Decision
Mr Ken Foxe, Right to Know CLG & The National Gallery of Ireland (the Gallery)
From Office of the Information Commissioner (OIC)
Case number: OIC-150005-D2X1G5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150005-D2X1G5
Published on
Whether the Gallery was justified in refusing access to records of any correspondence between the Gallery and two named government Departments with regard to its payment of a severance deal in 2022
30 September 2025
In a request dated 1 May 2024, the applicant sought access to copies of any correspondence exchanged between the Gallery and either the Department of Tourism, Culture, Arts, Gaeltacht, Sport and Media (“the Department of Tourism”) and/or the Department of Public Expenditure, NDP Delivery and Reform (“DPER”) in relation to the payment by the Gallery of a severance deal in 2022, as part of a settlement agreement reached with a former employee.
In a decision dated 15 May 2024, the Gallery refused the applicant’s FOI request, citing sections 35(1)(b) and 35(4) of the FOI Act as grounds for its decision. On 17 May 2024, the applicant sought an internal review of the Gallery’s decision. In its internal review decision dated 10 June 2024, the Gallery affirmed its initial decision. On 21 June 2024, the applicant applied to this Office for a review of the Gallery’s decision.
In the course of conducting this review, I formed the opinion that the release of the records may potentially affect the interests of the Department of Tourism and of DPER. Accordingly, I wrote to both departments to put them on notice of the matter and to invite them to make any submissions that they wished. In its response, the Department of Tourism made submissions outlining its view that, in addition to being exempt under section 35(1)(b), the records were exempt from release under sections 35(1)(a) and 37(1) of the FOI Act. In submissions received from DPER, it stated that it considered that only one of the records (record 4, as detailed below) potentially affected its interests, and made submissions in relation to this record pursuant to sections 35(1)(b) and 37(1). Furthermore, when the Gallery made submissions to this Office for the purposes of this review, it also sought at this point to rely on additional sections of the FOI Act to exempt the records from release, namely sections 37(1), 36(1)(b), 30(1)(b) and 32(1)(a)(iii). The Gallery also cited section 11(6) of the FOI Act. The latter provision of the FOI Act does not, in and of itself, provide for an exemption to the right of access to records – rather, section 11(6)(a) provides that the right of access under FOI shall not apply at all to personnel records of staff of FOI bodies. Section 11(6) is most commonly cited in conjunction with section 37(1) of the FOI Act (as personnel records are a category of personal information for the purposes of section 2).
As the applicant had not had, in the context of this case, the opportunity to consider the applicability of these additional provisions of the FOI Act, I wrote to him to put him on notice of same, and to offer him the opportunity to make any additional submissions that he wished. The applicant subsequently reverted to indicate that he did not wish to make any further submissions.
As noted above, one of the provisions relied upon by the Gallery in its decision on the FOI request was section 35(4), which it cited as a basis to refuse to confirm or deny the existence of relevant records. In a decision on this specific point that I issued previously to the Gallery, I found that it was not justified in relying on section 35(4) to refuse to confirm or deny the existence of the records, and I am now in a position to confirm the existence of these records. Subsequently, the Gallery provided the applicant with a schedule of the records in respect of which it had previously sought to rely on section 35(4). I contacted the applicant to offer him the opportunity to make any further submissions that he wished in light of this additional information. The applicant subsequently made further submissions and I have considered these in full.
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 Gallery in support of its decision, the submissions received by the two departments, the applicant’s comments in his application for review and his subsequent submissions. 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.
This review is solely concerned with whether the Gallery was justified, under sections 30(1)(b), 32(1)(a)(iii), 35(1)(b), 36(1)(b) and 37(1) of the FOI Act, in refusing access to the records sought by the applicant.
