Case number: 140158

Whether the Service was justified in its decision to refuse to grant access to records sought by the applicant, relating to access arrangements for the Houses of the Oireachtas, under sections 23, 26 and 28 of the FOI Act.

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

The decision in this case was subsequently appealed to the High Court by the Service. It was agreed between the parties that the decision be remitted to the Office of the Information Commissioner for fresh determination. A fresh decision is pending

Background

On 14 April 2014, the applicant submitted a request to the Service for access to four categories of records, including two categories of records relating to access arrangements for the Houses of the Oireachtas (the Houses). The two categories in question were;

Details of all Oireachtas access pass holders, not including Oireachtas staff but including those who have passes from political parties. (Category A)

A list of everyone signed in as a visitor by a TD or Senator for the first three months of 2014 (Category B)

On 9 May 2014, the Service issued its decision in relation to the request for records in categories A and B, refusing the request under section 28 of the FOI Act. On 21 May 2014, the applicant sought an internal review of this decision. The internal reviewer issued his decision on 11 June 2014, upholding the initial decision, but additionally finding that sections 23 and 26 of the FOI Act applied to some of the records at issue. On 19 June 2014, the applicant sought a review by my Office of the Service's decision.

The Service has furnished comprehensive, detailed legal submissions to my Office relating to the matters at issue. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision. On a number of occasions during the course of the review, Mr Mulligan of my Office informed the Service of his initial views in relation to the arguments put forward by the Service with a view to exploring whether a settlement of the review might be possible. In its submissions to my Office, the Service has referred to those views as the Commissioner's preliminary findings. The views expressed were those of Mr Mulligan in the context of exploring a possible settlement and I am clearly not bound by them. In conducting my review, I have had regard to the Service's decisions on the matter and its communications with my Office. I have also had regard to the applicant's communications with my Office and the Service and to the contents of the records at issue.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

The Service identified four records as coming within scope of the applicant's request in respect of Category A, consisting of lists of party political access pass holders, departmental staff access pass holders, press access pass holders, and holders of "letters of access". The records identified as coming within scope of Category B consist of five extracts from visitor registers maintained at entrances to the Houses for the purpose of recording details of individuals who had been granted an access pass.

During the course of the review, the applicant agreed to reduce the scope of the review to a single week, between 24 and 28 March 2014. He also agreed to exclude from its scope groups on official tours of the Houses, or cleaners and external contractors performing support and operations functions in the Houses.

As the applicant's request for records in category B relates specifically to individuals who had been signed in to the Houses by a TD or Senator, the Service correctly submits that entries relating to individuals who were not signed in by a member of the Houses are outside scope of the applicant's request and should not be released. Three of the five records identified by the Service as falling within this category relate entirely to public servants entering the Houses without being signed in by a TD or Senator. The records in category B remaining at issue, therefore, are those marked "LH 2000 Visitors Badge (Blue)" and "Enquiries Reception Visitors Badge (Blue)", dated from 24 March to 28 March 2014.

Accordingly, this review is concerned solely with the question of whether the Service was justified in refusing access to the records in Categories A and the two remaining records in category B under sections 23, 26 and 28 of the FOI Act.

Analysis and Findings

Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (the 2013 Act)
The Service made wide ranging submissions in this case that I will address in this decision, insofar as they are relevant. It argued that section 127 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 (the 2013 Act) operates so as to exclude the records at issue from the scope of the FOI Act. The section provides as follows:

(1) Without prejudice to the exemption for official documents and private papers, the Freedom of Information Acts 1997 and 2003 shall not apply to a record relating to a Part 2 inquiry or other committee business unless-

(a) the record was created before the inquiry or other committee business, as the case may be, commenced, or
(b) the record relates to the expenses of the committee or other matters concerning the general administration of the committee.

"Other committee business" is defined at section 2 of the 2013 Act as meaning "any business, other than a Part 2 inquiry, conducted or to be conducted by a committee".

The relevant Oireachtas Committee is the Joint sub-Committee on Administration, which is established as a sub-Committee of the Committee on Procedure and Privileges. Its function is set out at paragraph 4A of Oireachtas Standing Order 99 as follows:

(d) The Joint sub-Committee shall represent the views of members on the provision of services for and by the Houses generally, and may make recommendations thereon to the Commission.
...

 

(f) Without prejudice to the generality of sub-paragraph (d), the Joint sub-Committee may advise, and make recommendations by way of report to, the Commission, on-...

(i) Accommodation and facilities, including...

(III) security and access."

While I fully accept that the sub-Committee has a function in representing the views of members and making recommendations in relation to security and access arrangements for the Houses, the question I must consider is whether the records at issue in this case relate to "business ... conducted or to be conducted by the committee". While the records relate to specific access arrangements, the fact that it is open to the sub-Committee to represent the views of members and make recommendations to the Service on such matters does not, of itself, mean that the records in question relate to business conducted by the sub-Committee or that any and all records relating to such matters relate to business conducted by the sub-Committee.

It seems to me that records relating to business conducted by the sub-Committee would include records such as minutes of Sub-Committee meetings where security and access matters were discussed and records containing details of any recommendations made by the sub-Committee on the matter of security and access. In other words, the records relate to business conducted by the sub-Committee and not solely to matters on which the sub-Committee may represent the views of members and make recommendations. Having regard to the nature of the records at issue in this case, I find that they do not relate to business conducted or to be conducted by the sub-Committee and that they are not captured by the exclusion from the scope of the FOI Act as set out in section 127 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013.

Data Protection Act 1988
The Service's submission also refers to the Data Protection Act as justifying a refusal to release certain records under the FOI Act. However, section 1(5)(a) of the Data Protection Act 1988 (as amended) provides that:-

"A right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997."

Accordingly, I find that the Service is not entitled to refuse to the records at issue solely on the ground that release of the information at issue may otherwise constitute a breach of the Data Protection Act.

Article 15.10 of the Constitution
The Service argues that the FOI Act does not apply to the records at issue as a result of the operation of Article 15.10 of the Constitution. Article 15.10 provides as follows:

''Each House shall make its own rules and standing orders, with power to attach penalties for their infringement, and shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members, and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties.''

 

Section 46(1)(e) of the FOI Act provides that the Act does not apply to "a record relating to any of the private papers (within the meaning of Article 15.10 of the Constitution) of a member of either House of the Oireachtas or an official document of either or both of such Houses that is required by the rules or standing orders of either or both of such Houses to be treated as confidential".

The Service argues that the records at issue are official documents of the Joint sub-Committee on Administration. As I have outlined above, the records at issue do not, in my view, relate to the business of the sub-Committee and I am satisfied that they are not official documents of the sub-Committee. Accordingly, I find that section 46(1)(e) does not apply and that the application of the FOI Act to the records is not excluded as suggested by the Service.

Rotunda Judgment
The Service made various submissions in relation to the effects of the judgment of the Supreme Court in Governors & Guardians of the Hospital for the Relief of Poor Lying in Women v. Information Commissioner [2013] 1 I.R. 1 (Rotunda). In particular, the Service suggested that there are a number of important principles that can be extracted from the judgment of Macken J, including the following:

"f. Where an appropriate person provides proof that the criteria of a section apply, the [Commissioner] cannot reject the conclusions reached by the Service, except in the most exceptional circumstances.
g. What has to be established by the Service in relation to sections 23, 26 and 28 is an opinion criteria, i.e. that in the opinion of the Service the criteria are met." [original emphasis].

Indeed, the Service takes issue with the fact that the Investigating Officer in this case sought to "look behind the opinion of the Service". If the Service is arguing that I must accept, without further scrutiny, a bare assertion by a public body that in its opinion these exemptions apply, then I reject that argument. If I were to accept the Service's argument, then I fail to see how I might be expected to exercise the power, conferred by the Oireachtas, to conduct a proper, independent, review of decisions made by public bodies under the FOI Act. Acceptance of the Service's argument would also render redundant the requirement in section 34(12)(b) of the FOI Act that in a review by me, a decision to refuse to grant a request shall be presumed not to have been justified unless the head shows to my satisfaction that the decision was justified.

It seems to me that the Service's arguments are based on its interpretation of comments made by Macken J in her consideration of section 34(12)(b) in Rotunda. Macken J indicated that it was difficult to see how section 34(12)(b) "would apply to the provisions of ss. 19 to 32, other than the head in question meeting the terms of the various sections". I take this as meaning that the head must satisfy me that the terms of the relevant exemption have been met. Indeed, the Service itself accepts that the "appropriate person" must "provide proof that the criteria of a section apply". This is not the same as suggesting that an opinion formed by the head will suffice in the absence of evidence to suggest that the criteria for the section to apply are met.

While Macken J went on to express a difficulty in seeing how a head goes about justifying a decision to refuse a request, she did so in the context of section 19(1)(a), which is concerned with the protection of certain government records. Even then, she acknowledged that section 34(12)(b) may be "sufficiently satisfied by proof that the record in question is, in fact, one" that meets the relevant criteria of section 19(1)(a). Once again, this is not the same as suggesting that an opinion formed by the head will suffice.

It is noteworthy that many of the exemptions in the FOI Act are harm based exemptions that operate to exempt records where their disclosure would result in the occurrence of a specified type of harm. Section 23, upon which the Service relies to refuse access to certain records in this case, is one such exemption. That section provides that a head may refuse to grant a request where s/he considers that access to the records sought could reasonably be expected to give rise to certain specified harms. In such cases, I expect the body to be able identify the particular harm to the matters specified in the exemption that might arise from disclosure of the records and having identified that harm, to be able to explain why it is considered reasonable to expect that the harm specified will arise.

In certain cases, it will be self evident that a particular exemption applies. Where it is not self-evident, it is entirely appropriate that I should have regard to the provisions of section 34(12)(b) and that my Office would seek to look behind the opinion of the public body. While I fully accept that my Office should show due deference to the views and opinions of public bodies, this does not relieve the body of satisfying me that its decision to refuse access was justified.

Category A Records

Section 23
The Service seeks to rely on sections 23(1)(a)(iii), 23(1)(a)(vii), 23(1)(aa), and 23(1)(c) of the FOI Act. The relevant parts of section 23 provide as follows:

(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice or impair-

iii. lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property

vii. the security of a building or other structure or a vehicle, ship, boat or aircraft,

(aa) endanger the life or safety of any person

(c) facilitate the commission of an offence.

Section 23(1)(a)(iii) is not directly concerned with protecting against the disclosure of information which could be prejudicial to the safety of the public or the safety or security of persons and property. Rather, it is concerned with the protection of lawful methods, systems plans or procedures for ensuring their safety or security. The Service argues that certain security measures are required to minimise risk to the Oireachtas complex or to persons working within the complex. It argues that one of the security measures that has always been in place to minimise any such risks is that the list of persons with access passes to the complex should not be publicly available.

While I express no opinion on its appropriateness or effectiveness, I accept that the Service operates a policy of not disclosing the list of persons with access passes to the complex as one of its measures for ensuring the safety or security of the Oireachtas complex and persons working within the complex. I am also satisfied that the disclosure of the list of such persons could reasonably be expected to prejudice or impair that policy or method. I find, therefore, that section 23(1)(a)(iii) applies

Section 23(1)(a) is subject to section 23(3) which provides that consideration must be given to the possibility that the public interest would, on balance, be better served by the release of the information than by refusing to grant the request. It is important to note that the public interest balancing test in section 23(3) differs from the public interest balancing test which exists in other exemptions in that the test in section 23(3) may be considered only where certain circumstances arise. Those circumstances are where the records disclose that an investigation is not authorised by law or contravenes any law or it contains information concerning the performance by a public body of functions relating to law enforcement or contains information concerning the effectiveness or the merits of any programme for prevention, detection or breaches of the law. I am satisfied that no such circumstances arise in this case and that section 23(3) does not apply to these records.

Having found that section 23(1)(a)(iii) applies, it is not necessary for me to consider the applicability of any of the other exemptions cited by the Service for withholding the records in category A.

Category B Records

The arguments presented by the Service in its submissions in connection with section 23 relate solely to the records in category A. As it has made no arguments for withholding the records in category B under section 23, I do not consider it necessary to consider the applicability of that section to those records. For the avoidance of doubt, however, I would add that had I been required to do so, I would have found that the records in category B were not exempt under section 23.

Section 28
Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information of an individual other than the requester. Section 2 of the FOI Act generally defines "personal information" as information relating to 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.

Section 2 of the FOI Act goes on to specifically deem information in twelve categories to be "personal information", and to exclude information in the following circumstances:-

"in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 aforesaid".

The records at issue comprise extracts from the Visitors Register for the Houses. The register contains details of the visiting individual and his/her address, the date and time of the visit, a pass number which, I understand, is valid for the day, and, in most cases, the name of the member of the House or the political party who signed in the individual. Having carefully examined the records, it is apparent that certain individuals who signed in to the Houses attended in their capacity as officers of public bodies, as defined in the FOI Act, as they have entered their affiliation to the relevant body in the "address" column of the record. Having regard to section 2 of the FOI Act, I find that the information contained in the records relating to these individuals is not personal information for the purposes of the Act, and thus section 28(1) does not apply to these entries.

However, it seems to me that the vast majority of the individuals who attended at the the Houses did so in a personal capacity. I infer that this is the case, as they signed in using a residential address. I am satisfied that these entries comprise personal information of the individuals.

Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual. I am satisfied that the release of the personal information at issue in this case would not benefit the individuals concerned and I find, therefore, that section 28(5)(b) does not apply.

On the matter of where the balance of the public interest lies as provided for in section 28(5)(a), there is a significant public interest in ensuring openness, transparency and accountability of public bodies. On the other hand, the FOI Act itself recognises a public interest in protecting privacy rights. Both the language of section 28 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") recognise this public interest. The right to privacy also has a constitutional dimension. Under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting the right to privacy. In my view the public interest in protecting the right to privacy is a strong public interest.

In this case, I fail to see how disclosing the fact that certain individuals visited certain members of the Houses in a personal capacity would increase openness, transparency or accountability to the extent that it would outweigh, on balance, the privacy rights of those individuals. Accordingly, I find that entries in the Visitors Register that relate to individuals who attended at the the Houses in a personal capacity are exempt from release under section 28(1) of the FOI Act.

There remain certain other individuals who signed in to the Houses citing as their addresses entities including trade unions, representative bodies, non-governmental organisations, or private companies. It seems to me that such individuals should not be regarded as having attended in a personal capacity. In my view, it is reasonable to assume that such individuals attended as representatives of the particular entities identified in the Register.

It does not seem to me that these entries comprise personal information relating to the individuals concerned. While I note that the FOI Act states at section 2 that information "relating to the employment" of an individual is personal information for the purposes of the Act, it is not clear that the disclosure of the records at issue would disclose such information. In my view, disclosure of the records would do no more than indicate that a certain individual visited the Houses as a representative of a particular entity. Even if I accepted that disclosure of personal information was involved, I fail to see how such disclosure might infringe to any extent on the privacy rights of the individuals concerned.

In any event, even if I were to find the information to be personal information, which I do not, the public interest balancing test, as set out earlier in this decision, would need to be considered. Having carefully examined the relevant entries, it is reasonable to conclude, in my view, that most if not all of these individuals were engaged in lobbying activities, in one way or another. I note that the Regulation of Lobbying Act 2015 recognises, at section 23(7)(b):

"the public interest in there being an appropriate level of transparency in relation to carrying on lobbying activities and in opening up the carrying on of lobbying activities to public scrutiny."

