Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: OIC-145072-Q8P6M4
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-145072-Q8P6M4
Published on
Whether the Department was justified in refusing access to records relating to entitlements claimed in respect of a certain folio of land
30 July 2024
In a request dated 1 November 2023, the applicant sought access to the following information or records concerning a folio of land which is registered in his mother’s name:
• Have any additional payments been processed/made under Department schemes since 2005 relating to the land folio? What do these payments relate to?
In a decision dated 29 November 2023, the Department refused the applicant’s request under section 37 of the FOI Act. In its decision the Department stated “your request is refused with the provision that it may be re-submitted if accompanied by a valid document appointing you as power of attorney to the signee.” On 30 November 2023, the applicant requested an internal review of the Department’s decision. The applicant stated that a power of attorney instrument is not required in the processing of an FOI request and he requested clarification in relation to the Department’s request to provide one. On 18 December 2023, the Department issued its internal review decision. The Department stated that as the land owner had provided written authorisation that the applicant may act on her behalf, it was permitting the applicant to seek access to information which it may have pertaining to the land owner. The Department confirmed that the land parcel in the folio identified by the applicant was used in support of claims as part of the SPS, BPS, BISS during the period 2005 to 2023 inclusive. It confirmed that the land folio has been submitted in support of other area-based claims as part of CAP Direct Payment Scheme applications during the period of 2005 to 2023 inclusive. The Department did not provide any additional information with respect to the beneficiaries, nature of the claims processed or value of the claims processed as they relate specifically to the land folio and it refused access to records containing the claims made under these schemes under section 37(1) of the FOI Act. On 8 January 2024, the applicant sought a review by this Office of the Department's decision.
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 correspondence between the applicant and the Department 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 and to the provisions of the FOI Act 2014. I have decided to conclude this review by way of a formal, binding decision.
The Department identified the following records as falling within the scope of the applicant’s request:
The scope of this review is concerned solely with whether the Department was justified in refusing to grant access to the above records under section 37 of the FOI Act.
It is important to note that while the purpose of the FOI Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. A person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the FOI Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.
While I am limited in the extent to which I can describe the contents of the records at issue, I believe it would be useful to provide a brief overview of same. The records include applications for payment under the SPS for the years 2005 to 2014, applications for payment under the BPS for the years 2015 to 2022 and applications for payment under the BISS 2023. The applications include information such as the name, address, mobile phone number and email address of the applicant(s), the relevant herd number, the relevant townland where the land is located, the land parcel plot number, the area claimed in hectares, the parcel use and the value of entitlements in euros.
Section 37 is a mandatory exemption provision and it provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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 that body as confidential.
Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (ii) information relating to the financial affairs of the individual; (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to establish that any personal information held by the FOI body concerned relates to the individual; (xiii) information relating to the property of the individual (including the nature of the individual’s title to any property).
The applicant states that the property in question is owned by his mother and was leased to a third party for many years. He says the lease with the third party was terminated in 2020. The applicant believes that the third party made an application to the Department for payments in 2020 stating that he held a lease over the property which was not the case. The applicant also believes that prior to 2020, the lands may have been sub-leased. He says the lease contained a provision prohibiting sub-leasing and the parties who sub-leased the land may have claimed entitlements and payments that they were not entitled to. The applicant states that while he accepts that a "name" represents a personal information, he says providing the total claim value or the value of the payments accrued from schemes as they relate specifically to the land folio at issue in the absence of a personal identifier does not represent the disclosure of personal information under the FOI Act.
The Department states that the Single Payment Scheme was introduced in 2005 and saw a move away from per head payments to per hectare payments more commonly known as “entitlements”. It states that in recognition of the fact that farm holding sizes may vary in area year on year and that farmed lands may be owned, leased, rented or farmed in common with others, entitlements were linked to the individual farmer and not directly linked to any specific parcels of land. It states that in order to activate each entitlement, an individual was required to submit and declare one hectare of agricultural area for each entitlement held on their annual SPS /BPS/ BISS application form. It states that the application forms contain names, financial information and information in relation property interests of third parties. It states that the land in question has been leased by the landowner to a third party and the landowner is aware of the name of the third party. It states, therefore, that even if the name of the claimant was redacted, the applicant would be able to associate the remaining information with the claimant.
I have examined the records carefully and I am satisfied that they contain information which falls within the definition of personal information including names, addresses, phone numbers, financial information and information relating to property. I accept that it would be possible to redact personal identifiers from the records such as names and addresses. However, in this case the property in question has been leased by the landowner for many years. It seems to me, that if the names and addresses were redacted and the remainder of the records were released this would result in the release of information relating to the financial interests and property interests of third parties who are identifiable to the applicant. I have considered section 18 of the FOI Act, however having regard to the content of the records, it seems to me that it is not practicable to extract particular sentences or occasional paragraphs from the records for the purpose of granting access to those particular sentences or paragraphs. I find therefore that the records are exempt under section 37(1) of the FOI Act.
Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, the information contained in the records does not relate solely to the applicant; the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) provides that a request that would fall to be refused under subsection (1) may still be granted where, on balance, (a) 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, or (b) the grant of the request would benefit the person to whom the information relates. In the particular circumstances of this case, I find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the record at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose. All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
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.
The applicant states that the requested records should be released in the public interest. He states that his request relates to the management and monitoring of the Common Agricultural Policy (CAP), an EU funded scheme administered by the Department. He says the CAP Scheme works within the clearly defined principle of transparency enshrined in the governing treaty. He states that public control as it relates to EU funds must be supported to ensure no failure in the application of any scheme administrated by a body representing a member state. He states that EU Regulation 1306/2013 relating to the management and monitoring of CAP, refers in detail to the publication of funds under CAP schemes and reinforces the reporting of funds as they relate to the relevant program. The applicant states that the public must put its faith in the hands of the Department to ensure a robust management of the application process for CAP funding. He states that the public work from the assumption that the Department takes the following steps: process basic application form, validation of land parcel information, confirmation or validation of land ownership or lease documentation and validation of identification etc. He states that where members of the public have concerns that the above steps have not been completed, they should have the right to raise those concerns.
The applicant states that in September 2020, he raised concerns with the Department regarding the folio at issue. He says he informed the Department that the lands had not been leased for the period of January 2020 to December 2020 and the lands should not have been included in any claim against any of the CAP schemes. He says the Department responded in writing in October 2020 to advise that they had commenced an investigation into the matter. He says he did not have any further communication with the Department on the matter and he acted in good faith that the matter would be addressed. He says this FOI request should show that no payment was made during that period. He says if a payment was made, this would reflect a breakdown in the processes by the Department to validate claims. He says the information should be released in the public interest to understand if errors are commonplace and represent a greater issue within the Department in the management and monitoring of the CAP funding in Ireland.
The Department states that in accordance with EU Regulation 1306/2013 it is obliged to ensure annual ex-post publication of all of the beneficiaries of CAP funding and it must, by 31st May each year, publish the following data:
The Department states that the public interest in transparency in relation to payments under the CAP scheme is served by the publication of this information. The Department states that the application forms at issue contain large amounts of personal information which is not suitable for release into the public domain. It states that if the forms were released this would identify individuals and their address in rural Ireland, their place of work i.e. their farming lands and the amount of money received under various CAP schemes. It states that if this volume of information is released it has the potential to make individuals vulnerable within their community. The Department states that as a paying agency of the EU, it is audited on an ongoing basis by various bodies i.e. DAFM Internal Audit, Independent Auditors - Ernest and Young, Office of the Comptroller and Auditor General, EU Commission Auditors and EU Court Auditors. It states that these audits are to ensure the correct administration of CAP Funds.
The Department states that where a member of the public provides it with information in relation to a potential irregularity in relation to a Scheme application by an individual(s), this information is examined in the first instance by the Scheme areas concerned to ascertain the relevance of the information provided. The Department says it will utilise all records available to it in ascertaining an individual’s right to agricultural lands, this will include examination of land registry documentation, information from the registered landowner, livestock data, satellite imagery where available and any other available information that may be prudent to the case. It states that where it is ascertained that an irregularity has occurred, the impacted applicants are notified in writing of the findings in line with the Terms and Conditions of the Schemes. It states that the results of which are either the non-payment of monies applied for or the recoupment of monies already issued in addition to the application of a financial penalty depending on the severity of the irregularity. The Department states that where it is ascertained that the issue may be of a more serious nature i.e. fraudulent activity, the Department has a dedicated Special Investigation Unit to which a case may be referred to for further examination. The Department states that the outcome of the findings are not notified to the individual who has provided the information as this would be deemed a breach of the personal data rights of the applicant under the scheme. It states that irregularities are notified to the Independent Certifying body and the EU Commission on annual basis as part of its reporting requirements.
I accept that there is a public interest in ensuring the effective oversight of public expenditure to prevent fraud, waste or misuse of public funds and it seems to me that the applicant’s arguments are reflective of the public interest in openness and transparency in relation to how the Department carries out its functions in administering funds under these schemes. However, this does not mean that there should be no protection of privacy rights of individuals. 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
The applicant says members of the public have the right to use an instrument like the FOI Act where they feel that information is not forthcoming in relation to concerns they have raised. He says allowing for the fact that this might require the disclosure of personal information, it is in his opinion an acceptable expectation where oversight is required. I note that there is a mechanism for raising concerns with the Department in relation to applications under the CAP scheme and the Department has a process in place for investigating those concerns. I also note that the Department is subject to a variety of audits and checks in relation to its use of funds under the CAP schemes. It seems to me, that these audits help to ensure accountability in relation to expenditure of CAP funds and help to ensure that there is no fraud or misuse of public fund. I am satisfied that releasing the withheld information into the public domain would significantly breach the rights to privacy of identifiable individuals other than the applicant. Having regard to the nature of the information at issue, I am aware of no public interest factors in favour of the release of the specific withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision.
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.
Jim Stokes
Investigator