Decision
Mr Ken Foxe, Right to Know CLG and the Houses of the Oireachtas Service (the Service)
From Office of the Information Commissioner (OIC)
Case number: OIC-116961-D1M3P8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-116961-D1M3P8
Published on
Whether the Service was justified in refusing access to the names and additional details of Members and staff of the Oireachtas in records relating to compliance with public health guidance relating to the COVID-19 pandemic on the basis of sections 37 and 42(k) of the FOI Act
27 April 2022
In a request dated 5 August 2021, the applicant sought access to copies of any records held by the Houses of the Oireachtas Service (the Service), for the period 24 November 2020 to the date of his request, referring or relating to failures to adhere to social distancing or other COVID-19 public health measures in the Leinster House complex and/or the Convention Centre. The applicant had previously made a similar request in November 2020 that was the subject of review by this Office (Case No. OIC-105916) following which I issued a decision on 14 December 2021.
Following correspondence between the parties, the applicant agreed that the search for relevant records could be confined to the Covid-19 compliance team members and the relevant section heads. On 19 October 2021, the Service issued a decision on the request. Of the 61 records it identified as coming within the scope of the request, it granted access in part to 52 records. Access to the remaining nine records was refused. The Service relied on sections 29(1), 30(1)(a), 30(1)(b), 32(1)(a)(ii), 37(1) and 42(k) to refuse access to the various records, in whole or in part.
On 7 November 2021, the applicant sought an internal review of that decision, following which the Service affirmed its original decision, citing sections 37(1) and 42(k) as grounds for withholding certain records, in whole or in part. On 6 December 2021, the applicant sought a review by this Office of that 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 applicant’s comments in his application for review and to the submissions made by the Service 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. In referring to the records at issue, I have adopted the numbering system used by the Service in the Schedule of records it prepared when processing the request.
During the course of the review, the applicant agreed that the redactions comprising the names of the COVID-19 compliance team members could be removed from the scope of the review. As the only information redacted from records 8, 9, 12, 47 and 58 was the names of staff members of the COVID-19 compliance team, I do not need to examine those records further.
Records 1 to 7, 10, 11, 13, 14, 16 to 27, 31, 32, 33, 35, 38 to 43, 45, 48 to 53, 55, 56, 57, 59 and 60 contain both names of members of the COVID-19 compliance team, or their initials, and other information that has been redacted under section 37(1). I have excluded from the scope of this review the redactions made to those records that comprise the names and/or initials of the COVID-19 compliance team members.
With regard to record 54, the schedule of records indicated that this record was part-granted, with certain information redacted under section 37(1). During the review, the Service indicated that the full record was released to the applicant. Therefore, I do not need to consider record 54 further.
With regard to record 61, parts of the record have been redacted on the basis that the redacted information falls outside the scope of the applicant’s request. Having reviewed the record, I am satisfied that the information does, indeed, fall outside of the scope of the request and that I do not need to consider this record further.
Accordingly, this review is concerned solely with whether the Service was justified in refusing access to the relevant information redacted from records 1 to 7, 10, 11, 13, 14, 16 to 27, 31, 32, 33, 35, 38 to 43, 45, 48 to 53, 55, 56, 57, 59 and 60 under section 37(1) of the Act and in refusing access to records 15, 28, 29, 30, 34, 36, 37, 44 and 46 under section 42(k) of the Act.
Section 37
Section 37(1) provides for the mandatory refusal of a request if access to the record concerned would involve the disclosure of personal information relating to a third party. 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. The FOI Act details 14 specific categories of information that is personal, without prejudice to the generality of the foregoing definition. If the information at issue is captured by one or more of the 14 categories, this is sufficient for it to comprise personal information for the purposes of the Act.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition 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 those functions.
Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.
Having considered the information at issue and the context in which it is recorded in the records at issue, I am satisfied that the disclosure of the identities of individuals referenced in the records would involve the disclosure of personal information relating to these individuals. I consider that this applies both to individuals who are identified as not adhering to the guidelines around public health measures associated with the COVID-19 pandemic as well as instances where staff members have submitted reports referring to instances of non-compliance. I am also satisfied that the information redacted from the records relating to specific rooms, when coupled with other information contained in the records such as dates and/or specific times, is sufficiently detailed so as to allow for the identification of individuals if such information was disclosed. In sum, I am satisfied that disclosure of the information at issue would involve the disclosure of personal information relating to identifiable individuals and that section 37(1) applies.
