Case number: 080083

The Commissioner varied the Department's decision and its revised position put forward in the course of the review that the records the subject of the narrowed scope of the review should be released. She found that some records contained the personal information of individuals the subject of the Furlong Report which information is exempt under section 28(1). She found that the public interest in granting the request was not outweighed by the public interest in upholding the right of privacy of the individuals involved except for some details of payments made by the National Library of Ireland to one of the parties concerned. She also directed the release of certain records on the basis that they did not comprise the personal information of the third parties.

Case Summary

Whether the Department is justified under the FOI Act, in refusing access to certain records relating to the preparation of the Report on the Acquisition of 'Finnegan's Wake' Manuscripts by the National Library (the Furlong Report).

Date of Decision: 12.11.2010

Review Application under the Freedom of Information Acts 1997 & 2003 (FOI Act) to the Information Commissioner.

Background:

The Applicant made a request, on 20 December 2007, for "copies of records relating to the preparation of the Report on the Acquisition of 'Finnegan's Wake' Manuscripts by the National Library, including any records accessed by the report's author." I refer to this report as "the Furlong Report" (the former Secretary General of the Department, Mr Philip Furlong, being its author). On 14 February 2008, the Department released a number of the 127 records it considered to be covered by the request. It withheld the remainder on the basis of various provisions in the FOI Act and this decision was upheld in the internal review decision of 14 March 2008 (which issued further to the applicant's application for internal review, dated 21 February 2008). On 7 April 2008, the Applicant sought a review by the Information Commissioner of the Department's decision.

Following correspondence between the Department and the National Library of Ireland (the NLI), and Ms Ciara Burns, Investigator (formerly of this Office) and Mr Sean Garvey, Senior Investigator, a number of records were released to the Applicant. The Applicant then agreed to exclude a number of other records from the review. My Office consulted two individuals affected by the Furlong Report in respect of the potential release of any remaining details the release of which might affect their interests. The third parties concerned agreed to the release of some records but argued that the remainder (records 18, 40.1 - 40.9, 54, 56-59, 63-68, 76-78, 94, 97, 98, 102, 106 and 120) should not be released.

In carrying out my review of the remaining records listed above, I have had regard to the various contacts between my Office, the Department, the NLI and, in particular, to the arguments made by the third parties to why the details at issue should be withheld. During the review, the Department indicated that it no longer considered that these details should be withheld while the NLI indicated that it had no objections to the release of details concerning it. I have also had regard to various contacts between my staff and the Applicant, including a letter sent by Ms Anne Moran, Investigator, on 23 September 2010, to which no reply was received. I have also had regard to the records considered by the Department to be covered by the request and provided to my Office for the purposes of the review. Finally, I have considered the provisions of the FOI Act.

Conducted in accordance with section 34(2) of the FOI Act, by the Information Commissioner.

Scope of the Review

Firstly, records 77, 94 and 102 are excluded from the review, as they are contained in records 78, 98 and 106 respectively. This is in accordance with section 34(9)(a)(iii) of the FOI Act, which provides that I may discontinue a review under this section if the matter, to which the application relates is, has been or will be the subject of another review under section 34 of the FOI Act.

Accordingly, and on foot of the narrowing of the scope as described in the previous paragraphs, this review is confined to the sole issue of whether the Department is justified under the FOI Act in refusing to release records 18, 40.1 - 40.9, 54, 56-59, 63-68, 76, 78, 97, 98, 106 and 120.

Submissions

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Findings

Records 56-59, 63-68, 76, 78, 97, 98, 106 and 120

I should say first that to avoid revealing the content of the parts of the records described, it is not possible in all instances to be very specific in my directions as regards the release or withholding of parts. However, a covering letter to the Department will make it clear as to how each record is affected by the decision.

My Office's Approach to the Definition of Personal Information

Section 2 of the FOI Act defines personal information as:

"information about an identifiable individual that - (a) would in the ordinary course of events, be known only to the individual or members of the family, or friends of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential".

That provision then goes on to give 12 examples of what might constitute personal information, including (ii) information relating to the financial affairs of the individual; (iii) information relating to the employment or employment history of an individual; and (xii) the views or opinions of another person about the individual"). The list also includes (at (iv)) " information relating to the individual in a record falling within section 6(6)(a)" . Section 6(6)(a) defines information relating to an individual as "relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member".

In previous decisions, my predecessor and I took the approach that for information to come within the definition of personal information it must satisfy (a) or (b) of the above definition in the first instance; if it did not, then the fact that the information might also fall within the list of 12 examples of what might constitute personal information was irrelevant. I took such an approach in my decision in case 050338 (published on www.oic.ie) in finding that references to individuals in a record being sought under FOI, that were also contained in a press statement issued by a Department, did not meet the definition of personal information in the FOI Act.

