Decision
Mr D and Mayo County Council
From Office of the Information Commissioner (OIC)
Case number: OIC-150465-G2W7H7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150465-G2W7H7
Published on
Whether the Council was justified in refusing access, under section 37(1) of the FOI Act, to details of the number of non-office-based Council employees that retired during a specified period and details of the positions they held
19 May 2025
In a request dated 3 May 2024, the applicant, a firm of solicitors, sought details of the number, and positions held, of non-office-based Council employees that retired from 30 March 2023 to the date of his request, having reached their natural age of retirement and having effected full service. It also sought documentation evidencing the methodology used to calculate lump sum retirement payments and any subsequent pension-related payments to be made post-retirement for those persons. It said that the methodology should identify in particular whether or not any overtime was classified as reckonable time for the purpose of the calculation of the lumpsum payment on retirement and thereafter, pension payments post-retirement.
On 5 June 2024, the Council part-granted the request. It refused access to details of the number of retirees and the positions held, under section 37(1) of the FOI Act, which is concerned with the protection of third-party personal information. On 11 June 2024, the applicant sought an internal review of the Council’s decision. Following which the Council affirmed the original decision.
On 9 July 2024, the applicant applied to this Office for a review of the Council’s decision. He said similar information as the information withheld in this case had previously been provided by the Council.
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 Council, communications with the applicant, and to the above correspondence between the parties. I have decided to conclude this review by way of binding decision.
The scope of this review is concerned solely with whether the Council was justified in its decision to refuse access, under section 37(1) of the FOI Act, to details of the number of non-office-based Council employees that retired from 30 March 2023 to the date of the applicant’s request and details of the positions they held.
Before I address the substantive issues arising, I would like to address a number of preliminary matters. First, in his application to this Office, the applicant said the internal review decision was made by a less senior member of the staff of the Council than made the original decision, contrary to section 21(3) of the Act. In its submissions to this Office, the Council confirmed that the original decision was made by a staff member at Administrative Officer grade and that the internal review decision was made by a more senior staff member at Senior Executive Officer grade.
Secondly, it is important to note that pursuant to section 13(4) of the Act, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reason(s) for the request shall be disregarded in deciding whether to grant or refuse an FOI request. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. It is also important to note that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigating complaints against a public body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
Section 37(1) of the FOI Act provides for the mandatory refusal of a request if access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Section 2 further details fourteen specific categories of information in the definition of personal information, including (ii) ‘information relating to the financial affairs of the individual’ and (iii) ‘information relating to the employment or employment history of the individual’.
Paragraph I of section 2 excludes certain information from the definition of personal information where the individual holds or held office as a director of the body, a position as a member of the staff of the body, or any other office or position remunerated from public funds in the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. This Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or office holder while carrying out his or her official functions but that it does not deprive public servants or office holders of the right to privacy generally.
In its correspondence with the Council, the applicant said the identity of the relevant retirees is not sought and that Council’s justification for withholding the information is unsustainable. The Council’s position is that the number of former employees relevant to the request is so low that disclosing the number and/or the positions last held would lead to the disclosure of their identities. For information to qualify as personal information for the purposes of the FOI Act, it must be information about an identifiable individual. It is important to note that where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record and yet may still be identifiable.
Having regard to the small number of former staff members involved in this case, and to the information sought, I am satisfied that the disclosure of the information would, indeed, involve the disclosure of personal information relating to identifiable individuals. I am also satisfied that the exclusion in Paragraph 1 of section 2 as described above does not apply. The disclosure of the information would involve the disclosure of more than simply information relating to the position held or to the functions of the position. It would also disclose the fact that certain identifiable individuals retired from the Council during a particular period of time, having reached their natural age of retirement and having effected full service.
In response to the applicant’s assertion that similar information has been released as part of a separate FOI request in the past, the Council said that decisions are taken in-line with its responsibility to ensure openness and accountability of public bodies. It said, however, that the applicant’s current request and previous request are different in that the number of retired individuals within the scope of the applicant’s previous request was significantly higher for a greater period of time versus a substantially lower number of retired individuals over a shorter timeframe for the current request. In any event, the fact that the Council may have released similar information in the past does not mean that the information now sought is not personal information.
I find that section 37(1) applies to the information sought. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I consider below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information which I have found to be exempt under section 37(1). That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third-parties have not consented to the release of their information; (c) the information is not of a kind that is available to the general public; (d) 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) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find, therefore, that section 37(2) does not serve to disapply section 37(1) in this case.
Section 37(5) of the FOI Act provides that access to the personal information of a third-party may 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 request would benefit the person to whom the information relates.
I am satisfied that the release of the information sought would not benefit the individuals to whom the information relates and that section 37(5)(b) does not apply. In relation to the applicability of section 37(5)(a), 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. Section 11(3) provides that an FOI body must have regard to 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.
On the other hand, 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 an unenumerated personal right under the Constitution. Accordingly, when considering section 37(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.
It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner and Ors. [2020] IESC 57 (‘the eNet 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.
In its submissions to this Office, the Council said the public interest factors in favour of disclosure that were considered were the rights of the individual to make an FOI request and to have access to records, the promotion of openness, accountability and transparency in FOI body administration, and members of the public knowing how an FOI body performs its functions. It said the factors against disclosure it considered included an obligation to protect privacy, the requirement for personal privacy when dealing with FOI bodies, also applying to third-party privacy, preserving public confidence in the Council’s ability to protect personal information, and preservation of confidentiality having regard to subject matter and the circumstances of the communications.
In its correspondence with the Council, the applicant alleged that there was an inconsistency in the application of the policies operated by the Council in the payment of pensions to retired persons such as those captured in the FOI request. It seems to me that this argument is reflective of a public interest in ensuring that the Council operates its policies relating to the payment of pensions in a fair and consistent manner and that its policies are properly applied. While the release of the information sought would allow the applicant to form a more informed view on such matters, it is important to note that the release of information 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. 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. Having regard to the strong protection afforded to privacy rights under the Act, I am not persuaded that the public interest in the release of the information, potentially to the world at large, is sufficiently strong to outweigh, on balance, the right to privacy of the individuals to whom the information relates. I would add that any concerns the applicant may have concerning the Council’s application of policies in the payment of pension to any particular individual client could, in my view, be considered by determining the basis on which the particular pension was calculated, without the need for the release of third-party personal information.
Having carefully considered the matter, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting the request 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 Council was justified in withholding, under section 37(1) of the FOI Act, the information sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council’s decision. I find that the Council was justified in withholding, under section 37(1) of the Act, details of the number of non-office-based Council employees that retired from 30 March 2023 to the date of the applicant’s request and details of the positions they held.
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.
Stephen Rafferty
Senior Investigator