However, in line with my decision in case 105916 referred to above, I am not satisfied that the disclosure of references to political parties would involve the disclosure of personal information relating to identifiable individuals. I find, therefore, that the information redacted from the records at issue relating to the party affiliations of individuals, including references to the Independent status of particular Oireachtas members, and references to political parties in terms of room locations is not exempt under section 37(1).
Moreover, I am not satisfied that the following comprises personal information:
I also note that some of the above information has already been released in records 1 and 2 but was withheld in the records referred to above.
Finally, with regard to record 19 which is correspondence from an external service provider to the Oireachtas regarding possible further mitigation measures which could be undertaken in relation to one part of the Leinster House complex, I am not satisfied that the name of the company and its business address is personal information and find that section 37(1) does not apply to that information.
Sections 37(2) and 37(5)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) of the FOI Act 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 be to the benefit of the person to whom the information relates.
I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply. In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right to privacy of the individuals to whom the information relates.
In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.
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. Moreover, unlike other public interest tests provided for in the FOI Act, there is 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.
The Service argued that there is a public interest in how public bodies are performing in their efforts to manage the COVID-19 pandemic, but that this needs to be balanced with the privacy rights of individuals which enjoy constitutional protections. It argued that the release of the names of individuals in the records would not confer an additional benefit to the public interest, rather it would potentially discourage the COVID-19 compliance team from effectively carrying out their duties. In addition, the Service argued that disclosure of the names of individuals contained in the relevant records would discourage Oireachtas Members and staff from communicating details of perceived infractions in an open manner, thereby leading to an increase in health and safety risks in the Houses of the Oireachtas.
As I have set out above, section 11(3) of the Act recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. It seems to me that in this case, the Service has, at this stage, released a significant amount of information concerning the level of adherence to COVID-19 public health measures in the Leinster House complex and/or the Convention Centre. That information will allow readers of the records to draw their own conclusions in relation to the matter. The question I must consider is whether the release of the information at issue would further enhance public scrutiny and accountability of the Service to the extent that it would outweigh, on balance, the privacy rights of the individuals concerned. In my view, it would not, given the strong protection the Act affords to privacy rights. Having carefully considered the matter, I find that there is no public interest factor in favour of the release of the 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.
In conclusion, therefore, I find that the Oireachtas Service was justified in refusing access, under section 37(1) of the Act, to the information at issue, with the exception of the information outlined above.
Section 42(k)
The Service refused access to records 15, 28, 29, 30, 34, 36, 37, 44 and 46 under section 42(k). These records comprise correspondence to and from a number of Oireachtas Members relating to adherence to the guidelines in place in relation to the COVID-19 pandemic.
Section 42(k) provides that the Act does not apply to a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential. Article 15.10 of the Constitution provides as follows:
Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.
The Dáil Éireann Standing Orders relative to Public Business 2016 include Orders relating to Official Documents, Private Papers and Confidential Communications (Standing Orders 133 to 137). Order 133(4) states:
(4) A document which is an official document for the purposes of Standing Order 134 or a private paper for the purposes of Standing Order 135, must be treated as confidential, and is required by these Standing Orders to be kept confidential.
Order 135 states:
(1) This Standing Order is made for the purposes of giving effect to Article 15.10 of the Constitution in so far as it provides for the protection of the private papers of members.
(2) For the purpose of this Standing Order, the private papers of a member are all documents concerning which the member has a reasonable expectation of privacy, and:
(a) which are prepared for the purposes of, or purposes incidental to:
(i) transacting any business of the Dáil or any Committee of the Dáil; or
(ii) the member’s role as public representative; but
(b) which are not:
(i) where the member is an office-holder, documents relating to the member’s functions as office-holder (whether those documents are held by the member, by the office-holder’s Department or Office, by any of his or her special advisers, or by some other person); or
(ii) lawfully in the public domain.
The Service argued that the relevant records are the private papers of Oireachtas Members who had reasonably expected would remain private and these records were prepared for the purpose of, or purposes incidental to, the Members’ role as public representative.
Having reviewed the records, I accept that they are captured by the definition of private papers as set out in Order 135 of the Dáil Éireann Standing Orders. I find, therefore, that section 42(k) applies to records 15, 28, 29, 30, 34, 36, 37, 44 and 46.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Houses of the Oireachtas Service. I find it was justified in refusing access, under section 42(k) to records 15, 28, 29, 30, 34, 36, 37, 44 and 46
I find that it was not justified in redacting information from the records relating to the party affiliations of Oireachtas Members, including references to the Independent status of particular Oireachtas Members, and references to political parties in terms of room locations. I also find it was not justified in refusing access to the following information in the relevant records:
I direct that the above information be released to the applicant.
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