Decision
Mr X and Citizens Information Board
From Office of the Information Commissioner (OIC)
Case number: OIC-103051-G2V0V3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-103051-G2V0V3
Published on
Whether the CIB was justified in refusing access to records in the possession of an identified Money Advice and Budgeting Service (MABS), a service provider, on the ground that it does not hold the records sought for the purposes of the FOI Act and in refusing access to certain information contained in records concerning the service provider under sections 35(1)(b), 36(1)(b) and 37(1) of the FOI Act.
OIC-103051-G2V0V3
The Money Advice and Budgeting Service (MABS) provides free advice for people who are experiencing difficulties with personal debts. It operates from a number of offices nationwide and is currently governed by eight Regional Boards, each of which is a company limited by guarantee and a registered charity. It is funded and supported by the CIB.
On 1 September 2020, the applicant submitted a three-part request to the CIB for records relating to a specific Regional Board (the Company) under FOI. Specifically, he sought access to:
1. “All emails or records concerning a press query from [a named newspaper] on [a named county] MABS in September 2021…Several of these emails occur between 9 September and the 13 September. This should include any emails or correspondence within the service provider [the Company].
2. Any other emails or records concerning [a named radio station programme] on [a named county] MABS funding broadcast in October 2019. Again, this may include emails or records within the service provider [the Company].
3. The Action Plan 2019 developed by the board of [the Company]. This document dealt with service, governance, change management, and communications.”
He also sought access to a copy of the “Business Case for Restructuring of CIS and MABS” presented to a CIB Board meeting on 9 December 2015 outside of the FOI process.
On 28 September 2020, the CIB decided to part-grant the request. It released one record in full relating to part 1 of the request and six records in part relating to both parts 1 and 2, redacting certain information under section 37(1) on the ground that release of the information would involve the disclosure of personal information relating to third parties. It refused access to the Action Plan 2019 relating to part 3 under sections 35(1)(b) and 36(1)(b). It also outlined its position that the records sought within the Company did not relate to the provision of a service under its agreement with the Company. Separately, it released a copy of the “Business Case for Restructuring of CIS and MABS” outside of the FOI process.
On 26 October 2020, the applicant sought an internal review of the CIB’s decision. He argued that the CIB was not justified in withholding the information, other than information relating to a journalist, redacted from the records relating to parts 1 and 2 of his request under section 37(1) or in withholding the Action Plan 2019 relating to part 3 under sections 35(1)(b) and 36(1)(b). He also contested the CIB’s position that the records sought within the Company did not relate to the provision of a service under its agreement with the Company.
On 13 November 2020, the CIB affirmed its original decision to part-grant the request but varied the basis on which it did so. While it affirmed its decision to withhold the majority of the information redacted from the records at issue under section 37, it decided to withhold a small amount of the information in the records relating to part 1 under sections 35(1)(b) and 36(1)(b) and to grant access to some of the information previously redacted from a record relating to part 2. It affirmed its decision to refuse access to the Action Plan 2019 under sections 35(1)(b) and 36(1)(b). It made no reference to consulting the Company in respect of parts 1 and 2 of the request.
On 2 February 2021, the applicant sought a review by this Office of the CIB’s decision. He argued, in essence, that the CIB was not justified in withholding names, other than the journalist’s name, from the records at issue, under section 37(1). He also argued that the CIB was not justified in withholding any of the information refused under sections 35(1)(b) and 36(1)(b) and again contested the CIB’s position that the records sought within the Company did not relate to the provision of a service under its agreement with the Company.
During the course of the review, this Office notified the Company of the request and invited it to make submissions on the matter. The Company provided submissions to this Office. I have now completed my review in accordance with section 22(2) of the FOI Act. In conducting my review, I have had regard to the correspondence between the CIB and the applicant as outlined above and to correspondence between this Office and the CIB, the applicant, and the Company on the matter. I have also had regard to a decision I issued in March 2021 concerning the applicant and the CIB in case OIC-62336 (available on our website www.oic.ie), in which I considered the relationship between the CIB and the Company. Finally, I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the CIB in the electronic folder of records provided to this Office on 12 April 2021 and have numbered the Action Plan 2019 as record 8.