The records at issue
The Gallery identified eight records that come within the scope of the applicant’s request. These are as follows:
• record 1 is a Business Case prepared by the Gallery in October 2022 in relation to the terms of the proposed settlement
• record 2 is an email dated 3 November 2022 from the Gallery to the Department of Tourism
• record 3 is an email dated 4 October 2022 from the Gallery to the Department of Tourism
• record 4 is an email dated 13 January 2023 from the Department of Tourism to the Gallery
• record 5 is an email dated 9 December 2022 from the Department of Tourism to the Gallery
• record 6 is an email dated 10 November 2022 from the Department of Tourism to the Gallery, incorporating an email dated 8 November 2022 from the Gallery to the Department of Tourism
• record 7 is an email dated 9 November 2022 from the Gallery to the Department of Tourism, incorporating an earlier email of the same date from the Department of Tourism to the Gallery
• record 8 is an email dated 20 January 2023 from the Department of Tourism to the Gallery, with two attachments.
Section 35(1)
As noted above, the Gallery relied on section 35(1)(b) of the FOI Act to refuse access to the records sought by the applicant. Section 35(1)(b) provides that an FOI body shall refuse an FOI request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law. Essentially, a record is exempt under section 35(1)(b) where disclosure of the information would constitute breach of a duty of confidence provided for by agreement, enactment or otherwise by law.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director or staff member of an FOI body or a service provider) in the course of the performance of his or her functions "unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of staff of an FOI body or of such a service provider." The net effect of section 35(2) is that if the record at issue has been prepared by an FOI body or a service provider, then the person to whom a duty of confidence is owed cannot be an FOI body or its staff or a service provider. If it is, then section 35(1) cannot apply.
It should also be noted that, unlike section 35(1)(a) of the FOI Act, subsection (b) of section 35(1) is not subject to a public interest test. I address this point further below.
The applicant’s submissions
In his application to this Office for a review of the Gallery’s decision on his FOI request, the applicant stated that no information had been provided to him as to why a duty of confidence applies to the terms of the severance agreement. The applicant noted that the agreement had been disclosed in the Gallery’s annual report for 2022, which he argued suggested that a duty of confidentiality did not exist in relation to the records. The applicant also described the Gallery’s decision on his request as cursory and providing very little detail, explanation or reasons for why it had been made. Furthermore, the applicant noted that the severance deal that formed the context for his request had already been the subject of coverage in the national media and stated that the severance payment was made in the context of significant public unease over such payments and the terms by which they had been agreed.
In further submissions received from the applicant subsequent to confirmation of the existence of the relevant record s, he argued that the public interest in the matter at hand is high, given what he described as the questionable and unexplained use of taxpayer funds involved. The applicant stated the critical importance of FOI in enabling oversight of public expenditure had been highlighted by Counsel for the Information Commissioner in a case that was before the High Court last year. The applicant argued that the use of public funds for severance payments to employees had been publicised and had caused significant controversy in cases involving RTÉ, the HSE and other public bodies, and in support of this position provided a link to an Irish Times article from April 2024 on the sums paid in severance packages by various public bodies. The applicant stated that the matter underpinning his FOI request in this case similarly concerned questionable use of public funds for a severance package.
The Gallery’s submissions
In its submissions, the Gallery argued that the relevant duty of confidence that exists in this case for the purpose of section 35(1)(b) is provided for by agreement, and specifically by way of a confidentiality clause that forms part of the settlement agreement at issue.
The Gallery set out the terms of the relevant confidentiality clause, noting that same requires it to keep the terms of and the circumstances surrounding the conclusion of the severance agreement strictly confidential. The confidentiality clause further requires the Gallery not to disclose, communicate or otherwise make public the terms and circumstances in which the severance agreement was reached to anyone (except for disclosure to professional advisers, benefits agencies, the relevant tax authorities or any regulatory authority or body, or for the enforcement of the terms of the settlement agreement or otherwise as may be required to be disclosed by law ). A further exception to the confidentiality clause relates to the extent to which disclosure is required to staff/board members of the Gallery in order to give effect to the severance package or for internal management and accounting purposes, provided that the Gallery will use reasonable endeavours to ensure that such staff maintain the confidentiality of the terms and existence of the settlement.
