Case number: 090149
The Commissioner found that the applicants failed to meet the burden of proof under section 34(12)(a) of the FOI Act necessary to show that the decision of the Department to grant the request was not justified. The Commissioner affirmed the Department's decision accordingly.
Whether the decision of the Department to grant access to a request to which section 29 of the FOI Act applies, involving access to documentation between the Department and the [Body] in relation to the remuneration of the Chief Executive Officer (CEO), is justified. The Department's decision was taken in accordance with sections 27 and 28 of the FOI Act.
This review arises from a decision made by the Department of Finance on 21 May 2009 to release records following a request to which section 29 of the FOI Act applies. Section 29 of the FOI Act applies to cases where the public body has decided that the record(s) in question qualify for exemptions under one or more of the relevant exemptions in the FOI Act (i.e. sections 26, 27 and 28 - relating to information that is confidential, commercially sensitive or personal information about third parties, respectively) but that the record(s) should be released in the public interest. Where section 29 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s), found to apply, should be overridden in the public interest. The applicant or affected parties, on receiving notice of the final decision of the public body, if they so wish, may apply for a review of that decision to my Office directly.
On 18 February 2009 the original requester sought information on
"the details of the salary and emoluments approved by the Minister for Finance in 2007, 2008 and 2009 for the chief executive officer and directors of [the body ] ".
The Department formed the opinion that the records in question contain personal information relating to the (since retired) CEO in accordance with sections 2 and 28 of the FOI Act and informed him on 20 March 2009 that the public interest would be better served by release of the records than by refusal of the request.
In his reply to the Department of 8 April 2009, the former CEO objected to the release of the records on the basis of sections 26(1)(a), 26(1)(b), 27(1) (a) and (b), and 28 of the FOI Act.
In its decision, dated 21 May 2009, the Department advised the former CEO that it did not accept the objections put forward by him with regard to section 26(1)(a) or (b). It accepted that the exemption in section 27(1)(b) could apply but that in accordance with section 27(3) the public interest would, on balance, be better served by release of the information concerned. In relation to section 28 it stated that the public interest would, also, on balance, be better served by release of the information concerned. It advised the applicant of his right to apply directly to the Information Commissioner for a review of the decision. There is no internal review decision available where a decision is made by a public body under section 29 of the Act.
Following receipt of the decision of the Department, the former CEO applied to my Office on 4 June 2009, on his own behalf and that of the [body] , for a review of the Department's decision. On 5 June the applicants' solicitors notified my Office that they were acting on behalf of the former CEO and [body ] on the matter.
In accordance with section 29 procedures, on 8 July 2009 my Office informed the applicants' solicitors, the Department, and the original requester that it was undertaking a review of the Department's decision. On 16 July 2009, the Department provided my Office with a schedule and copies of the three records it proposed to release under the public interest provisions in sections 27(3) and 28(5) of the Act. It also indicated that it did not intend to make a substantive submission and intended to rely on the rationale set out in its letters to the former CEO.
In a detailed submission of 5 August 2009 the applicants' solicitors informed my Office of their clients' strong objections to the disclosure of any information contained in the records and cited the exemptions contained in sections 19, 20, 21, 23, 24, 26, 27, 28, 30 and 31 of the FOI Act in support of those objections.
Conducted in accordance with section 34(2) of the FOI Act by Emily O'Reilly, Information Commissioner.
The scope of the review was initially confined to the 3 records in respect of which the Department notified the applicants. The Department has informed my Office that it does not hold any records in relation to approving remuneration of the Directors of [body] because such matters are not within the remit of the Minister for Finance in accordance with section [..] of the [... Act ] [year]. I see no reason to dispute the Department's position on this point and, accordingly, the review does not include records of remuneration of the Directors of [body].
Therefore the review is confined to the Department's decision to release records described below relating solely to the remuneration of the former CEO which falls within the remit of the Minister in accordance with section [..] of the [...] Act. I intend to use the same numbering system followed by the Department in its correspondence with the former CEO in relation to the records.
Record No.1 is a copy of a letter, dated 18/2/2008 from the Chair of the [body] Advisory Committee to the then Tánaiste and Minister for Finance with a recommendation on salary and bonuses for the former CEO for 2008.
Record No.2 is a copy of a briefing note from Mr David Doyle (the then Secretary General of the Department of Finance) to the Minister regarding the former CEO’s contract and which contains hand written details of basic salary and bonuses for 2005, 2006 and 2008. The record is dated "January 2007".
Record No.3 is dated 16 January 2007, and contains hand written details relating to the former CEO's salary for the years 2005 and 2006 only.
The Department informed my Office that it does not hold any information in its records in relation to the remuneration of the former CEO for either 2007 or 2009. In relation to 2009, the Department submitted that, as the former CEO had informed the Minister, on 11 March 2009, of his intention to retire during 2009, no records relating to his salary for 2009 are held on its file and were unlikely to have been submitted. Having regard to the Department's description of the letter received from the former CEO, I see no reason to dispute its position that it does not hold relevant information for that year. In relation to 2007 it stated that, following searches of its files, it does not hold any information for that year relating to remuneration of the former CEO. This point was queried by my officials, who sought further explanation from the Department as to why it held relevant information for the years 2005, 2006, and 2008, but not for 2007. My officials also asked it to describe the process through which the remuneration of the former CEO was set.
