Decision
Ms Y & The Arts Council
From Office of the Information Commissioner (OIC)
Case number: OIC-158298-S8B3F8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-158298-S8B3F8
Published on
Whether the Arts Council was justified in refusing access, under sections 15(1)(d), 30(1)(a), 35(1)(a), 36(1)(b), and/or 37(1) of the FOI Act, to records relating to the awarding of grants to a named individual
13 April 2026
In a request dated 21 February 2025, the applicant sought access to records relating to the applications made by a named person (Person A) for literature grants in 2021 and 2022 and records relating to the assessment of these applications and the decision to award two grants. It is a matter of public record that Person A had prior convictions for fraud when the grants were awarded.
In its decision dated 10 March 2025, the Arts Council refused access to five records it identified as coming within the scope of the request under sections 35(1)(a) and 37(1) of the FOI Act. On 15 March 2025, the applicant sought an internal review of that decision. He also questioned whether all relevant records had been identified by the Arts Council on the basis that the schedule of records provided had no mention of any records showing the deliberative process through which Person A’s applications were approved. On 8 April 2025, the Arts Council affirmed its refusal of the request. It also relied on section 15(1)(d) to refuse access to one of the records (record 5) on the basis that the payments made to Person A are a matter of public record. It did not address the applicant’s concerns as to whether all records had been considered for release. On 15 April 2025, the applicant applied to this Office for a review of the Arts Council’s decision.
During the course of the review, the Arts Council located 13 additional relevant records. It said the existence of the additional records only came to light after the decision had been made on the request as they were not held in the same location as the five records initially identified. It provided the applicant with an updated schedule of records wherein all 13 additional records were refused under sections 35(1)(a) and/or 37(1). It also explained that records 8 and 10 comprise the records that contain details of its deliberative processes. In its submissions, it also argued that certain of the records were also exempt under sections 30(1)(a) and 36(1)(b) of the FOI Act.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had to the correspondence between the applicant and the Arts Council as outlined above and to the correspondence between this Office and both parties on the matter. 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.
During the course of the review, the applicant agreed to remove from scope any information in the records that relates to applications for literary grants submitted by any individuals other than Person A. Accordingly, this review is solely concerned with whether the AC was justified in refusing access to the remainder of the information in the 18 records at issue under sections 15(1)(d), 30(1)(a), 35(1)(a), 36(1)(b), and/or 37(1) of the FOI Act.
Before I address the substantive issues arising, I would like to make two preliminary comments. First, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records in this case is somewhat limited.
Secondly, section 18 of the FOI Act provides that, if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading (Section 18(2) refers). This Office takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, we are not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
The Records at issue comprise grant application forms, CVs, a writing sample, and a budget submission Person A submitted to the Arts Council, a list of payments made to Person A, internal Arts Council documents relating to Person A’s applications and other applicants, and a number of email exchanges between Person A and the Arts Council. Having regard to the contents of the records, I propose to first consider the applicability of section 37(1) to the records.
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 relating to an individual other than the requester. Section 2 of the 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 the 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 definition provided for under section 2, comprises personal information, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual, and (ii) information relating to the financial affairs of the individual.
In its submissions, the Arts Council said that the records contain various forms of personal information, including identify data, financial data, employment data, health data, the opinions and scoring of Person A’s applications, and the names of third parties. In relation to some of the records, it said that it is of the opinion that if these records were released with Person A’s name redacted, then they or their work would still be readily identifiable. In relation to record 5, which is a list of payments from the AC to Person A, it said that while information on the total amount of payments to Person A is in the public domain, the specific breakdown of these payments is not and is Person A’s personal information.
I am satisfied that the disclosure of the records at issue would involve the disclosure of personal information relating to Person A and that section 37(1) applies to all of the records in their entirety. However, this is not the end of the matter as subsection (1) is subject to the other provisions of section 37 which I must now consider.
Section 37(2) provides that section 37(1) does not apply if:
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
No specific argument has been made that any of the circumstances outlined above at subsections (a) to (e) are relevant in this case. For the avoidance of doubt, I have considered whether subsection (c) applies in light of the fact that there is certain information in relation to Person A that is in the public domain. Although the Courts have found that the fact that information is publicly available triggers the operation of section 37(2) to permit disclosure of that information, I am satisfied that the release of the records at issue would involve the disclosure of more detailed personal information than is currently in the public domain. Moreover, while the records at issue contain limited information that is already in the public domain, as outlined above, the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Having regard to the foregoing, I am satisfied that subsection (c) does not serve to disapply section 37(1) in respect of any of the records or information at issue. Accordingly, I am satisfied that none of the provisions listed at (a) to (e) above apply to the records at issue.