View Initially Taken in this Case

Records 56-59, 63-68, 76, 78, 97, 98, 106 and 120 can be described as correspondence between Mr Furlong, in his capacity as the author of the Furlong Report, and the individuals the subjects of that report. Having regard to my Office's previous understanding of the definition of personal information, Mr Garvey initially considered that, as these records contained details repeated in the published Furlong report and thus in the public domain, they could not be said to be the personal information of the subjects of the report.

In line with the view he then outlined to the applicant that these records should largely be released, Mr Garvey consulted with the third parties the subject of the Furlong report. Those individuals, as well as arguing that the release of these records could prejudice the fairness of court proceedings currently in train (to which I understand the Department is not a party), argued that the details at issue were their personal information. In any event, as Ms Moran subsequently advised the applicant, a High Court judgment in 2009 has cast doubt on the correctness of my Office's approach to the definition of personal information.

High Court's interpretation of Section 2 of the FOI Act

As Ms Moran informed the applicant, I am bound to have regard to relevant court precedent. Mr Justice Patrick McCarthy, in his July 2009 judgement in the case of The Governors and the Guardians of the Hospital for the Relief of Poor Lying - In Women, Dublin and the Information Commissioner [2008 No. 16/MCA], found that my Office's approach was ''a fundamental misconception in terms of an interpretation of the Act''. He said that if information fell within one of the "listed classes'' in the definition, it was personal information. While this and other issues arising in Mr Justice McCarthy's judgment were the subject of an appeal heard before the Supreme Court on which judgment is awaited, it seems to me that, in the meantime, I must follow the approach set out by the High Court.

Application of section 28 to records 56-59, 63-68, 76, 78, 97, 98, 106 and 120

What the above means is that, for the purposes of this review, I accept that information relating, inter alia, to an identifiable individual's financial affairs, employment history, the views or opinions of another person about them and such matters as an individual's performance as staff of a public body is personal information. Section 28(1) of the FOI Act provides for the refusal of a request where to grant it would involve the disclosure of personal information about an individual other than the requester. I agree with Ms Moran's view that there are details in the above records which come within the listed classes.

While Mr Garvey is correct in his view that many of the details in these records are contained in the published Furlong Report, I agree with the view put to the applicant by Ms Moran that, in the light of the judgment of Mr Justice McCarthy described above, such details must be found to meet the requirements of the definition in section 2 of the FOI Act. Thus, I find such information to be exempt under section 28(1) of the FOI Act. I also find section 28(1) to apply to any details that go beyond the detail summarised in the final Furlong Report. I also agree with Ms Moran's view that, insofar as any of the details at issue could be said to pertain to an evaluation of the performance of an individual in respect of any particular function that he carried out as a member of staff of the Department, such details would comprise the personal information of that individual. This is because those details do not fall within the specific exclusions to the definition of personal information that pertain to civil and public servants (Section 2 (I) to (III) of the FOI Act).

Public Interest

Ms Moran then went on to outline to the applicant that she did not consider the public interest in granting the request (section 28(5)(a) refers) outweighs the public interest in protecting the rights to privacy of the individuals concerned.

Ms Moran noted that the main public interests in favour of release of the details at issue above were those of ensuring the Department's accountability for the investigation that led to the findings in the Furlong Report and of enabling additional insight by the public into the Finnegan's Wake transaction itself and other matters the subject of the Furlong Report. She also noted the public interest in ensuring maximum openness as to the amounts of public monies expended by public bodies.

On the other hand, as Ms Moran explained to the applicant, the public interest in respecting the right to privacy (which has a Constitutional dimension and is adverted to explicitly in the Long Title to the FOI Act) is very strong. She explained that the issue in this case was whether the public interests referred to above were sufficient to outweigh the public interest in upholding the third parties' right to privacy. In this regard, Ms Moran outlined to the applicant that she considered a person's account of events, when they are the subject of investigation into alleged wrongdoing, to be inherently private, and thus, the Constitutional right to privacy was particularly relevant. She also noted that the majority of the details in the records at issue are either repeated or summarised in the Furlong Report (the final and draft versions of which are in the public domain) or expand and elaborate on such details. Thus, it seemed to Ms Moran that only a minimal additional insight would be gained into the Department's investigation, the Finnegan's Wake transaction and other matters the subject of the Furlong report, by the release of the above mentioned details. She told the applicant that she did not consider the minimal extent to which the public interest in the release of the records at issue would be furthered to be of sufficient weight to displace the rights to privacy of the individuals referred to therein. Thus she considered that these records should be withheld.

However, where details of the expenditure of public monies are concerned, Ms Moran advised the applicant that any details that pertain to amounts paid by the NLI to one of the third parties (details in records 56 and 58 refer) should be released in the public interest. She said that she considered the public interest in ensuring accountability for the expenditure of public monies to outweigh the public interest in preserving the recipient's rights to privacy, notwithstanding that the details concerned seem to be, in any event, in the public domain.