The Department responded to that query as follows:
"[ .... of the .... Act, ... provides that the remuneration of the Chief Executive of the [body].... (including any bonus payments) are determined by the Minister for Finance after consultation with the Advisory Committee of the [body]... established under the [...] Act. ...... Bonus levels recommended to the Minister follow on an assessment of performance by the Advisory Committee and its remuneration sub-committee. An exercise is undertaken in which targets are set at the beginning of the year and the performance evaluation is against these targets. Moreover, the Minister’s determination usually follows a discussion between him and the Chairman of the Advisory Committee. Records of this process are kept by the [body ] on behalf of the Advisory Committee. It is not a statutory requirement nor is it the practice for the Chairman or Advisory Committee to consult the Department of Finance or to share documentation with that Department. The Secretary General of the Department is, of course, a member of the Advisory Committee, and has access to documents in that capacity".The Department also referred to the process whereby the Chairman of the Advisory Committee writes to the Minister recommending salary and a bonus. However, while the Department received a letter of 18 February from the Chairman on this matter (record no.1 above), it does not have a record of a response to that letter. Regarding the absence of relevant information for 2007 when it has the equivalent for 2005, 2006, and 2008, the Department stated that it "cannot definitively explain why the figure for 2007 was not included in the document (record no.2)".
The Department's contention that it does not hold relevant records (for 2007 and 2009) is effectively a contention that section 10(1)(a) of the FOI Act applies as a basis for refusing the request for such records. Section 10(1)(a) provides for refusal of a request where "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". As I state above, I can accept the Department's explanation as to why it does not hold relevant records for 2009. Having reviewed its responses to my officials as set out above, I can also accept that it does not hold records for 2007 as the Department does not have an active role with regard to the remuneration of the CEO of [body]. Accordingly, this review does not include information relating to either 2007 or 2009.
While I accept the Department's case that it does not hold relevant records, I must say I find its description of the process through which the remuneration of the CEO of [body] is determined to be quite extraordinary. The Department of Finance is empowered, among other things, to carry out policy functions regarding remuneration levels in the broader public sector on behalf of the Minister for Finance, and its work on those functions results in its holding large volumes of records on such matters as negotiations on public service pay and conditions, through which remuneration levels across most of the public sector are set. The legal provisions regarding remuneration of the CEO of [body] are similar to many other legal provisions that empower the Minister to make specified decisions that are implemented on his or her behalf by the Department, with such implementation inevitably leading to creation of a record trail in the Department. However, in this case the Department has confirmed that it plays no role regarding that remuneration of the CEO of [body] and that it does not have a paper trail of the process (it did not respond to a request from my Office for confirmation as to whether or not its officials attend the meeting at which this remuneration is determined).
Therefore it seems that the remuneration of [.......] person in a the State funded body [ ........], among other things, is set at meetings between the Minister and the Chairman of the Advisory Board at which there is no evidence of the presence of officials, nor does the Department have any official records of what was discussed or agreed at those meetings.
The Department's original decision was to grant the request in relation to all 3 records in full on the basis that the public interest in release of the information held in the records outweighs the applicants' rights to privacy and commercial sensitivity with regard to that information. In a letter of 13 November 2009, Mr Brian Murnane, Investigator of my Office, informed the applicants' solicitors of his preliminary view that, parts of the information contained in Records No.1 and No. 2 relating to 2005 and 2006 are outside the scope of the review. This is on the basis that they are not captured by the wording of the original request which specified the years 2007, 2008 and 2009. Mr Murnane also indicated that as all of the information in Record No 3 is also contained in Record No 2, Record No.3 does not need to be considered further as part of this review.
In response, the Department indicated that it had no alternative views to offer and the applicants' solicitors agreed to Mr Murnane's view that the scope of the review can be confined to records Nos.1 and 2. They also suggested the scope of the review should be narrowed even further to specific figures in Records 1 and 2. Having regard to the wording of the original requester’s FOI request, Mr Murnane accepted that it was in order to further narrow the scope of records No.1 and 2. The requester also accepted the narrowed scope of the review and indicated he did not intend to make a submission to my Office.
From reviewing the contents of the records, I agree with the approach suggested by Mr Murnane and accordingly my review will focus on information in Record No.1, from the start of line 6 ("the Advisory Committee agreed to ...) to line 7 ("This figure is ...), and the last line of Record No.2. Those parts of the records set out details of the former CEO's basic salary and bonus (the bonus is set as a percentage of basic salary), and total remuneration for 2008 only as the records do not contain information relating to 2007 or 2009. I wish to point out that, while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions in the course of reviews to prevent disclosure of information contained in an exempt record. Having said that, I am satisfied it is in order for me to state that there is no reference in the records under the scope of this review to any targets set for the former CEO or his performance in achieving any such targets.
The question I have to address is whether the Department is correct, under the provisions of the FOI Act, in its decision to provide access to the information in those parts of the records (as indicated above) on the basis that the public interest is better served by release than by refusing to release the information, or whether the applicants’ solicitors have demonstrated to my satisfaction that the Department’s decision to grant access to the information contained in the records at issue was not justified.
In conducting this review I have had regard to the scope of the original requester's specific request, to the provisions of the FOI Acts and the ( XXX) Act (XXXX), the contents of the individual records, the submissions made by the applicants to the Department and to my Office, and to the additional information and clarifications provided at the request of my Office. The Department and the original requester chose not to make any substantive submissions, with the Department indicating that it had nothing further to add beyond what it had conveyed to the applicant in its correspondence with [body]. In subsequent discussions with my Office it reaffirmed its views that the information should be released in the public interest.
I wish to emphasise that under section 34(12)(a) of the FOI Act, a decision to grant a request to which section 29 applies is presumed to have been justified unless the person concerned shows to my satisfaction that the decision was not justified. This provision has the effect of placing the burden of proof on the applicants to show that the decision of the public body to release the records concerned was not justified.
The applicants’ solicitors have raised a number of matters relating to my jurisdiction in the review. I address these at this stage.
The applicants’ solicitors contend that as [body] is not a public body for the purposes of the FOI Act, the records in this case should not be released. There is also an implication that if I was to affirm the decision of the Department, it might suggest that I was going against the wishes of the Oireachtas who did not bring [body] within the scope of FOI.
I accept that [body] is not designated as a public body for the purposes of the FOI Act. However, that is not of particular relevance, as the wishes of the Oireachtas are expressed in the provisions of the FOI Act, which provides that all records held by public bodies are subject to release unless such refusal is justified through the specific exemption provisions in the Act. The FOI Act does not provide for exemption of records on the basis of the source or origin of the information contained in them and, as the information is held by and under the control of the Department, it is thereby liable for release subject to the application of any relevant exemption provisions of the FOI Act.
I would add that it is frequently the case that records created by bodies that are not subject to the FOI Act are, in the ordinary course of business, transmitted to and held by other bodies who are scheduled public bodies for FOI purposes. The arguments made by the applicants' solicitors do not take away from the fact that the records are held by the Department, and that if withholding them is justified, this can be achieved by reference to the relevant exemptions set out in the FOI Act.
I have described above the process through which applications for review of decisions to which section 29 the FOI Act applies are considered, and I note that in its submissions the applicants’ solicitors accept that process. However, they question the view that my jurisdiction under section 29 is limited or confined to consideration of sections 26, 27 or 28, and contend that my Office has the statutory power to consider other exemptions when dealing with a case to which section 29 applies.
In support of this they cite a decision made by the previous Commissioner in which they contend he embarked upon a substantive consideration of Section 23 of the FOI Act in a case to which section 29 applied, namely case number 020245 (Mr X and the Department of Public Enterprise). While I accept that the previous Commissioner, having dealt with section 27 in that case, went on to make findings on section 23, in my view that was not necessary given the terms of section 29. I have set out my understanding of section 29 cases in published decisions, in my Annual Reports, and in detailed guidance and commentaries, all available on my Office's website. I am satisfied that I do not have jurisdiction in this review to consider the other exemptions set out by the applicants’ solicitors. This approach is consistent with the decisions made by my Office in more recent cases such as cases numbered 090130 (Ms X & The Health Service Executive) and 070304 (Helsinn Birex Pharmaceuticals Ltd &. Irish Medicines Board), both available on www.oic.ie.
However, although the Department's view is that section 26 does not apply to the records, as the applicants' solicitors contend that it does, I have considered the provisions of that section, along with sections 27 and 28, in this review.
In relation to a de novo review the applicants’ solicitors submit that I am obliged to consider the matter de novo and with a complete fresh mind. They have indicated to my Office that, notwithstanding the provisions of section 34(12)(a), and while recognising that their clients bear a burden of proof and justification, it is their contention that function of my Office is not merely one of a corrective mechanism but rather a full de novo review of the case.
I agree that a review by me under section 34 of the FOI Act is a de novo review, which means that it is based on the circumstances and the law as they pertain at the time of a decision. I do not accept their contention that a de novo review means that jurisdiction should be extended to allow for consideration of exemptions other than sections 26, 27 or 28 in cases to which section 29 applies. I consider that the restrictive nature of the section 29 provision means that my consideration is confined in these cases to whether the public body has applied the provisions of sections 26, 27 or 28 correctly. Treatment of other exemptions is not open to me in the same way in which applications for review normally come to me following refusal of access and following internal review within a public body.
This section provides as follows:
"26.-(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if-
(a) the record concerned contains information given to a public body in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or
(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.
(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services.
(3) Subject to section 29, subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."
In their initial submission, the applicants' solicitors contended that the process leading to generation of Records 1 and 2 is confidential, and that this level of confidence was conveyed in the communication from the Chairman of [body's] Advisory Committee to the Department. In support of this they contend that the exemptions in both sections 26(1)(a) and 26(1)(b) apply and cite, amongst a number of factors, that the letter to the Minister was clearly marked "Strictly Private and Confidential". They contend that the information in the records is expressly and inherently confidential and, while the communication with the Minister was pursuant to statute and was for regulatory approval, it was done so in the context that a mutual understanding of confidence existed between [body] and the Department in the context of the Minister's legislative supervision of [body]. In terms of section 26(l)(a) of the FOI Act, they contend that disclosure of the records would be likely to prejudice the capacity of the Department to have recourse to such confidential dealings in future and would be contrary to the direct interest of the Department. They contend that the application of the exemptions in sections 26(1)(a) are sufficient to justify refusal by the Department, in exercising its discretion under section 26(3), to disclose the records in the public interest. They also contend that section 26(1)(b) applies to the records as the Department is subject to a duty of confidence with regard to them.
The Department stated that, regardless of the basis on which it was supplied with the information, it considers that the exemption provided in section 26(1)(a) is subject to the requirements of section 26(3) which provides for release if the public interest in such release outweighs the public interest in refusing the request. It does not accept that release of the information in the records would prejudice the provision of such information by [body] or the Advisory Committee to the Minister, as such information would be essential to enable the Minister to reach decisions regarding the appropriate level of remuneration of the CEO in accordance with section 26(1)(a). Neither does it accept that section 26(1)(b) applies to the records.
In its response to Mr Murnane’s preliminary view that neither sections 26(1)(a) nor (b) applied, the Department stated it had no further comments or elaborations to offer beyond those conveyed to the applicant in their decision letter to him of 21 May 2009. It indicated that it remained of the view that the relevant information in the two records should be released in the public interest.
