Whether the Council was justified, under section 37 of the FOI Act, in refusing access to records referenced in an audit into expenses paid to Councillors for attendance at conferences and training during 2016

11 November 2022

Background

In July 2021, the Council-�s Internal Audit Unit completed an audit entitled -�Audit Councillors Expenses for Attendance at Conferences and Training during 2016-�.  This audit addressed a number of issues including a Councillor who double-claimed for events, a Councillor who was overpaid expenses that were not fully recouped and Councillors who did not take the most direct route when claiming expenses. On 2 February 2022, the applicant made an FOI request to the Council seeking records relating to these issues. For ease of reference, I have used the numbering system adopted by the Council to describe the records sought by the applicant in his FOI request, which are as follows:

1.1 copies of overlapping expense claims and associated records (conference A);

1.2 copies of overlapping expense claims and associated records (conference B);

1.3 copy of record sent to Council where the matter was brought to their attention;

1.4/1.6 correspondence from Chief Executive to Councillor seeking an explanation;

1.5 correspondence from the Councillor to the Chief Executive with an explanation;

1.7 copies of any records that relate to any ethics inquiry concerning this event;

2.1 copy of correspondence to a Councillor regarding overpayment of kilometerage;

2.2 copy of response and efforts made to recoup overpayment of kilometerage;

3.1 copies of audits/notes that detail incidents when most direct route not taken;

3.2 relevant claim forms which relate to incidents when most direct route not taken;

4.1 copy of invoice PU160040;

4.2 copy purchase order 400247131;

4.3 all records relating to the investigation into the overpayment of the invoice.

In a decision dated 24 February 2022, the Council part granted the applicant-�s request. It released in full records relevant to parts 4.1 and 4.2 of the applicant-�s request. It refused access, in full or in part, to records relevant to parts 1.1, 1.2, 1.4, 1.5, 1.6, 2.1, 3.1 and 3.2 of the applicant-�s request under section 37 of the Act (personal information). Finally, the Council refused access to records relevant to parts 1.3, 1.7, 2.2 and 4.3 of the applicant-�s request under section 15(1)(a) of the FOI Act on the basis that the records concerned do not exist.

On 24 February 2022, the applicant requested an internal review of the Council-�s decision. On 21 March 2022, the Council affirmed its original decision. On 4 April 2022, the applicant applied to this Office for a review of the Council's 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 correspondence between the applicant and the Council, to correspondence between this Office and both the Council and the applicant, to the contents of the records at issue and to the provisions of the FOI Act. 

Scope of Review

During the review process, the Council provided this Office with additional information in relation to searches it says it undertook to locate all records within the scope of the request. This information was provided to the applicant.  The Council also located two additional records which it released to the applicant with the redaction of the name of the relevant Councillor under section 37 of the FOI Act. Following receipt of the additional search information and records, the applicant confirmed that he was satisfied that the Council had carried out reasonable searches and he confirmed that section 15(1)(a) can be omitted from the scope of this review.

Accordingly, the scope of this review is confined to whether the Council was justified under, section 37(1) of the FOI Act, in refusing access in full or in part to records relevant to parts 1.1, 1.2, 1.4, 1.5, 1.6, 2.1, 3.1 and 3.2 of the applicant-�s request and to the two additional records located during the course of the review.

Preliminary Matters                                                                       

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner. This means that I cannot take account of an applicant-�s motivation, except insofar as such reasons are relevant to consideration of the public interest or other provisions of the FOI Act. The public interest factors considered in this review are set out below.

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

Section 37(1) - Personal Information

The Council refused access in full or in part to records relevant to parts 1.1, 1.2, 1.4, 1.5, 1.6, 2.1, 3.1 and 3.2 of the applicant-�s FOI request under section 37(1) of the FOI Act. These records include copies of the overlapping expense claim forms and associated correspondence between the Chief Executive and the Councillor in relation to this matter; correspondence in relation to a specific overpayment and copies of audit notes that detail incidents in which the most direct route was not taken with the relevant expense claim forms. The Council has refused access to the expense claim forms in their entirety. These forms contain the name, address and car registration number of the relevant Councillor and details of the title, location and date of the event attended and the route taken. As outlined above, the Council also located additional items of correspondence during the review, from which it withheld the name of the relevant Councillor under section 37 of the FOI Act.

Section 37(1) of the FOI Act 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 relating to a third party. Section 2 of the FOI Act defines "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 that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (ii) information relating to the financial affairs of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

The applicant says the Council routinely releases expense claim forms.  He says it took the view that the identity of the Councillor who submitted overlapping expenses should be shielded from public view; however, this is something of a charade as the Council did not redact the Councillor-�s name from a partially released record. He says the Council redacted any reference to the events the Councillor attended presumably in an attempt to shield the Councillor-�s identity. He contends that there is no basis for the personal information exemption in either the redacted or refused records.

The Council says it routinely releases records of expenses claimed by its Councillors on foot of FOI requests. It says that the applicant, through the way he has constructed his FOI request, has asked that the Council reveal the identity of Councillors whose expenses were subject to an investigation by the Council-�s Internal Auditor. The Council contends that the fact that these Councillors were investigated constitutes their personal information and it is for this reason that it has refused access to records revealing such information under section 37(1) of the FOI Act. The Council says the title, location and dates of events were refused as details of Councillors who attend particular events are recorded in minutes of Council meetings which are posted online and this information could reveal the identity of the Councillors. The Council says the identity of a Councillor was inadvertently revealed in a released record due to an error in the redaction process.

First, in my view, the fact that a Councillor-�s name was inadvertently released in one of the records is not relevant to the question of whether these records contain personal information. This Office must avoid compounding any error that may have occurred by reviewing the withheld information in light of the exemptions relied upon by the Council.

The records contain names, and other information which could reveal the identities of individuals, together with details of expenses claimed by those individuals. It is clear that details of expenses claimed by individual Councillors can be said to be information relating to the financial affairs of those Councillors. I accept that the applicant-�s request is not a routine request for records concerning Councillor-�s expenses. He has specifically sought access to records that were subject to an investigation by the Council-�s Internal Auditor.  I accept that release of the records would reveal the identities of Councillors whose expenses were subject to an investigation. I am satisfied that the information withheld from the records at issue is exempt on the basis of section 37(1) of the FOI Act subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply in certain specified circumstances, as set out in paragraphs (a) to (e). In my view, only paragraph (c) is of potential relevance in this case. That paragraph provides that section 37(1) does not apply where information of the same kind as that contained in the records in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public. As outlined above, the applicant states that Councils routinely release expense claim forms. In my view, the applicant, through the way he has worded his FOI request, has asked the Council to release the identity of Councillors whose expenses were subject to an investigation by the Council-�s Internal Auditor. In my view, this is not information of the same kind as a simple request for Councillors expenses, which would routinely be released. I find therefore that section 35(2)(c) does not apply.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply.

In relation to the applicability of section 37(5)(a), 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 accountability and improve the quality of decision making of FOI bodies. 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 inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26. It is noted that a public interest should be distinguished from a private interest.

The applicant says the internal audit acknowledged that the Councillor reimbursed the Council with the over-payment for the double claim as soon as it was brought to their attention. However, he says that this only arose after a media query was put to the Councillor asking him to comment on the apparent double-claim. He says it appears the Council has wholly accepted the Councillor-�s version of events and decided that the records should be either redacted or refused to protect his identity. He says at best the Councillor was negligent in completing his expense claim and at worst he submitted a claim that did not reflect his attendance at events. He says this underscores why the records should be released unredacted. The applicant says the issue of Councillors not taking the most direct route when claiming expenses relates to the possible misuse of public funds. He says the Council should have queried the distances and found that the shortest route was not claimed. He contends that there is no good reason why the claim forms should be refused given that they relate to how public money has been used or misused.

The Council says it recognises the public interest in it having robust and fit for purpose processes, procedures and audits for verifying the accuracy of expenses claimed by Councillors. It says that the public interest has been satisfied in this regard since the information it has released to the applicant is sufficient to confirm the operation by it, or otherwise, of such robust audits. The Council says it recognises that openness concerning the use of public funds is in the public interest. It says it has been sufficiently open, transparent and accountable with regard to releasing records that demonstrate the expenditure implications involved. The Council says its Internal Auditor has not discovered any evidence of deliberate wrongdoing on the part of any of these Councillors. It contends that release of records that would reveal the identity of these Councillors could create an impression of wrongdoing on their part.  The Council contends that the Councillor-�s right to privacy and their interest in protection from the risk of possibly unfounded and unnecessary reputational and political harm overrides any public interest in the release of the records at issue.

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.

It is my view that there is a significant public interest in openness, transparency and accountability in public bodies, particularly where the use of public funds is concerned. It is also the case that, in certain circumstances, disclosure serves as a significant aid to ensuring the effective oversight of public expenditure, to ensuring the public obtains value for money, to preventing fraud and corruption and to preventing the waste or misuse of public funds.

I accept that disclosing the records in their entirety would allow for a greater level of transparency in relation to the use of public funds and the Council-�s processes for verifying the accuracy of Councillor-�s expense claim forms. However, this does not mean that there should be no protection of the privacy rights of the Councillors involved. It seems to me that a certain level of transparency can be achieved in a number of ways while protecting privacy rights of Councillors. The Council routinely releases expense claims forms and I note that in his application to this Office, the applicant states that he previously received around 20 expense forms as part of an FOI request to the Council last year. The applicant has also been provided with a copy of the Council-�s Internal Audit Unit Audit of Councillors Expenses for 2016. The Council has released correspondence with Councillors in relation to expense claims and copies of audit notes that detail incidents where the most direct route was not taken with the names of Councillors redacted.

It seems to me that by providing the applicant with this information, the Council has attempted to strike a balance in this case between openness and transparency and the need to protect the privacy of the individuals involved. In the circumstances, and based on a careful review of the records at issue here, I find no relevant public interest in granting access to the information at issue that, on balance, outweighs the public interest in upholding the right to privacy of the parties concerned. I find that section 37(5)(a) does not apply in this case.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I affirm the Council-�s decision. I find that the Council was justified in refusing access to the records or parts of records at issue under 37(1) of the FOI Act as their release would involve the disclosure of third party personal information and the public interest that the request should be granted does not outweigh the public interest in upholding the right to privacy of the third parties concerned.

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.
 

Deirdre McGoldrick
Senior Investigator