Decision
Mr W and Donegal County Council (the Council)
From Office of the Information Commissioner (OIC)
Case number: 140092
Published on
From Office of the Information Commissioner (OIC)
Case number: 140092
Published on
Whether the Council was justified in its decisions (i) to refuse access to records relating to the remuneration of former employees under section 28(1) of the FOI Act, on the basis that the records contain personal information; and (ii) to refuse access to records relating to housing expenditure under section 10(1)(a) of the FOI Act, on the basis that further records do not exist or cannot be found after all reasonable steps to ascertain their whereabouts had been taken
7 August 2014
On 27 January 2013, the applicant submitted a Freedom of Information request to the Council. The applicant sought access at items 1, 2, 3 and 4 to records relating to the "retirement package" for four named third parties (the "Retirement Records"). At items 5, 6 and 7 he sought access to records relating to any performance bonuses paid to three of the named third parties (the "Performance Records"). Finally, at item 8, he sought records relating to any monies returned due to non-spending by the housing department of the Council since 1998 (the "Housing Records").
I note that the Council notified the relevant third parties in relation to the Retirement Records and the Performance Records pursuant to section 29 of the FOI Act on or around 11 February 2014. A decision issued on 14 March 2014, refusing access to the records sought under section 28 of the FOI Act, but also providing general details of the relevant pay-scales and methods of calculation of retirement entitlements. In relation to the Housing Records, the Council informed the applicant that "no monies were returned to the relevant Department due to non-spending in the Housing Department of the County Council during the period in question". The Council did not, however, furnish any records in relation to this issue.
The applicant sought an internal review of both decisions by way of letter dated 19 March 2014. The internal reviewer upheld the decision to refuse access to the Retirement Records and the Performance Records under section 28 of the FOI Act. Additionally, in relation to the latter records, the internal reviewer referred the applicant to the reports compiled by the Committee for Performance Awards in the Local Government Sector, available from the website of the Department of the Environment. With regard to the Housing Records, the internal reviewer provided further detail, setting out seven relevant programmes under which the Council had received allocations, and stating that he had found no evidence that monies were returned in the relevant period.
The outcome of the internal review was communicated to the applicant by way of letter dated 2 April 2014. On 14 April 2014, the applicant sought a review by this Office of the Council's decision.
I note that Mr. Niall Mulligan of this Office informed the applicant that the searches carried out in relation to the Housing Records were adequate and that the decision of the Council in relation to the Retirement Records and the Performance Records was justified in his view. The applicant indicated that he did not accept Mr Mulligan's conclusions, and provided further submissions. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
In conducting my review, I have had regard to the Council's decision on the matter and its communications with this Office, as well as the applicant’s communications with this Office and the Council and submissions received from third parties. I have also had regard to the provisions of the FOI Act.
Following correspondence with Mr. Mulligan, the Council, in the course of this review, released records to the applicant relating to item 8 of the applicant's request. The applicant indicated that he had difficulties in interpreting the records in light of his query, but did not make any submission as to whether he is satisfied that the records furnished comprise all relevant records. The Council made submissions with regard to the adequacy of search, and proposed that this item should be reviewed under section 10(1)(a) of the FOI Act, on the basis that further records do not exist or cannot be found after all reasonable steps have been taken to ascertain their whereabouts. It seems to me that this is a reasonable approach, under the circumstances.
This review is concerned solely with the questions of whether the Council was justified in its decision to refuse access to the Retirement Records and Performance Records under section 28 of the FOI Act and to refuse to release any further records on foot of the applicant's request for Housing Records under section 10(1)(a) of the FOI Act, on the basis that no further records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
The applicant’s original requests were for access to records in relation to four named individuals comprising "[d]etails of the [individual's] retirement package ... including amount of annual pension, lump sum and severance (if any) along with all calculations in respect of same". The Council refused access under section 28 of the FOI Act. Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information of an individual other than the requester.
Section 2 of the FOI Act specifically deems information in the following categories to be "personal information":-
... (ii) information relating to the financial affairs of the individual,
(iii) information relating to the employment or employment history of the individual,
However, section 2 goes on to state that "personal information" does not include:-
(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, 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 the functions aforesaid...
Considering these provisions, in Case Number 020248 (Mr. X v. RTÉ available from the following url: http://www.oic.gov.ie/en/Decisions/Decisions/Mr-X-and-RTE1.html), the then Commissioner reached the conclusion that:-
"It seems to me that the assigning of an individual to a particular point on a scale can often derive from some personal aspect of an individual's life. For instance, in the public service an individual is often assigned to a particular point on a scale having regard to their previous income or position. In other instances individuals can be allocated a point on a scale as a result of long service, performance or qualifications. Having considered the matter, I am satisfied that the salary scale applicable to the post, as opposed to Mr A's point on that scale, can be said to be information relating to the office or position held by Mr A and as such does not constitute personal information. I find that, in this case, access to Mr A's specific salary would involve the disclosure of personal information of Mr A."
Therefore, in relation to the applicant's request, insofar as it relates to the Retirement Records, it seems to me that while general information relating to these individuals' pay scales and the method of calculation of their pension entitlements is subject to release under the FOI Act, the specifics of the amounts paid to them is exempt from release under section 28(1) of the Act, as information personal to those people. The general information referred to above has already been released to the applicant. On this basis, I find that that section 28(1) applies in relation to the applicant's request, subject to the application of the public interest test contained at section 28(5) of the FOI Act, which is considered below.
Regarding the Performance Records, the applicant sought, in relation to three named individuals, "[d]etails of all so-called performance bonus's (sic) paid to [the individual] when the scheme was extant and details of the approval of same".
Having regard to the provisions of sections 2 and 28(1) of the FOI, as set out in earlier in this decision, in Case Number 020311 (Ms X and the Department of Finance available from the following url: https://www.oic.gov.ie/en/Decisions/Decisions/Ms-X-and-the-Department-of-Finance.html), the former Commissioner considered that:-
"On the matter of whether the exemption in paragraph (I) of the definition of personal information might apply, analysis of that paragraph shows that what is excluded is the name of the official, the grade or duties of the official, the terms on which the official holds office and finally, any records created by that official in the course of performing the functions of the office. The exemption does not exclude personnel records relating to "the competence or ability of the individual in his or her capacity as a member of the staff of a public body". Furthermore, in my view the objectives of the various Assistant Secretaries are specific to those individuals and have regard to their personal abilities, qualities and skills as opposed to relating to the functions of the office or to the terms upon which and subject to which the individual holds that office. Indeed, as I have outlined above, the scheme guidelines provide that the agreed objectives should "go beyond the normal requirements of the job". In this regard, I think it is relevant that the Review Body on Higher Remuneration in the Public Sector has made it clear that the basic salary it has recommended for the job of Assistant Secretary reflects its view of the job's worth. Performance related awards are available only in respect of exceptional individual performance. I am satisfied, therefore, that the exemption in paragraph (I) does not apply."
Similar considerations would seem to me to apply in this case. On that basis, I am satisfied that the Performance Records consist of information that is personal to the people concerned and are exempt on that basis under section 28(1) of the FOI, subject to the application of the public interest test contained at section 28(5) of the FOI Act, which is considered below.
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. Having examined the Retirement Records and the Performance Records, I am satisfied that none of the circumstances identified at section 28(2) arises in relation to them. I find, therefore, that section 28(2) does not apply in this case.
Section 28(5) of the FOI Act provides that personal information of a third party may be released if:-
(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 information would be to the benefit of the person to whom the information relates.
Having regard to section 28(5)(b), it does not appear to me that there can be any benefit to the third parties arising out of the release of the records at issue, nor has the applicant sought to make that case. I therefore find that section 28(5)(b) does not apply in this case.
Section 28(5)(a) provides that a record which has been found to be exempt under section 28(1) may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld. In considering the public interest, the Commissioner must take account of the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26, which commented on the approach that the Commissioner should take when balancing the public interest in granting access to personal information, with the public interest in upholding of the right to privacy of the individual(s) to whom that information relates.
