Decision
Mr X and Department of Transport
From Office of the Information Commissioner (OIC)
Case number: OIC-140954-Z6B0Q0
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and Irish Legal Information Institute
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Cite as: [2024] IEIC 140954
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Whether the Department was justified in refusing access to records relating to on-call and shift allowance payments made to staff at a specified grade in the Irish Coast Guard
13 September 2024
In a request dated 22 November 2022, the applicant sought access from the Department to the amount paid in on-call and shift allowances at the grade of Coastal Unit Sector Manager in the Irish Coast Guard for the period 1 October 2009 to 1 November 2022. In a decision dated 15 December 2022, the Department provided the applicant with the total payment which he personally had received for the on-call and shift allowance respectively for the period in question, and indicated that it could not provide any pay information for other Coastal Unit Sector Managers, as this was their personal information. The Department cited section 37(7) of the FOI Act as the basis for its decision. On 4 January 2023, the applicant sought an internal review of the Department's decision. In its internal review decision dated 24 January 2023, the Department affirmed its original decision. On 24 July 2023, the applicant applied to this Office for a review of the Department's decision.
It should be noted that, in its decision on the applicant's request, the Department did not release records to him in either redacted or unredacted form. Rather it extracted, from records it holds, the sums under the specified allowances that were paid solely to the applicant during the relevant period, and provided these figures to him. While the Department advised the applicant that it could not provide him with additional information, as to do so would entail the disclosure of personal information relating to third parties, I note that the information that was released to the applicant (ie. payment under the relevant allowances that was made solely to him) is not in fact the information he sought in his FOI request. Rather, the applicant sought two cumulative sums paid under the relevant allowances for the specified period of time. In the course of conducting this review, I sought and received clarification from the Department that it held the information sought by the applicant in the relevant records (or could extract that information from the records by taking steps involving the use of any facility for electronic search or extraction that existed on the date of the request and that it used in the ordinary course). However, the Department maintained its reliance on section 37 of the FOI Act, arguing that to release the two total sums sought by the applicant would in itself entail the disclosure of personal information relating to third parties. I also received from the Department three sets of copies of the relevant records - one set of unredacted records, one set redacted to show the relevant payments made solely to the applicant, and another set redacted to show the relevant payments made at the grade specified in the applicant's FOI request.
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 applicant's comments in his application for review and his subsequent submissions, and to the submissions made by the Department in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
Before I consider the substantive issue, I wish to note that section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.
This review is solely concerned with whether the Department was justified, under section 37 of the FOI Act, in withholding the information in the records that was sought by the applicant.
The Department cited section 37, and specifically section 37(7), of the FOI Act as a basis to redact the records released to the applicant. Essentially, the Department released to the applicant an excerpt from records that it holds, containing only the information in those records that pertains to him.
Section 37 of the FOI Act is concerned with the personal information of individuals. Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall
refuse a request if access to the record concerned would involve the disclosure of personal
information relating to an individual or individuals other than the requester.
For the purposes of the FOI Act, personal information is defined as information about an
identifiable individual that either (a) would ordinarily 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. The FOI Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(ii) information relating to the financial affairs of the individual'' and "(iii) information relating to the employment or employment history of the individual".
Certain information is excluded from the definition of personal information, as set out in
section 2 of the FOI Act. 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
individual 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.
Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI
body. The Commissioner takes the view that the exclusion is intended to ensure that section
37 will not be used to exempt the identity of a public servant in the context of the particular
position held or any records created by the public servant while carrying out his or her
functions. The exclusion to the definition of personal information at Paragraph (I) does not
deprive staff members in FOI bodies of the right to privacy generally.
Subsection (2)(a) of section 37, to which subsection (1) is subject, provides that the exemption at section 37(1) does not apply if the personal information in the relevant record(s) relates to the requester concerned. However, section 37(7), upon which the Department sought to rely in this case, provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. Thus, where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.
As outlined above, in its response to the applicant's FOI request, the Department did not release records to him in either redacted or unredacted form. Rather it extracted, from records which it holds, information relating solely to the applicant and provided this information to him. In the course of this review, the Department did provide this Office with the relevant records in unredacted form, as well as copies redacted to show payments made solely to the applicant and payments made to staff at the relevant grade of Coastal Unit Sector Manager. The relevant records are payroll reports for the relevant period. The Department argued that section 37(7) applied because the number of individuals in the grade specified by the applicant in his request was not of sufficient quantity to ensure anonymity of those individuals and that to release records, even if such records were redacted to show payments made only to the grade of Coastal Unit Sector Manager, would constitute a disclosure of personal information relating to an individual or individuals other than the applicant, as the number of relevant individuals would be of a sufficiently small size as to render them identifiable. The Department stated that at no point from October 2009 to 31 December 2017 were more than three staff members serving at the relevant grade. It also stated that a maximum of six staff members served in the grade at any one time between 31 December 2017 and 1 November 2022. The Department noted that its decision to refuse a previous FOI request from the applicant, in similar terms but citing a different timeline, was upheld by this Office on review. The Department stated that these copies of the records supported its contention that the individuals at the relevant grade would be rendered identifiable by the release of the records redacted to the relevant grade. The Department also supplied this Office with the names of the relevant individuals who had served at the relevant grade, and the approximate dates of their service.