The Gallery argued that, given the breadth of the confidentiality provision as set out above, it extends to all details/circumstances pertaining to the severance payment as well as the terms of the settlement agreement. As such, it argued that it is precluded from disclosing or referencing any information that would directly or implicitly breach this duty of confidence, including the correspondence sought by the requester pursuant to the FOI request at issue. The Gallery argued that to grant the FOI request would be to breach a clear and unequivocal legally binding contractual obligation, which would leave it at serious risk of litigation and/or financial liability for breach of contract.
In relation to the publication of the amount of the severance package in its annual report for 2022 (which the applicant argued, as outlined above, suggested that no duty of confidence existed in relation to the payment), the Gallery stated that such disclosure is specifically permitted by the confidentiality clause, which allows for disclosure to regulatory authorities and bodies (in this case, the Comptroller & Auditor General in its 2022 external audit of the Gallery). Furthermore, the Gallery argued that the media coverage of the payment, as also referenced by the applicant, merely reproduced the same level of detail already disclosed in the 2022 annual report. The Gallery argued that to release the records would be to disclose a significant amount of additional information, such as the position that the former employee held, the circumstances surrounding the settlement, the related risks and the individuals involved in reaching the settlement. The Gallery argued that such information clearly relates to the terms of and the circumstances surrounding the conclusion of the settlement agreement, and as such is information that clearly comes within the scope of the confidentiality clause.
The Gallery also referred to the Code of Practice for the Governance of State Bodies (Business & Financial Reporting Requirements) guidance, noting that same provided that confidentiality agreements in relation to settlements may be entered into in exceptional circumstances, and on foot of legal advice that they are necessary in the circumstances of the case. The Gallery’s position is that such exceptional circumstances existed in this case.
The Gallery also made submissions specifically in relation to section 35(2), which I address in more detail below.
Submissions made by the two relevant Government departments
As noted above, both the Department of Tourism and DPER supported the Gallery’s decision to withhold access to the records under section 35(1)(b). In brief submissions received from the Department of Tourism, it argued that section 35(1)(b) applied on the basis that the severance payment terms and conditions include a non-disclosure clause. It stated that this is a strict confidentiality provision that the Gallery is required to uphold.
In submissions received from DPER, it argued that record 4 was partly exempt from release under section 35(1)(b). It argued that information in the record relating to the confidentiality clause should be withheld under section 35(1)(b), in line with the Gallery’s rationale for refusing access to the record in its entirety.
Section 35(2)
In circumstances where, if it applies, section 35(2) would preclude the Gallery’s reliance on section 35(1)(b), I take the view that it is appropriate to examine the former provision of the FOI Act in the first instance. As noted above, section 35(2) provides that section 35(1) shall not apply to a record which was:
(i) prepared by a head, director or staff member of an FOI body or a service provider
(ii) prepared in the course of the performance of his or her functions
(iii) UNLESS disclosure would constitute a breach of a duty of confidence that is owed to a person other than an FOI body, etc.
Accordingly, in examining the potential applicability of section 35(2) in this case, I must consider all three of the above conditions.
In relation to condition (i) I am satisfied that the records at issue were indeed prepared by a head, director or staff member of an FOI body, or a service provider to an FOI body. Record 1 is a business case created by the Gallery in relation to the proposed settlement, while records 2 to 8 (with one exception, which I discuss further below) comprise correspondence exchanged between the Gallery and the Department of Tourism and/or DPER. Needless to say, all three of these organisations are FOI bodies and, in those circumstances, I am satisfied that the records were prepared by a head, director or staff member of an FOI body.
The exception to the above is the legal opinion attached to record 8. The legal opinion is in the form of a letter to the Gallery’s solicitors from its legal counsel in relation to the matter of the severance agreement. In circumstances where the creators of this letter are service providers to the Gallery (service providers to an FOI body being captured by section 35(2) in the same manner as employees of an FOI body), I am satisfied that condition (i) applies to this record also (the definition of “service provider” in section 2(1) of the FOI Act refers).
I am similarly satisfied that condition (ii) is met in respect of all of the records. It seems entirely self-evident to me that each record was created by a head, director or staff member of an FOI body (or, in the case of the legal opinion attached to record 8, a service provider to an FOI body), in the performance of his or her functions.
