Decision
Mr A and Department of Public Expenditure, NDP Delivery and Reform
From Office of the Information Commissioner (OIC)
Case number: OIC-140645-C4N0C6
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Cite as: [2024] IEIC 140645
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Whether the Department was justified in refusing access to statements of interests submitted by relevant staff on the basis of sections 37(1) and 41(1) of the FOI Act
5 September 2024
In a request dated 11 May 2023, the applicant sought access to a copy of statements of interests submitted by the Department's staff at Principal Officer (PO) grade and above for the year 2022 under the Ethics Act 1995 as amended (the Ethics Act). In a decision dated 9 June 2023, the Department refused the request under sections 37(1) and 41(1)(a) of the FOI Act. The applicant sought an internal review of the Department's decision on 12 June 2023, following which the Department affirmed its refusal of the request. On 19 July 2023, the applicant applied to this Office for a review of the Department's decision.
During the course of the review, in its submissions to this Office, the Department referenced an appeal that was pending before the High Court of a decision this Office made concerning issues that the Department considered to be similar to the issues arising in this review. It suggested that this review be suspended pending the outcome of the High Court appeal in order to protect public resources and minimise the likelihood of any inconsistent decisions. The decision in question was issued in case OIC-124624. The primary issue arising in that case was whether the HSE was justified in refusing to disclose the identities of HSE staff members who submitted statements of interests under the Ethics Act 1995 as amended. In my decision, I found that the HSE was not justified in refusing access to the identities of the staff members concerned and I directed their release. The HSE appealed that decision to the High Court. While the details of any interests declared did not fall within the scope of the review in case OIC-124624, we agreed that the review should be suspended pending the outcome of the High Court appeal in light of the similarities between both cases. The High Court issued its judgment on 19 July 2024, wherein it refused the HSE's appeal (Health Service Executive and the Information Commissioner and Raidió Teilifís Éireann - [2024] IEHC 456). For convenience, I will refer to that judgment in this decision as the HSE judgment.
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 applicant and the Department and to the HSE judgment. I have also examined certain of the records at issue, with the exception of the nil statements, copies of which have not been sought. I have decided to conclude this review by way of a formal, binding decision.
During the course of the review, this Office asked the Department to provide numbered copies of the records at issue and a detailed schedule. The Department provided copies of a number of statements of interests furnished by staff at PO grade and above. It did not provide copies of "nil statements" received. It said that statements of interests are mandatory under the Ethics Act but that nil statements are not. It said that nil statements, where applicable, are requested each year from staff in designated positions in line with Department of Finance Circular 4/2002. It referenced guidance from the Standards in Public Office Commission (SIPO) which states that nil statements are not a statutory obligation but are best practice. The Department said that it has a specified number of such nil statements on file in respect of the 2022 returns.
In its submissions, the Department said that its position is that the nil statements are outside the scope of the applicant's request. It again referenced SIPO guidance. It noted that SIPO has not drafted a nil statement form and that it has been left to public bodies to draft their own or seek an indication from a person that they have considered the provisions of the Ethics Act and declare that they have no interests. It said that as there is no statutory obligation on staff to submit a nil statement, it considered that any nil statements returned were outside the scope of the FOI request.
In my view, nil statements are statements submitted by relevant staff in response to the requirements of the Ethics Act. I note that the Department requests that staff complete and submit such statements, if applicable. While the applicant sought "Statements of Interests forms", it seems to me that nil statements submitted under the same regime, notwithstanding their non-mandatory nature, should reasonably by considered to come within the scope of the request. To find otherwise would be to assume an unreasonably high level of requester knowledge in respect of the nuances of the Ethics Act and the statutory versus non-statutory status of submissions. I note that, notwithstanding its position in respect of the scope of the request, the Department has advanced arguments in respect of the nil statements. I will consider these further below.