As outlined above, the information released to the applicant (an extract from the records held by the Department containing the relevant payments as made solely to the applicant) is not the information that he sought in his FOI request, and in the course of this review I sought and received confirmation from the Department that the information (the two discrete sums) to which the applicant in fact sought access were contained in, or could be extracted from, the records that it held. However, the Department indicated that it retained its reliance on section 37(7). When I sought further information from the Department regarding the basis on which it considered section 37(7) to apply to the sums sought by the applicant (rather than the information it released to the applicant, to which its initial submissions related), it referred me back to its original submissions.
In his appeal to this Office, the applicant emphasised that he was not seeking a breakdown
of allowances paid to individuals but was rather seeking two global figures, namely the total amounts paid for each allowance at the relevant grade for the period in question. The applicant indicated that, in relation to the previous FOI request referred to above, his understanding was that his request had been refused as the relevant allowances had been paid to a total of four individuals, and that the Department had determined that that this was not a sufficient quantity of individuals to ensure their anonymity. The applicant argued that, by contrast, in the FOI request at issue in this review, there were at least at least 10 relevant individuals. The applicant stated his belief that this amount of staff was a number which ensured the anonymity of the relevant individuals. The applicant argued that to suggest that receiving an overall amount paid to a group of 10 people would result in a disclosure of personal information relating to those individual(s) was not reasonable. He said that his understanding was that the probability of his being able to accurately extrapolate the personal information of other individuals from a pool of 10 was so close to nil as to make this impossible. The applicant reiterated that he was not looking for any breakdown of the amounts paid to, or for any personal information relating to, any individual, and stated that it was mathematically impossible for him to extrapolate personal information of individuals other than himself from a group this size. He reiterated that he was not seeking personal information, but rather two figures to show the overall amounts paid to the particular grade of Department employee in, firstly, on-call allowance and, secondly, shift allowance.
In addition, the applicant took issue with the Department's reference to the number of individuals in the relevant grade. The applicant stated that it was important to clarify that his request was for two overall sums that were paid to the specified grade within the relevant time frame. He stated that, while he was aware that there are a number of individuals currently holding positions at that grade in the Department, more people than were serving in the grade currently had served in it overall. He stated that the Department's reliance on the numbers of serving at the relevant grade at a point of time was irrelevant to his FOI request. He pointed to the Department's argument that at no point from October 2009 to 31 December 2017 were more than three staff members serving at the relevant grade, and argued that this was incorrect. The applicant argued that, while there were three posts at the relevant grade during the relevant period of time, more than three staff members served in these posts during that time. Similarly, the applicant noted the Department's statement that a maximum of six staff members served in the grade at any one time between 31 December 2017 and 1 November 2022, and argued that this was also inaccurate. He stated that, again, while there were six posts at the relevant grade during most of the relevant period of time, more than six individual staff members had served in these posts during this period. The applicant stated that the Department had conflated the number of positions at the relevant grade with the number of staff who had served at the grade at a particular point in time, and he argued that this was invalid. He argued that the Department had tied the relevant monetary figures to the number of posts at the relevant grade, and following this approach had argued that to release the information sought would render individuals identifiable, when in fact (according to the applicant) a greater number of individual members of staff had held the positions during the relevant period, and the number was such as to render individuals unidentifiable from the sums which had sought in his FOI request.
I have considered the arguments of the Department and the applicant as outlined above and find as follows. Firstly, I wish to address the Department's reliance on section 37(7) of the FOI Act. As noted, section 37(7) addresses a situation where the personal information of the requester is inextricably linked to that of other individuals. In order for section 37(7) to apply, the information at issue must in the first place be personal information for the purposes of section 2 of the FOI Act. In particular, in order for the information to be personal, it must in the first instance relate to an individual who is, or individuals who are, identifiable from the information in the records. In order to determine if section 37(7) applies in this case, I must therefore first establish whether the information at issue contains information from which an individual (or from which individuals) may be identifiable. Indeed, this question goes to the crux of the issue, as the Department is arguing that the number of individuals at the relevant grade who received payments under the relevant allowances, during the specified period of time, is sufficiently small that to release the two cumulative sums sought by the applicant would enable other staff members receiving the allowances to be identified. The applicant argues on the contrary that the relevant numbers of staff involved is sufficiently large so as to make identification of individuals effectively impossible.
In determining whether the release of the two sums sought by the applicant would enable individuals to be identified, there are a number of potentially relevant variables that I must consider. It is my view that the greater the number of variables that in fact come into play in relation to the sums, the less feasible it is that individuals are liable to be identifiable from those sums. As well as the numbers of staff at the relevant grade during the relevant periods, to my mind other potentially relevant variables would include such matters as: whether the same individuals received the payments each year for the relevant period; whether each of the individuals to whom the payments were made received the same amount; and whether the amount paid in the relevant allowance varied each year for the relevant period. Essentially, I must make a determination on whether the amount of variables is such that it would be impossible to extrapolate from the relevant sums, without the benefit of additional information, the amount of those sums that was paid to identifiable individuals.
