Whether the NTMA was justified, under Schedule 1, Part 1, paragraph w(iii) and section 30(1)(b) of the FOI Act, in refusing access to certain records relating to the resumption of performance related pay in the NTMA / NAMA in 2021

24 April 2023 

Background

The National Asset Management Agency (NAMA) is a statutory body that operates under the aegis of the National Treasury Management Agency (NTMA). All of NAMA-�s staff are employees of the NTMA and are assigned to NAMA by the NTMA.

In a request dated 29 August 2022, the applicant sought access to records relating to the resumption of performance related pay (or bonuses) for staff of the NTMA and/or NAMA in 2021. On 23 September 2022, the NTMA refused the applicant-�s request, citing paragraph w(iii) of Schedule 1, Part 1, and section 30(1)(b) of the FOI Act. The applicant sought an internal review of that decision on 27 September 2022, following which the NTMA affirmed its refusal of the request. In addition to the sections of the Act relied upon in the original decision, the NTMA referenced section 18 of the Act, concluding that to grant partial access to the records at issue would be misleading. On 19 October 2022, the applicant applied to this Office for a review of the NTMA-�s decision.

In the course of the review, the NTMA also cited sections 36 and 37 as a basis for withholding a small amount of information from some of the records. The applicant was informed of this and invited to make a further submission on the matter.

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 NTMA and to the applicant-�s comments 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

During the course of the review, the NTMA provided a schedule of 12 records in which it argued that certain parts of records 1 to 6 and 9 to 12 were not relevant to the request. It also argued that records 7 and 8 fell outside the scope of the request.

Having examined the records, I am satisfied that the relevant information identified by the NTMA in the records is not relevant to the request. While the information concerns pay related matters, it does not, in my view, relate to -�the resumption of performance related pay (or bonuses) for staff of the NTMA and/or NAMA in 2021-�. Accordingly, I will not consider such information any further.

In relation to records 7 and 8, the Investigator informed the NTMA during the review of her opinion that the records were captured by the request. Following further discussion, the NTMA accepted that the two records would be eligible for release and did not claim any exemptions in respect of them. In the circumstances, I will give records 7 and 8 no further consideration and they should be released without further delay, if they have not already been released.

In the course of the review, the applicant also confirmed that he was not seeking the release of personal email addresses (in record 6), or the two bullet points on slide 3 of record 11 which the NTMA claimed to be commercially sensitive and exempt under section 36(1)(b). This information has thus been excluded from the scope of the review and I have given no consideration to sections 36 or 37.

In summary therefore, this review is concerned solely with whether the NTMA was justified in refusing to grant access to the outstanding information contained in records 1 to 6 and 9 to 12 that falls within the scope of the applicant-�s request, on the basis that the FOI Act does not apply to it (by virtue of Schedule 1, Part 1, paragraph w(iii)) or that it is exempt from release under section 30(1)(b).

Preliminary Matters                                                                       

I note that the NTMA did not provide the applicant with a schedule of records until prompted to do so by this Office. The Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform (see www.foi.gov.ie) has published a Code of Practice on FOI for public bodies. The Code states a schedule should be included with decisions providing details of those records being released in full, of those to which partial access is being given, and of those being refused. A schedule should set out the reasons why access is not being granted in full or in part and reference relevant sections of the FOI Act where refusals are made. I expect the NTMA to have regard to the Code of Practice when processing requests in the future and to ensure that it provides a schedule of records to requesters where appropriate.

Furthermore, section 22(12)(b) of the FOI 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. Thus, the NTMA carries the burden of satisfying this Office that the records at issue in this case should not be released.

Analysis and Findings

Section 6 and Schedule 1, Part 1: Partially included agencies

Section 6(2) of the FOI Act provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the descriptions of the exclusions in Part 1, then the Act does not apply and no right of access exists.

Part 1(w)(iii) of Schedule 1 provides that the NTMA is not a public body for the purposes of the Act insofar as it relates to records -�concerning the terms and conditions on which a person holds a position as a member of staff of the Agency, other than when that information is contained in records in summary or collective form such that individuals cannot be identified from the record-�.

The NTMA refused access to certain information contained in records 10, 11 and 12 on the basis that it falls within the exclusion set out in Part 1(w)(iii). The relevant parts of the records are as follows:

• Record 10: last paragraph of page 2 and first paragraph of page 3,
• Record 11: slides 5 and 6,
• Record 12: email attachment labelled 12b

The NTMA said that this information relates to staff members-� names, titles, assigned area, current remuneration, terms and conditions and proposed performance related pay. It said it was of the view that the records contain details of the confidential individually negotiated terms and conditions of employment of certain staff members and/or details from which such information could be deduced.

I have carefully considered the records at issue. I accept that the information refused by the NTMA in record 10, record 11 (slide 6), and the attachment to record 12 (labelled 12b) concerns pay and conditions of named members of staff. In accordance with paragraph (w)(iii) of Schedule 1, Part 1, I am satisfied that the FOI Act does not apply to this information. 

