Decision
Mr. Z & The Department of Transport (the Department)
From Office of the Information Commissioner (OIC)
Case number: OIC-154507-M2Y1M0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-154507-M2Y1M0
Published on
Whether the Department was justified in refusing access, under section 35(1)(a), 36(1)(b), and/or 37(1) of the FOI Act, to certain information contained in a letter from the Minister to a named State commercial port company
13 October 2025
In a request dated 13 August 2024, the applicant sought access to four specified letters from, respectively, the Minister, the Minister of State, and the Secretary General of the Department to the CEO, the Company Secretary, and the Chairperson of a named State commercial port company (Company A). In a decision dated 11 September 2024, the Department granted access to the records with the redaction of certain information under sections 35(1)(a) and 37(1) of the FOI Act. On 21 September 2024, the applicant sought an internal review of the Department’s decision. On 10 October 2024, the Department issued its internal review decision in which it affirmed its original decision. On 13 December 2024, the applicant applied to this Office for a review of the Department’s decision.
During the course of the review, this Office’s Investigator also informed the Department and the applicant of the potential applicability of sections 36(1)(b) and 37(1) of the FOI Act to the information at issue and invited both to provide submissions. Four submissions from the Department were duly received in total in which it argued that the information was exempt under sections 35(1)(a), 36(1)(b), and 37(1). One submission was received from the applicant.
Having regard to the nature of the information at issue, this Office notified Company A and two affected Board Members of Company A of the review and invited them to provide submissions. A submission from Company A was received. No submissions were received from the two Board Members.
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 Department in support of its decision. 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.
During the course of the review, the applicant agreed to remove records 1 and 2 in their entirety from the scope of this review. The Department also released record 3 in full to the applicant. In addition, the applicant also agreed to remove a redacted signature and email address in record 4 from the scope of the review. Accordingly, this review is solely concerned with whether the Department was justified in withholding the first four paragraphs of record 4 under sections 35(1)(a), 36(1)(b), and/or 37(1) of the FOI Act.
Having regard to the issues arising in this review, it is important to note that under section 25(3) of the FOI Act, I am required to take all reasonable precautions in conducting the review to prevent the disclosure of exempt information or matter that, if it were included in a record, would cause the record to be an exempt record. As such, the extent to which I can engage with the submissions made by the applicant in this decision and the extent to which I can give reasons for my decision are somewhat limited.
The Information at Issue
In its submissions, the Department explained that its Maritime Transport Division (MTD) is responsible for corporate governance oversight of the State commercial port companies, including Company A. It said this involves, among other things, overseeing compliance with the Code of Practice for the Governance of State Bodies. It said record 4 contains information that Company A provided to the Department in the course of engagement on corporate governance requirements.
Having regard to the nature of the information at issue, section 37 of the FOI Act seems to me to be the appropriate exemption to consider first.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of third-party personal information.
Section 2 of the Act defines ‘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 the FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the definition provided for under section 2, comprises personal information, including (ii) information relating to the financial affairs of the individual.
Certain information is excluded from the definition of personal information. Paragraph I of section 2(1) provides that in a case where the individual holds or held office as a director of, a position as a member of the staff of, or any other office, or any other position, remunerated from public funds in, an FOI body, personal information does not include 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. Paragraph II excludes similar information where the individual is or was a service provider.
In his submissions to this Office, the applicant said the information at issue concerns the payment of legal fees in connection with a potential conflict of interest arsing in respect of two members of the Board of Company A. He did not dispute that the information comprises personal information. Rather, he argued that the public interest in granting the request outweighs the public interest in upholding the right to privacy of any individual concerned.
In its submissions, the Department said that it and Company A are of the view that disclosure of the information at issue in this case would involve the disclosure of personal information relating to the Board Members concerned. It said the personal information concerns allegations relating to the manner in which those parties performed their functions, as well as information relating to their professional and financial interests outside the Board. It said that this information would enable the identification of the Board Members concerned in the alleged conflict of interest, as their names and the area to which the conflict relates are referred to in the record. It also said that, notwithstanding that details on the alleged conflict have become publicly known through the unauthorised release of confidential and sensitive information to the media, it remains the case that the alleged conflict of interest is a confidential and commercially sensitive matter as far as Company A is concerned.
With reference to the exclusion to the definition to personal information at Paragraphs (I) and (II) of section 2, the Department said that the individuals in question do not hold a position or office in an FOI body as Company A is not an FOI body, nor are they categorised as service providers as Company A is not a service provider of the Department.
Having examined the record, I am satisfied that paragraphs 2 to 4 of record 4 contain personal information relating to the two Board Members in question, as they concern a potential conflict of interest with respect to the performance of their functions and involves information relating to their financial affairs. I find that section 37(1) applies to the information redacted from paragraphs 2 to 4.
On the other hand, I find that section 37(1) does not apply to paragraph 1. There is nothing in the paragraph that contains personal information. Rather, it essentially refers to a meeting that took place between the Minister and Company A.
Having found section 37(1) to apply to paragraphs 2 to 4, I must also consider whether any of the other relevant provisions of section 37 serve to disapply section 37(1).
Section 37(2) provides that section 37(1) does not apply if –
(a) subject to subsection (3), the information concerned relates to the requester concerned,
(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,
I am satisfied that none of the circumstances set out in (a) to (e) above apply in this case.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where on balance (a) the public interest that the request 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. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important 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 records 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, such as under sections 37(2)(a) and 37(8), 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 in 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
The applicant’s arguments as to why he considers that the public interest in granting the request outweigh the privacy rights of the individuals concerned are essentially based on his assumption that the information shows that the Minister inappropriately intervened in a matter that was for the Board itself to decide. He provided details of the background to the matter of the payment of legal fees in connection with a potential conflict of interest arising in respect of two members of the Board of Company A. He said the Board twice took a decision on the matter and that in the letter at issue, the Minister requested reconsideration of that decision. He argued that such an intervention risks undermining the independence of the Board in commercial and governance matters, particularly given the Minister’s role in overseeing the Department of Transport, which provided the guidance for a related meeting. He said the intervention could imply political pressure on a semi-state body, contrary to established norms of corporate governance in Ireland, which emphasize the autonomy of state-owned enterprises from direct ministerial interference in operational decisions. He said the context highlights critical issues of accountability, where a Minister’s attempt to influence a decision tied to conflict-of-interest concerns and departmental guidance demands public scrutiny. He said disclosure is essential to assess whether this intervention adhered to ethical standards, complied with governance protocols, and avoided abuse of ministerial authority. He argued that the release of the information would promote openness and transparency in public body operations, deter inappropriate political involvement in semi-state operations, and foster ethical governance.
The applicant further argued that the record at issue concerns official correspondence about a Board decision tied to conflict of interest issues and departmental guidance, and not purely private matters. He said disclosure would benefit the public by enabling informed debate on governance standards and ministerial conduct. He said any personal information
disclosed would be limited to the context of the intervention, not extending to unrelated private details. He suggested that redaction could address specific sensitivities, and argued that full refusal is disproportionate given the overriding need for transparency. He said the public interest in upholding privacy is secondary here, as the intervention’s implications affect broader societal interests, including economic fairness, anti-corruption measures, and the proper handling of conflicts of interest in public entities.
While the Department did not make any specific public interest arguments under section 37(5)(a), it has raised matters in its submissions which I believe are relevant. It said that Company A operates as an independent company on a commercial basis without State funding, subject to company law and the Harbours Acts 1996-2015. It said the Department has corporate oversight of all State-owned port companies, including Company A, but that it has no involvement in the day-to-day commercial operations of these entities. It said that operational matters are solely a matter for the port company and the Minister is precluded from interfering in the performance of a company of a statutory function conferred on it. It said the Department acts as a shareholder on behalf of the State and provides governance oversight to ensure that the commercial port companies operate in accordance with their statutory mandates. As part of its oversight functions, it said Company A is required to provide financial and governance information to the Department. It said that information on the alleged conflict of interest was provided to the Department in accordance with its oversight function of Company A. It said that it was concerned that the release of this information would prejudice the giving of further information to the Department. It wrote that it would endeavour to be transparent, but that there is a public interest in protecting the confidentiality of confidential, commercial information, and not releasing information that could impact on the conduct or outcome of negotiations of a port company. It said it is in the public interest that the ports are governed effectively, and that it would be counterproductive to the public interest to release the information at issue, which would be likely to prejudice the giving of further similar information to the Department.
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 it 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’s arguments are based on his assumption that the Minister inappropriately intervened in a matter that fell squarely within the remit of the Board of Company A by requesting a reconsideration by the Board of a decision already made. While I am prohibited under section 25(3) from disclosing exempt information, I can say that the redacted information does not support the applicant’s assumption. Rather, it aligns with the Department’s submissions that the Minister has no involvement in the day-to-day commercial operations of these entities, that operational matters are solely a matter for the port company, and that the Minister is precluded from interfering in the performance of a company of a statutory function conferred on it.
That aside, I accept that the information at issue outlines the Minister’s engagements with Company A and as such, the applicant has raised valid public interest arguments relating to the accountability and transparency surrounding the interaction between a Minister of the Government and a public body which performs a key function on behalf of the State. Nonetheless, having regard to the nature of the information at issue, I do not think that those arguments justify breaching the right to privacy of the Board Members in question. Bearing in mind the strong public interest in protecting the right to privacy and having regard to the nature of the information at issue and to the fact that the release of information under FOI is, in essence, release to the world at large, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason for finding that the public interest in releasing the information at issue outweighs, on balance, the privacy rights of the individuals concerned. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue in paragraphs 2 to 4 of record 4.
Other Exemptions
As I have found section 37(1) not to apply to paragraph 1 of record 4, I must go on to consider the applicability of the other exemptions cited by the Department to that paragraph, namely sections 35(1)(a) and 36(1)(b). Section 36(1)(b) provides for the refusal of a request if the record concerned contains 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 35(1)(a) provides for the refusal of a request if the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential and the FOI body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
As I have outlined above, paragraph 1 merely refers to a meeting that took place between the Minister and Company A. It contains no commercial information of relevance to Company A or any information that Company A provided to the Department in confidence. I am satisfied that neither exemption applies.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that the Department was justified in redacting paragraphs 2 to 4 of record 4 under section 37(1) of the FOI Act. I find that it was not justified in redacting paragraph 1 and I direct its release.
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 requester 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