Whether the Service was justified in refusing access, under section 37(1) of the Act, to a list of the names of secretarial and parliamentary assistants employed by TDs and Senators in 2020 and 2021

28 September 2022

Background

In a request dated 11 November 2021, the applicant sought access to a list of all parliamentary assistants and secretarial assistants employed by TDs and Senators -�in December 2020 and to date in 2021-�. He specified that the information should include the names of those assistants. The applicant also sought access to the pay scales that applied to parliamentary and secretarial assistants in 2020 and 2021.

In a decision dated 8 December 2021, the Service provided a link to the -�Scheme for the Provision of Secretarial Assistance-� from its website which contains details of the various pay scales, and a link to a related statutory instrument. It also provided details of the numbers of parliamentary assistants and secretarial assistants employed at the date of the request. However, it refused access to the list of names under section 37(1) of the FOI Act. The applicant sought an internal review of the refusal of his request for the list of names, following which the Service affirmed its original decision. On 29 March 2022, the applicant applied to this Office for a review of the decision of the Service.

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 FOI body in support of its decision.  I have also examined the records at issue. 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 Service was justified in refusing access, under section 37(1) of the Act, to a list of the names of parliamentary and secretarial assistants employed by TDs and Senators in 2020 and 2021.

Preliminary Matter                                                                         

In its submissions to this Office, the Service cited EU regulations governing data protection and certain related judgments of the CJEU in support of its refusal of the request. As the Service should be aware at this stage, this Office has clarified in many previous published decisions that data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester.

Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.

The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 of the FOI Act to the records at issue.

Analysis and Findings

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to individuals other than the requester.

The definition of personal information

Before considering the application of section 37, I must first consider whether the information included in the records constitutes personal information.

Section 2 of the FOI Act defines the term -�personal information-� as information about an identifiable individual that either (a) would, in the ordinary course of events, 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 the body as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual.

Pursuant to the findings 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 (more commonly referred to as "the Rotunda Hospital case"), it is important to note that paragraphs (a) and (b) of the definition of personal information are not overarching prior requirements and that information falling into any of the categories set out at (i) to (xiv) constitutes personal information, even if neither of the requirements of paragraphs (a) or (b) are satisfied.

I find that the disclosure of a list of the names of parliamentary and secretarial assistants employed by TDs and Senators in 2020 and 2021 would involve the disclosure of information relating to the employment or employment history of the individuals concerned and is therefore captured by category (iii) of the definition.

Certain information is excluded from the definition of personal information. The Act provides that personal information does not include:

-�(I) in a case where the individual holds or held-�

(A) office as a director of, 

(B) a position as a member of the staff of, or

(C) any other office, or any other position, remunerated from public funds in,

an FOI body, 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 the functions aforesaid.-�

In his application to this Office, the applicant argued that the exclusion applies on the basis that parliamentary and secretarial assistants -�fall into the category of staff of a body remunerated from public funds-�. It is important to note that the exclusion does not cover all positions remunerated from public funds. The position must also be -�in an FOI body-�.

In its submissions, the Service said that parliamentary and secretarial assistants are not public servants and are employed directly by the relevant Member of the Oireachtas (the Member). It says that as Members are not FOI bodies, staff they employ are not staff of an FOI body. As a result, the Service says, the exemption at section 2 of the Act does not apply.

In response to questions raised by this Office, the Service says that it administers the Scheme for Secretarial Assistance -�facilitating payment of the staff through the Oireachtas payroll and providing services and advice to Members as employers-�. The Service says that it provides recommended contracts of employment and employers-� guides to Members, as well as training courses. It says that -�matters such as termination, change of grade, and change of worksharing pattern are under the control of the Member, and the Service makes appropriate changes only at the Member-�s direction-�.

