ministerial Consent, the employment relationship and contract were between the CEO and Ervia, which was an exempt agency for the purposes of the FOI Act, and so Ervia would not have been required to release this information. Ervia stated that the fact that this information was subject to release only arose by virtue of the requirement for Ministerial Consent.
The disclosure of the information redacted from records 2, 7, and 9 would disclose the proposed length of the term of appointment of the CEO. It would also disclose the fact that the contract of employment contains a clause that deals with any future reconstruction or amalgamation of the company in light of the Government decision on the future separation of Irish Water from the Ervia Group. The proposed length of the appointment has already been released by way of page 4 of record 5. The disclosure of the remaining information would not, in my view, disclose personal information relating to the current CEO. As such, I find that section 37(1) does not apply.
Section 29(1)
As outlined above, in its initial submissions to this Office DPER also indicated that it considered section 29(1) of the FOI Act too apply to all of the records at issue, including Records 2, 7, and 9. Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make. It is noted that section 29(1) of the Act contains two independent requirements, and the fact that the requirement in section 29(1)(a) is met carries no presumption that the requirement in section 29(1)(b) is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.
The public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown to the satisfaction of this Office how release of the record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
In its submissions, DPER argued that that the release of the information could disclose or materially undermine the negotiating position to be adopted in future discussions on the remuneration/terms for the existing CEO of Ervia, and for prospective future candidates for this post. It stated that, were the information to be released, the incumbent, and potential future candidates, would be aware of the terms that were recommended by Ervia, as employer, DHPLG and the New Economy and Recovery Authority (NewERA), for this position. DPER argued that the release of the records would reveal the initial positions of DHPLG, and DPER considerations of the proposal. The release of this information, it stated, could be used to strengthen alternate negotiating positions, which could undermine the ability of Ervia, the DHPLG and DPER to engage in effective negotiation of contractual terms, and could lead to an economic loss for the State. According to DPER, the release of the records would also disclose positions taken in respect of the wider remuneration package to the public, which would result in candidates for future appointments to the post, or other posts in Commercial State Bodies, becoming aware of the totality of the remuneration package previously sought, some elements of which may or may not be available for subsequent appointments. This, it stated, could cause difficulty during contract negotiations if candidates were aware that Ervia as employer had previously requested terms that are no longer available. Furthermore, according to DPER the disclosure of the negotiating position adopted in respect of this campaign could also potentially compromise future negotiations for other senior public sector appointments.
DPER further stated that the release of information relating to the internal consideration of the relevant parties of the matters informing pay determination would expose the process to public debate, and limit the extent to which the Department could conduct a confidential and informed examination, and provide recommendations and assessments for the consideration the Minister for Public Expenditure and Reform, that would include comparator evidence of similar positions or impacts on wider pay policy (pay caps et.). DPER noted that it had overall responsibility for public pay policy and industrial relations, including the negotiation and implementation of public service wide pay agreements and pay policy, and its view was that the public interest was not well served by release of information which, it considered, undermined its ability to carry out this role effectively and which impacted on the prudent management of the public service pay bill.
It seems to me that DPER’s arguments in relation to the applicability of section 29 are of more relevance to records 3, 5, and 8 than they are to the information at issue in Records 2, 7, and 9. I fail to see how the release of the information at issue in Records 2, 7, and 9 could possibly result in the harms identified by the Department. Accordingly, I find that section 29(1) does not apply to the relevant information redacted from those records.
In conclusion, therefore, I find that DPER has not justified its refusal of the information redacted from Records 2, 7, and 9 under sections 29 or 37 of the Act.
Record 5
DPER refused access to record 5 under sections 29(1) and 30(1)(c) of the Act. DPER described the record as a submission to the Minister of Public Expenditure and Reform regarding proposed detailed terms and conditions for the position of CEO. It comprises ten distinct documents related to the terms of the appointment.
In respect of the applicability of section 29(1) of the Act to Record 5, I would reiterate my findings above in relation to Records 2, 7 and 9. Namely, in circumstances where DPER has already released information regarding the length of appointment and salary of the current CEO of Ervia, I do not accept that the release of additional documents containing the same information could lead to the harms to the public interest as identified by DPER pursuant to section 29(1). Furthermore, and again as outlined above, in circumstances where I have found that the release of information in Records 2, 7 and 9 relating to the technical consents sought regarding the reconstruction of Ervia was not exempt from release under section 29(1), applying the same reasoning I find that same information as it appears in Record 5 is similarly not exempt. I find no other categories of information in Record 5, besides those mentioned above, that would fall within the scope of the exemption contained in section 29(1) of the Act. Accordingly, I find that Record 5 is not exempt from release under section 29(1).
Section 30(1)(c) of the Act provides for the discretionary refusal of an FOI request where the FOI body considers that the record could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1)(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test, and it is therefore sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations (although this matter may be relevant to the public interest test in section 30(2) of the Act).
In its submissions regarding section 30(1)(c), DPER identified the relevant negotiations as those between DPER and DHPLG regarding the terms to apply for the post of CEO of Ervia; between DHPLG and Ervia, as a state body under the aegis of that Department, regarding the terms to apply; and between Ervia, as employer, and the CEO of Ervia regarding the terms to apply. It described the positions, etc that it expected to be disclosed by the release of the record as proposals from Ervia, DHPLG and assessments by NewERA regarding the terms for the post of CEO of Ervia; DPER’s internal assessment of the proposed remuneration package, including non-basic salary elements, for the CEO of Ervia, and considerations on previous proposals for appointments to the post; DPER’s assessment of how the above fitted into wider strategic view of Senior Pay Policy; DPER’s position on the appropriate terms for the post; proposals from DHPLG regarding planned restructuring of Ervia and subsidiary companies; and proposals regarding the tenure for the CEO and arrangements to apply to the CEO in the context of proposed restructuring. In addition, in submissions received from Ervia it stated that the appointment of a new CEO for Irish Water, who would be appointed in advance of the legal separation of the group, would be an Ervia appointment, subject to Ministerial consent. Ervia submitted that, in those circumstances, making information relating to its current CEO’s contract publically available may prejudice it in negotiations with candidates who may seek similar accommodations / tenure. In fact, Ervia stated, the mere knowledge that Ervia (with Ministerial consent) had made adjustments to the standard form contract could result in candidates seeking other or further accommodations.
In relation to the above, I consider that the positions that DPER and Ervia argued would be disclosed by the release of the record have been substantially made available in the records already released to the applicant (Records 1, 6 and page 4 of Record 5, as well as the unredacted material released in Records 2, 7 and 9). As such, I do not find that to grant access to Record 5 would be to disclose those positions, and accordingly section 30(1)(c) does not apply. It is noted moreover that section 30(1)(c) does not apply to Ervia as a non-FOI body.
Record 4
Record 4 is a memo from NewERA to a number of relevant Government Ministers, dated 26 June 2020, regarding the conditions for the appointment of an individual to the post of CEO of Ervia. This record is one of the ten discreet documents that comprise Record 5, which I have previously determined is not exempt from disclosure under either sections 29(1) or 30(1)(c) of the Act. Accordingly, I find that Record 4 is similarly not exempt.
Additional exemptions cited by DHPLG and Ervia
In submissions received from DHPLG and Ervia, both bodies cited a number of additional bases under the FOI Act upon which they considered access to the records should be withheld. In particular, DPHLG argued that, in addition to sections 29(1) and 30(1)(c), Record 4 was further exempt under sections 37(1), 35(1)(a) and 36(1)(c) of the Act. Ervia similarly cited sections 36(1)(c) and 37(1) in this regard. I first of all find that this record is not exempt under section 37(1) of the Act (my analysis above in relation to Records 2, 7 and 9 refers).
Section 35(1)(a) of the Act provides for the mandatory refusal of an FOI request where the record sought (i) contains information was given to an FOI body in confidence; (ii) that information was given on the understanding that it would be treated by the FOI body as confidential; (iii) that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and (iv) that it is of importance to the body that such further similar information should continue to be given to the body. All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act. In the case at hand, I find that requirement (iii) is not met, on the basis that – to the extent that the information at issue might be said to have been given to an FOI body – its disclosure is unlikely to prejudice the giving to the body of further similar information. The information at issue relates to the terms of appointment of the CEO of a semi-state body and I consider that, irrespective of the outcome of this review, any such information would certainly be required to be provided in the context of any discussions regarding similar appointments in the future, in order for the appointment to progress. As such, I find that Record 4 is not exempt under section 35(1)(a) of the Act.
Section 36(1)(c) provides for the mandatory refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. While the standard of proof in relation to section 36(1)(c) is relatively low (inasmuch as the body seeking to rely on it must merely show that the conduct or outcome of contractual or other negotiations could be prejudiced, and not that such conduct or outcome would be prejudiced), this Office still expects that a body seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure, and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations. In the case at hand, it is noted that the contractual negotiations in respect of the position of CEO of Ervia are complete. In its submissions, DHPLG did not specify any other negotiations the conduct or outcome of which it believed may be prejudiced by the release of the record. In submissions received from Ervia, it stated the same arguments as it made in relation to section 30(1)(c) (outlined above) in support of its position that section 36(1)(c) was applicable. However, in circumstances where the accommodations afforded to the current CEO of Ervia have already been released to the applicant (by way of page 4 of Record 5), I do not consider that the release of Record 4 would result in the harms identified by Ervia. As such, I find that Record 4 is not exempt under section 36(1)(c) of the Act.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of DPER in this case. I find that Records 3 and 8 are exempt from release under section 37(1) of the FOI Act. However, I direct the release of the remaining records on the basis that they are not exempt under the various provisions cited by the bodies that were party to this review.
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