Case number: 98092
Case 98092. Names and addresses of signatories to letter of objection - whether information given in confidence -section 26 - whether personal information - whether section 28 applied.
The requester sought access to a letter which had been sent to the Department and which contained objections to the payment of a grant to him. The Department granted the requester access to the contents of the letter but refused access to the names and addresses of the signatories to the letter and invoked exemptions under section 26(1)(a) and section 28 of the Act.
The Commissioner found that there was nothing to suggest that the information (both the contents of the letter and the identities of the authors) was supplied to the Department in confidence. He found that it was supplied on the basis that it would be acted upon. He decided that the conditions in section 26(1)(a) had not been met.
The Commissioner found that the signatories were acting in a representative capacity for certain angling clubs and not in a personal capacity. He found that the views expressed in the letter did not constitute personal information about the signatories but fell within exception III of the definition of personal information in section 2(1) of the Act. The Commissioner found that it was not necessary for the purpose of the decision to decide whether the actual signature of a person was personal information about that person as the requester only sought the names and addresses of the signatories, not their signatures. The Commissioner decided that access should be granted to the names and addresses of the signatories to the letter.
Date of Decision: 20.01.1999
Mr AAW was approved by the Department of Agriculture and Food for grant aid for an investment under the Alternative Enterprise Scheme (AES). Mr AAW's grant aid concerned the fencing of land for deer. When the work was completed, Mr AAW was informed by a Department official that a written objection dated 19 December 1996 had been received in relation to the payment of grant aid to him, due to the fact that the area of land being fenced included a right-of-way leading to a river. Mr AAW was advised by the Department to move the fence from the right-of-way so as to enable payment of the appropriate grant. Mr AAW moved the fence as advised and received his grant aid.
On 22 April 1998, Mr AAW applied to the Department for access to the letter submitted to the Department which objected to this grant aid being paid due to the right of way being fenced off.
The initial decision maker wrote to two of the four signatories to this letter at their respective clubs' addresses on 1 May 1998, informing them that a request had been received concerning the letter of objection and submissions were sought. The initial decision maker also asked that the letter be brought to the attention of two other people who signed the letter of objection, as they could not be contacted. A copy of section 26 of the Act was included.
On 8 June 1998, the initial decision was communicated to Mr AAW. This decision granted access to the text of the record but withheld the names and addresses of the signatories. Exemption in respect of the names and addresses of the signatories was claimed under section 26(1)(a) and section 28 of the Freedom of Information Act. It is assumed that, in releasing the text of the record, the Department took the view that the record related to personal information about Mr AAW.
Mr AAW appealed the initial decision to the Department on 25 June 1998. In his request for internal review, Mr AAW said 'I would like to receive the names and addresses of the signatories'. Following internal review, a decision was made on 17 July 1998 to affirm the original decision to withhold the names and addresses of the signatories pursuant to section 26(1)(a) and section 28 of the Act.
On 24 September 1998, Mr AAW wrote to this Office appealing the decision of the Department not to grant him access to the names and addresses of the signatories to the letter of objection to the payment of his AES grant.
Both the Department and Mr AAW were invited to make submissions with regard to this case.
Submission received from Mr AAW
Mr AAW telephoned this Office in response to the letter he received from the Office inviting him to make a submission. Mr AAW felt that if the matter was investigated, it may be discovered that the persons who made the complaint may have something to do with angling/fisheries as anglers now lease the river from the owner. The anglers have turned the river into a commercial venture. Mr AAW has since sold his interest in the property.
On 9 October 1998 Mr AAW forwarded a written submission to this Office. He said that when he purchased his farm in 1995 he was aware that there was a private right-of-way on the land. Mr AAW consulted with the owner of the right of way about his decision to erect deer fencing around the perimeter leaving access at both ends of the right-of-way. The day after Mr AAW had received his grant approval he was informed that he would have to move the fence from the right of way in order to receive his grant. Mr AAW called to the local Department office but was told that the objection came through head office and as a result, nothing could be done for him. Mr AAW was relying on the grant as he had borrowed to finance the work carried out. He was then forced to sell the property containing the private right-of-way at a low price. Mr AAW moved the fence and was paid the grant due.
Concluding Mr AAW said "I purchased this farm on the basis of rearing my young family. This was a new enterprise for me and I put everything I had into it. I feel a great injustice has been done to me. I have suffered financial loss and to conclude, I want to know why my grant was stopped. I also request the names and addresses of the signatories".
Submission received from the Department of Agriculture and Food
The Department made a submission to this Office. The Department said 'In the absence of any formal agreement from the third parties involved and in considering the application of section 26(1)(a) to the record in question the Department considered two separate matters viz. (i) information relating to the identity of the informants and (ii) information consisting of the actual contents of the allegation'.