In relation to condition (iii), the question I must examine in the first instance is whether the disclosure of the information concerned would constitute a breach of a duty of confidence. Thus, it must be established that a duty of confidence exists, and that disclosure would constitute a breach of that duty. In relation to this question, it is certainly the assertion of the Gallery that a duty of confidence exists. In particular, and as outlined above, in support of this position it has highlighted the fact that the severance agreement reached in this case contains a specific confidentiality clause. The Gallery also cited Circular 09/2018 (“the Circular”), relating to arrangements for the offer of severance terms in the civil and public service and issued by DPER on 4 September 2018. I note that the Circular provides as follows:
“21. Given the policy underlying the Freedom of Information Acts, in concluding settlements, a public service body should not enter into confidentiality agreements which preclude it from disclosing details of the settlement reached in the financial statements, save in exceptional circumstances and on foot of legal advice that they are necessary in the circumstances of the case.
22. When, in those circumstances, confidentiality agreements are entered into, parties to agreements should be given prior notice that they may be subject to disclosure in any case where an overriding public interest is identified or when required by law.”
It seems clear on the basis of the above that the Circular envisages the release under FOI of the details of severance agreements and payments. The Circular also provides that confidentiality agreements should be entered into by FOI bodies only in exceptional circumstances and on foot of legal advice. I am satisfied on the basis of the information in the records that it was reasonable for the Gallery to conclude, for the purposes of point 21 of the Circular, that relevant exceptional circumstances existed. I am also satisfied that the records demonstrate that legal advice was sought and given on the circumstances surrounding the severance agreement generally. In addition, in submissions made by the Gallery, it noted that section 10 of the Mediation Act 2017 provides for the confidentiality of the mediation process, as does the definition of “mediation” itself, and that confidentiality formed part of the mediation settlement proposal in this case.
It is less clear to me that legal advice was sought or provided on the specific question of the necessity of a confidentiality agreement forming part of the severance settlement. Furthermore, it is not immediately evident to me that, pursuant to point 22 of the Circular, the parties were notified that details of the severance agreement may be subject to disclosure in a case where an overriding public interest is identified or when required by law.
This being said, overall I take the view that the precise circumstances which led the Gallery to enter into a confidentiality agreement in this case, and its ultimate decision to do so, are questions that go to the performance by the Gallery of its functions generally, which is a matter that is outside the remit of this Office to address . My role in conducting this review is not to determine whether the Gallery entered into a confidentiality agreement in accordance with the Circular, but whether such an agreement exists, and the extent to which any such agreement gives rise to a duty of confidence. It is the case that, as a matter of fact, a confidentiality clause was agreed in the settlement in this case, and in my opinion , it is reasonable for both parties to consider themselves bound by the terms of same.
On balance, therefore, I accept that, for the purposes of section 35(2), a duty of confidentiality exists which would be breached by the release of the information in the records. For the avoidance of doubt, I am satisfied that the information in each of the 8 records (including the two attachments to record 8) is captured by the terms of the confidentiality agreement.
The next question I must address in relation to condition (iii) is whether the duty of confidence is owed to a person other than a head, director, etc of an FOI body. Clearly, as each of the bodies directly involved in the creation of the records are FOI bodies (or, in the case of the legal opinion attached to record 8, a service provider to an FOI body), the relevant duty of confidence cannot be one that is owed by the bodies to each other. However, the question remains as to whether the duty of confidence might be owed to the other relevant party, namely the individual with whom the Gallery agreed the severance package and to whom it made the severance payment.
I note that section 35(2) provides that section 35(1) shall not apply to a record the disclosure of which would constitute a breach of a duty of confidentiality, where that duty is owed to a staff member of an FOI body. In this case, the individual who received the severance payment is a former member of staff of the Gallery, and was a member of staff at the time the severance agreement was reached. In its submissions, the Gallery argued that section 35(2) should not apply to an individual who is an ex-member of staff of an FOI body.