Accordingly, this review is concerned solely with whether the Department was justified in refusing access, under sections 37(1) and 41(1)(a) of the FOI Act, to the statements of interests (including nil statements) submitted by its relevant staff in 2022
Given the above reference to the HSE judgment, I consider it useful to distinguish between the relevant requests and reviews. The records at issue in case OIC-124624 comprised registers consisting of Excel spreadsheets which contained details of the names of HSE staff members who submitted statements under the Ethics Act. The requester in that case specifically confirmed that he was not seeking the statements themselves or the information contained within them, i.e. any interests declared. He was simply seeking registers which he understood to record the receipt or non-receipt of statements of interests. By contrast, the applicant in this case is seeking copies of the statements submitted. In essence, case OIC-124624 concerned a request for information relating to staff members' compliance with relevant obligations. This case, on the other hand, is a request for information relating to the interests declared by relevant staff members, including nil returns.
The Ethics Act provides for the disclosure of interests by office holders, the Attorney General, members of the Houses of the Oireachtas, special advisors and holders of designated directorships and occupiers of designated positions in the civil service and the semi-state sector. A person who occupies a designated position of employment in a public body is required to furnish a statement, in writing, of the interests of the person and the interests, of which the person has actual knowledge, of their spouse or civil partner or a child of the person or of their spouse, which could materially influence the person in the performance of their official functions.
The records at issue in this review comprise copies of the statements of interests (including nil statements) submitted to the Department in respect of the year 2022. In light of the contents of the records, I propose commencing with an analysis of section 37.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including; (ii) information relating to the financial affairs of the individual, (v) information relating to the individual in a record falling within section 11(6)(a) (personnel records) and (xiii) information relating to property of the individual (including the nature of the individual's title to any property).
Certain information is excluded from the definition of personal information. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individuals holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of those functions.
The exclusion at Paragraph (I) does not provide for the exclusion of all information relating to such directors, staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out his or her official functions. The exclusion does not deprive staff members or directors of, or office/position holders in, FOI bodies of the right to privacy generally.
Submissions
It is important to note at the outset that the Department made its submissions to this Office before the HSE judgment issued. In its submissions, the Department said that it considered that the information contained in the records was of an "inherently private nature". It said that release would involve a significant breach of the privacy rights of the individuals concerned. The Department's position is that the statements in their entirety constitute personal information relating to the individuals who submitted them. It said that the very fact that a person made a statement indicates that they hold a "registerable interest". It said that such interests are covered by the definition of personal information at section 2 of the Act. It said that the mere fact of having made a statement, as well as its substantive content, meets the definition. It said that, similarly, the fact of submitting a nil statement shows that a person does not hold a "registerable interest". The Department said that this is also information about the financial affairs, property or employment of the individual and is captured by the definition of personal information for the purposes of the FOI Act.
The Department made specific submissions in respect of the contents of the records. While I do not intend to reproduce them here, I confirm that I have had regard to same. With reference to Paragraph (I), the Department said that the exclusion is intended to ensure that section 37 does not create an unwarranted barrier to appropriate levels of transparency. For example, it said that it prevents staff of public bodies from relying on section 37 to refuse access to routine correspondence in the ordinary course of their work. However, it said that the exception has a fairly limited scope. It referenced previous decisions of the Commissioner and the position that the exclusion does not deprive public servants of the right to privacy generally. It said that the exclusion relates only to information "relating to the functions or terms upon which the individual holds of held that office". The Department's position is that while the fact that the terms of the Ethics Act may apply to an individual falls within the exclusion, the fact that the individual has or has not made a statement or nil statement falls outside the exclusion and must be treated as personal information for the purposes of the FOI Act.
The Department referenced previous decisions of the Commissioner and the "contours" of the exclusion to the definition of personal information. It referenced a distinction between information relating to the terms of an individual's contract and compliance by an individual with the terms of their contract. It said that it is information relating to the compliance of identifiable individuals with their obligations under the Ethics Act that is at issue in this case. The Department referenced OIC-124624 and said that the approach taken by the Commissioner in that case is "at odds with the core principles set out by successive Information Commissioners over the years". Its position is that the decision "mischaracterises" disclosure of the fact that a staff member has submitted a statement of interests as relating to the terms of their employment.