The applicants’ solicitors, in their response to Mr Murnane, restated that, if the disclosure of the records requested by the applicant were to take place, then it would be likely to prejudice the giving of similar information by [body] to the Department in the future. They contend that the disclosure of such records would be greatly damaging to [body] and put forward various scenarios whereby the transmission of information relating to salaries and remuneration could be effected. They repeated their view that a legal duty of confidence arises under section 26(l)(a) as well as 26(1)(b), because the record concerned was given to the public body in confidence and on the understanding that it would be treated by it as confidential. Moreover, they further point out that "an agreement" is quite separate from any enactment. Equally, they contend the component "otherwise by law" is again separate from any enactment referenced or not referenced in the Third Schedule of the FOI Act. They dispute the view of the Department that there is no evidence to its knowledge that any such agreement [as to confidence] exists and they further considered that the Department cannot be of itself the determinant as to whether the records have the necessary quality of confidence about them. In their view, there must be an objective view as to whether records have the necessary quality of confidence about them and that such records were imparted in circumstances imposing an obligation of confidence.
They went on to contend that there are no public interest consideration or balancing exercise to be considered because section 26(3) of the FOI Act has no application at all to section 26(l)(b).
As to detriment to [body] and the wider public interest, they cite in particular statements made by the former CEO before the Committee of Public Accounts. ... In response to questions relating to pay and salaries of [body's] staff, he indicated that in order to have and maintain a professional team, outside of the Civil Service, that the pay rates for such individuals should not be in the public arena. In addition, they refer to the fact that the Oireachtas has not sought to amend details of the remuneration of [body's] key cohort of directors and senior management.
The applicants' solicitors also cited a number of previous decisions of my Office which they contend further support its views that the records should be withheld, decisions which I have taken into account in my findings in relation to section 26 and 27 below.
I would make the following comments about section 26 in general.
The term "understanding" in the context of section 26(1)(a) was interpreted by the former Commissioner in Henry Ford and Sons Ltd, Nissan Ireland and Motor Distributors and the Office of Public works (see 98049 on www.oic.ie) as meaning an understanding between the confider and the confidant and whether both recipient and confider knew or ought to have known that the information was imparted for a limited purpose and whether the confider's [( body)] expectation or understanding of confidence was reasonable in the circumstances in which the information was imparted.
It does not appear to be the contention that the applicants were given an express assurance of confidentiality in relation to the records at issue. Therefore, I must examine the relevant circumstances to determine whether an implied understanding of confidentiality existed. As the Queensland Information Commissioner explained in McCann and Queensland Police Service, (1997) 4 QAR 30, at paragraph 23:
"Where no express assurance of confidentiality is sought by the supplier and given by the recipient, the relevant circumstances attending the communication of information must be examined to ascertain whether they evidence a need, desire or requirement, on the part of the supplier of information, for confidential treatment (of the supplier's identity, or information supplied, or both) which, in all the relevant circumstances, the supplier could reasonably expect of the recipient, and which was understood and accepted by the recipient, thereby giving rise to an implicit mutual understanding that confidentiality would be observed."
The advent of FOI has brought about changes in the manner in which public bodies conduct their business and has lead to greater openness and accountability in the public service. Given that at the time of the request, the FOI regime had been in force for more than eleven years, I am satisfied that [body] was aware or ought to have been aware of the implications of the provisions of the Act. Put at its most simple, the enactment of the FOI Act allows for the release in the public interest of information that might be otherwise exempt on grounds of confidentiality. It is important to have regard to the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies. This is something which the Courts have acknowledged. For example, McKechnie J., in his judgment in Deely v. The Information Commissioner  IEHC 91 (text of judgment is available at www.oic.ie), had this to say about the FOI Act:
"[The Act's] passing, it is no exaggeration to say, affected in a most profound way, access by members of the public to records held by public bodies and to information regarding certain acts of such bodies which touch or concern such persons. The purpose of its enactment was to create accountability and transparency and this to an extent not heretofore contemplated let alone available to the general public. Many would say that it creates an openness which inspires a belief and trust which can only further public confidence in the Constitutional organs of the State.[...][T]he clear intention is that, subject to certain specific and defined exceptions, the rights so conferred on members of the public and their exercise should be as extensive as possible, this viewed, in the context of and in a way to positively further the aims, principles and policies underpinning this statute, subject and subject only to necessary restrictions.....
It is on any view, a piece of legislation independent in existence, forceful in its aim and liberal in outlook and philosophy."
This view of the extensive nature of the rights conferred by FOI has been endorsed by the Supreme Court, in Barney Sheedy v. The Information Commissioner  IEHC 35 (text of judgment also available at www.oic.ie), where Mr Justice Fennelly commented:
"The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen."
Thus, the underlying presumption of the FOI Act is that requests for access will be granted, subject only to necessary restrictions. Public bodies therefore are not in a position to provide absolute protection to information obtained by them. It is clear from its treatment of the FOI request that the Department did not consider that such a mutual understanding existed in respect of these records.
As this review arises from a decision on a request to which section 29 of the FOI Act applies, it is unclear whether my Office has the jurisdiction to consider the applicants' arguments with respect to section 26(1)(b). A request only falls within the ambit of section 29 if it is one "to which section 26(3) or 27(3) applies or to which section 28(5) applies and which, apart from this section, would fall to be granted" [emphasis added]. In other words, exemptions which are not subject to 26(3), 27(3), or 28(5) are generally not relevant in section 29 cases. However, in previous decisions, e.g., Case Number 98049 cited above, my Office has acknowledged the overlap between the requirements of sections 26(1)(a) and (b). Moreover, although not stated in the FOI Act, I take the view that public interest considerations may be taken into account in determining whether disclosure of information under FOI would constitute a breach of a duty of confidence. Therefore, it seems to me that the question of a duty of confidence naturally arises and is appropriately addressed in any case in which section 26(3) is considered applicable by the public body. Nevertheless, it must also acknowledged that the FOI decision-making records of public bodies do not always reflect an awareness of the overlap between the requirements of sections 26(1)(a) and (b). The overlap stems from the technical, legal meaning of the term "confidence" which I have adopted for the purposes of both exemptions.