However, the position with slide 5 of record 11 is less clear-cut. This slide is titled -�NAMA Remuneration Policy - Summary All PRP Recommendations re 2021-�. It contains a table with the numbers of staff in various divisions, how many of these staff members were recommended for PRP in 2021, the total PRP to be paid in that division, the average amount of PRP to be paid and the highest and lowest amount. No names are included. While the NTMA said that the breakdown of information across the business units within NAMA enabled individuals to be identified, this is not evident to me. Having considered the table carefully, it seems to me that the information is in summary or collective form such that individuals cannot be identified from the information. I find, therefore, that it is not excluded from the scope of the FOI Act by virtue of paragraph (w)(iii).  

Section 30: Functions and negotiations of FOI bodies

The NTMA refused to release the relevant parts of records 1 to 6 and 9 to 12 under section 30(1)(b). That section provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff).

Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing -�significant adverse effect-� requires stronger evidence of damage than the -�prejudice-� standard in section 30(1)(a) and other sections of the Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.

Submissions from the NTMA

In its submissions, the NTMA said that while information on performance related pay is routinely published in the NTMA and NAMA Annual Reports, a breakdown of individual payments and the details surrounding same is not publicly available. It said its remuneration model is based on confidential, individually negotiated employment contracts, with competitive, market-aligned remuneration and that its objective is to ensure that its remuneration arrangements facilitate it in attracting, developing and retaining high performing and motivated employees, with appropriate skills and experience, so as to ensure that the NTMA can discharge fully its statutory functions in an effective and efficient manner, while complying with applicable law.

The NTMA said that should such information be released into the public domain, there would likely be a significant, adverse effect on the NTMA-�s ability to perform its functions relating to management in particular in the context of the management of staff, as such publication would be directly contrary to the NTMA-�s remuneration model.

By way of further background, the NTMA said that the NTMA and NAMA conduct salary and performance related pay reviews annually. In respect of the NTMA, it said that a remuneration budget assumptions proposal is brought each year to the non-executive NTMA Remuneration Committee, and the overall amount of performance related payments remains subject to the approval of the Remuneration Committee. It referred to the NTMA 2020 Annual Report, which stated that it made no performance related payments in 2021 in respect of 2020. It said that the NTMA remuneration budget assumptions proposal for the Remuneration Committee takes account of input from the senior management of each business unit regarding employees-� own performance while also having regard to the performance of employees-� area of responsibility and the overall performance of the NTMA. It said that such preparatory work is contained within the content of the records located from the searches conducted for this FOI request and that the detail of pay related performance budget brought to the Remuneration Committee is confined to senior management. It said that therefore it submitted that section 30(1)(b) of the FOI Act applied.

Analysis

It is the NTMA-�s position that access to the records concerned could reasonably be expected to have a significant adverse effect on the management of staff. It did not, however, explain precisely what it anticipated that significant adverse effect to be, or how release of the records concerned could give rise to the harm it envisages. The NTMA said that its remuneration model is based on confidential and individually negotiated employment contracts; I refer back to my consideration of Schedule 1, Part 1 and note that any information contained within the records that concerns pay-related information of an identifiable individual falls outside the FOI Act. The NTMA said that the information contained within the records would generally only be available to senior management but it did not explain what negative impact it envisaged from release of the information more broadly.

A claim for exemption under section 30 must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. Furthermore, as stated previously, establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). I am not satisfied that this has been provided by the NTMA and having carefully examined the records concerned, it is not evident to me how or what significant adverse effect could arise from their release.

I find that the NTMA has not justified its decision to refuse access to the records at issue under section 30(1)(a). In the circumstances, there is no need to consider the public interest under section 30(2).

Section 18: Access to parts of records

In its internal review decision, the NTMA said that it had regard to section 18(2) of the FOI Act when reviewing the content of the relevant records and considered that the granting of partial access by the production of a redacted record would have the potential to be misleading.

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.  I note that the NTMA has not explained how the release of the relevant parts of the records at issue might be misleading. Indeed, the reason that only certain parts of the records fall for potential release is due to the NTMA-�s position that the remaining information in the records is not relevant to the request. Having carefully examined the records, I am satisfied that the release of those parts of the records I have found not be exempt from release would not be misleading and that granting partial access to the records is in keeping with the requirements of section 18.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the NTMA-�s decision. I find that it was justified in refusing access to certain parts of records 10, 11 and 12 (specified above) on the basis that they are excluded from consideration for release under the FOI Act by virtue of paragraph (w)(iii) of Schedule 1, Part 1. I find, however, that it has not justified the refusal to release the remaining information in the records that falls within the scope of the FOI request.

I therefore direct release of all information in records 1 to 6 and 9 to 12 that I have found to fall within the scope of the FOI request, apart from:

• Record 6: individual email addresses
• Record 10: last paragraph of page 2 and first paragraph of page 3,
• Record 11: the two bullet points (f) on slide 3, and slide 6 in full
• Record 12: email attachment labelled 12b

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