The Department acknowledged that previous decisions of the Commissioner do not represent binding precedent and asked that this Office revise its view in respect of information relating to compliance with obligations under the Ethics Act. The Department proceeded to draw a distinction between the material at issue in case OIC-124624 and the "totality of the records" at issue in this review. It noted that in this case, the full contents of statements made by individuals are sought, as distinct from registers recording whether an individual submitted a statement (including nil statements). The Department said that even if the Commissioner is not minded to protect the fact that an individual made a statement under section 37, the precise details of the interests disclosed are "clearly in a separate category". It said it would be a departure from well-established principles should such specific and personal details be determined to fall outside the definition of personal information by virtue of the exclusion. It said that there is a core distinction between information relating to the ordinary performance of public duties and transparency around terms and conditions and details that derive from some personal aspect of the individual's life.
Finally, the Department said that the Ethics Act does not suggest that the information will be published to the world at large and that the regime actively seeks to ensure statements remain confidential by way of a non-disclosure provision.
While the applicant made a short submission in his application to this Office, he focused primarily on the public interest in the release of the records, which I will consider further below.
Analysis
The Department has argued that;
- The disclosure of the fact of a staff member having made a statement, including a nil statement, involves the disclosure of personal information relating to that staff member, and
- the disclosure of registerable interests, including nil statements, involves the disclosure of personal information relating to the staff members and/or their spouses, civil partners or children.
In case OIC-124624, I found that the disclosure of the fact that a staff member has submitted a statement of interests is information relating to the terms of the individual's employment and that section 37(1) does not apply, by virtue of the information being captured by the exclusion in Paragraph (I). The HSE judgment affirmed that finding. For the same reasons, I find in this case that the disclosure of the fact of a staff member of the Department having made a statement, including a nil statement, would not involve the disclosure of personal information relating to that staff member. However, it is important to restate that unlike case OIC-124624, the applicant has not simply sought details of what staff members had submitted statements. Instead, he sought copies of the statements themselves.
Accordingly, this brings me to the Department's second argument, as outlined above. I am satisfied that the disclosure of details of interests of the spouses, civil partners, or children of the relevant staff members would involve the disclosure of personal information relating to those individuals and that section 37(1) applies. The information evidently relates to third parties and I am satisfied that it is not information that is excluded from the definition of personal information at Paragraph (I).
I am also satisfied that the disclosure of details of interests of the relevant staff members would involve the disclosure of personal information relating to those individuals and that it is not information that is excluded from the definition of personal information at Paragraph (I). Section 18(4) of the Ethics Act requires designated employees to comply with their obligations to prepare and furnish a statement of interests as part of the terms of their employment. However, the records at issue in this case do not simply record compliance with that term of employment. They disclose the nature of interests held by employees. I do not consider such information to comprise information relating to the terms upon and subject to which the relevant individuals hold their office or position. I find, therefore, that section 37(1) applies to the statements of interests sought, including the nil statements.
I note that in his application for review, while the applicant said he believed that declarations of interests of high and senior level civil servants should be released given that they may related to policy areas the civil servants work and implement policy within, he suggested that the names of the individuals and their spouses etc. could be redacted. As section 25(3) requires me to take all reasonable precautions during a review to prevent the disclosure of exempt information, all I can say on this point is that, having carefully examined the contents of the records at issue, I am satisfied that the disclosure of the interests declared in the records at issue with the names of the individuals concerned redacted would still involve the disclosure of personal information relating to identifiable individuals.
Sections 37(2) and 37(5)
In light of the above analysis, I am satisfied that section 37(1) applies to the records at issue. However, that is not the end of the matter as section 37(1) is subject to sections 37(2) and 37(5). I am satisfied that none of the provisions of section 37(2) apply in this case.
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 subsection (b) does not apply.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the eNet case). In that 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.
The protection afforded to privacy rights in the FOI Act is strong. The Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and in the Long Title to the Act (which makes it 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
The applicant said he has submitted an FOI request to "nearly each department" seeking copies of all statements of interests forms submitted. He said that the Department refused to release the records, as did most others, while some released redacted versions. He outlined his belief that "as high and senior level civil servants, declarations of interests should be released, given they may relate to policy areas the civil servants work and implement policy within". He said he was seeking the review as a "test case" as he believes this is an area where the transparency brought by the FOI Act should apply, given that it relates to the functioning of the wheels of Government.
In its submissions, the Department said that the public interests in favour of release that were considered were the desirability for the public to know if an officer had a material interest in something that could potentially impact on their ability to do their job in an impartial manner and to more generally ensure transparency in the way that the Department conducts its business. It said that the public interest factor against release considered was the right to privacy of the individuals who made the returns.
The Department said that the records in question underline the policy intent of the system of disclosure of interests under the Ethics legislation. It said that elected officials disclose interests which are available to view in a public register in order to increase openness and transparency and ultimate accountability to those who elected them. It said that those in designated positions of employment or directorships, such as the individuals referenced in the records at issue, disclose interests to inform those to whom they are accountable i.e. the Head of the FOI body or relevant Board. It said that this is not information relating to the office or function, but is personal information relating to a conflict or potential conflict of interest and informs the Head in assigning functions within the organisation.
The Department said that FOI laws are required to strike a fine balance between the goal of promoting transparency and public access to information while also providing appropriate protection for other societal rights and interests. It said that the public interests it identified in favour of release must be balanced against the right to privacy of the individual who made the return, which includes considerable detail, and the right to privacy of other third parties. It said that the information is of an inherently private nature and it considered that release would involve a significant breach of the privacy rights of the individuals in question. The Department further noted that release under the FOI Act effectively amounts to release to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put. It said that, accordingly, there must be a strong public interest in release. It said that the right to privacy in this instance outweighs any other consideration, given the nature of the information in question and the basis on which it was provided.
In my view, there is a public interest in members of the public knowing that public bodies carry out their functions impartially without impediment or impairment arising through conflicts of interest. That said, that public interest is, in my view, served to a large degree by virtue of the statutory requirements of the Ethics Act. The Department has correctly noted that the Oireachtas provided for different reporting schemes under the Ethics Act. For example, while section 6 requires that relevant interests declared by members of Dáil Éireann or Seanad Éireann are published in a register which is publically available, there is no such statutory publication requirement in respect of designated civil or public servants. Rather, the Ethics Act provides that statements should be furnished to the "relevant authority", in this case the Secretary General of the Department. The Standards in Public Office Act, 2001 (the SIPO Act), enables the recipients of a statement of interests to seek information from the furnisher or to make a complaint in writing to SIPO. I also note that failure to make a statement of registerable interests which could materially influence an employee in the performance of their duties constitutes a disciplinary offence, according to Circular 4/2002 referenced above. In essence, as the Department has noted, those in designated positions of employment or directorships, such as the individuals referenced in the records at issue, disclose interests to inform those to whom they are accountable i.e. the Head of the FOI body or relevant Board, in accordance with the wishes of the Oireachtas.
I agree that the FOI Act seeks to strike a fine balance between the goal of promoting transparency and public access to information while also providing appropriate protection for other societal rights and interests. I am also satisfied that the information at issue is of an inherently private nature and that release would involve a significant breach of the privacy rights of the individuals in question. On balance, in light of the existing statutory scheme designed to safeguard and promote ethics in public office and the contents of the records at issue, I am not satisfied that the public interest in releasing the records outweighs the right to privacy of the individuals concerned. I find that section 37(5)(a) does not apply.
Accordingly, I find that the Department was justified in refusing access, under section 37(1) of the Act, to the statements of interests sought. As I have found the records to be exempt under section 37, there is no need for me to go on to consider the applicability of section 41.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision. I find that it was justified in refusing access to the records sought under section 37(1) on the basis that release would disclose personal information and that the public interest in release does not, on balance, outweigh the right to privacy of the individuals involved.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator