Whether the Department was justified in refusing access, under sections 29, 33, 36, 37 and 42 of the FOI Act, to certain correspondence between the Department and Air Corps Operations, Executive Branch and records relating to the decision to charter a plane for the use of the Taoiseach in March 2022

19 December 2022

Background

In a request dated 15 March 2022, the applicant sought access to;

• copies of all correspondence between the Department and Air Corps Operations, Executive Branch in the period between 1 February and 15 March,
• copies of all records referring or relating to the decision to charter a plane for the use of the Taoiseach for travel that took place between 10 and 13 March, and
• copies of any invoices/receipts, the business case, sanction, and approval document associated with the chartering of an aircraft from Luxaviation. 

The Department did not issue a decision within the statutory four-week timeframe, thus effectively refusing the application. On 4 May 2022, the applicant sought an internal review of that effective refusal. As the Department again failed to issue a decision within the statutory time-frame, the applicant subsequently applied to this Office for a review of the deemed refusal of his request. Following communications with this Office, the Department issued a late decision on 23 June 2022, setting out its effective position. It identified 30 records relevant to the request and released them in part, with redactions made throughout the records under sections 29, 33, 36, 37 and 42 of the FOI Act.

On 27 June 2022, the applicant applied to this Office for a review of that decision.  He said that very extensive redactions had been made to the records, including the names of Department staff. He said that some of the records refused were already in the public domain, referring to a separate FOI request to another FOI body. He also said that many of the issues around the reliability of the Learjet had already been reported on and the publication of this information, as well as the records already released, had caused no harm of any description and were in the public interest. Luxaviation was informed of the review and invited to make submissions in relation to relevant records, but it did not do so.

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 the Department, and by the comments made by the applicant in his application for review. 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 with whether the Department was justified in refusing access to parts of each of the 30 records under, variously, sections 29, 33, 36, 37 and 42 of the FOI Act.

Preliminary Matters                                                                        

In his application for review, the applicant made the point that the Department had refused access to information that was already in the public domain, including through the release of records by the Department of Defence. He argued that this had not caused harm of any description and served the public interest. In response, the Department said that the contention that the issue of reliability of the Learjet has already been reported on should have no bearing on the proper interpretation and operation of the provisions of the FOI Act by FOI bodies. It said that -�if that were to be a deciding factor in the consideration of requests for access to records under the Act it would provide a clear means of circumventing the Act-�s provisions or undermining their proper application, most especially in the respect of the public interest (or harm) test.-�

It is unclear to me exactly what point the Department is making here. However, I think it is important to be clear that, in my view, the fact that information contained within a record is already in the public domain can be a relevant consideration for FOI bodies to take into account when making a decision on an FOI request. This is particularly important if the FOI body is considering withholding a record on the basis of an exemption that involves a harm test i.e. that the release of the particular record could potentially lead to a specified harm. It can also be a relevant factor when considering the public interest, either in the application of a balancing test or whether release would be contrary to the public interest.

It is also important to note that section 22(12)(b) of the Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. This means that the onus is on the Department in this case of satisfying this Office that its decision to redacted certain information from the records at issue was justified.

Analysis and Findings

Section 29: Deliberations of FOI bodies

The Department refused to release parts of emails in records 15 and 25 under section 29 of the Act. Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.

The exemption at section 29(1) thus has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met. It should also be noted that the exemption does not apply insofar as the record(s) contain any of the information or matter referred to in section 29(2) of the Act.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

In its submissions, the Department said that the information at issue concerned ongoing considerations involving a number of government departments around policy and future provision of the Ministerial Air Transport Service (MATS). It said that the process is ongoing and that final decisions in respect of contingency arrangements, long term policy, and operational aspects of the provision of this service have yet to be taken.

I have examined the information in the records at issue and I am prepared to accept that it relates to a decision-making process concerning the MATS and future service provision, and that section 29(1)(a) applies. However, that is not the end of the matter because, as outlined above, I must also consider whether the release the records would be contrary to the public interest. The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest.

This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body-�s deliberations -� whether before or, in some cases, after a decision based on those deliberations has been made -� would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

The Department said that the public interest is, on balance, better served by ensuring that public bodies are afforded a measure of protection in order to be able to engage in the deliberative processes necessary for formulating policy in order to make recommendations for decisions to the Government. It said that the premature disclosure of the details of that deliberative process could limit or undermine the process itself, could undermine the confidentiality essential for the Government-�s decision-making, and could disadvantage the Government-�s position in respect of the commercial entities in interested in the process. It said that this would be at odds with the public interest.

It seems to me that the Department has made broad arguments in favour of a general public interest in protecting records relating to the deliberative processes of FOI bodies, but it has made no specific arguments as to how the release of the particular information in the records at issue would be contrary to the public interest. Having considered the contents of the records, it appears to me that they contain general references to the decision-making processes underway around the MATS and administrative arrangements associated with them. They contain no opinions, advice, recommendations or any other substantive information and I cannot see how their release could limit or undermine the deliberative process, or put the Department, or other departments, at a disadvantage, or in any other way cause a harm that would be contrary to the public interest.

Having considered the matter, and having regard to the requirements of section 22(12)(b) of the Act as outlined above, I find that the Department has not satisfactorily shown that the release of the records at issue would be contrary to the public interest. I find, therefore, that the requirement at section 29(1)(b) has not been met and that section 29(1) cannot apply.

Section 33: Security, defence and international relations

The Department refused to release parts of records 14, 15 and 25 under section 33 of the FOI Act. In further communication with the Investigator in the context of querying the decision to refuse certain information from across the records under section 37(1) (discussed further later on), it said that the names of individuals travelling with the Taoiseach were also withheld from a security point of view, and that the MATS duty phone number should be withheld under section 33(1)(a) (security of the State).

Sections 33(1)(a) and 33(1)(b) provide that an FOI body may refuse to grant an FOI request in relation to a record if it considers that access to the record could reasonably be expected to affect adversely the security of the State and the defence of the State, respectively.

Section 33(2) provides a non-exhaustive list of categories of records that may qualify for exemption under section 33(1). With the exception of records falling within sections 33(2)(b)(i) or (ii), the mere fact that a record falls within a category of records described in subsection (2) is not sufficient to render the record exempt pursuant to subsection (1); it must also meet the harm test in subsection (1). In this case, the Department identified section 33(2)(a) as being the applicable category of record, i.e. information that relates to the tactics, strategy or operations of the Defence Forces in or outside the State. As such, in considering the applicability of section 33(1) to the records at issue, I must also consider the harm test provided for in that provision of the Act.

The Department-�s submissions

In its submissions, the Department said that the refusal to release parts of records 14, 15 and 25 was deemed necessary at they contained detailed information about the current and potential deployment of existing Defence Forces-� air assets, including information about current and future asset capabilities, configurations and operational deployments. It said that the release of this information would reveal sensitive operational military information and that this would have the effect of undermining the confidentiality necessary for the effectiveness of the Defence Forces-� deployments.

It said that many of the Defence Forces-� military assets, including air assets, are multifunctional. It said that while they are primarily deployed for security and defence purposes, they are deployed periodically for civilian-support activities, including ministerial air transport, medical transport and civil crisis response. It said that publicising information about use and capabilities for those civilian-support activities cannot be allowed to impact adversely on the integrity of the use of these assets in a purely military context.

The Department said that, furthermore, it is in the nature of many of the Defence Forces-� security and defence activities that a high level of secrecy is required in order to underpin the effectiveness of those activities, and the security of Defence Forces-� personnel and operational deployments. It said that it was also essential not to provide an operational, information or strategic advantage to entities and interests whose activities may be hostile to the Defence forces and/or the State.

Finally, the Department said that undermining the confidentiality of the deployments of these military assets creates a real risk to the State-�s interests, to the life and safety of persons who are involved in the deployment of the assets, and the persons who may be using the assets in their deployment which it said is fundamentally at odds with the public interest.

In relation to the names of Departmental staff travelling with the Taoiseach, it made no further submission beyond saying that the names were withheld for security reasons. I take it from this that it was invoking section 33(1)(a). It said that the MATS duty phone number should be withheld under section 33(1)(a) (security of the State) but did not elaborate further.

