Whether the Service was justified in refusing access to the names and additional details of Members and staff of the Oireachtas in records relating to compliance with public health guidance relating to the COVID-19 pandemic on the basis of sections 31(1)(a) and 37 of the FOI Act

14 December 2021

Background

In a request dated 15 November 2020 the applicant sought access to copies of any records held by the Houses of the Oireachtas Service relating to failures to adhere to social distancing or other COVID-19 public health measures in the Leinster House complex and/or the Convention Centre. 

The applicant explicitly stated that his request related to records from 26 June 2020 to the date of his application.  Following correspondence between the applicant and the Service the applicant agreed to narrow the scope of his request to records from 1 August 2020 to the date of his request.  At the request of the Service the applicant withdrew his original request and on 23 November 2020 submitted a new request with the revised dates.

On 21 December 2020 the Service issued a decision in the applicant’s request.    The schedule accompanying the decision listed a total of 77 records. Access was granted to two records in full (records 20 and 62) and 11 in part (records 1, 6, 7, 8, 9, 13, 19, 24, 25, 29 and 73). Access to the remaining 64 records was refused. The Service relied on sections 29(1), 30(1)(a), 30(1)(b), 31(1)(a), 32(1)(a)(ii) and section 37(1) to refuse access to the various records, in whole or in part. It also appears that the decision-maker did not disclose details of two further records falling within the scope of the request on the basis of section 31(4) of the FOI Act. 

On 7 January 2021 the applicant sought an internal review of that decision, following which the internal reviewer the affirmed the original decision. The schedule accompanying the decision listed 79 records as falling within the applicant’s request.  The revised schedule provided with the internal review decision listed the two additional records as records 75 and 76, while the records numbered 75, 76 and 77 on the original schedule were re-numbered as 77, 78, and 79 respectively. Access to the two additional records was refused on the basis of section 31(1)(a) amongst other exemptions. Access was granted to some further information contained in two records (records 39 and 74). On 2 April 2021 the applicant sought a review by this Office of the internal review decision.

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 applicant’s comments in his application for review and to the submissions made by the Houses of the Oireachtas Service in support of its decision.  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 the Review

In the course of the review by this Office, the Service reconsidered its position and released further information to the applicant on two different occasions.  

On 23 June 2021, it released records 61, 65 and 70 (the latter two being identical) in full. It part-released records 2, 3, 4, 5, 10, 11, 12, 15, 14, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 66, 67, 68, 69, 71, 72, 77, 78 and 79. It also released further information in records 6, 39 and 73. The Service further indicated that it was no longer seeking to rely on sections 29(1), 30(1)(a), 30(1)(b) and 32(1)(a)(ii) in this case and instead was seeking to rely solely on sections 31(1)(a) and 37(1).

Subsequently, on 14 October 2021, the Service released records 33, 40, 41, 42 and 43 in full and released additional information in records 2, 3, 4, 10, 14, 16, 17, 21, 23, 26, 31, 38, 44, 47, 49, 52, 57, 59, 60, 67, 71, 72, 74 and 78. It maintained its reliance on section 37 to refuse access to the remaining information in the records, with the exception of records 75 and 76 for which it maintained its reliance on section 31(1)(a). 

In his application to this Office the applicant indicated that he was happy for the names of the Oireachtas compliance team to be redacted from the records. Following the most recent release of information, the sole remaining information that has been redacted from records 1, 2, 3, 5, 6, 12, 14, 16, 17, 18, 22, 24, 25, 27, 30, 45 and 49 relates to the names of staff members of the COVID-19 compliance team. As such, I do not need to examine these records further.

In addition, records 8, 9, 10, 11, 15, 19, 21, 23, 26, 28, 29, 31, 32, 34, 35, 36, 38, 39, 44, 46, 47, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 63, 64, 66, 67, 68, 69, 72, 73, 74, 77, 78 and 79 contain both names of members of the COVID-19 compliance team as well as further information which has been redacted on the basis of section 37(1). In light of the applicant’s comments I consider the information relating to those staff names to be outside the scope of this review and I will consider the remaining information further under section 37(1) below.   