I interpret the term "confidence" by reference to the following definition: "A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose."("B" v. Brisbane North Regional Health Authority, (1994) 1 QAR 279, at paragraph 45, quoting from F. Gurry "Breach of Confidence" in P. Finn (Ed.) Essays in Equity; Law Book Company, 1985, p.111.) Based on this definition, it is consider that, first, information given in confidence is concerned with private or secret matters rather than information which is trite or which is already in the public domain, i.e. that it is necessary to establish that the information has the necessary quality of confidence. Second, the communication must be for a restricted or limited purpose. Third, there must be an understanding that the information is being communicated for a restricted purpose.
This section sets out four conditions that need to be considered in making a finding as to whether or not information is exempt on the basis of confidentiality, viz. (1) information must be given to a public body in confidence, (2) there must be an understanding between the provider of the information and the public body that the information provided would be treated as confidential by the public body, (3) release of the information would be likely to prejudice the giving to the public body of further similar information in the future, and (4) it is important that the body continues to receive such further similar information. Given the construction of this provision, I am satisfied that all four of these conditions must be satisfied before a decision to exempt a record under 26(1)(a) is justified.
In this case, I have not found any evidence to justify a finding that there was a common implicit understanding between the provider and the recipient to preserve the confidentiality of the information. I am satisfied that this absence of a mutual understanding of confidence is demonstrated by the Department's proposed release of the information as it would be in my view contradictory for it to propose to release information it considered to be confidential. Also, I do not accept as realistic a contention that release of the relevant information from the records would result in future refusal by [body] to provide information requested from it by the Department, particularly as [body] is statutorily obliged by section [..] of the [....] Act to provide such information. Therefore I consider that neither the second or third test of 26(1)(a) have been met. As it is my view that two of the four tests of the provision have not been met and that all four must be met before a decision to exempt a record is justified, I find that the information is not exempt under section 26(1)(a).
The applicants’ solicitors also contend that the records are exempt under section 26(1)(b). Section 26(1)(b) is a mandatory exemption that applies where
"disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column(3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law".
My predecessor has found in cases Mark Henry(Case No. 98188) and Henry Ford( Case No. 98049), which are cited by the applicants’ solicitors in their submissions to my Office, that 3 tests must be met to establish a duty of confidence as provided for in section 26(1)(b). These tests stem from the technical, legal meaning of the term "confidence" which he adopted, and with which I agree, for the purposes of both section 26(1)(a) and (b). The applicants solicitors accept that the correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R.415 (which is accepted as reflecting the Irish law on the subject - see, e.g., House of Spring Gardens Limited v. Point Blank Limited  I.R 611).
The tests require that:
I have already set out above how I interpret the term "confidence" and in the circumstances and given the requirement for public service providers to be accountable for their use of public funds, I am not satisfied that information on the salary and bonuses paid from such public funds to an official performing a public service function can have the quality of confidence necessary to establish a duty of confidence (the first test), especially where the recipient of the information, the Department, proposes to release it. For the same reason, I do not see how a duty of confidence can have been imposed on it with regard to this information (the second test).The applicants’ solicitors contend that the fact that the information was conveyed to the Minister in a letter marked "STRICTLY PRIVATE & CONFIDENTIAL" imposes a duty of confidence with regard to that information. However there is, in my view, ample case law in support of a conclusion that such labelling is not sufficient, in the absence of other evidence establishing the necessary quality of confidence, to impose an obligation of confidence with respect to the records concerned.
In "B" v Brisbane cited above the Queensland Commissioner specifically addressed this matter in some details and at paragraph 91 stated that
"[The] confiders conduct cannot unilaterally and conclusively impose an obligation of confidence... merely labelling information as "confidential"will not confer it with the necessary quality of confidence if it lacks the requisite degree of secrecy or inaccessibility.. labelling of this kind(assuming it reflects the confider's genuine consideration of the nature of the information and of the need for restrictions on its use by the confidant, and is not simply routine rubber-stamping without genuine consideration) will ordinarily constitute a relevant factor to be evaluated, in the light of the relevant circumstances, in determining whether an enforceable obligation of confidence is imposes, but it will not.frequently, by itself, be conclusive of the issue. Indeed, properly construed according to its context, a confidential"marking on a letter or other document may not have been intended at all by the author to relate to the imposition of enforceable obligations of confidence: it may merely indicate....., that the author of the document wished it to reach its address without being opened by an intermediary".
