Decision
Ms C and the Department of Agriculture and Food
From Office of the Information Commissioner (OIC)
Case number: 130294
Published on
From Office of the Information Commissioner (OIC)
Case number: 130294
Published on
Whether the Department was justified in its decision to refuse to release details to the applicant of the name(s) of person(s) claiming entitlement on her lands in accordance with Section 28(1) of the FOI Act
15 May 2014
On 6 August 2013, the applicant made a Freedom of Information (FOI) request to the Department seeking details of any individual who claimed any entitlements such as Single Payment Scheme (SPS), REPS (Rural Environmental Protection Scheme) or Agri-Environment Option Scheme (AEOS) on her land or part of her land since March 2012.
The Department wrote to the applicant on 4 September 2013 and advised her that some of her land was declared on the 2012 Single Payment Scheme by a certain party and by a different party on the 2013 Scheme. However, the Department refused to disclose the names of the third parties on the basis of the exemptions contained in section 28(1) of the FOI Act. The applicant wrote to the Department on 27 September 2013 and this was treated as a request for an internal review.
On 31 October 2013, the Department issued a decision on the internal review which confirmed the original decision. On 20 November 2013, the applicant applied to this Office for a review of the Department's decision.
Mr Willy O'Doherty, Investigator in this Office, wrote to the applicant on 31 January 2014 outlining his preliminary view on this case. His view was that the Department was justified in refusing access to the withheld details. On 21 February 2014, the applicant requested a binding decision. Accordingly, I have now decided to conclude this review by way of a formally binding decision.
In conducting this review, I have had regard to the submissions of the Department as well as those of the applicant and to the correspondence between this Office, the Department and the applicant, particularly Mr O'Doherty's letter of 31 January 2014 to the applicant wherein he outlined his preliminary view on the matter. In considering the public interest at section 28(5)(a), I have had regard to the judgment of the Supreme Court, which issued in July 2011, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner. Finally, I have had regard to the provisions of the FOI Act.
The review is concerned solely with the question of whether the Department was justified in its decision to refuse to release to the applicant the name(s) of person(s) claiming entitlement on her lands on the basis of Section 28(1) of the FOI Act.
In correspondence to this Office, the applicant outlined the reasons why she wants access to the particular records. However, section 8(4) of the FOI Act expressly provides that decision makers shall, subject to the provisions of the FOI Act, disregard any reasons that the applicant has, or is believed to have, for making a request. Regardless of the importance of such issues to the applicant, the jurisdiction of this Office is confined to examining the records in conjunction with the relevant FOI legislation to decide whether or not the records should be released.
Furthermore, while the Commissioner is required, by section 34(10) of the FOI Act, to give reasons for his decisions, this provision is subject to the requirement of section 43(3) which provides that the Commissioner will take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review. In the circumstances under review, therefore, the extent of the explanation that I can give with regard to the content of the withheld records is limited.
Finally, the Courts have found that the release of a record under the FOI Act is akin to its release to the world at large. This is because the Act places no restrictions on the subsequent use to which the record may be put. Accordingly, this is a factor which must be taken into account in this case in balancing any public interest arguments.
As outlined in the preliminary views letter, section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual.
I am satisfied that the withheld details comprise the personal information of persons other than the applicant. Accordingly, I find the withheld details to be exempt under sections 28(1) of the FOI Act.
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the withheld details.
Section 28(5) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances.
The effect of section 28(5)(a) is 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 the judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.
Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 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). Accordingly, when considering section 28(5)(a), privacy rights will 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.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions.
In this case, the Department informed Mr O'Doherty that the applicant was not disadvantaged by the other party(s) claiming an entitlement on her lands as, in order to claim a payment under the Single Payment Scheme, the person must, inter alia, be a registered herd owner and submit the relevant application form to the Department, declaring the lands in question. The Department confirmed that it does not have any record of the applicant having a herd number or lodging an application under the Scheme. Therefore, it confirms that public funds would not have been due to her under the Scheme.
It also informed Mr O'Doherty that, in relation to the control processes in place to protect public funds, all lands declared under the Scheme must be validly "owned, rented or leased" by a claimant - in this case the third parties who made a claim under the Scheme. The Department explained that when information comes to its attention, from whatever source, questioning the validity of any declaration made by a claimant under the Scheme, as happened on foot of the applicant’s FOI request, the Department requests that party to provide documentary proof of their right to claim on the lands in question. This may be done by way of a rental or lease agreement or ownership Folio. In this case, the Department has confirmed that the third parties have furnished documentation in relation to their applications which is currently being examined. In this regard, the Department clarified that when it transpires that any lands declared are ineligible for inclusion on the Scheme application, the lands are rejected with consequent reduction penalties on that person's remaining land, as per the Terms and Conditions of the Scheme.
Having considered the contents of the records at issue and the Department's submissions on the matter, I am satisfied that the Department has a system in place to deal with contended unauthorised claims which demonstrates its accountability as a public body using public funds. In that context, I do not see how that accountability would be further demonstrated by release of the names of the people who have made the claims to the extent that it would justify the invasion of privacy that release of the names would entail. Therefore, I fail to see how release of the records in this particular case would enhance, to any significant extent, the public interest in ensuring such openness, transparency or accountability.
On the other hand, the FOI Act recognises a public interest in protecting privacy rights. The language of section 28 and of the Long Title to the Act recognises this public interest. The right to privacy also has a constitutional dimension.
Having considered the mater, I do not consider that release of the names of the third parties concerned would further serve the public interest to such an extent that a breach of the their Constitutional rights to privacy is justified. Accordingly, I am satisfied that the public interest in granting the applicant's request does not outweigh the public interest that the right to privacy of the individual or individuals to whom the information relates should be upheld. Thus, I find that the withheld details should not be released further to section 28(5)(a) of the FOI Act.
For these reasons, I find that the Department's decision to refuse the request in this case pursuant to section 28 of the FOI Act was justified.
Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1) or section 28(5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. The applicant has not made any case that the release to her of the personal information of the third parties would be of benefit to those parties, nor am I otherwise aware of any reason to think that this would be the case.
I find that no right of access arises further to the provisions of section 28(5)(b) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's refusal of the withheld details.
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.
Sean Garvey
Senior Investigator