The Scheme for Secretarial Assistance (https://www.oireachtas.ie/en/members/salaries-and-allowances/scheme-for-secretarial-assistance/) states as follows:

-�Staff employed under the Scheme are directly employed by Members or Parties and are not, therefore, civil or public servants.-�

The relevant regulations state, at section 12, that:

-�A person providing secretarial facilities under these Regulations is the employee of the member or qualifying party to whom the facility is provided under a contract of employment made between them.-�

I accept that parliamentary and secretarial staff are employed by the relevant Members and not by the Service. I find, therefore, that parliamentary and secretarial staff do not hold positions in an FOI body and that the exclusion does not apply. I find, therefore, that the disclosure of the list sought would involve the disclosure of personal information relating to individuals concerned and that section 37(1) applies. However, this is not the end of the matter as section 37(1) is subject to the other provisions of the section.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply, including section 37(2)(d). That section provides as follows:

-�Subsection (1) does not apply if -� the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public-�

The Scheme of Secretarial Assistance, referenced above, states that

-�Staff employed under the Scheme should note that in the event of a relevant request under the Freedom of Information Acts, their names will be released in accordance with a decision of the Office of the Information Commissioner.-�  

Moreover, the Scheme contains a template contract of employment which includes the following clause:

The Employee acknowledges that in accordance with any relevant request under the Freedom of Information Act 2014 (as amended) his or her name and grade shall be open to release pursuant to the terms of that Act.

This Office asked the Service to consider the application of section 37(2)(d) in this case having regard to the above details. In its submissions, the Service said the first statement refers to (unpublished) decisions taken by this Office in 2009 where we directed the release of similar information. It argued, however, that those decisions have been undermined by subsequent judgments of the Supreme Court.

In respect of the clause in the template contract, it argued that for subsection 2(d) to apply, the individual must have been informed before providing the information to it that the information might be made publicly available. It said the template contract is simply recommended for use and that there is no obligation on the members to use the specific contract, nor is there any specific requirement to include the clause in question in the contracts of employment actually used. Moreover, it argued that subsection 2(d) was intended for information that was liable to be published other than further to a request under the FOI Act.

For section 37(2)(d) to apply, two conditions must be met:

1. The information must have been given to the FOI body concerned by the individual to whom the information relates, and
2. The individual must have been informed on behalf of the FOI body, before giving the information to the body, that the information would or might be made available to the general public.

The information at issue in this case comprises the names of the parliamentary and secretarial assistants. The question I must consider, therefore, is whether the parliamentary and secretarial assistants gave their names to the Service and if so, whether they were informed before giving their names to the Service that their names would or might be made available to the general public. 

As I have outlined above, the employment of parliamentary and secretarial assistants is a matter for the Members. It is the Members who pass on information relating to the employment of secretarial and parliamentary assistants to the Service for the purposes of administering the payroll. Accordingly, I find that the individuals cannot be deemed to have given their names to the Service. Accordingly, I find that section 37(2)(d) does not apply in this case. For the avoidance of doubt, I also find that none of the other subsections of section 37(2) apply to the information in question.

Section 37(5)

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 individuals to whom the information relates and that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, I would note 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. 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. Nevertheless, it is important to note that inThe 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 Rotunda Hospital case. It is noted that a public interest 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.

The applicant argued that -�release of the names is in the public interest as it would aid in the exercise of determining which politicians have employed family members using taxpayers-� funding-�. He also argued that release of the names would -�aid in the exercise of determining which assistants also work in other taxpayer funded employment-�, such as local authority Councillors.

The Service, in its submissions, referenced constitutional and European Convention rights, including the right to privacy. It said that the individuals concerned are employees of the relevant Members, not public servants, and that they do not -�put themselves into the public arena as their employers might be said to do by standing for election and promoting political causes-�.

It is important to note that the general principles of the FOI Act such as the enhancement of openness and accountability apply to the FOI bodies that are subject to the provisions of the Act. A certain level of transparency already exists in relation to the applicable rules and operation of the Scheme itself, as is evidenced by the availability of the underpinning statutes and the details of the Scheme as published by the Service. It is not apparent to me that the disclosure of the names of the individuals employed by the members would further enhance the transparency and accountability of the Service. I find that the public interest in granting the request does not, on balance, outweigh the privacy rights of the individuals concerned. I find that section 37(5)(a) does not apply

In conclusion, therefore, I find that the Service was justified in refusing access, under section 37(1) of the Act, to a list of the names of secretarial and parliamentary assistants employed by TDs and Senators in 2020 and 2021.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Service to refuse access, under section 37(1) of the Act, to a list of the names of parliamentary and secretarial assistants employed by TDs and Senators in 2020 and 2021.

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