With regard to the second test, the question I must determine is whether the expectation of the applicant that the Department would be bound to keep the remuneration details confidential was reasonable in all the circumstances. In "B" v Brisbane (cited above) the Queensland Commissioner specifically addressed the test as to whether the recipient of information knew or ought to have known that the information was imparted for a limited purpose and whether the confiders expectations of confidence was reasonable in the circumstances. It seems to me at a time when the FOI Act has been in operation for over 10 years, the applicants and their advisers would have been well aware of the many decisions establishing the principle that payments to individuals from public funds i.e. taxpayers' money, should not and cannot remain secret. The involvement of the Minister in approving the amounts is indicative of a system far removed from that applicable to a private sector company executive and I am satisfied that the general practice in this country over several years now has been to allow the public as well as the various bodies overseeing public expenditure to have access to the remuneration of public sector workers. It is now a well-established principle that there is a need for openness and accountability in relation to the use of public funds. Accordingly, any recipient of public funds should have a diminished expectation of confidentiality in relation to those funds. Equally, it is clear (and the applicants would have been aware of this) that the amounts disclosed in the records do not reveal any details of performance targets set for the former CEO or his level of success or otherwise in achieving them. Accordingly, I do not see how the former CEO might have some reasonable expectation of confidence regarding records that do not contain any performance appraisal of his personal skills or achievements or from any aspect of his private life. As it is my view that neither the first or the second element of the three conditions of a duty of confidence has been met, I am satisfied that section 26(1)(b) does not apply to the information and find accordingly. On that basis, it follows that I do not need to consider the third element that release under FOI would be an unauthorised use of the information. However, were I required to do so, my view would be that no case has been made to justify a contention in the circumstances that release of the information is unauthorised.
As it is my view that the information is not exempt in line with sections 26(1)(a) or (b), it is not strictly necessary for me to consider whether the provisions of sections 26(3) apply. However, I feel that it is useful for completeness to consider the application of the public interest. This is addressed below.
Section 26(3) of the FOI Act provides that the exemptions contained in section 26(1) do not apply to a case
"in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request...".
To apply section 26(3) it is necessary to identify the various public interests served by the release of the particular record as well as those served by withholding that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other. However, in assessing the public interest, it is appropriate for me to express the view that, in principle, providing as much information as possible to the public about the remuneration of senior figures in the wider public sector must be regarded in these economic times as being a matter of strong public interest. Also there is a powerful public interest served in ensuring the greatest level of transparency as possible in how public funds are accounted for by bodies providing services for or on behalf of the public. I particularly consider that such transparency serves the public interest in ensuring that the actions of all providers of publicly funded services operate in a manner that is fair, transparent and accountable.Mr Murnane set out the factors he believed appropriate in addressing the public interest for release in the context of section 26(3) so there is no need for me to restate all of them here. The applicants solicitors strongly contend that, notwithstanding its views on 26(1)(b) and 26(1)(a), the public interest is better served by refusing to grant the request rather than by granting it.Public Interest Arguments for Release.
In summary, I consider the following to be the main public interest factors favouring release of the information in this case:
I consider the following to be the main public interest factors favouring exemption of the information (most of which were submitted by the applicants solicitors in support if their view that the information should not be released):
I acknowledge that there is a balance to be struck between release of details of remuneration that is met from public funds and the harms envisaged by the applicants’ solicitors. However, in balancing these public interest factors, the onus is on the applicants to establish that the public interest in this case would not be better served by releasing the publicly funded level of remuneration paid to the former CEO of a body performing public service functions.Having considered the applicants solicitors submissions, and given my view that the accountability of the Department in its use of public funds is of great importance in this case, if I was required to do so I would find that, on balance, the public interest would be better served by disclosure of the information in the records. Accordingly, I would find that the records are not exempt by virtue of section 26(3) of the FOI Act. I would also find that the applicants' solicitors have failed to meet the burden of proof under section 34(12) of the FOI Act requiring them to show that the decision of the Department to grant access to the information at issue in the public interest was not justified.
This section provides as follows:" 27 -(1) Subject to subsection(2), a head shall refuse to grant a request under section 7 if the record concerned contains-
(a) trade secrets of a person other than the requester concerned,
(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whomthe information relates."
Mr Murnane informed the applicants’solicitors of his preliminary view that section 27(1)(a) does not apply as he does not consider that an exemption regarding trade secrets is relevant to the information at issue in this case. Secondly, he informed them that the essence of the test in section 27(1)(b) or (c) is not the nature of the information but the nature of the harm which might be occasioned by its release. His view was that neither subsections 27(1)(b) nor (c) applied and even if they did apply, the public interest as provided for in section 27(3) would be better served by release than by non-release of the information.
The Department accepted that it was conceivable that the harm envisaged in section 27(1)(b) could emerge but that the public interest is better served by release in accordance with section 27(3). The Department also considered that [body] is not unique in relation to such staffing issues to an extent that would justify withholding release of the records on that basis.
In response to these matters the applicants’ solicitors made a number of points, including:
In relation to the point regarding comparisons made by Mr Murnane between [body] and other bodies in the wider public sector, I agree that [body] is not a public body for the purposes of the FOI Act. As I have already set out my view on the relevance of that matter to my jurisdiction in this case, I do not intend to repeat my reasoning on that point here.
This section provides for the refusal of a request that contains “trade secrets of a person other than the requester concerned”.
In relation to the applicants’ solicitors first point above my view is that, while the cases they cited show that business processes were protected, the relevance of that case to information on salary and remuneration of the former CEO of a publicly funded body such as [body] has not been demonstrated. I also do not accept that release of details on such remuneration is currently viewed in an Irish context as a trade secret, and in reaching that conclusion, I have had regard to and agree with the determination of what constitutes a trade secret as applied by the previous Commissioner in Cases number 98049 and 98188. In those cases the previous Commissioner accepted that an exact definition of a trade secret is not possible but found that a strong case could be made that tender prices were trade secrets during the currency of a tender competition. However, that level of secrecy may be short lived and it would only be in exceptional circumstances that historic price performance would qualify as a trade secret. While the applicants' solicitors contend that the remuneration of the former CEO is a trade secret of [the body], they have not provided any evidence of a clear link between that remuneration and what in my view could reasonably be considered as a trade secret within the meaning of section 27(1)(a). I am therefore of the view that records relating to remuneration of the former CEO do not constitute trade secrets in accordance with section 27(1)(a) of the FOI Act. I find accordingly.