I agree with Ms Moran's views and find accordingly that only the details in records 56 and 58 fall to be released under section 28(5).

Records 18 and 54

Record 18

Record 18 is a note of a conversation between the then Secretary General Furlong and the Minister of Arts, Sport and Tourism regarding press queries received in relation to the acquisition of the Joyce manuscripts.

Ms Moran outlined to the applicant that, in the light of McCarthy J.'s finding on the definition of personal information, it seemed to her that references to the subjects of the Furlong report as contained in this record comprise their personal information, notwithstanding that the details concerned are, again, largely contained in that final report. She said that, for reasons outlined in respect of the previous category of records, she did not consider that the invasion of privacy that would result from the release of those details to be warranted in the public interest. However, Ms Moran was of the view that there was no reason for the remainder of the record - which contained various factual details and which represented the Department's view point on administrative matters - to be withheld.

I agree with Ms Moran's views in this regard, and find accordingly.

Record 54

Record 54 is an email between Mr Furlong and an official of the Department, in which Mr Furlong seeks clarification on a particular matter concerning one of the subjects of his report. Ms Moran outlined to the applicant her view that the seeking of such clarification equated to the implicit statement by Mr Furlong of an opinion in relation to that individual, in which case it amounted to the personal information of the person concerned. She said that she considered the detail of the clarification sought should be withheld in accordance with section 28(1) of the FOI Act, with, for reasons already set out, there being no overriding public interest in its release. She also considered 11 words of the first sentence of the email, and the third paragraph thereof (comprising one sentence) to amount to Mr Furlong's own personal information which she assumed may be ruled out of the scope of this review.

Ms Moran went on to say that, as the remainder of the report was concerned with how Mr Furlong conducted his investigation, she saw no reason why it should be withheld. I agree with Ms Moran's views as outlined above, and find accordingly.

Records 40.1- 40.9

These records concern the NLI's involvement in the Finnegan's Wake transaction. I agree with Ms Moran's view that while these records affect the NLI's interests more than those of the subjects of the Furlong report, certain of the records also refer to those parties. I also agree with her view that, similar to the findings set out earlier, it is appropriate to exempt from release those excerpts of these records that relate to the third parties' personal information on the grounds that they are exempt under section 28 of the FOI Act, with there being no overriding public interest in their release.

Accordingly, I consider that records 40.1-40.9 should be released as follows:

Records 40.1, 40.5, 40.7, 40.8 and 40.9 in full;

Record 40.2: in full with the exception of an address;

Record 40.3: the cover letter to be released in full with the exception of an address. (Attached to this is a copy of Mr Maurice O'Connell's report, which was appended to the Furlong report and is thus in the public domain. I agree with Ms Moran's view that there is no need for this review to consider Mr O'Connell's report further, given that it is thus outside the scope of the FOI Act); and

Records 40.4 and 40.6: both to be released in part, subject to the deletion of personal information of the subjects of the Furlong report. I agree with Ms Moran that the release of such personal information is not warranted in the public interest, with the exception of details of public monies paid to one of the individuals.

It should be noted that the applicant did not take issue with any of the views outlined by Ms Moran, while the third parties stated that they had no further comment to make in respect of her proposed course of action as set out above.

As noted earlier, the third parties had previously argued that full release of all the records the subject of this review could prejudice the fairness of court proceedings currently in train and that section 23(1)(a)(iv) of the FOI Act was applicable. Section 23(1)(a)(iv) protects information that, if released, could reasonably be expected to prejudice or impair the fairness of civil proceedings in a court or other tribunal.

In her letters of 23 September 2001 to the subjects of the Furlong Report, Ms Moran advised that if they had any objections to the partial release of the records at issue, as set out above, they would need to explain (with supporting evidence) how the character of those details could reasonably be expected to prejudice or impair the fairness of the pending legal action. Indeed, I note that Ms Moran had previously made clear to the applicants that she considered that supporting evidence and argument in support of their earlier claims, as to the application of section 23(1)(a)(iv) to the records, was required. She said that in the absence of supporting information, she had no reason to recommend that I should find the details to be exempt under section 23(1)(a)(iv). Ms Moran reiterated a view she had expressed earlier that I would not consider section 23(1)(a)(iv) to apply merely because of the apparent unfairness of one party to a legal action having to release records in the absence of any such requirement on the other party to the action. No such supporting argument has been received. Thus, I have no reason to find that release of these details would have any impact on the fairness of the proceedings at issue.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Department's decision. I partially affirm the revised position of the Department that some of the records the subject of this review should be released. Those details, as described above and as specified in detail in my letter to the Department of today's date, should be released accordingly. I hereby direct that the remainder of the records the subject of this review be withheld as exempt under section 28 of the FOI Act.

Right of Appeal

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.

Emily O'Reilly

Information Commissioner

12 November 2010