The Department accepts that the information contained in the record could lead to the identification of the source of the information. It decided that the contents contained nothing which the signatories would not want revealed to Mr AAW. With regard to section 26(3) the Department decided that in this case 'the public interest in withholding the names of the signatories outweighs the public interest in Mr AAW being given information which would identify the individuals who made the complaint about him'. The Department is of the opinion that the 'release of the names could have led to a conflict between Mr AAW and club members'. However, the Department does accept that the record indicates that the complaint was received from clubs which had already approached Mr AAW with a view to discussing the problem.
The Department makes no reference in its submission to the exemption claimed under section 28 in its original decision and decision on review.
In its decisions the Department relies on the exemptions set out in sections 26(1)(a) and 28.
Section 26 relates to information obtained in confidence. Section 26(1) provides that a request can be refused if:
'(a) the record concerned contains information given to the public body concerned 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 the Schedule) or otherwise by law'.
For section 26(1)(a) to apply, it is necessary for the Department to show four things, viz.
This application for review concerns information relating to the identity of the objectors.
There is no mention on the file or in the letter that the letter was being submitted on the basis that the names of the signatories contained in it be kept confidential. From reading the text of the letter alone, one could certainly identify that the objectors were angling clubs, especially as it is clear that the letter was received from clubs and mentions that anglers would be prevented from 'gaining access to the river'. The Department agrees that the information contained in the record 'would lead to the identification of the source of the information - the various signatures on the record'. The letter also mentions that 'Mr AAW has turned down a request from the clubs to meet him for a discussion on the problem' - presumably somebody has already approached Mr AAW on behalf of the clubs and thus it may be relatively easy for Mr AAW to identify the clubs involved.
However, the fact that the Department, by releasing the contents of the record, has given a good general indication of the source of the record does not resolve the matter. As I have indicated, section 26(1)(a) can only apply if the four conditions set out above are met. There is nothing to suggest that the information was supplied to the Department in confidence. It appears to have been supplied on the basis that it would be acted upon. There is nothing to suggest that the names of those supplying the information should be withheld. In coming to this conclusion I have had regard to both the contents of the record and the circumstances in which it was created. The circumstances are that there was a dispute between Mr AAW and the objectors. The latter wrote to the Department about the subject matter of the dispute, and urged the Department not to pay a grant to Mr AAW. I think that it is fair to assume that they did this because they thought that the threat of non-payment of the grant might encourage Mr. AAW to listen to their objections. In these circumstances, I do not accept that it can be said that both the Department and the objectors intended to keep the contents of the letter or the identities of the authors confidential.
While I consider that the receipt of information by the Department such as that supplied is important I am not satisfied that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same group of people. I do not find that the conditions necessary in order for section 26(1)(a) to apply have been met. I do not find that the names of the signatories to this record or their addresses were given in confidence to the Department.
With regard to the Department's claim in its two decisions (but not in its submission) that section 28 applies in this case, I do not agree that the names and addresses of the signatories to the letter are personal information about those signing it. In fact, the text of the letter, which has already been released to the requester, clearly states that the signatories have been 'authorised by the above-named Clubs...' and continues on to say that the erection of a fence around the field containing the right-of-way prevents 'anglers from gaining access to the river'. It is clear that the signatories were acting in a representative capacity for the clubs and not in a personal capacity.
Release of the names of the signatories and addresses of the clubs would give the requester the following information. Firstly, it would inform him that the individuals involved are secretaries of the named clubs. Secondly, it would inform him that the individuals in their representative capacities signed the letter. The fact that someone is a secretary of a club or signed a letter in that capacity is not personal information within the meaning of section 2 of the FOI Act as it is not information known only to the individual, his/her family and friends nor is it information held by a public body on the understanding that it would be treated as confidential. Thirdly, it would inform him that those four clubs made the objection about the fencing off of a right of way and asked the Department not to pay a grant. It is clear that the views expressed in the letter constitute personal information about Mr AAW. However, they do not constitute personal information about the signatories - the views expressed clearly fall within the scope of exception III of the definition of personal information in section 2(1) of the Act. In other words the contents of the letter are the views of the authors in relation to the business of the public body in its dealings with Mr AAW.
I therefore find that subject to the point below the record concerned does not contain personal information about the signatories.
In his application for internal review and his application to this Office, Mr AAW sought the names and addresses of the signatories to the letter in question. There is a question in my mind as to whether the actual signature of a person may be personal information about the signatory. However, I believe it is clear from the way Mr AAW framed his request for review that he was not looking for the signatures of the persons who signed the letter. He was only looking for the names and addresses of the signatories. I have decided that he should be furnished with the names and addresses of the persons who signed the letter. It is not necessary for the purpose of this decision to decide whether the actual signature of a person is personal information about that person.
I annul the decision of the Department to withhold the names and addresses of the signatories. I have decided that Mr AAW should be given the names of the signatories and the clubs which they represent as I find that this information was not given in confidence and does not amount to personal information about the signatories.
20 January 1999