This section provides for the refusal of a request for a record that contains
“financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or"
The applicants’ solicitors, in response to Mr Murnane's preliminary views letter, contend that it is the nature of the information that is of great importance in considering the exemption in section 27(1)(b), and the question to consider is whether disclosure of the information in the records could, at this time, give rise to the possible harm as envisaged in the exemption. They contend that the release of the remuneration of the former CEO could give rise to the harmsenvisaged in section 27(1)(b). They also contend that it is vital for [body] to preserve intact its intellectual capital, as otherwise irreparable damage would be caused to it by putting information pertaining to the former CEO into the public domain. In support of their position, the applicants solicitors cited the determination of the previous Commissioner in the case of Ms X and the Department of Finance[Case No 020311].
Having considered the applicants’solicitors submissions and from examination of the records, I am not convinced that such harms might be occasioned by release of the requested information. In my view the applicants’ solicitors have not demonstrated that the irreparable harms they identified in their submissions could reasonably be expected to occur from the release of the information contained in the records. I am therefore of the view that the information in the records is not exempt in accordance with section 27(1)(b). In relation to the Department of Finance case cited by the applicants’ solicitors, the decision in that case related to the competencies or abilities and evaluation of performance of individual civil servants and not to details of individual salary payments. It differs from this case as the level of salary or bonuses paid to the CEO of [the body] does not reveal anything about performance as there is nothing in the records to identify how the bonus was calculated beyond the percentage of salary the bonus was based upon. Therefore I agree with Mr Murnane’s preliminary views that section 27(1)(b) does not apply and find accordingly.
This section applies where a record contains
“(c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."
The applicants’ solicitors contend, in a similar fashion to the arguments on section 27(1)(b) above, that the question to consider is whether disclosure of the information in the records could, at this time, give rise to the possible harm envisaged in the exemption. They particularly contend that it is vital to the [body] that it protects its staff cohort and release of information could prejudice future negotiations involving [body] particularly concerning such staffing matters. Consistent with my findings above in relation to section 27(1)(b), I do not see the that the records contain any information that would have the effects envisaged in the exemption nor have I been provided with any evidence that has demonstrated to my satisfaction what, if any, particular negotiations would be adversely effected from release of such historic information, at this particular point in time. I am therefore of the view that the information in the records is not exempt in accordance with section 27(1)(c). I find accordingly.
Therefore, as it my view that none of the provisions of section 27(1) apply, it is not necessary for me to consider the provisions of section 27(3) of the FOI Act. However, for completeness sake I will consider the application of the public interest override in the context of section 27(3).
The public interest test at section 27(3) is similar to that at section 26(3). It provides that the exemptions contained in section 27(1) do not apply to a case "in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request.....". As I set out my view in my consideration of section 26(3) as to how the public interest test should in general be applied, I do not need to repeat that view here.
The applicants’ solicitors ask my Office to take a cautious view of the application of section 27 and contend that on balance the public interest is better served by refusing to grant the request for access to information rather than by granting it. Mr Murnane has previously set out the factors he believed appropriate in addressing the public interest for release in the context of section 27(3) so there is no need for me to restate all of them here, but I summarise below what I consider relevant to the circumstances of this case.
These include -
These factors (most of which were submitted by the applicants’ solicitors in support of their view that the information should not be released) include-
In this case I have considered the balance that has to be struck in relation to release of details of remuneration that is met from public funds gauged against the harms envisaged by the applicants' solicitors. However, section 34(12)(a) puts the onus on the applicant to establish that the public interest is better served by withholding the information in the records than it would be by release of that information. I recognise that there is a strong public interest inensuring that the position of [body] is maintained and that it continues to attract highly qualified and skilled executive personnel and that it is in a position to offer market-competitive salaries, so as to ensure its important role in the Irish economy especially in the current financial circumstances. However, I am not persuaded that the disclosure of the information would negatively impact on any of these issues. Neither am I convinced that what is in the records is highly sensitive in a broad commercial sense.
My specific views on the points raised by the applicants' solicitors are as follows:
Having considered the applicants’ solicitors submissions, and given my view that the accountability of the Department in its use of public funds is of great importance in this case, if I was required to do so I would find that, on balance, the public interest would be better served by disclosure of the information in the records. Accordingly, I would find that the records are not exempt by virtue of section 27(3) of the FOI Act. I would also find that the applicants’ solicitors have failed to meet their burden of proof under section 34(12) of the FOI Act of showing that the decision of the Department to grant access to the information at issue in the public interest was not justified.
Section 28(1) of the FOI Act provides that the head of a public body shall refuse to grant access to a record if, in the opinion of the head, access would involve the disclosure of personal information, unless the public interest in release outweighs the right to privacy of the individual to whom the information relates (section 28(5)). The Department and the applicants' solicitors agree that the information in relation to the former CEOs salary is personal information. Having considered the matter, I can agree that the information conforms with the first part of the definition of personal information in section 2(1) of the FOI Act, viz:
" 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..."
I am therefore satisfied that the records potentially qualify for exemption under section 28(1).
The exemption provided by section 28(1) is subject to application of the public interest as provided for in section 28(5). I consider that matter below.
This section provides:
"(5) Where, as respect 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 towhom 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."
No argument has been made, nor do I find any basis for concluding, that the release of the records at issue would be to the benefit of the former CEO. On that basis I find that section 28(5)(b) does not apply in this case. I must therefore consider whether the information in the records should be released in the public interest in accordance with section 28(5)(a).