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. No argument has been made that section 37(5)(b) applies in this case, and I am satisfied that it 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 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 inThe 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.
In his application to this Office, the applicant said that as Person A has been convicted of defrauding a large amount of money from the Irish State, there is a significant public interest in there being transparency around how Person A obtained two Arts Council grants which, he said, overrides the exemption at section 37(1). Referencing certain matters relating to Person A’s activities which he described as “a complete falsehood and a shameful and insulting deception”, the applicant argued that the public interest in transparency over how the Arts Council was convinced to support Person A’s writings outweighs any privacy rights. Noting the Arts Council’s position that it has a “rigorous application process in place for each of its awards and applications must go through a number of stages including a shortlisting phase and reviews by peer-led panels”, he argued that there is a public interest in showing how rigorous or not the application processes were in this case where it was abused by “a fraudster”.
In its submissions, the Arts Council said that as per its funding guidelines available on its website, applications are assessed in a competitive context and with consideration of the application form and the supporting materials submitted. It said all applications are assessed against criteria of a) artistic merit, b) how they meet the objectives and priorities of the award, and c) feasibility. It argued that the public interest value in the records concerned does not outweigh the right to privacy of the individual to whom the records relate. It said the default position under section 37(1) is that if a record contains personal information, then it should be refused. It said this is supported by section 37(5)(a). In terms of the public interest factors which favour release, it said it considered the public interest in oversight of public spending and government accountability. It said it takes these considerations seriously and publishes Annual Reports, Accounts, and all funding decisions regularly. It said that there is, however, a competing public interest in ensuring it can continue to receive information in confidence, in having continuing relationships with applicants, and in being able to disburse public funds via its award schemes. It argued that on balance, the harm to the integrity of its core activities which would result from publication of the records greatly outweighs any public benefit from the release. It said that the fact that Person A received a sum of money from it is already in the public domain.
In response to the applicant’s assertions that given Person A’s convictions for fraud, the public interest lies in disclosure of the records, the Arts Council said there is no reference in the FOI Act to an individual’s rights being altered when they have a criminal conviction. Furthermore, it said that Person A’s conviction is related to a matter outside of the remit of the Arts Council to assess. It said Person A applied for and received the grants on the basis of the merit of their writing, the quality of their proposal, and not on any other basis.
It is relevant to note that a certain amount of transparency already exists in relation to the Arts Council’s decisions to award grants to Person A. The amount of grant Person A received in 2021 and 2022 is in the public domain. It is also in the public domain that the Arts Council did not consider Person A’s criminal convictions as part of the application process and that the Arts Council has previously stated that a criminal conviction would not necessarily be a barrier to consideration of an application with artistic merit. I accept that the release of the records sought would further enhance the transparency of the Art’s Council in relation to its processing of grant applications. The question I must consider, therefore, is whether the public interest in further enhancing that transparency outweighs, on balance, the public interest in protecting the privacy rights of Person A. In my view, it does not.
It is important to note that the purpose of the FOI Act, as it applies to the Arts Council, is to enhance the transparency and accountability of the Arts Council’s activities. The Act was not designed as a means of allowing for scrutiny of the affairs and activities of private individuals who engage with or obtain grants from the Arts Council. 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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. I would add that the specific inclusion of category (vi) under the definition of personal information in section 2, which concerns information concerning an individual’s criminal history or the alleged commission of criminal offences, is an explicit recognition, in my view, of the fact that individuals are not deprived of the right to privacy simply because they have been convicted of a crime. The fact remains that in this case, the Arts Council has clarified that it did not consider Person A’s criminal convictions as part of the application process
Bearing in mind the strong public interest in protecting the right to privacy, as well as the nature of the information in the records, I find that the public interest in releasing the information does not, on balance, outweigh the privacy rights of Person A. I have not identified any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure. I find that section 37(5)(a) does not serve to disapply section 37(1) in this case.
In conclusion, therefore, I find that the Arts Council was justified in refusing access to the records sought under section 37(1) of the FOI Act. Having found section 37(1) to apply, I do not need to consider the applicability of the other exemptions cited.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the AC’s decision. I find that it justified in refusing access to the records concerned under section 37(1) of the FOI Act.
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