In this regard, I note that, in submissions made by the Department, it identified by name the individuals at the specified grade who had received the relevant payments. Furthermore, the unredacted payroll records provided by the Department include the names of the relevant individuals and the amount paid to each by way of the two allowances specified in the FOI request. On the basis of this information, I would make the following observations.
First of all, in relation to the total sums paid to staff members at the relevant grade during the specified period in on-call allowance, while it is not the case that the same individuals received this allowance for every year of the specified period, it does appear to be the case that for a number of years within the specified period the same small number of individuals received payments under the allowance in each year, along with a varying number of additional individuals who also received payments from year to year. It appears to be the case that a maximum of seven individuals received on-call allowance in any given year. It does not seem to be the case that each individual serving at the relevant grade received the on-call allowance every year during the specified period that they served at that grade.
The applicant is one of the staff members at the relevant grade who has received on-call allowance payment for a number of the years in question. It therefore seems reasonable to assume that he is aware of the rate at which the on-call allowance was paid for each year and how much he himself received by way of that allowance for each year that he received it, and how much in total he received overall by way of on-call allowance during the relevant period. I also consider that, given the fact that the applicant appears to have been employed by the Department for the entire duration of the period specified in his FOI request, it is reasonable to assume that he is aware of many staff served at the relevant grade at different times during the specified period, and in what years they served at that grade. However, as noted above, it appears that not every individual staff member serving at the relevant grade received the on-call allowance every year during the specified period that they served at that grade.
Given all of the above considerations, I consider that the number of variables is such that it would not be possible to extract, from a discrete figure showing the total amount paid in on-call allowance at the relevant grade, during the specified period, the amount of that total sum that was paid to identifiable individuals. For such extrapolation to occur, I consider that certain additional information would be required which is not (it appears to me) available to the applicant, or to any other potential recipient of the information. Even given the knowledge outlined above that I consider can be safely assumed to be in the applicant's possession (and which may be available to other parties, noting that the release of information under FOI is generally considered to be equivalent to the release to the world at large), it seems to me that, in order to establish the amounts paid to identifiable individuals, an interested party would also be required to possess certain additional knowledge, such as: the total amount paid in the allowance for each separate year of the specified period; how many individuals at the relevant grade received the payment in each year of the specified period; and how often during the relevant period each individual at the relevant grade received the payment. It is not clear to me that this is information that is or could be within the possession of the applicant or any other potential recipient of the information who might wish to extrapolate from the total sum payment information relating to identifiable individuals. In those circumstances, I consider that it would not be feasible, from the release of the total sum sought by the applicant, to extrapolate the amount in on-call allowance paid to individuals at the relevant grade during the specified period. In those circumstances, that sum does not comprise personal information for the purposes of section 2 of the FOI Act. Therefore, the question of whether the relevant sum contains joint personal information (for the purposes of section 37(7) of the FOI Act, as argued by the Department) does not arise, as the information does not engage section 37 at all.
I make a similar finding in relation to the second sum sought by the applicant, in relation to shift allowance. I would note in addition that, in the case of this allowance, there appears to be an additional variable. Namely, the records provided by the Department seem to show that shift allowance is payable at a number of different rates. It is not apparent to me that the applicant, or other potential recipient of the two sums sought, can be expected to know the relevant rate at which different individuals might have received shift allowance payments. To my mind, this serves to render it even less feasible that the sums paid in this allowance to identifiable individuals at the relevant grade, during the specified period, could be extrapolated from the total sum sought.
I wish to distinguish from the matter at hand the previous decision of this Office in case OIC-127195. In that earlier case, which arose from FOI requests made by the applicant to the Department in similar terms to the request at issue in this review, this Office affirmed the Department's decision to refuse access to the information sought the applicant. The basis for our decision in this previous case was that the number of individuals at the specified grade who received the allowance during the relevant period was sufficiently small that the release of the information could allow for the sums paid to individuals, by way of the two allowances, to be calculated. We therefore accepted the Department's argument that to release this information would be to disclose the personal information of individuals, and found that this personal information was exempt from release under section 37(1) of the FOI Act. In the FOI request that underpins this review, the applicant expanded by some five years the relevant time period for which he sought the sums paid, which has the effect of capturing a greater number of individuals who received the allowances than in case OIC-127195. As outlined above, in the circumstances of this case, I take the view that the number of individuals captured by the FOI request is such that the release of the information sought would not, without the benefit of additional information, disclose the sums paid to individuals by way of the two allowances.
I find, therefore, that the Department was not justified, under section 37 of the FOI Act, in refusing access to information relating to the total amount paid in on-call and shift allowance to Unit Sector Managers in the Irish Coast Guard for the period 1 October 2009 to 1 November 2022.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the Department. I find that the Department was not justified, under section 37 of the FOI Act, in withholding the two sums sought by the applicant, and I direct the release of those two pieces of information.
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.
Neill Dougan
Investigator