Given my views as to the lack of infringement on privacy rights, it seems to me that the public interest would, on balance, be better served by the release of the information. Having carefully considered the matter, I am satisfied that section 28(1) of the FOI Act does not apply to entries where the individuals in question have identified themselves to the Service as entering the Houses in a representative capacity.

It should be noted that, in certain instances, persons having identified themselves as representatives of particular organisations were not signed in by a member of the Houses. These entries are outside scope of the applicant's request. In other cases, the entries are scarcely legible, or it is unclear as to whether a person has identified themselves in a representative capacity. In such circumstances, I am satisfied that it is appropriate, having made reasonable effort to verify the content of the entry, for example by way of a brief internet search, to assume that it relates to an individual in their personal capacity, as these entries form the vast majority of the content of the records. Accordingly, such entries should not be released.

Section 26(1)(a)
As I have found the vast majority of the entries to the Visitors Register to be exempt from release under section 28, it is not necessary for me to consider the applicability of any other exemption cited by the Service for withholding such information. However, as I have also found that certain entries where the individuals in question have identified themselves to the Service as entering the Houses in a representative capacity or in their capacity as officers of public bodies are not exempt from release under section 28, I will now proceed to consider the Service's arguments that such information is exempt from release under section 26.

Section 26(1)(a) of the FOI Act provides for the mandatory refusal of a record containing information:

  • given to a public body in confidence; and
  • on the understanding that it would be treated by it as confidential; 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.

 

Each of the four criteria must be satisfied for this exemption to apply. Section 26(2) states that the exemptions at section 26(1) do not apply to records prepared by a member of staff of or contractor to a public body unless the duty of confidentiality is owed to a person other than an employee of or contractor to a public body. In addition, section 26(3) provides that section 26(1) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request.

It is clear that, by virtue of section 26(2), the information in the Register relating to staff members of public bodies is not exempt under section 26(1). In relation to individuals who signed in as representatives, the circumstances under which the information was given was in the context of gaining admittance to a public building to meet public representatives. Having carefully considered the matter, I am not satisfied that individuals submitting their names on entry to the Houses who appear to have been visiting in a representative capacity on behalf of identified entities gave this information to the Service in confidence, nor am I satisfied that the information was given on the understanding that it would be treated as confidential. Moreover, I do not accept that the disclosure of the fact that certain persons signed in to the Houses in a representative capacity would be likely to prejudice further similar persons signing in to the Houses in the future, particularly given that signing in to the Houses is a prerequisite to gaining admittance. I therefore find that section 26(1)(a) does not apply to this information.

In summary, therefore, having regard to the provisions of section 34(12)(b) of the FOI Act, I find that the Service has not justified its decision to refuse access to the details of those individuals who identified themselves to the Service as entering the Houses in a representative capacity or as members of a public body. For the sake of clarity, I find that the entries falling to be released are as follows:

Enquiries Reception Visitors Badge (Blue), pass numbers: 182339, 182340, 182341, 182345, 182346, 182347, 182348, 182349, 182350, 182361, 182364, 182382, 182383, 182384, 182385, 182386, 182387, 182402, 184203, 182404, 182408, 182438, 182440, 182466, 182467, 182468, 182469, 182489, 182493, 182494, 182496, 182530, 182543 182544, 182545, 182546, 182551, 182571, 182572, 182594, 182595, 182628.

LH2000 Visitors Badge (Blue), pass numbers: 185655, 185676, 185678, 185683, 185721, 185729, 185731, 185733, 185737, 185739, 185740, 185742, 185743, 185774, 185775, 185784, 185788, 185789, 185790, 185791, 185792, 185794, 185796, 185805, 185810, 185811, 185812, 185822, 185823, 185824, 185825, 185826, 185839, 185840, 185842, 185843, 185844, 185845, 185847, 185848, 185855, 185857, 185859, 185894, 185906, 185928, 185929, 185930, 185939, 185940.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Service and direct the release of information relating to individuals who were signed in to the Houses either in their capacity as public servants or in a representative capacity, by a TD or Senator.

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.


Peter Tyndall
Information Commissioner