Decision
Mr & Mrs X and the Department of Agriculture, Food and the Marine
From Office of the Information Commissioner (OIC)
Case number: 140301
Published on
From Office of the Information Commissioner (OIC)
Case number: 140301
Published on
Whether the Department was justified in its decision to refuse to grant access to records relating to agricultural payments claimed on land owned by the applicants on the basis that section 28 of the FOI Act applies
Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
By letter dated 4 March 2014 the applicants submitted a request to the Department under the FOI Act for details of whether agricultural payments or REPS have been claimed on their land in the past two years and if so, by whom. In its decision of 4 April 2014 on the request, the Department informed the applicants that a third party had declared the lands in question on the 2013 Single Payment Scheme, but it refused access to records relating to that third party's application on the ground that the records contained the personal information of a third party. The applicants, through their solicitors, requested an internal review by letter dated 18 April 2014. As no reply was received within the time-frame set out in the FOI Act, the applicants applied to this Office on 28 July 2014 for a review of the Department's deemed refusal of the request. The case was closed by this Office when the Department issued a late internal review decision on 27 August 2014 refusing access to the identity of the individual under section 28(1) of the FOI Act. However, the applicants were not satisfied with the Department's decision and on 30 October 2014 applied to this Office for a review of the Department's decision.
I now consider it appropriate to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicants and this Office, to correspondence between the applicants and the Department and to correspondence between the Department and this Office. I have also had regard to the provisions of the FOI Act and to the contents of the records at issue.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
The Department refused access to those records that disclose the identity of a third party who had declared the lands in question on the 2013 Single Payment Scheme. Accordingly, this review is concerned solely with the question of whether the Department was justified in its decision to refuse access to the records that identify the third party in question.
Section 28(1)
Section 28(1) of the FOI Act provides that, subject to the provisions of the section, a public body shall refuse to grant a request if
"... access to the record concerned would involve the disclosure of personal information...".
Having examined the records, I am satisfied that the disclosure of the details of the third party who had declared the lands in question on the 2013 Single Payment Scheme would involve the disclosure of personal information about an individual or individuals other than the applicants and that section 28(1) applies. The effect of section 28(1) is that a record disclosing personal information of a third party or third parties cannot be released to another person unless one of the other relevant provisions of section 28 applies- in this case section 28(2) and 28(5).
Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the records to which I have found section 28(1) to apply, 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 applicants; (b) that the third party has not consented to the release of that 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 applicants, and I find that section 28(2) does not apply to the details at issue here.
Section 28(5)
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1), may still be granted where, 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,"
In my view the grant of the request would not benefit the individual or individuals to whom the information relates. I am satisfied that section 28(5)(b) does not apply in this case.
In relation to the issue of the public interest under section 28(5)(a) it is important to take note of the obiter comments on the question of public interest of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women -v- the Information Commissioner(more commonly referred to as The Rotunda Hospital -v- the Information Commissioner) ([2011] IESC 26). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
The Department accepts that there is a public interest, recognised in the FOI Act, in ensuring the openness and accountability of public bodies in the performance of their functions. The Department states that the applicants were not disadvantaged by the third party claiming an entitlement on their lands as there was no record of the applicants themselves lodging an application under the 2013 Single Payment Scheme.
Furthermore, the Department states that there is a system in place to deal with contended unauthorised claims where information comes to its attention, from whatever source, questioning the validity of any declaration made by a claimant under the Single Payment Scheme. The Department requests the claimant to provide documentary proof of their right to claim on the land in question. Where no such proof is forthcoming, no payment is made on the lands and reduction penalties may apply. The Department argues that this system demonstrates its accountability as a public body using public funds and that, in that context, it did not see how that accountability would be further demonstrated by release of the name of the person who has made a claim to the extent that it would justify the invasion of privacy that release of the name would entail. The Department informed the applicants that the process outlined was followed in this case
The Department considers that there is a public interest in protecting privacy rights, recognised by the FOI Act itself, and also noted its constitutional dimension. The Department concludes that, in its view, the release of the name of the third party concerned would not serve the public interest in openness and accountability of public bodies to such an extent that a breach of the third party's Constitutional right to privacy would be justified.
The essence of the applicants' argument, as set out in a letter of 30 October 2014 submitted to this Office by their solicitors, is that in circumstances where it appears that a potentially fraudulent claim may be made in respect of an individual's land, the public interest would be better served by allowing the individual, through the identification of the claimant, to pursue the claimant at law with regard to a breach of the individual's property rights. To the extent that this might be relevant to the issue of the public interest, it reflects, in my view, a private interest rather than a true public interest.
Nevertheless, I consider that there is a public interest in ensuring openness, transparency and accountability in the public service and in ensuring openness and transparency in how a public body performs its functions. Specifically, I accept that there is a public interest in maximising transparency and accountability in terms of the administration by the Department of grant schemes and in the expenditure of public money. Having considered the contents of the records at issue, however, 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. In this case it seems to me that the public interest in the promotion of openness and accountability has been served to some extent by the Department's description of the process followed to deal with contended unauthorised claims and its confirmation of the fact that it has engaged that process.
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. Release of a record under FOI may be regarded as release to the world at large as records are released without any restriction as to how they may be used. In my view the public interest in protecting the right to privacy is a strong public interest. Accordingly, I am satisfied that the public interest in granting the applicants' 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 am satisfied that section 28(5)(a) does not apply.
Accordingly, I find that the Department was justified in deciding to refuse access to the details of the identity of a third party who had declared the lands in question on the 2013 Single Payment Scheme, under section 28(1) of the FOI Act.
Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the Department's decision in this case.
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.
Stephen Rafferty
Senior Investigator