Analysis

Records 14, 15 and 25 are all email exchanges with various paragraphs redacted under section 33(1). In addition, there is an 8-page attachment to one of the emails in record 14. Both the attachment itself and the name of the attachment were refused.

Section 25(3) limits me in the description I can give of the withheld information but I can say that the attachment is a report relating to whether a certain type of aircraft, a PC12, is suitable for use for the Ministerial Air Transport Service. I note that the attachment has a -�Restricted-� label on every page stating that it is an -�exempted record under the Freedom of Information Legislation (s.33, 2014) as it pertains to information concerning the tactics and operations of the Defence Forces-�. It is important to clarify here that, as stated above, the fact that something concerns the tactics and operations of the Defence Forces is not sufficient to make it exempt under section 33; it must also meet the harm test in subsection (1).

I accept that the records contain information relating to the operations of the Defence Forces. The question I must consider, therefore, is whether access to this information could reasonably be expected to affect adversely the security and/or defence of the State.

For an FOI body to succeed in its arguments that section 33(1) applies, it should demonstrate how access to the record concerned could reasonably be expected to have the adverse effect identified. While it does not have to show that the adverse effect will definitely occur, the FOI body should be able to show that it expects such an outcome and that its expectations are reasonable in the sense that there are adequate grounds for them.

I have examined the content of each of the relevant records in light of the arguments under section 33(1) made by the Department. The Department said that the Defence Forces-� air assets are used in both civilian-support activities and for military purposes, and that release of information about the use and capabilities of the air assets for civilian-support activities could adversely impact the use of the assets in a military context. Furthermore, it raised concerns about providing an operational, information or strategic advantage to entities hostile to the Defence Forces and/or the State, as well as the risk to the life and safety of persons involved in the deployment of the air assets. While I acknowledge these arguments about the potential adverse effects envisaged from the release of the records, I am not satisfied that the Department has tied these arguments to any of the specific contents within the records at issue. Neither is it apparent to me, from an examination of the records themselves, how release of this information could reasonably be expected to lead to any of these adverse effects.

In light of the above, I find that the Department has not established that an adverse effect on the security and/or defence of the State could reasonably be expected to arise from the release of the information at issue in records 14, 15 and 25. Accordingly, I find that these records are not exempt from release under section 33(1) of the Act.

In relation to the names of Departmental staff travelling with the Taoiseach, the Department provided no detail as to how the release of the names of staff who travelled with the Taoiseach could reasonably be expected to affect adversely the security of the State. Neither did it explain how the release of the MATS phone number could be expected to cause such an adverse effect. Neither is it evident to me from an examination of the records. I find that they are not exempt from release under section 33(1).

Section 36: Commercially sensitive information

The Department refused to release parts of records 19, 20, 21 and 25 under section 36(1)(b) of the Act. Section 36(1)(b) provides that an FOI body shall refuse to grant a request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. Section 36(3) provides that section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing the request.

The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The standard of proof in relation to the second limb of section 36(1)(b) is low; all that is required is the possibility of prejudice with the only requirement being that disclosure "could prejudice the competitive position" of the person concerned.

In its submissions to this Office, the Department said the records provide detailed information about the relative prices and variations of services that were offered by different aviation service providers. It said that this was commercially sensitive to those providers and that its publication could reasonably be expected to disclose to competitors, and to the market generally, the competitive positions of these service providers which would be to their commercial disadvantage.

Having carefully examined each of the records, I am not satisfied that the information refused from records 20 and 25 under section 36(1)(b) could, if disclosed, reasonably be expected to result in material loss or gain to any of the aviation companies, or indeed to the Department. Nor am I satisfied that it could prejudice the competitive position of any of these parties. I find that this information is high level and non-specific and I cannot see how its release could lead to either of the harms envisaged in section 36(1)(b).

I find, however, that the list of prices redacted from the Quotations Snapshot table that is contained in both records 19 and 21 could, if disclosed, prejudice the competitive positions of the various companies from whom quotations were received. I am satisfied that section 36(1)(b) applies to this information. That is not the end of the matter, however, as section 36(1) is subject to the other provisions of section 36.

Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case.

Section 36(3) provides that section 36(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. The public interest balancing test expressly acknowledges the potential for harm arising from the release of a record. Therefore, while release of the record might give rise to one or more of the harms identified in section 36(1) of the FOI Act, this alone does not provide a sufficient basis for concluding that the public interest would be better served by refusing the request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must carry out that balancing exercise, by weighing the competing interests at play in the particular circumstances of a request, and then explain the basis on which it has decided where the balance of the public interest lies.

The Department said that in this case, the public interest served by the proper preservation of confidences and the protection of commercially sensitive information in order to allow,inter alia,public bodies to properly carry out their functions outweighs the public interest served by disclosure of commercially sensitive information in the interests of openness and accountability of Government. It said that -�the public interest is also better served by refusing access in order to protect the competitive position of commercial service providers, which position is essential to their business operation-�.

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, in performing any function under the FOI Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies, to promote adherence to the principle of transparency in government and public affairs, the need to strengthen the accountability of FOI bodies, and the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies.

However, it is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment), 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-�. It also found that section 36(1) recognises that there is a public interest in the protection of commercial sensitivity and this may be normally served by the operation of the exemption itself, which provides for the refusal of an FOI request. It stated that -�-� the scheme of the Act is to make the refusal of certain records mandatory, unless the public interest could, following an analysis of the contents, rationally be said to lead to the conclusion that disclosure of the records is in the public interest by reason of their contents.-�

The Supreme Court went on to state that the public interest test involves a -�weighing of the respective private and public interests in the analysis of the records at issue-�. In this regard, it did not disturb the guidance the Court had previously given in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26, in which it noted that a public interest should be distinguished from a private interest.

In this case, I am of the view that it is relevant to consider established public policy in relation to public procurement and tender competitions. The Government-�s National Public Procurement Policy Framework, available on the website of the Office of Government Procurement (OGP) at https://ogp.gov.ie/national-public-procurement-policy-framework/, sets out the overarching policy framework for public procurement in Ireland and comprises five strands, including -�General Procurement Guidelines for Goods and Services-�. The Office of Government Procurement has produced guidelines to promote best practices and consistency of application of public procurement rules in relation to the purchase of goods and services. These are available at: https://www.gov.ie/en/publication/c23f5-public-procurement-guidelines-for-goods-and-services/ . The Guidelines make specific reference to the FOI Act and provide as follows:

-�Bodies subject to Freedom of Information Legislation are required to provide the following details in relation to public procurement under the Model Publication Scheme, published by the Department of Public Expenditure and Reform in July 2016:

• procurement policies;
• a link to all current tender competitions on the eTenders website;
• public contracts awarded including contract type, contractor, value, award date, duration and brief description (tabular format) over €25,000 (exclusive of VAT) for both ICT and other contracts-�

While no tender or procurement related records are subject to release or exemption on a class basis, it is my view that the National Public Procurement Policy Framework, as well as the associated Guidelines, the Model Publication Scheme, and the Department-�s own policy mentioned above all highlight a recognised public interest in the disclosure of certain elements of a successful tender after the award of a contract, including the value of the contract awarded. It does not, however, suggest a public interest in releasing information about unsuccessful tenderers.

In these circumstances, I find that the public interest would, on balance, be better served by releasing the prices quoted by the aviation company who were then used by the Department for travel by the Taoiseach i.e. Luxaviation.  I find, however, that the public interest would, on balance, be better served by refusing to release the prices quoted by the other aviation companies who were not then engaged.

I find that the Department was justified, under section 36(1), in refusing access to the prices in the Quotations Snapshot table that is contained in both records 19 and 21, apart from the prices provided by Luxaviation. I find that it was not justified in refusing any of the other information that was refused under section 36(1).

Section 37: Personal Information

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. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

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 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers).

Furthermore, Paragraph II provides that in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, is also excluded from the definition of personal information.