Firstly, the Supreme Court distinguished between a public interest and a private interest for the purpose of section 28(5)(a). The Court noted that the FOI request the subject of the Supreme Court appeal was a request for access "by a private individual for a private purpose", which it said "was not made in the public interest." Essentially, this indicates a view of the Supreme Court that the public interest test at section 28(5)(a) of the FOI Act would not weigh in favour of release where the reason for seeking access to a record is exclusively private. The Court also commented that any public interest cited in favour of granting access to an otherwise exempt record under the FOI Act would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law."
The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in both in the language of section 28 and in 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 been found to be an unenumerated personal right 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.
There is a public interest in optimising openness and transparency in public bodies. Specifically, there is a public interest in the disclosure of information which will allow for increased transparency in how the Council deals with expenditure of public funds, including by way of performance bonuses and retirement packages.
While it can certainly be argued that release of the Performance Records would increase accountability of individuals, this must be weighed against the right to privacy of those individuals. The scheme of performance bonuses for senior managers in government authorities was discontinued in 2007, and the Committee for Performance Awards, which had an oversight role in relation to the awarding of such bonuses, was also disbanded at that time. In the interim, no performance bonuses have been paid to senior managers in local authorities. In my view, the public interest in favour of the release of the records sought in this case is diminished somewhat by the fact that Department of the Environment released guidelines on the operation of the scheme; that Government Departments published Statements of Strategy and their overall objectives; and that the Committee for Performance Awards released annual reports while the scheme of performance bonuses was operative, which included general figures showing the amount in bonuses received by each local authority and the number of employees who received such bonuses.
In relation to the Retirement Records, this again involves the disbursement of public funds, and I consider that the public interest in openness about public expenditure is of very great significance. However, the retirement entitlements of Council employees are subject to the relevant salary scales and methods of calculation of retirement benefits, which have been furnished to the applicant. The applicant complains, however, that he has not been furnished with the precise length of service for these individuals at the particular grade and thus cannot accurately calculate their entitlements. In my view, this is information of precisely the kind that is exempt from release under section 28(1) of the FOI Act, for the reasons set out earlier in this judgment. On balance, however, having regard to the constitutionally protected rights to privacy of the third parties, I consider that the general information furnished to the applicant sufficiently addresses the public interest in the use of public funds.
For the foregoing reasons, I am of the view in this case that the public interest in upholding the right to privacy of the third parties in this instance outweighs the public interest that the request should be granted. I find accordingly.
The applicant requested "details of the amounts, on an annual basis from 1998 which were returned to the relevant Department due to non-spending in the housing department of the County Council". Both the Council's decision maker and internal reviewer dealt with this request by stating in correspondence that "no monies were returned", with greater detail being provided by the internal reviewer. However, the applicant was not granted access to the relevant records.
In the course of this review, the applicant was granted access to records coming under eight categories relating to this request. The applicant did not express a view as to whether he was satisfied with the records furnished. He did, however, state that he had difficulty in interpreting the records furnished in light of his query.
Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website, www.oic.ie).
The role of this Office is not to determine whether the records released are sufficiently clear or intelligible, or to make any other determination on the quality of the records maintained. Rather, in considering whether section 10(1)(a) applies, this Office must be satisfied that reasonable searches have been carried out and any relevant records have been released.
In its submissions, the Council detailed ten relevant programme files which were searched. The applicant was furnished with details of the searches, and I therefore do not consider it necessary to set the out the searches in detail in this decision. The applicant offered no submission in relation to this issue. The Council stated a "firm" belief, based on the searches carried out, that no more relevant records are available. I have no reason to doubt Council's submissions in this regard.
The position of the Council is that it cannot find any further records relevant to the applicant's FOI request. In the circumstances of this case, I am satisfied that the Council has taken reasonable steps to locate the records sought and I find that section 10(1)(a) of the FOI Act applies. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of Council in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator