Cinneadh
Mr. X & The Houses of the Oireachtas Service (“the Service”)
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-160924-Y1N2Q1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-160924-Y1N2Q1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Service was justified in refusing access to copies of the declarations of qualification submitted by ministerial advisers appointed in the 33rd Dáil on the basis that they were exempt from release pursuant to section 37(1) of the FOI Act
30 July 2026
Members of the Oireachtas appointed as Ministers and Ministers of State may make a number of personal appointments to support them with their enhanced workload, including the appointment of special advisers. Under section 19(4) of the Ethics in Public Office Act 1995 as amended (the Ethics Act), they are required to lay certain documents before the Houses of the Oireachtas in respect of special advisers. Where the remuneration of the special adviser exceeds a prescribed amount, the documents to be laid include “a statement of the qualifications of the person relevant to his or her functions as a special adviser ”. In a request dated 2 May 2025, the applicant sought access to a copy of every declaration of qualification laid before the Houses of the Oireachtas in relation to the appointment of special advisers during the term of the 33rd Dáil. In its decision dated 3 June 2025, the Service refused the request on the basis that the records contained third party personal information and were exempt form release pursuant to section 37(1) of the FOI Act.
On 4 June 2025, the applicant sought an internal review of that decision, following which the Service affirmed its refusal of the request. On 28 July 2025, the applicant applied to this Office for a review of the decision of the Service.
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 Service and to the applicant’s comments in his application for review. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Service was justified in refusing access to copies of the declaration of qualification submitted by ministerial advisers appointed in the 33rd Dáil on the basis that they are exempt from release pursuant to section 37(1) of the FOI Act.
Section 37(1) of the Act provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. 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. Section 2 of the Act goes on to identify 14 categories of information that comprise personal information, including the following:
(i) information relating to the educational, medical, psychiatric or psychological history of the individual;
(iii) information relating to the employment or employment history of the individual; and
(v) information relating to the individual in a record falling within section 11 (6)(a) (a personnel record)
Certain information is excluded from the definition of personal information. Paragraph I provides that where the individual holds or held a position as a member of the staff of an FOI body or any other office, or any other position, remunerated from public funds in an FOI body, the definition does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual 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 of the position held. Similar information relating to service providers is also excluded, pursuant to Paragraph II.
The exclusions are intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant or a service provider in the context of the particular position held or service provided, or any records created by the public servant or service provider while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions or service providers. They do not, however deprive public servants or service providers of the right to privacy generally.
The records at issue in this case comprise a combination of records prepared either by the relevant Ministers and Ministers of State or by the special advisors themselves. They contain details of the educational qualifications and/or employment history of the relevant special advisers. I am satisfied that the information in the records comprises personal information relating to the special advisers and that the exclusions to the definition of personal information do not apply.
Information relating to the educational or employment history of an individual who held a position as a staff member of a public body is not information relating to the position itself, to the functions of the position held, or to the terms upon and subject to which the individual holds or held the position, nor is it information written or recorded by the individual in the course of, and for the purpose of the performance of, the functions of the position held. I find, therefore, that the exclusions to the definition of personal information do not apply and that section 37(1) of the Act applies to the records. However, that is not the end of the matter as subsection (1) is subject to the other provisions of section 37.
Section 37(2) provides that subsection (1) does not apply if:
a) the information concerned relates to the requester concerned,
b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
c) information of the same kind as that available 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 it 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 subsections (a), (b) and (e) do not apply in this case. Having regard to section 19(4) of the Ethics Act, I have considered whether subsection (c) and/or (d) applies. That section of the Ethics Act provides that an office holder shall, in respect of a person who acts or acted as a special adviser to him or her, lay certain documents before each House of the Oireachtas, including, in certain circumstances, a statement of the qualifications of the person relevant to his or her functions as a special adviser.
In its submissions, the Service explained that the Houses of the Oireachtas (Laying of Documents) Act, 1966 provides for the laying of documents before the Houses of the Oireachtas. It said the Houses of the Oireachtas (Privilege, Procedures and Inquiries) Act 2013 (“the Inquiries Act ”) provides for the procedures for the laying of documents. Section 121 of the Inquiries Act provides that if the rules and standing orders of the House which are for the time being in force specify the action to be taken as constituting laying of the document before the House, a reference in any statute to the laying of a document before a House of the Oireachtas shall be construed as a reference to the taking of that action.
Standing Orders for both Houses (SO 242 in the case of Dáil Éireann and SO 200 in the case of Seanad Éireann) provide the following:
1) Where a document is required to be laid before the [Dáil/Seanad] the delivery of a copy of the document, which may be an electronic copy in an approved format, to the Parliamentary library for that purpose shall be deemed to be the laying of it before the [Dáil/Seanad].
2) All documents laid before the [Dáil/Seanad] shall be considered public.”
In light of the foregoing, a particular question arose as to the status of “public” documents as defined in the Standing Orders, and whether this equated to availability to the general public as set out in subsection (c) of the Act. This Office wrote to the Service inviting its submissions on this issue. The Service duly provided extensive supplemental submissions addressing the queries this Office had raised.
In its submissions to this Office, the Service said that the fact that documents laid before the Houses of the Oireachtas shall be “considered public” was not analogous to such records being made publicly available. It submitted that while it routinely published many records laid before each of the Houses of the Oireachtas, it does not do so in the case of a number of records, including those at issue in this case, particularly where the records concerned contain personal information. To that end, the Service submitted that the Standing Orders do not confer it with any entitlement or duty to publish or otherwise make publicly available documents laid before each of the Houses.
The Service submitted that the fact such records laid before the Houses are to be “considered public ” is simply intended to differentiate such records from other records dealt with by the Houses, including members’ private papers, and official reports or publications. It said the “public ” status of such records indicate that such records are not private and do not attract the protections governing disclosure which may govern other types of records dealt with by either of the Houses.
By way of conclusion, the Service submitted that the practice of the Houses and indeed, its interpretation of its Standing Orders, is that documents laid pursuant to section 19 of the 1995 Act are not made publicly available. Instead, as previously submitted by the Service, Members of the Oireachtas may inspect such records themselves.
In light of the submissions made by the Service, I am satisfied that the Service does not consider records laid before the Houses of the Oireachtas pursuant to section 19 of the 1995 Act to be “publicly available” and that the practice of the Oireachtas is to restrict access to such records to members of the Oireachtas. Having regard to the Service’s submissions, I accept that the records at issue are not records that are publicly available, notwithstanding the requirement that they be laid before both Houses. I find, therefore, that section (c) does not apply.
Furthermore, I am also satisfied that subsection (d) does not apply. Having regard to the Service’s practice of not publishing personal information contained in documents laid before the Houses of the Oireachtas, I accept the submissions of the Service that the relevant special advisers were not informed that the information contained in the records belonged to a class of information that would or might be made available to the general public, notwithstanding the requirement that they be laid before the Houses.
Section 37(5) 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 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.
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 Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“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 cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In its internal review decision, the Service said it considered the public interest in how public bodies perform their functions, and the public interest in transparency and openness. It said it considered the benefit to society at large in being made aware of the requested information. It said the courts have held that any such public interest must be separate from the general interest in transparency promoted by the FOI Act. It said it also considered the fact that a significant level of transparency is already provided by the laying of the records requested before the Houses of the Oireachtas in such a way that Members of the Houses can consult them in their role as public representatives.
In his application to this Office, the applicant argued that accepting the Service’s decision would mean that statutorily required information, which relates to the functioning of a public office and the spending of public funds, can be locked out of sight of the public, and put entirely beyond the reach of the FOI Act. He said he does not accept the Service’s argument that the public interest is in withholding the information on the basis that TDs can, in a highly constrained fashion, view the documents. He said he does not accept that in cases where an individual is directly appointed by a politician to an extremely well renumerated and influential role, the public interest is in not being able to see any information about these people. He said he also takes issue with the idea that TDs should be allowed see the information, in a controlled fashion, but not the public as it would seem to create a hierarchy as it relates to one's rights to view statutorily required information.
The role of a special adviser to a Minister or Minister of State is provided for in Section 11(2)(a) of the Public Service Management Act, 1997 and includes the provision of advice and the provision of assistance in the achievement of Government objectives that relate to the relevant Government department. I accept that there is a strong public interest in members of the public being in a position to form informed opinions as to the competence of special advisers to provide such support and advice. In my view, the disclosure of the educational and employment background of individuals appointed as special advisers would enhance that public interest.
On the other hand, 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.
I accept the Service’s argument that a significant level of transparency is already provided by the laying of the records at issue before the Houses of the Oireachtas in such a way that Members of the Houses can consult them in their role as public representatives. I also note that the identities of special advisers and their salaries is publicly available information. However, this does not mean that there should be no further transparency. The question I must consider is whether the further transparency that would be achieved by the release of the records sought outweighs, on balance, the privacy rights of the individual concerned. Having carefully considered the matter, I am satisfied that it does not.
As I have outlined above, there is a strong public interest in protecting privacy rights. Moreover, It seems to me that the requirement to lay the relevant documents before the Houses of the Oireachtas in such a way that Members of the Houses can consult them in their role as public representatives is reflective of the intention of the Oireachtas to seek to achieve a balance of enhancing transparency whilst seeking to protect privacy rights and that requiring the release of the record to the world at large would serve to undermine that intention, which would not be in the public interest. It is also relevant, in my view, that special advisers are personal appointments by Government Ministers, subject to Government approval, and that such posts are excluded from the Public Service Management (Recruitment and Appointments) Act 2004. As I have also outlined above, the fact that an individual may hold a position as a public servant does not deprive the individual of the right to privacy generally.
Having regard to findings of the Supreme Court in the Enet case as referenced above, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure in this case. I find, therefore, that section 37(5)(a) does not serve to disapply section 37(1).
In conclusion, therefore, I find that the Service was justified in refusing access, under section 37(1) of the FOI Act, to the records sought.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Service to refuse access, under section 37(1) of the Act, to the declarations of qualification laid before the Houses of the Oireachtas during the tenure of the 33rd Dáil.
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