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

The Department redacted parts of each of the 30 records under section 37(1). Due to the volume of redactions, I have considered them as a whole rather than by each individual redaction. From my examination of the records, the redactions appear to fall within these categories:

• Individual email addresses and phone numbers of staff members (landlines and mobile phone numbers) of the Department of the Taoiseach and Department of Defence,
• General email addresses for the Aviation Unit and Press Office in the Department of Defence,
• Mobile phone number of MATS duty phone,
• Names of Departmental staff on passenger lists and mentioned in emails as traveling,
• Names of Direct Liaison Officers on various flight lists,
• Dates of births and passport details of individuals travelling,
• Email addresses and phone numbers of third parties (a journalist in record 30 and an employee of Luxaviation in record 29),
• Names and phone numbers of air crew of Luxaviation (record 29),
• Phone numbers of airport handling companies,
• Details of Luxaviation: bank details, address, website

In its submissions on section 37, the Department said that it applied the provision to many of the records to redact from release identifying information about individuals, that is to say individual email addresses or telephone numbers. It said that it considered this approach to be strictly in accord with the definition of personal information at paragraph (I) in section 2 of the FOI Act. It said that this approach is adopted consistently in respect of FOI requests by the Department in order to protect the personal information of members of staff of the Department.

Having regard to the exclusion at Paragraph I of the definition of personal information in section 2 of the Act, I do not accept that the names of Departmental staff redacted from passenger lists and in relation to various travel arrangements (including Direct Liaison Officers) constitute personal information for the purposes of the Act, and thus they do not fall within the scope of section 37(1). Similarly, I do not accept that their official email addresses and fixed line telephone numbers comprise personal information.

I find, however, that mobile phone numbers of identifiable individuals can be considered personal information in a way that a fixed line phone number at a place of employment cannot. Similarly, dates of birth and passport details of all individuals constitute personal information, regardless of the individual-�s position.

General email addresses for the Aviation Unit and Press Office in the Department of Defence, the MATS duty phone number, the details of Luxaviation (bank details, address, website), and the phone numbers of airport handling companies are not connected to any identifiable individual(s) and I find therefore that they cannot fall within the scope of section 37(1).

In relation to the email addresses and phone numbers of third parties (employees of Luxaviation in record 29 and a journalist in record 30), I am satisfied that this information can be considered personal information for the purposes of section 37(1). While I note that Luxaviation was a service provider to an FOI body, I find that the names of its air crew do not fall within the exclusion at Paragraph II and that this is personal information within the meaning of the Act.

In summary, I find that section 37(1) applies to the following information only: the mobile phone numbers of Departmental staff members, all dates of birth and passport details, the contact details of all third parties (records 29 and 30), and the names and phone numbers of the air crew in record 29. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) applies in this case.

Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, the question I must consider is whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the person 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. 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. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57, 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 Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner [2011] IESC 26 ("the Rotunda case"). It is noted that a true 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. 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.

In this case, neither party made any public interest arguments either for or against the release of personal information. It is not apparent to me from an examination of the records that there is a public interest in granting access to the records to which I have found section 37(1) to apply, that outweighs the right to privacy of the individuals concerned. I find, therefore that section 37(5) does not apply.

Section 42(h): Records relating to the president

The Department refused to release the second last paragraph on the first page of record 25 under section 42(h). That section provides that the FOI Act does not apply to a record relating to the President. In H.(E). v the Information Commissioner [2001] IEHC 182, the High Court considered the question of whether records -�related to-� the requester-�s personal information. The Court found that the test to be applied to determine whether a record -�relates to-� the personal information is -�whether there is a sufficiently substantial link-� between the requester-�s personal information and the record in question. I find it useful to adopt this reasoning in examining whether the records at issue in this case can be considered records -�relating to-� the President, given the use of the phrase -�relating to-�.

Having examined this paragraph, I am satisfied that it does relate to the President and that it is therefore exempt under section 42(h).

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 not justified in its refusal to release parts of records under sections 29(1) or 33(1). I find that it was justified in refusing to release some of the information under sections 36(1) and 37(1).

I direct it to release all the records at issue, apart from the information to which I-�ve found sections 36(1), 37(1) and 42(h) to apply. For the avoidance of doubt, only the following should be withheld from the records:

• Mobile phone numbers of Departmental staff members,
• All dates of birth and passport details,
• The contact details of third parties,
• The names and phone numbers of the air crew,
• The prices in the Quotations Snapshot table contained in records 19 and 21, apart from the prices provided by Luxaviation,
• The second last paragraph on the first page of record 25.

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