Whether the Department was justified in refusing access, under section 37(1) of the Act, to records relating to the waiver by the Secretary General of a portion of his salary 

26 September 2022

Background

This review concerns the salary of the Secretary General of the Department and timelines in respect of his decision to claim the full salary entitlement commensurate with the role. At the time of his appointment, in April 2021, he voluntarily waived a portion of the salary sanctioned for the role.

In a request dated 27 January 2022, the applicant sought responses to a number of queries relating to the above salary waiver. These queries related to when the waiver ended, what metrics were used to support the decision to end the waiver, when the full salary was implemented, whether the waived portion of the salary was paid retrospectively and, if not, whether it will be paid retrospectively at a future time and how it might impact superannuation entitlements.

By email dated 15 February 2022, the Department sought to confirm the wording and scope of the request. It outlined its position that the first two parts of the request relate to a decision-making process in respect of the individual-�s salary and that -�the utilisation of an individual-�s salary is a private matter and that individual-�s analysis and decision making process in my opinion is not covered under Freedom of Information-�. The applicant, in response, confirmed that he wished such queries to remain within the scope of the request and confirmed the relevant wording of the other aspects of the request as proposed by the Department.

In a decision dated 11 March 2022, the Department part-granted the request. Five records were refused in full and 43 were refused in part, on the basis of section 37(1) of the FOI Act. On 12 March 2022, the applicant sought an internal review of the Department-�s decision. On 6 April 2022, the Department affirmed its original decision. On 25 May 2022, the applicant applied to this Office for a review of the Department-�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 the submissions made by both parties. 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 Department was justified in refusing access, under of section 37(1) of the FOI Act, to certain records, in whole or in part, relating to the salary of the Secretary General of the Department.

Preliminary Matters                                                                       

During the course of the review, the applicant made a number of submissions to this Office. The Department also made written submissions in support of its decision. The applicant sought a copy of the Department-�s submissions, as well as any other correspondence exchanged with this Office.

Under section 45(6) of the FOI Act, the Commissioner has discretion to adopt such procedures for conducting a review as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned. Reviews undertaken by this Office are inquisitorial, as opposed to adversarial, in nature. While it is not the practice of this Office to exchange submissions between parties to a review, we take care to ensure that the parties are notified of material issues arising for consideration. The Investigator was satisfied that all material points raised by the Department in this case have been provided to the applicant in this case.

I would also note that the High Court has previously considered the fairness of our procedures in the context of our treatment of submissions. Specifically, Quirke J made the following comments in The National Maternity Hospital v the Information Commissioner [2007] IEHC 113:

'I know of no principle of natural or constitutional law or justice which confers upon parties who make submissions to a decision-making body the right to respond to the submissions made by every other party who participates in the process. The review undertaken by the Commissioner was a statutory process which expressly envisaged and permitted the adoption of informal procedures.'

It is also important to note that under section 25(3) of the Act, the Commissioner is required to take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be an exempt record.  As submissions made by parties to a review may contain sensitive information that may not be appropriate for disclosure to others, submissions are not generally exchanged.

Analysis and Findings

Section 37(1)

The Department refused access to records 5-9 in full and records 1-4 and 10-48 in part on the basis of section 37(1) of the FOI Act. Section 37(1) provides that access to a record shall be refused if granting access would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 further details fourteen specific categories of information in the definition of personal information, including (ii) 'information relating to the financial affairs of the individual' and (iii) 'information relating to the employment or employment history of the individual'.

Paragraph I of section 2 excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of an FOI body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. This Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally.

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. However, I believe it is necessary to distinguish between the records refused in full and those where only some information has been withheld.

Records 5 to 9

Records 5 to 9 contain information which relates to the substance of the applicant-�s request. The Department refused access to this information on the basis that it relates to the financial affairs of the individual. It said that any voluntary waiver in respect of the salary entitlement is a personal decision, as is any decision to revise this waiver. It said that the individual in question has not agreed to the disclosure of his personal financial information and that the fact that the individual chose to disclose some personal information does not mean that he is required to disclose anything further.

I am satisfied that the information sought in this case relates to the financial affairs of the Secretary General and is personal information for the purposes of the FOI Act. I find, therefore, that section 37(1) applies to records 5 to 9.

