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Whether the Department was justified, under section 37 of the Act, in refusing access to specific pension payments made to individual former constitutional, ministerial and judicial office holders for the years 2017 and 2018 on the ground that disclosure of the information sought would involve the disclosure of personal information relating to the individuals concerned

14 April 2020

Background

This decision concerns two separate, but interrelated, reviews of two FOI requests the applicant submitted to the Department concerning pension payments to certain categories of former office holders. The first request concerns the payments themselves while the second request concerns the manner in which the Department processed the first request and the publication of details of pension payments to such individuals more generally. For clarity, I will set out the background of these two reviews separately.

OIC-56628 - P081/2019

On 20 March 2019, the applicant sought access to a database of the actual pension payments made to all former constitutional/ministerial/judicial office holders for the calendar year 2018. On 2 April 2019, he sought the same information for both 2017 and 2018 from the National Shared Services Office (NSSO).

The Department allocated the reference number P081/2019 to the request of 20 March 2019. It said that the request of 2 April to the NSSO was transferred to the Department, where it was amalgamated with the request of 20 March 2019. Both requests were then processed together under the reference P081/2019.

On 2 May 2019, the Department issued a decision on the amalgamated request in which it refused access to the records sought under section 37 of the FOI Act on the ground that release of the names of the office holders and the pension amounts they had received would involve the disclosure of personal information. It provided the applicant with aggregated details of the number of office holders paid in each group (e.g. judges, Ministers etc.) and the total amount of pension paid to each group for 2017 and 2018.

The applicant sought an internal review of the Department’s decision and on 31 May 2019, the Department affirmed its original decision. On 16 August 2019, the applicant sought a review by this Office of the Department’s decision in P081/2019. The review was assigned the reference number OIC-56628.

OIC-56404 - P115/2019

On 17 May 2019, the applicant made a separate request to the Department in which he sought copies of any records held relating to the handling/management of FOI request P081/2019 and copies of any records held relating to the publication of pension details for former office holders covering the time frame since the date of his last such similar request. The Department allocated the reference number P115/2019 to that request.

On 19 July 2019 the Department decided to part-grant the request. It refused access to spreadsheets that included details of the names of former office holders and the pension payments made to them under section 37 that it deemed to fall within the first part of his request. It granted access to the remainder of the records, comprising email correspondence concerning request P081/2019.

The applicant sought an internal review of the Department’s decision to refuse access to the pension payment information and argued that the Department had failed to identify all the records at issue. He argued that the decision to withhold the pension payment details could not have been taken without generating a single record. On the 27 August 2019, the Department affirmed its original decision and stated that there were no further records falling within the scope of his request.

On 6 September 2019, the applicant sought a review by this Office of the Department’s decision in P115/2019. The review was assigned the reference number OIC-56404.

During the course of that review, Mr O’Gorman of this Office informed the applicant of the searches the Department conducted in attempting to locate further records falling within the scope of the request and of his view that the Department was justified in its decision to refuse that aspect of the request on the basis that further record could not be found. The applicant indicated that he was amenable to confining the scope of the review to the records refused under section 37.

I have now completed my reviews of P081/2019 and P115/2019 in accordance with section 22(2) of the FOI Act. As the records withheld by the Department under section 37 in request P115/2019 include all of the information refused under section 37 in request P081/2019, I have decided to conclude the two reviews by issuing a single, composite binding decision. In carrying out my reviews, I have had regard to the correspondence between the applicant ad the Department as described above and to the correspondence between this Office and both the Department and the applicant on the matter. I have also examined the records at issue.

Scope of the Review

The spreadsheets to which access was refused in request P115/2019 contain details of the pension and severance payments made to named former office holders and the pension payments made to named spouses and children of certain deceased office holders in 2016, 2017 and 2018.

During the course of the review, the applicant confirmed he was seeking access only to the specific pension payments made to individual former constitutional, ministerial and judicial office holders for the years 2017 and 2018. Consequently, this review is concerned solely with whether the Department was justified in refusing access to that information under section 37 of the FOI Act.