Records 46 and 51 are chains of email correspondence and in both cases record 44 is contained within such correspondence.  In the most recent release of records the Oireachtas released further information in record 44 to the applicant. However, it did not release revised versions of records 46 and 51 with the additional information available.  However, as I consider that the applicant is now in possession of this information it is not necessary for me to consider those parts of record 46 and 51 which contain record 44. 

Separately, record 63 is an email which is also part of the chain of correspondence comprising record 67.  The Service released further information in record 67 as part of the most recent release of records.  However, the Service did not release a revised version of record 63 to the applicant.  That said, as the applicant is now in possession of this information I do not consider it necessary for me to consider that information which has been refused in record 63 but which is now available in record 67.  

This review is therefore concerned solely with whether the Houses of the Oireachtas Service was justified in refusing access to the remaining information in records 4, 7, 8, 9, 10, 11, 13, 15, 19, 21, 23, 26, 28, 29, 31, 32, 34, 35, 36, 37, 38, 39, 44, 46, 47, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 66, 67, 68, 69, 71, 72, 73, 74, 77, 78 and 79 on the basis of 37(1) of the FOI Act and in refusing access to records 75 and 76 on the basis of section 31(1)(a).

Preliminary Matters

Before I address the substantive issues arising, I would like to make a number of preliminary comments.

First, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Secondly, I note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Finally, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Houses of the Oireachtas Service to satisfy the Commissioner that its decision to refuse access to certain records, either in whole or in part, was justified.

Section 31(1)(a)

The Service refused access to records 75 and 76 on the basis of section 31(1)(a). That section provides for the mandatory refusal of a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege.

In addition, in the course of its submissions to this Office, the Service also sought to rely on section 31(1)(a) to refuse access to the second sentence in the third paragraph of record 78.

In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the ground of legal professional privilege (LPP) in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege can also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

In its submission to this Office, the Service argued that records 75 and 76 comprise confidential communication between a senior staff member of the Service and the Office of Parliamentary Legal Advisers.  It argued that the records attract legal advice privilege as the exchange was sent from the staff member for the purpose of seeking legal advice on a particular matter.

Having examined the relevant records, I am satisfied that records 75 and 76 and the relevant part of record 78 attract advice privilege and that the Service was justified in refusing access under section 31(1)(a).

Section 37

Following the most recent release of information as outlined above, the Service is now relying on section 37 to refuse access to information in records 4, 7, 8, 9, 11, 13, 15, 19, 21, 23, 26, 28, 29, 31, 32, 34, 35, 36, 37, 38, 44, 46, 47, 48, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 66, 67, 68, 69, 71, 72, 73, 74, 77, 78 and 79.

Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

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 FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition. As such, if the information at issue is captured by one or more of the 14 categories, this is sufficient for it to comprise personal information for the purposes of the Act.

Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph I of the definition provides that where the individual is or was a staff member, the definition does not exclude the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied 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 those functions.

Section 2 part (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at (I) does not deprive staff members in FOI bodies of the right to privacy generally.

The Service argued that the information at issue is personal information relating to Oireachtas staff, Members and political staff. It said that in the unprecedented circumstances of the COVID-19 pandemic, members of its staff had found themselves monitoring the conduct of Oireachtas members, their staff and their own colleagues on ab ongoing voluntary basis. It noted that under the Houses of the Oireachtas Office Notice 11 of 2020, the COVID-19 Compliance Team is “responsible for monitoring day-to-day activities to ensure that...measures...such as social distancing and respiratory and hygiene protocols are being implemented and maintained in all areas of the Oireachtas complex”. It said these activities would not have formed part of the normal functions of staff members before the pandemic.

The Service argued that for monitoring to be acceptable to Members and staff, and for it to be effective, there must be willingness to submit to it. It said ongoing consent by the parliamentary community to this monitoring is vital to ensure compliance with public health guidelines and reduce the risk of a workplace outbreak. It argued that if personal information about people who are subject to the review are put into the public domain, consent and compliance will erode and the provisions put in place to ensure the health and safety of the parliamentary community will be at risk.

The service further indicated that although the staff who prepared the records did their utmost to record their observations accurately, the records are essentially subjective perceptions of the respective staff members; that is to say, the staff members’ views or opinions of the situation, and not statements of fact. It argued that in suggesting non-compliance by an identified person, the staff member / compliance officer has essentially created a document akin to a personnel record in which non-compliance is alleged against another. It said they are untried allegations, and the person in question will not have had a chance to rebut the accuracy of the record. It said the communications and reports in question were created as part of the process for encouraging the health and safety of the parliamentary community and that they do not constitute unequivocal statements of factual information.

Having considered the information at issue and the context in which it is recorded in the records at issue, I am satisfied that the disclosure of the identities of individuals referenced in the records would involve the disclosure of personal information relating to these individuals. I am also satisfied that the information redacted from the records relating to specific rooms, when coupled with other information contained in the records, is sufficiently detailed so as to allow for the identification of individuals if such information was disclosed.

In sum, I am satisfied that, with one exception, described below, disclosure of the information at issue would involve the disclosure of personal information relating to identifiable individuals and that section 37(1) of the FOI Act applies to this information.   

The exception is in respect of record 77, which comprises a table noting the observations of the members of the COVID-19 compliance team over a number of days at various locations. I am not satisfied that the disclosure of the information that has been redacted from the fourth column of the table, headed ‘Office/Party/Section’, would involve the disclosure of personal information relating to identifiable individuals. I find, therefore, that section 37(1) does not apply to this information.

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.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and 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 to privacy of the individuals to whom the information relates.

The Service argued that while there is a public interest in greater awareness around how public bodies are performing in their efforts to manage the COVID-19 pandemic, this should be tempered by the strong public interest in protecting the right to privacy of those mentioned in the records. In the context of the current case and in light of the information already released, the Service argued that there would be no additional benefit to the public interest by the release of the withheld information. Further, the Service argued that the release of the information could in fact hamper the COVID-19 compliance team in effectively carrying out their duties, something which it does not consider to be in the public interest. 

The applicant argued that insufficient weight has been attached to the public interest by the Service as there is a public interest in disclosing details of those who were identified by the COVID-19 compliance team as not adhering to the relevant guidelines. He argued that were the identities of the individuals to be released then there would be an associated increase in compliance with COVID-19 guidelines throughout the Oireachtas complex as individuals would be concerned about the possible release of details relating to their alleged breaches of the relevant guidelines. In addition, the applicant argued that releasing the identities of the individuals would aid the COVID-19 team in carrying out their duties as individuals would be more likely to comply with such measures so as to avoid any negative comment if details of observed breaches were to be published. He argued that this would support the clear public interest in safe-guarding the health and well-being of those working in the Oireachtas. 

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

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.

As I have set out above, section 11(3) of the Act recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. It seems to me that in this case, the Service has, at this stage, released a significant amount of information concerning the level of adherence to COVID-19 public health measures in the Leinster House complex and/or the Convention Centre.  That information will allow readers of the records to draw their own conclusions in relation to the matter. The question I must consider is whether the release of the information at issue would further enhance public scrutiny and accountability of the Service to the extent that it would outweigh, on balance, the privacy rights of the individuals concerned. In my view, it would not, given the strong protection the Act affords to privacy rights. Having carefully considered the matter, I find that there is no public interest factor in favour of the release of the information that, on balance, outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the Oireachtas Service was justified in refusing access, under section 37(1) of the Act, to the information at issue, with the exception of the information in record 77 as outlined above.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Houses of the Oireachtas Service. I find it was justified in refusing access, under section 31(1)(a), to records 75 and 76 and the relevant part of record 78 and I find it was justified in refusing access, under section 37(1), to the information redacted form the records at issue, with the exception of the information contained in the fourth column in record 77. I direct that this information in record 77 be released to the applicant.    

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