I have considered the matter and am minded to agree with the Gallery’s view. In my opinion, section 35(2) does not serve to disapply section 35(1) if the person to whom a duty of confidence is owed is a former staff member. It seems to me that, had the Oireachtas intended that section 35(2) would disapply section 35(1) where the duty of confidence is owed to a former staff member, it could have explicitly provided for same. I note, for example, that the exclusion to the definition of personal information in section 2 of the FOI Act provides that the definition does not include certain information relating to an individual who holds or held a position as a member of the staff of an FOI body. Section 35(2) does not contain the same language.
Accordingly, on the basis of the above analysis, I take the view that the confidentiality clause in the severance agreement that was reached between the Gallery and the relevant individual does not come within the scope of section 35(2) of the FOI Act. I find that section 35(2) does not operate to preclude the operation of section 35(1)(b) to the records at issue in this case.
Section 35(1)(b)
As outlined above, I am satisfied that section 35(2) does not preclude the applicability of section 35(1)(b) to the records at issue in this case. It follows that I accept that a duty of confidence exists in this case, which arises by way of the confidentiality clause that forms part of the settlement agreement at issue. I am also satisfied that the duty of confidence is owed to the party with whom the Gallery entered into the settlement agreement.
Furthermore, as outlined above, the Gallery has argued that to release the records at issue would be to disclose information relating to the terms of, and the circumstances surrounding, the conclusion of the relevant settlement agreement. Such information, according to the Gallery, includes the position that the former employee held in the Gallery, the circumstances surrounding the settlement, the related risks and the individuals involved in reaching the settlement. I have examined the records and agree with the Gallery that to release them would disclose this information, which is not currently in the public domain. I also accept the Gallery’s arguments that this information is related to the terms of, and the circumstances surrounding, the conclusion of the settlement agreement. It is therefore caught by the terms of the confidentiality clause which I have found creates a duty of confidence. In circumstances, I accept that to release the records would breach the duty of confidence that exists by way of agreement in this case. Accordingly, I find that the requirements of section 35(1)(b) are met. I would note that, while I have concerns about the appropriateness of FOI bodies entering into broad confidentiality agreements such as the one at issue in this case, the fact remains that by including section 35(1)(b) in the FOI Act, the Oireachtas clearly envisaged situations where an FOI body might reasonably do so.
I also wish to note that – while, as outlined above, section 35(1)(b) is not subject to a public interest balancing test – nonetheless it is established that the action for breach of confidence is itself subject to a public interest defence, and this Office may consider the public interest defence in the context of section 35(1)(b). The public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the exposure or avoidance of wrongdoing or danger to the public, and ensuring the maintenance of the principles of justice.
As noted above, in his submissions the applicant made arguments referencing the public interest, in particular arguing that severance payments made by other FOI bodies had been subject to coverage in the media and had caused significant public controversy, that this case involved a similarly questionable use of public funds, and that there was a general public interest in enabling oversight of such expenditure by public bodies. While I accept as a general point the applicant’s arguments, I would note that, as referenced above, the severance payment by the Gallery which is at issue in this case, as well as the amount of the payment, has already been the subject of media coverage, having also been previously made public by the Gallery itself via its annual report for 2022. I consider that this goes some distance towards furthering the public interest in ensuring oversight of such expenditure by public bodies. It is not apparent to me that any of the narrow public interest grounds referred to above that would justify or excuse breaching a duty of confidence would be advanced to any significant degree by the release of the records at issue. I am satisfied that the interests identified are insufficient to amount to a public interest defence for breaching the duty of confidence owed in this case.
In sum, based on the requirements of section 35(1)(b), the terms of the confidentiality clause that exists in this case, and the contents of the records at issue, I am satisfied that to disclose the contents of the records would be to breach a duty of confidence provided for by a provision of an agreement. I am therefore satisfied that the records come within the scope of section 35(1)(b) and are exempt from release under that provision of the FOI Act.
In those circumstances, I am not required to consider the other exemptions relied upon in this case by the Gallery.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Gallery’s decision. I find that the Gallery was justified, under section 35(1)(b) of the FOI Act, in withholding access to the records sought by the applicant.
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
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Neill Dougan
Investigator