Whether the Commission was justified in refusing access to certain information relating to requests made under section 22 of the Regulation of Lobbying Act 2015 to waive the -�cooling-off-� period on specific post-term employment by former special advisers to Government Ministers

8 December 2022

Background

Section 22 of the Regulation of Lobbying Act 2015 (the Lobbying Act) provides for post-employment restrictions for certain designated public officials once they leave office. Specifically, Ministers, Ministers of State, ministerial advisors, and senior civil servants are prohibited, for a period of one year, from lobbying their former public body or former colleagues with whom they were connected in their last year in office, or from being employed by, or providing services to, a person who lobbies in such circumstances, without the consent of the Commission. A person subject to the Act-�s post-employment provisions may apply to the Commission to waive or reduce the cooling-off period. The Commission may refuse the request, grant it, or grant it subject to conditions.

In a request dated 1 November 2021, the applicant sought copies of all correspondence between the Commission and former Oireachtas members and former special advisers with regard to cooling-off periods for the period from 1 November 2020 to the date of his request, excluding a certain named Minister. On 24 November 2021, the Commission refused access to all 34 records it identified as falling within the scope of the request, under section 41(1)(b) of the FOI Act.

On 13 December 2021, the applicant sought an internal review of that decision.  As the Commission failed to issue an internal review decision within the statutory time-frame, the applicant sought a review by this Office of the deemed refusal of his request.

During the course of the review, the Commission revised its position with regard to the records at issue and on 26 August 2022, it granted partial access to the relevant records. It withheld certain information on the basis of sections 35(1), 37(1) and 41(1)(a) of the FOI Act. 

In light of the fact that the Information Commissioner is also a member of the Commission, I have been delegated to make a decision on this review. 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 Commission in support of its decision.  I have also had regard to the contents of the records concerned.

Scope of Review

This review is concerned solely with whether the Commission was justified in refusing access to the remaining information in the records at issue under sections 35, 37 and/or 41 of the FOI Act.

Analysis and Findings

The records at issue comprise seven requests to waive the cooling-off period on post-term employment imposed on designated public officials, as provided for in section 22 of the Lobbying Act. In all instances, the individuals previously worked as special advisers to Government Ministers. 

While the Commission cited sections 35, 37 and 41 of the FOI Act in support of its refusal of the remaining information in the records at issue, I will consider the applicability of section 37 in the first instance as I consider it to be of most relevance in this case.

Section 37 -� Personal Information

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing 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) (a personnel record of a member of staff of an FOI body).

Certain information is excluded from the definition of personal information. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include 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.

The exclusion at Paragraph (I) does not provide for the exclusion of all information relating to such directors, staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office / position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/ position holder while carrying out his or her official functions. The exclusion does not deprive staff members or directors of, or office/position holders in, FOI bodies of the right to privacy generally.

The information at issue includes the names and contact details of the individuals, details of their previous employment as special advisers, and details of their proposed future employment. In some cases, the dates of the correspondence have been redacted as well as details of the outstanding time to run on the -�cooling-off-� period. I am satisfied, given the context in which the information is contained within the records at issue, that the exclusion to the definition of personal information does not apply in this case and that the release of the information would involve the disclosure of personal information relating to the individuals who sought to waive the -�cooling-off-� period. I find, therefore, that section 37(1) applies to this information. 

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

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 of privacy of the individuals to whom the information relates.

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 and the Information Commissioner & Ors, 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.

Moreover, while the Court stated that the public interest balancing test involves a -�weighing of the respective private and public interests in the analysis of the records in issue-�, it did not disturb the guidance that it previously gave inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 

On the matter of the applicability of section 37(5)(a), 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.

I note that when arguing that the records at issue were exempt pursuant to section 41(1)(a) of the Act, the Commission drew the attention of this Office to section 25 of the Lobbying Act. Section 25(1) provides that the Commission must prepare an annual report each year relating to the operation of the Lobbying Act. Section 25(2) provides as follows:

-�A report under subsection (1) shall (in particular) include, in a form which does not enable the identification of the persons involved, information relating to -� any applications for consent under section 22, and all decisions on such applications, made in that year -�-�

This seems to me to reflect the clear intention of the Oireachtas that while certain information relating to requests to waive the -�cooling-off-� period should be published, identifying details should not. It seems to me that by releasing redacted versions of the records at issue, the Commission has sought to strike a balance between releasing as much information as it could whilst seeking to protect the privacy rights of the individuals concerned. Having regard to the nature of the remaining information at issue, and in keeping with the findings of the Supreme Court in the eNet case, I am aware of no sufficiently specific, cogent and fact-based reason that would lead me to find that the public interest in favour of the release of the withheld information outweighs, on balance, the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Commission was justified in refusing access, under section 37(1) of the Act, to the remaining information at issue.

In light of my findings, I do not consider it necessary to consider the applicability of section 35 in this case. However, as the Commission-�s primary ground for refusing access to the information was based on its view that the release of the information is prohibited under section 41(1)(a), I will address the applicability of that provision for the benefit of the parties.

Section 41 -� Enactments relating to non-disclosure of records

Section 41(1)(a) of the FOI Act provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by law of the European Union or by an enactment which is not listed in Schedule 3 to the FOI Act. In essence, the non-disclosure provision overrides any right of access under FOI, unless that particular provision is specified in Schedule 3. This Office considers that for section 41(1)(a) to apply, a provision must exist that explicitly prohibits the release of the records, that is clear in its meaning and effect, and that can be interpreted only as prohibiting disclosure of the information in question.

In its submission on the applicability of section 41(1)(a) of the FOI Act, the Commission cited section 35 of the Ethics Act, as amended by the Lobbying Act. It argued that section 35(1) provides for the non-disclosure of information obtained under the Lobbying Act, subject to certain exceptions under section 35(2).

Section 35(1) of the Ethics Act provides as follows:

-�A person shall not disclose information obtained by him or her under this Act or the Regulation of Lobbying Act 2015 or by being present at a sitting of a Committee or Commission held in private.-�

I am satisfied that the disclosure of the records at issue would involve the disclosure of information obtained by the Commission under the Lobbying Act and is of a type covered by section 35(1). However, subsection (2) sets out certain circumstances where section 35(1) does not apply. Subsection (2)(c)(i) provides as follows:

-�Subsection (1) does not apply to -� the disclosure of information by a person in the performance of his or her functions -�-�

The Ethics Act defines -�functions-� as including -�powers and duties and references to the -�performance of functions-� as including, with respect to powers and duties, -�references to the exercise of the powers and the carrying out of the duties -�-�-�. Accordingly, -�carrying out-� a duty, is the performance of a function for the purpose of subsection (2)(c)(i). While the term -�duty-� is not defined in the Ethics Act, nor in the Interpretation Act 2005, I consider the following definition in-�Murdoch and Hunt-�s Dictionary of Irish Law-�(6^thed.) at page 564 to be of assistance: 

-�-�An act which is required as a result of a legal obligation. It is the correlative of right-�-�.

It is noteworthy, in my view, that neither in subsection (2)(c)(i), nor in the definition of -�functions-�, is the reference to functions/duties limited to functions or duties under the Ethics Act itself. Accordingly, I deem it appropriate to consider whether the release of information under the FOI Act can be said to comprise disclosure of information by a person in the performance of his or her functions for the purposes of subsection (2)(c)(i).

I am satisfied that the FOI Act imposes a clear duty on staff of FOI bodies to process requests for information received under the Act. In particular, section 13 of the Act clearly mandates such staff members to process requests in a timely manner, through the repeated use of the word -�shall-�.  In my view, the FOI Act imposes a duty on staff members of FOI bodies to release information requested under the FOI Act in circumstances where none of the exemptions set out in the Act apply to the information. I consider the natural corollary of this to be that staff can correctly be said to be performing the functions of their role in circumstances where they are processing FOI requests and releasing records to requesters where they are not exempt. Accordingly, I consider that the disclosure of records to a requester, when the FOI Act requires same, is indeed a duty and function for the purpose of subsection (2)(c)(i). This means that if the records sought are not exempt from release under the FOI Act, then section 35(1) of the Ethics Act cannot serve to prohibit the release of the records under section 35(1) as subsection (2)(c)(i) serves to disapply section 35(1) in such circumstances.

Accordingly, before a finding can be made on whether section 35(1) of the Ethics Act serves to prohibit the release of the records sought, it seems to me that consideration must first be given to whether a right of access to the records otherwise exists under the FOI Act.

In this case, as I have found the information at issue to be exempt under section 37(1), it seems to me that in the particular circumstances of this case, section 35(2)(c)(i) of the Ethics Act does not serve to disapply section 35(1) as no right of access under the FOI Act exists. Accordingly, I find that the disclosure of the information is prohibited by section 35(1) of the Ethics Act in this case and that section 41(1)(a) therefore also applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Commission-�s decision to refuse access, under sections 37(1) and 41(1)(a) of the FOI Act, to the remaining information in the relevant records.  

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