The first redaction at the top of records 1a, 2a, 3a, 6a, and 7a appears to comprise the name of the CIB staff member who collated the records for the purposes of processing the FOI request and, as such, the information post-dates the applicant’s request. Accordingly, I have not considered the redaction of this name in my review. I would, however, note that the name was released to the applicant at internal review (the top of record 4a).
This review is concerned solely with whether the CIB was justified in refusing access to records in the possession of the Company relating to parts 1 and 2 of the applicant’s request on the ground that the records sought are not held by the CIB for the purposes of the FOI Act, in withholding names (other than the journalist’s name) from the records at issue under section 37(1), and in redacting information from record 6a and refusing access to record 8 (the Action Plan 2019) under sections 35(1)(b) and 36(1)(b).
Records held by the Company
Section 11(9) of the Act provides that a record in the possession of a service provider shall, if and in so far as it relates to the service, be deemed for the purposes of the Act to be held by the FOI body, and there shall be deemed to be included in the contract for the service a provision that the service provider shall, if so requested by the FOI body for the purposes of the Act, give the record to the FOI body for retention by it for such period as is reasonable in the particular circumstances.
Therefore, if the Company is providing a service for the CIB, then any records in the possession of the Company relating to that service are deemed to be held by the CIB for the purpose of the Act and a potential right of access exists to such records.
I understand that when processing the request, the CIB did not seek to establish whether the Company itself held records coming within the scope of parts 1 and 2 the request on the basis that the records sought did not relate to the provision of a service under its agreement with the Company. In essence therefore, the CIB’s position is that it has released all relevant records which, essentially, is an argument that section 15(1)(a) of the Act applies. Section 15(1)(a) allows a body to refuse a request where the records sought cannot be found or do not exist, after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to determine whether the body has taken all reasonable steps to ascertain the whereabouts of relevant records. The question I must consider in this case, therefore, is whether the CIB should have sought to determine whether the Company holds records coming within the scope of the request.
In case OIC-62336, the CIB explained that MABS services originated in the community. The Department of Social Protection (the Department) was responsible for supporting the MABS until 2009. In July 2009, responsibility for the MABS service was transferred from the Department to the CIB under the Social Welfare (Miscellaneous Provisions) Act 2008, which amended the Comhairle Act 2000, the CIB’s statutory basis, providing that the definition of a “voluntary body” included a money advice and budgeting service and that the CIB’s functions included, at section 7(1)(ca) to 7(1)(ch):
(ca). to support the provision of a service to be known, in the English language, as the Money Advice and Budgeting Service or, in the Irish language, as An tSeirbhís Buiséadaithe agus Comhairle Airgid, to provide advice to individuals for the purpose of the management, avoidance, reduction and discharge of personal debt and in relation to money management,
(cb). to promote and develop the provision of the Money Advice and Budgeting Service and to provide information in respect of such provision,
(cc). to provide, subject to the consent of the Minister, and in accordance with subsection (1A), financial assistance to a voluntary body in respect of any matter related to the functions referred to in paragraphs (ca), (cb), (cd), (ce), (cf) and (cg),
(cd). to promote and develop education in respect of money management,
(ce). to compile and publish data relating to the provision of the Money Advice and Budgeting Service,
(cf). to promote and disseminate awareness and information to the public relating to the provision of the Money Advice and Budgeting Service,
(cg). to undertake, or commission, research relating to the functions referred to in paragraphs (ca), (cb) and (cd) and on any matter, as the Minister may, from time to time, request, in relation to the functions referred to in paragraphs (ca), (cb) and (cd) to (cf),
(ch). to provide advice, information and assistance to the Minister in respect of the functions referred to in paragraphs (ca) to (cg) and such advice, information and assistance in relation to those functions as the Minister may, from time to time, request,”
