Decision
Ms B and the Department of Arts, Heritage and the Gaeltacht
From Office of the Information Commissioner (OIC)
Case number: 130042
Published on
From Office of the Information Commissioner (OIC)
Case number: 130042
Published on
Whether the Department was justified in deciding to refuse access to certain records relating to the appointment of members to the Board of Údarás na Gaeltachta (the Board)
22 May 2014
In her original request of 11 December 2012, the applicant sought access to the names and occupations of those who applied for consideration for membership of the Board, the marking system used to assess the candidates, and any other records relating to the appointment of the Board.
In its original decision of 7 January 2013, the Department identified seven records as relevant to the request and refused access to all but part of one record on the basis of Sections 22(1)(a) and 28(1) of the FOI Act. The applicant sought an internal review on 12 January 2013 and the Department's internal review decision of 6 February 2013 affirmed the original decision. The applicant submitted an application for review to my Office on 9 February 2013.
During the course of the review, five additional records were identified, one of which was released in full and the other four were part released to the applicant. Additional information was also provided to the applicant. Ms. Brenda Lynch, Investigator, informed the applicant of her views on the issues relevant to the review by letter of 14 February 2014. In response, the applicant indicated that she required a formal decision. In conducting this review, I have had regard to the submissions of the applicant, to the submissions of the Department, to any responses of affected third parties, to the provisions of the FOI Acts, and to the content of the records at issue.
The Department refused access to records 5 to 7 under section 22(1)(a) of the FOI Act on the ground that they contained legal advice. During the course of the review, Ms Lynch put it to the applicant that it appeared that she did not wish to pursue the refusal of records 5-7 as she had not made any reference to these in her application for review. As the applicant did not dispute this, these records are deemed to have been excluded from the scope of this review. Furthermore, any parts of records which were released during the course of the review are no longer within scope. Accordingly, my review is concerned solely with the question of whether the Board was justified in deciding to refuse access to records 1, 2 and 4 and to grant only partial access to records 3 and 8 to 11.
Record 2 contains details of the individuals who applied to be considered for appointment to the Board and brief details about each of those individuals. During the course of the review, Ms. Lynch consulted with four of the individuals concerned, each of whom was appointed to the Board following application through the Public Appointments Service (PAS). As none of the four individuals have objected to the release of the relevant information, I have excluded the relevant parts of record 2 from the scope of this review, on the grounds that the individuals concerned have, in essence, consented to the release of the information at issue.
The Department refused access, in whole or in part, to the records in question on the basis that they contain personal information and are therefore exempt from release under section 28 of the FOI Act. Record 1 comprises the application forms of the individuals who applied through the Public Appointments Service (PAS) for consideration for appointment as members of the Board. As I have already indicated, record 2 is a list prepared by a Department official of these individuals with a short paragraph about each, which includes a mixture of factual information and opinion. Record 3 is a table listing these individuals and indicating whether they are considered to have relevant qualifications and experience under a number of headings, and only the names have been redacted. Record 4 is a list compiled by Department officials of 34 people who might be suitable for appointment to the Board, but who did not apply for consideration through PAS. It is quite possible that the individuals listed in record 4 were not made aware that their names were placed on such a list. It is also possible that the availability or willingness of these individuals to serve on the Board had not been established. Records 8, 9 and 11 are representations to the Minister or Minister of State in relation to the appointment of the Board. Record 10 is an acknowledgement of record 9.
Section 28(1) of the FOI Act provides:
"Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information".
For the purposes of the FOI Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which is personal without prejudice to the generality of the forgoing definition, including "... (iii) information relating to the employment or employment history of the individual, . . . . . (x) 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 public body concerned relates to the individual, . . [and] (xii) the views or opinion of another person about the individual". Having examined the records at issue, I am satisfied that they contain personal information relating to identifiable individuals and I find that Section 28(1) of the FOI Act applies to this information. However, that is not the end of the matter as I must also consider the application of other relevant provisions of Section 28.
Section 28(2)(b) provides for the release of personal information where the person to whom the information relates has consented to its release. In the circumstances of this review, I do not consider it appropriate to seek the consent of the individuals to whom the information relates to the release of their personal information.
Section 28(5) of the FOI Act provides:
"(5) Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, 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 individual aforesaid,
the head may, subject to section 29, grant the request."
There is no evidence before me to suggest that release of the records would benefit the individuals whose personal information is included in the records. Thus, I find that section 28(5)(b) does not apply. However, it is necessary to consider whether the request falls to be granted under section 28(5)(a). To apply section 28(5)(a) it is necessary to identify the public interest served by the release of the particular records and weigh that public interest against the public interest in upholding the right to privacy of the persons whose personal information is sought by the requester. In relation to the question of where the public interest lies under section 28(5)(a), the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"], drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".
The FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "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 the right to privacy.
In her submissions to this Office, the applicant pointed out that the process of appointing the Board in 2012 replaced an electoral process which previously took place. In her view, there is a public interest to be served by the release of the information sought so that the people of the Gaeltacht will know on what basis people were chosen and if they were selected on the basis of their suitability or political association.
I am satisfied that the public interest has been served to some extent by the release of certain information relating to the Board appointments. Such information includes the number of applications made through PAS and the information contained in record 3 already released, namely the criteria used to assess the applications and qualifications and/or experience of the candidates relative to these criteria. The occupations of, and other information about members of the Board, is published on the Board's website.
Records 1, 2 and 3 relate to the application process conducted through PAS. The information in record 1 is of a particularly personal nature. The Department, in a letter to the applicant, identified those members of the Board who were appointed following application through PAS. I find that the public interest in the release of the withheld information in these records does not outweigh the public interest in upholding the right to privacy of the individuals to whom the information relates.
The Department has informed the applicant that none of the people listed in record 4 were appointed to the Board. I am satisfied that the unilateral mention by the Department of someone for possible consideration for a position within its gift is not sufficient to displace that person's right to privacy and I find that the public interest in the release of this record does not outweigh the rights of privacy of the individuals named in the record.
Records 8-11 have been released, apart from the names of the candidates being supported, and in the case of record 11, information which would allow the candidate to be identified and the identity of the person making the representation as it is a family member of the candidate. The Department has informed that applicant the none of those on whose behalf representations were made were appointed to the Board. I find that the public interest in release of the withheld information in these records does not outweigh the rights of privacy of the individuals to whom the information relates.
Having carried out a review under Section 34(2) of the FOI Act, I hereby affirm the decision of the Department and find that Section 28(1) of the FOI Act applies to the withheld information.
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. Any such 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.
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Peter Tyndall
Information Commissioner