I am satisfied that the exclusion in Paragraph I, which serves to disapply section 37(1), does not apply in this case. I note that the salary scale commensurate to the role in question is a set salary scale which is in the public domain. However, information relating to a decision taken by a staff member of a public body to voluntarily waive any part of his/her salary or to cease the voluntary deduction is not, in my view, captured by the exclusion. It is not information relating to the position held or to the functions of the position, nor does it relate to the terms and conditions upon and subject to which the individual holds that position.

Records1 to 4 and 10 to 48

The withheld information in the remaining 43 records relates to third parties, and specifically comprises contact information in respect of external individuals who communicated with the Department in respect of the subject matter of the FOI request. The Department has not made submissions in respect of the application of section 37(1) to this information. Neither has the applicant raised same in his communications with this Office.

Having reviewed the content of the records, I am satisfied that the information withheld in records 1 to 4 and 10 to 48 comprises personal information in respect of third parties and that section 37(1) applies, with the exception of the phone numbers of the Department-�s Press Officer redacted from record 2. I note that the redacted mobile phone number is in the public domain as it has previously been included in Press Releases issued by the Department. While I accept that this information is not necessarily of interest to the applicant, it is simply not exempt under section 37(1).

Sections 37(2) and 37(5)

The fact that I have found section 37(1) to apply to the vast majority of the information at issue is not the end of the matter as the section is subject to sections 37(2) and 37(5).

Section 37(2) provides that section 37(1) does not apply in certain circumstances. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply. 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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the Act does not apply.

On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had 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] 1 IR 729, [2011] IESC 26) (-�the Rotunda case-�). It is noted that a public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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 Department-�s position is that the public interest that the request be granted does not outweigh the right to privacy of the relevant individual. It said that while the public may be interested or curious in respect of the subject matter of the request, -�it does not follow that it is in the public interest to release personal financial information about any employee-�.

The applicant-�s position is that -�the public interest in this matter far outweighs any considerations of personal privacy-�. In submissions to this Office, he said that -�the Secretary General entered into a -�contract-� (so to speak) with the general public regarding his waiving of the increase and the improved national conditions that would have to obtain before he would accept the pay increase, even though he did not quantify the levels of improvement that would be required for him to have the salary increase paid to him-�. His position is that it is -�unreasonable-� for the individual to now -�refuse to divulge the extent to which the undertaking by him was delivered-�. He said that the public interest -�demands transparency under the circumstances-�.

Neither the Department nor the applicant has made submissions in respect of the information relating to third parties withheld from records 1 to 4 and 10 to 48. Having considered the information in question, I am aware of no public interest factors in favour of its release that, on balance, outweigh the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.

In respect of the remaining information, records 5 to 9, it is my view that the public interest in ensuring transparency and accountability has been met by the fact that the salary commensurate to the role in question is in the public domain. However, a decision taken by a staff member of a public body to voluntarily waive any part of his/her salary or to cease the voluntary deduction is an inherently personal matter and I am aware of no specific, cogent and fact-based reason to find that the public interest in disclosing such information outweighs, on balance, the privacy rights of any such individuals. I find that section 37(5)(a) does not apply in this case.

Accordingly, I find that the Department was justified in refusing access, under section 37(1) of the Act, to the information at issue, apart from the phone numbers of the Department-�s Press Officer redacted from record 2.

Additional Records

In his submissions to this Office, the applicant raised questions in respect of whether all relevant records had been located and considered. The applicant-�s position is that further records exist, in addition to those referenced in the schedule provided by the Department. In particular, he references records relating to payroll administration and says that such records must exist but are not referenced in the schedule provided.

The records sought by the applicant relate to the voluntary waiver by the Secretary General of a portion of his salary and, in particular, the subsequent decision to end the waiver. As will be clear from my findings above, I am satisfied that such information is personal information relating to the Secretary General and that it is exempt from release under section 37(1) of the Act. Accordingly, I find that any additional records relating to payroll administration that might contain the information sought, if they exist, would be exempt from release under section 37(1). In the circumstances, I see no need to consider this matter further.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department-�s decision. I find that it was justified in refusing access, under section 37(1) of the Act, to the vast majority of the information redacted from the records at issue, apart from the phone numbers of the Department-�s Press Secretary redacted from record 2. I direct the release of the phone numbers in question.

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