Section 7(1A) provides that the CIB shall, “subject to the approval of the Minister, determine the terms on which and the conditions subject to which it may …
(aa) support the provision, promotion and development of the Money Advice and Budgeting Service under subsections (1)(ca) and (1)(cb) and the functions referred to in subsections (1)(cd) to (1)(cg) …
(ba) provide financial assistance to a voluntary body under subsection (1)(cc)”
Also in case OIC-62336, the CIB explained that the Company was formed in 2018 as part of a restructuring process within the CIB network of funded companies. The Company is a registered charity and company limited by guarantee and is run by a board of directors. The CIB does not appoint directors to the board and its staff are not public servants. The CIB provides funding to the company on the basis of a Service Level Agreement (SLA). The CIB said it has set out a comprehensive financial control and reporting framework for those delivery services that receive an operational grant and that this framework ensures that appropriate services are provided in return for funding. The CIB added that the SLA between CIB and each of its delivery services clearly sets out the commitments of both parties. It said the SLA covers service delivery, governance, financial controls, HR practices, data protection, reporting guidelines, evaluation and monitoring. It said it used auditing firms to conduct periodic audits of service delivery companies, particularly in relation to financial controls and governance practices.
In the case at hand, it is not in dispute that the Company is a service provider under section 11(9). The question I must consider, therefore, is whether the records at parts 1 and 2 of the applicant’s request relate to the service provided by the Company.
It is the CIB’s position that the records sought at parts 1 and 2 of the applicant’s request do not relate to the service provided. In its submission to this Office, the CIB explained that it treated parts 1 and 2 as relating to media matters and that it did not consult with the Company regarding records in its possession on the basis that media queries and engagement fell outside its SLA with the Company. In doing so, it referred specifically to Appendix / Schedule 1, “MABS Service Delivery Specification”, of the SLA.
For the purposes of this review, I have examined a copy of the CIB’s SLA with the Company. The SLA provides that the CIB agrees to fund the Company for the provision of the services set out in Schedule 1 subject to the terms and conditions of the SLA and that the Company undertakes to apply the funding exclusively to the provision of the services. Schedule 1 essentially includes details of the nature of the money advice and budgeting service to be provided and how that service is to be provided. These details are outlined under four key headings “role and purpose”, “availability and access”, “operating procedures”, and “community education and social policy”. I note, in particular, that paragraph (g) under the heading “availability and access” states:
“The Service advertises widely, using a variety of methods, including leaflets, mail drops, publications, radio and other media, community facilities, events and conferences”.
I also note that clause 9.1 of the SLA provides the Company agrees that it will comply with any written request from the CIB for any information that the CIB considers material to the terms of the SLA.
I understand that both the press query and radio programme, to which the records sought at parts 1 and 2 of the applicant’s request relate, concern MABS funding/resourcing in a named County. Having examined the records at issue, it is evident that the CIB liaised with the Company in respect of responding to the press query referred to in part 1 of the applicant’s request. Record 3a contains an email between CIB staff members recommending that an identified Company staff member be asked to respond to the query and Record 6a contains emails between CIB staff members and the Company staff member discussing the CIB’s and/or the Company’s response, as well as an email from the Company staff member to the CIB outlining a proposed response. As such, it is clear that the Company holds relevant records notwithstanding the fact that copies of those records are also held by the CIB and were considered for release. However, what is not clear is whether the Company holds any other relevant records. It seems to me that it would be reasonable to expect that the CIB would seek to clarify with the Company whether it held any further relevant records. In the circumstances, while I offer no view on whether further relevant records are likely to exist, I am not satisfied that the CIB has taken all reasonable steps to ascertain the whereabouts of relevant records in this case and I find, therefore, that section 15(1)(a) does not apply.