Analysis and findings

Section 37(1)

Section 37(1) of the FOI Act provides that access to a record shall be refused if granting access would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 further details fourteen specific categories of information in the definition of personal information, including (ii) ‘information relating to the financial affairs of the individual’ and (iii) ‘information relating to the employment or employment history of the individual’. I am satisfied that the information sought in these cases relates to the financial affairs of the individuals in receipt of the pension payments.

Paragraph I of section 2 excludes certain information from the definition of personal information where the individual holds or held office as a director of the body, a position as a member of the staff of the body, or any other office or position remunerated from public funds in the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position.

This Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or office holder while carrying out his or her official functions but that it does not deprive public servants or office holders of the right to privacy generally.

Essentially, when considering the exclusion, a distinction must be drawn between the role of a public servant or office holder and the privacy rights of that same individual regarding his or her private employment and financial affairs. In my view, the plain language of the FOI Act strikes this balance by excluding work and role related functions from the definition of personal information but including details relating to matters such as personnel files and financial affairs.

I accept that the details of the precise payments made to former office holders in any particular year relate to their personal financial affairs, regardless of the basis on which they held office. For this reason, I am satisfied that details of the payments the individuals received cannot reasonably be described as information relating either to the terms upon and subject to which they held office. I find, therefore, that the information sought is personal information relating to the individuals concerned as the exclusions to the definition of personal information do not apply. It follows, therefore, that section 37(1) applies.

The effect of section 37(1) is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

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) apply to the information which I have found to be exempt under section 37(1). Section 37(5) of the FOI Act provides that access to the personal information of a third party may 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.

It has not been argued that releasing the information would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances. In relation to where the balance of the public interest lies, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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 my view, the public interest in ensuring transparency and accountability has been met to some degree in this case by the release of aggregated details of the number of office holders paid in each group and the total amount of pension paid to each group for 2017 and 2018. The question I must consider is whether the public interest in further enhancing that transparency and accountability outweighs, on balance, the privacy rights of the individuals to whom the information relates. In my view, it does not. The information at issue is of an inherently private nature and I consider that its release would involve a significant breach of the privacy rights of the individuals concerned. I find, therefore, that the public interest in granting the request does not, on balance, outweigh the privacy rights of the individuals concerned, and that section 37(5)(a) does not apply in the circumstances.

In conclusion, therefore, I find that the Department was justified in refusing to grant access to information at issue the under section 37(1) of the FOI Act.

Finally, for the benefit of the Department, I would like to make the following comments in relation to the interplay between data protection legislation and the FOI Act. The Department made specific arguments in its submission concerning the application of the principles of the General Data Protection Regulation (GDPR) to the operation of the FOI Act. In essence, the Department argued that while the Oireachtas had reconciled public access to official documents with the right to protection of personal data by way of the FOI Act 2014, the FOI Act must be interpreted by reference to and in a manner that is broadly consistent with the GDPR. It further asserted that if an interpretation of the FOI Act ran contrary to the GDPR, FOI bodies and/or this Office would be obliged to disapply the FOI Act.

Article 86 of the General Data Protection Regulation provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation.

Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.

Data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester. The Department’s argument that the FOI Act must be disapplied if it is interpreted in a manner contrary to the GDPR fails to properly account for the express provision for the disclosure of personal data in official documents in Article 86 of the GDPR and the implementation of that Article in section 44 of the Data Protection Act.

The FOI Act is entirely independent of data protection legislation and FOI requests for access to records must be processed in accordance with the provisions of the FOI Act. Indeed, the FOI Act provides for the release of personal information of third parties in certain circumstances, including where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. Any concerns a public body has about the release of personal information relating to individuals other than the requester can and should be addressed by considering the applicability of the exemption contained in section 37 to the records at issue.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s refusal to grant access to details of the specific pension payments made to individual former constitutional, ministerial and judicial office holders for the years 2017 and 2018 under section 37(1) of the FOI Act.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty

Senior Investigator