To apply section 28(5)(a) it is necessary to balance the various public interests served by the release of the particular information contained in the records against the public interest in preserving the right to privacy of the individual to whom the information relates. Mr Murnane set out what he considered to be the relevant public interest factors in his preliminary views to the parties and I see no need for me to repeat them here. The applicants’ solicitors strongly contend that the public interest is better served by refusing to grant the request rather than by granting it.
The public interest considerations favouring release of the information already considered in the context of sections 26 and 27 above are also relevant in considering the applications of section 28(5)(a). In addition to those, I consider there is a strong public interest in public bodies demonstrating their accountability for the use of public funds by release of information about a persons remuneration which is met from such public funds.
Weighing against release in the context of section 28(5) is the significant public interest in relation to protecting the privacy of the former CEO within what I accept was a highly sensitive and competitive environment of [body]. In their submissions, the applicants’ solicitors indicate that there is no agreement regarding disclosure of the information in the records and that the privacy of their clients should be protected. They argue that the factors against release on public interest grounds under section 28(5) of the FOI Act, clearly outweigh those in favour. They also contend that the particular circumstances surrounding this case the factors in favour of disclosure are far weaker than they might be in the case of public bodies subject to the FOI Act.
Assessment of where on balance the public interest lies.It is my view that the public interest in respecting the right to privacy is a very strong public interest and is recognised both in the Long Title (in its reference to "access, to the greatest extent possible consistent with the public interest and the right to privacy") and in the language of section 28 itself. The right to privacy also has a constitutional dimension in Ireland. 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 constitutionally recognised right to privacy. However, the section 28 protection of personal information is not absolute and, contains exceptions, including the public interest. The particular test, in section 28(5) requires that the right to privacy be balanced against the public interest in granting the request. The applicants' solicitors also referred to the right of privacy as protected under the Constitution and acknowledge that it is not an absolute right and that there is no personal information exemption that gives an automatic favouring of privacy over the right to access records held by public bodies.
In relation to the constitutional considerations raised by the applicants’ solicitors, I wish to make it clear that I adopt the approach that the provisions of the FOI Act fall to be considered and interpreted in accordance with the Constitution. A very clear statement to this effect was made by the Supreme Court in its judgment of January 2006 in NMcK v Information Commissioner. Applying this judgment to the particulars of the current case, I am satisfied that the principles of constitutional justice are fully respected in progressing this review.
In relation to other specific points raised by the applicants’ solicitors in its submissions, I accept that the release of the information in the records does not of itself disclose details of the Department's reasoning. However, as I have previously indicated that, of itself, does not in my view justify a decision to exempt from release a record that has been requested under the FOI Act. In this particular case, I consider that there is a need to draw a distinctionbetween personal information relating to a person's private life and other personal information that does not relate to private matters. As previously stated, I feel that persons in receipt of remuneration sourced from public funds should have a diminished expectation of privacy or confidentiality in relation to that remuneration. Therefore, I do not accept that the applicant could have a reasonable expectation that his level of remuneration would never be disclosed to the public. I also consider that release of the salary details at issue would not be a hugely significant invasion of the rights to privacy of the applicant to the extent that disclosure of health or other personal details might be.
I have also considered whether disclosure of the information is unfair to the applicants. Relevant to this consideration is the question of whether the information requested is different in character from information published in Annual Reports or Financial Statements setting out details of the levels of remuneration of other Chief Executive Officers of semi-state commercial bodies or state agencies (such as the Central Bank) which are not subject to FOI. I readily acknowledge that information on such salaries is not subject to FOI Act, but it remains the case that the salary amounts are publicly available. I do not see a basis for distinguishing between these publicly funded salaries and the remuneration of the former CEO of [body] and have not been presented with any evidence of damage occurring to other individuals or their employing bodies as a result of those individuals' remuneration being publicly available.
I recognise that the former CEO, as Accounting Officer for [body] , often appeared before the Public Accounts Committee (PAC) and, as cited by the applicants’ solicitors, declined to convey details of his salary to the members of the Committee on the basis of commercial sensitivity and confidentiality. However, following a more recent appearance before the Committee, he did provide information in [...] on the average bonus payments paid by [body] in 2007 and 2008 to its staff and included details of average salaries paid in certain categories of staff of [body]. I note this notwithstanding the comments made by the applicants’ solicitors about the harm that would fall on the [body] from the release of such historic information into the public arena. I should add that while this publication goes some way towards satisfying the public interest in public bodies being accountable for their use of public funds, it is not a justification for withholding the information in this case, the release of which would, in my view, further satisfy that public interest.
The applicants’ solicitors also contend that not disclosing information on the remuneration of the former CEO of [body] would be of greater benefit to the public interest because [body] functions in a materially different highly competitive position internationally compared with other government agencies, and thus should be afforded the highest protection when it comes to levels of remuneration. I find it difficult to see why this should be the case as the applicants’ solicitors have not provided information showing that similar bodies abroad keep the remuneration of their CEO’s out of the public domain.
I consider that the public interest in openness and transparency in public financial matters is very strong and there is an overriding public interest in ensuring that the decisions of public bodies are open, transparent and seen to be above reproach, including such decisions regarding remuneration paid from the public purse. I find accordingly.
Having considered the matter carefully, I am satisfied that, on balance, the public interest is better served by release of the information than by refusing the request. I find that section 28(5)(a) applies in this case and that the applicants’ solicitors in accordance with section 34(12)(a) have failed to demonstrate to my satisfaction that the decision of the Department to grant access to the information at issue in Records No 1 and 2 was not justified.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Department of Finance in this case and direct the release of the information contained in the records as set out above.
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.