Section 35(1)(b)
The CIB refused access to Record 6a in part (the paragraph beneath the listed bullet points on page 1) and Record 8 in full under section 35(1)(b).
Section 35(1)(b) provides for the mandatory refusal of a 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 or otherwise by law. However, section 35(2) provides that section 35(1) does not apply to a record prepared by a head or any other person (being a director, or member of the staff 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 the staff of, an FOI body or of such a service provider.
The redacted paragraph at issue in Record 6a is contained within an email sent by a staff member of the Company to the CIB that outlines a proposed response to a press query relating to MABS funding/resourcing in a named County. Having regard to my analysis relating to records held by the Company as set out above, I am satisfied that the email, including the paragraph in question, was prepared by a staff member of the service provider in the course of the performance of his or her functions.
Record 8 is the Company’s 2019 Action Plan. The SLA between the CIB and the Company outlines that the Company is required to prepare and submit an annual Action Plan and an end of year report on that Action Plan to the CIB for approval. It states that the Action Plan shall identify the various actions to be taken over the course of the year to ensure full implementation of the Company’s strategy statement. The SLA also outlines while the CIB’s Liaison Officer is not entitled to vote or to influence the Board of the Company, they are entitled to attend meetings of the Board in order to provide support and guidance in relation to the strategy statement, Action Plan, and general development of the Company. In all the circumstances, I am satisfied that the Action Plan 2019 was prepared by a director and/or a member of staff of the Company, a service provider, in the course of the performance of his or her functions.
In accordance with section 35(2), for section 35(1) to apply, the disclosure of the information at issue in records 6a and 8 must constitute a breach of a duty of confidence owed to a person other than an FOI body/service provider etc. under an agreement or statute or otherwise by law. Neither the CIB nor the Company have identified any person, other than the CIB and the Company, to whom a duty of confidence might be owed in this case. Accordingly, I find that section 35(1) cannot apply pursuant to the provisions of section 35(2).
Section 36(1)(b)
The CIB also refused access to Record 6a in part (the paragraph beneath the listed bullet points) and Record 8 in full under section 36(1)(b).
Section 36(1)(b) of the Act provides that an FOI body shall refuse to grant a request if the record concerned contains “financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.”
Section 36(1) does not apply if the public interest would, on balance, be better served by granting than by refusing the request (section 36(3) refers).
The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of subsection (1)(b) of section 36 is whether disclosure of the information “could reasonably be expected to result in material financial loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities, but with whether the decision maker’s expectation is reasonable. The nature of the harm envisaged and a basis for a claim that such harm could reasonably be expected to result from disclosure of the particular information in the record(s) at issue should be shown by a party relying on this provision.
The harm test in the second part of subsection (1)(b) of section 36 is whether disclosure of the information “could prejudice the competitive position” of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The Supreme Court confirmed inUniversity College Cork v The Information Commissioner [2020] IESC 58 that the standard of proof in relation to the second limb is “very low”. Nevertheless, it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice its competitive position. Bare assertions do not provide an adequate basis for meeting even the low test in section 36(1)(b).
In its submissions to this Office, the CIB outlined, in essence, that the redacted paragraph at issue in record 6a is commercially sensitive as it relates to staffing and that record 8 is commercially sensitive as it outlines proposals and plans that include possible office/service location closure, a review of the staffing model and roles, and the discussion of the implementation of additional clauses to contracts.
The CIB argued that the release of Record 8 could reasonably be expected to result in a material financial loss or gain to the Company or could prejudice the competitive position of the Company. It noted that examples of issues that could arise include, current and future landlords having access to the Company’s premises plan and a non-board member having access to potential changes to the Company’s service provision and employee contracts. It also stated that it would not be unreasonable for an employee of the Company to expect that they would be informed by their employer of planned changes before that information is made public. Furthermore, it noted that, in the event that the outlined changes did not occur, issues could arise for the Board and employees of the Company, as well as contracted service providers. Finally, it stated that it did not deem the release of Record 8 to be in the public interest.
