Case number: 160462
This review arises from a decision made by Fáilte Ireland to release records following a request to which section 38 of the FOI Act was regarded as applying in part. Section 38 applies to cases where the public body has considered at some stage in the decision-making process that the records in question qualify for exemption under one or more of the relevant exemptions in the FOI Act, but that the records should be released in the public interest. The relevant exemptions are sections 35, 36 and 37, which relate to information that is confidential, commercially sensitive or personal information about third parties, respectively.
Where section 38 applies, the public body is required to notify the affected third parties before making a final decision on whether or not the exemption(s) considered to apply should be overridden in the public interest. The requester or affected parties, on receiving notice of the final decision of the public body, may apply directly to the Office of the Information Commissioner for a review of that decision.
In this case, the request was for access to all records relating to the acceptance by the Dublin Writers Museum (the Museum) of a bust of Bram Stoker by the applicant, a sculptor based in the United States. The applicant had proposed to donate a bronze bust of Bram Stoker to the Museum following a crowdfunding campaign to raise funds for the project. The Museum, which is owned and operated by Fáilte Ireland, agreed to the proposal. Accordingly, the project, including the crowdfunding campaign, was publicly linked to the Museum and a certain designated charity in Ireland that later withdrew its support for the project.
Fáilte Ireland identified three sets of records as relevant to the request, which was received on 16 August 2016. Of these, Fáilte Ireland regarded a set of 22 records of correspondence with the applicant as subject to section 38 on the basis that section 35 may apply. By letter dated 29 August 2016, Fáilte Ireland notified the applicant of its proposed decision to release the 22 records concerned in the public interest, subject to the redaction of personal telephone numbers and personal email addresses contained therein.
In response, the applicant objected to the proposed release, stating that his concern was that the "private, protected and sensitive business correspondence and donation agreement pertaining to the Bram Stoker Bronze Bust Project remain in your confidence as per the confidentiality disclaimer below my signature on all of our correspondence". He acknowledged that any member of the public "with a bona fide FOI request that serves the public interest" could certainly make enquiries, but he indicated that he was aware of the identity of the requester in this case and that he had reason to believe that the request was not made in good faith. He indicated that he has been subjected to a campaign of harassment.
In a decision dated 6 October 2016, Fáilte Ireland granted the request subject to the redaction of the insurance value of the bust and any personal details such as the applicant's personal address, telephone numbers, and personal email address. In its decision letter to the applicant, Fáilte Ireland outlined the requirements of section 35 of the Act and found that the correspondence concerned did not meet all of the necessary conditions for refusal. It also explained that, in the view of the decision maker, the public interest in openness, transparency and accountability outweighed the public interests to be served by withholding access to the records. In addition, it was explained that under the FOI Act public bodies may not consider the motivation of a requester for seeking particular records. The applicant subsequently applied to this Office for a review of Fáilte Ireland's decision.
With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant, and original requester, and Fáilte Ireland. In addition, I have examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
I note that Fáilte Ireland has confirmed that the 22 records of correspondence with the applicant regarding the Bram Stoker Bronze Bust Project are the only records that were subject to the section 38 notification procedure. The other records relevant to the request were not regarded as exempt in the first instance. With limited exceptions not applicable here, there is no right to appeal from a decision to grant a request unless the public body considered, at some stage in the decision-making process, that section 35(3), 36(3), or 37(5)(a) applied, even where the request relates to or affects the interests of a third party. In other words, an affected third party has a right to appeal to the Commissioner in accordance with sections 22(1)(g) and (4)(a) only with respect to information that the public body considered at some stage in the decision-making process to be confidential, commercially sensitive, or personal, but nevertheless considered should be released in the public interest. The two sets of records that were not regarded as exempt in the first instance therefore do not form part of this review.
The records at issue contain the names and contact details of third parties in the United States other than the applicant. Two of the individuals provided references for the applicant and may have been acting on behalf of public institutions in the United States, but their identifying details do not fall within the exclusion to the definition of personal information under section 2 of the FOI Act. The requester has agreed that the identifying details relating to third parties other than the applicant may be excluded from the scope of his request and thus this review. Accordingly, the review in this case is concerned only with the question of whether Fáilte Ireland was justified in granting access to the 22 records of correspondence with the applicant, subject to the redactions specified in its decision and the further redaction of the names and contact details of third parties in the United States other than the applicant.
Section 22(12)(a) of the FOI Act provides that a decision to grant a request to which section 38 applies is presumed to have been justified unless the person concerned shows to the Commissioner's satisfaction that the decision was not justified. This provision has the effect of placing the burden of proof on the applicant for review to show that the records concerned should not be released on the basis of at least one of the relevant exemptions. It should also be noted that a review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.
The applicant's position
The applicant emphasises that all of his emails included a confidentiality notice under his signature "as [the] correspondence was private, privileged and protected as the sensitive nature of [his] business and funding strategies . . . were not to be shared with anyone not directly connected to the [project]". He asserts that the requester has been sending "harassing emails" to those involved in the project and that he may be connected with an individual in Boston, Massachusetts, who raised objections to a previous project involving a bust of Edgar Allen Poe. The applicant also notes that the requester "is not a professional student, scholar or journalist of any sort". He believes that the requester and the individual in Boston wish to defame his reputation and the integrity of his projects. He says that "things got so out of hand" that he has had to take action in the criminal courts in the United States to address the matter.
The applicant also says that, while he fully understands "the need for transparency and accountability for interested parties that have a bona fide reason to make the inquiry for such records that are truly in the public interest", he considers that to release his "private and personal records" regarding the donation of the Bram Stoker bust would result in more "online harassment and stalking" and also run the "very real risk" of the requester attempting to ruin his professional reputation. He notes that the Bram Stoker bust is not a publicly funded work of art but rather "a privately funded work donated" to what he mistakenly describes as a "privately owned museum".
The applicant makes further claims about the requester and his reasons for seeking access to the records concerned. He suggests that the requester was responsible for the decision of the designated charity to withdraw from the project. He also suggests that neither he nor Fáilte Ireland would wish to retain legal counsel to counter any claims that are likely to arise from releasing the "private information and correspondence when the issue can be dealt with quietly at this juncture by simply denying [the] request".
In addition, the applicant has provided documentary support for his claim of harassment. He stresses that the apparent reason for the request is "to defame and libel". He also advises that the release of his correspondence may result in legal action and adverse publicity against Fáilte Ireland.
Fáilte Ireland's position
In its submissions, Fáilte Ireland explains the background to the project and notes that it did not commission the work. It states that it is aware of an alleged campaign by the requester to discredit the applicant, which it regards as "an unfortunate situation", but it also states that neither the Museum nor Fáilte Ireland is a party to it.
Fáilte Ireland further explains: "The records held by the Dublin Writers Museum and Fáilte Ireland relate solely to arrangements for donating the bust of Bram Stoker to the Dublin Writers Museum. [The applicant] planned to have an event to publicise the donation and we would arrange publicity to that effect. We have no reason not to release those records." Fáilte Ireland does not consider that the records of correspondence have the "necessary quality of confidence" for exemption. Fáilte Ireland also does not consider it necessary that further similar information should continue to be given. It says: "In the interests of openness and the transparency of how a public body receives donations a decision was made to release the records. We did not consider that any harm could be caused to [the applicant] by releasing his records due to their subject matter."
The requester's position
The requester emphasises that the project is funded through the crowd-funding model. He refers to previous projects by the applicant involving donations to institutions and says that "[c]entral to all work is the promise to give some of the money he raises to literary charities". He argues that, given the applicant's history, there is a public interest in releasing information about the project.
The request relates to a business proposal made by the applicant to donate a sculpture to the Museum following a crowdfunding campaign that was publicly linked to the Museum, a State-owned body. The project was publicised on the Internet and through social media in posts indicating that the applicant had achieved some level of renown or acclaim in the United States, particularly as a result of previous projects of a similar nature in Providence, Rhode Island, and Boston, Massachusetts. Moreover, the publicity statements included supportive comments by the curator of the Museum. Thus, the project was not by any means a private or confidential matter.
As noted by Fáilte Ireland in its decision letter to the applicant, the correspondence relates to the proposed donation, the agreement on how that would happen, and the future care of the sculpture in the event of the closure of the Museum. While the applicant's correspondence included a confidentiality disclaimer, it is well settled that such labelling is not necessarily sufficient to impose an obligation of confidence on an FOI body. Moreover, the disclaimer is of a type that is automatically appended to the bottom of an email regardless of content. The applicant's objections largely relate to the perceived motivation of the requester in this case, but as indicated by Fáilte Ireland, the actual or perceived motivation for a request must disregarded in deciding whether to grant or refuse a request (section 13(4) of the FOI Act refers). In the circumstances, I am satisfied that Fáilte Ireland was justified in ultimately finding that the records at issue did not qualify for exemption under section 35, 36, or 37 of the FOI Act. In relation to section 35(1)(a) of the FOI Act, I note that information need not necessarily have the "quality of confidence" in order to qualify for exemption, but it is apparent that Fáilte Ireland found no reason to treat the information as confidential and that it is not important to Fáilte Ireland that further similar information should continue to be given to it.
In any event, I note that the applicant entered into a donation agreement with Fáilte Ireland which included as a condition that Fáilte Ireland cooperate in connection with publicity regarding the donation and the bust. Moreover, it is apparent that the Museum's public endorsement of the project was required by the applicant in order for the project to go ahead. Publicity for the project, including in connection to the crowdfunding campaign, included the use of the Museum's name, image, and a quote from its curator. I wish to emphasise that the public interest under FOI does not lie in the actions of private individuals or private business entities. However, the correspondence reflects that the applicant was aware from the outset that the Museum was under the control of Fáilte Ireland. The applicant was expressly advised by the Museum as early as 10 June 2015 that Fáilte Ireland is a publicly funded body. He was subsequently advised by the Museum that Fáilte Ireland is a public body subject to FOI and that any enquiries regarding the bust or the donation agreement would be dealt with under the requirements of the FOI Act. The donation agreement also refers to the provisions of the FOI Act.
I consider that there is a strong public interest in openness and accountability in relation to the involvement of Fáilte Ireland and the Museum in the project. Therefore, even if I were to accept that the records qualified for exemption under section 35, 36, or 37, I would agree with Fáilte Ireland that the public interest would be better served by granting than by refusing the request. In relation to section 37(5)(a), I note again that the records concern a business proposal that was publicised on the Internet and through social media. The proposal was made using the address of the applicant's studio rather than a private address, and information about the applicant's own background and interest in the horror genre, including the previous projects in Providence and Boston, is also readily available from public sources online. Therefore, any intrusion on the applicant's right to privacy arising from the release of the correspondence concerned would be minimal in my view and outweighed by the stronger public interest in openness and accountability in relation to the involvement of Fáilte Ireland and the Museum in the project.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Fáilte Ireland to grant access to the records concerned subject to the redactions specified in its decision and the further redaction of the names and contact details of third parties in the United States other than the applicant.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.