In its submissions to this Office, the Company said it agreed with the CIB’s decision to refuse access to the information at issue under section 36(1)(b). In relation to record 8 specifically, the Company noted that it comprises the business plan for the company for 2019 and that the information contained therein is commercially sensitive as it concerns development plans for the period. The Company explained that it provides money advice services to clients who need assistance in managing over indebtedness and that it competes with many organisations in attempting to source funds to support and develop its operations. It also noted that it competes with insolvency practitioners when attracting clients to avail of its services. It submitted that the disclosure of Record 8 would be advantageous to its competitors and disadvantageous to the Company in petitioning for funds to support and develop its activities.
I note that the relevant paragraph at issue in Record 6a refers to possible re-allocation of existing posts within the Company; however it also states that the matter is on hold and does not provide any information in respect of the posts at issue. Record 8, the 2019 Action Plan, sets out four key priorities for the Company broken down into intended outcomes. While it also identifies the actions to be undertaken to achieve those outcomes and indicates the position of those who are responsible for them, it is quite high-level and does not outline the specifics of each of the actions.
It is also worth highlighting the fact that the Action Plan is in respect of 2019 and as such, the information is now historic.
Having examined the relevant information in record 6a and record 8 and having considered the submissions of the CIB and the Company, I am not satisfied that the CIB has justified its refusal of the records under section 36(1)(b). I find, therefore, that the section does not apply.
Section 37
The CIB redacted the names of CIB employees, of service providers (the Company and a media monitoring company), and of individual(s) who work for the Company from records 1a, 2a, 3a, 4a, 6a, and 7a, under section 37(1). Record 8 also includes the name of an individual who works for the Company and, as such, I will also consider whether section 37(1) applies to that information.
Section 37(1) of the FOI Act provides, subject to the other provisions of the section, for the mandatory refusal of 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.
Section 2 of the FOI Act defines the term “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 an FOI body on the understanding that it would be treated by the body as confidential.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers). In addition, where the individual is or was a service provider, the definition does not include his or her name or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service (Paragraph II refers). This Office takes the view that while the exclusion applies to the names of the service providers themselves, it does not, however, apply to the names of individuals who work for those service providers.
Having examined the information at issue, I find that the names of CIB employees, including as the names appear in email addresses, and the names of the service providers themselves contained in records 1a, 2a, 3a, 4a, 6a, and 7a, are not personal information for the purposes of the Act and that section 37 does not apply to those names.
I am, however satisfied that the names of individuals who work for the Company, including as they appear in email addresses, contained in records 3a, 6a, 7a, and 8, are personal information within the meaning of the Act. Accordingly, I find that section 37(1) applies to those names.
Section 37(2) sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in respect of the remainder of the names 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 information would benefit the person to whom the information relates. As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the individual(s) concerned, I find that section 37(5)(b) does not apply.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 I.R. 729, [2011] IESC 26) (“the Rotunda case”). It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally.
Both 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). Unlike other public interest tests provided for in the FOI Act, there is also 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.
It is also important to note that the release of information under the FOI Act is, in effect, regarded as release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.
Having regard to the nature of the information at issue, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the information in question that, on balance, outweighs the right to privacy of the individuals to whom the information at issue relates. I find therefore, that section 37(5)(a) does not apply.
Consequently, I find that the CIB was justified in refusing access to the names of individuals who work for the Company, including as they appear in email addresses, contained in records 3a, 6a, 7a, and 8, under section 37(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the CIB in this case. I direct the CIB to undertake a fresh decision making process in respect of any records in the possession of the Company relating to parts 1 and 2 of the applicant’s request. I also direct the release of the following information:
Record 1a:
Record 2a:
Record 3a:
Record 4a:
Record 6a:
Record 7a:
Record 8:
I affirm the CIB’s decision to withhold the names of individuals who work for the Company under section 37(1).
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Stephen Rafferty
Senior Investigator