Case number: 99168
Details of expenses paid to members of the Houses of the Oireachtas - whether personal information about the members - application of section 28 - consideration of the public interest - section 28(5) - whether records of expense payments are official records of the Houses of the Oireachtas or private papers of the members.
The requester sought access to the total expenses paid to each member of the Houses of the Oireachtas in relation to travel expenses, telephone and postage expenses, secretarial and office administration expenses and all other expenses paid since April 1998. The Office of the Houses of the Oireachtas decided that certain records containing details of payments to meet official travel expenses, Oireachtas attendance allowances and mileage expenses, telemessage arrears payments, mobile phone expenses for certain office holders, constituency telephone allowance, constituency office grant and constituency office maintenance allowance contained personal information about the members of the Oireachtas. Following consultation in accordance with section 29 of the Act, the Office of the Houses of the Oireachtas decided that the public interest favoured disclosure of the detailed amounts paid in expenses but that the privacy rights of the members outweighed the right of access to the names of the individual members in association with the amounts paid.
The Commissioner decided to vary the decision of the Office of the Houses of the Oireachtas and to direct that the identities of the individual claimants in the records already released be disclosed to the requester. He found that there was an understanding with the members that details of their expenses would be treated as confidential and that details of expenses were personal information about the members. He decided that the public interest in ensuring accountability for the use of public funds greatly outweighed any right to privacy which the members might enjoy in relation to details of their expenses claims. He suggested that these records could neither be considered "private papers of the members "nor" official documents of the Houses".
Mr Richard Oakley applied to the Office of the Houses of the Oireachtas (the Office) under the Freedom of Information (FOI) Act, 1997 on 12 January 1999 for access to the following:Travel expenses claimed by each member of the Oireachtas since April 1998.Telephone and postage expenses claimed by each member of the Oireachtas since April 1998.Secretarial and office administration expenses claimed by each member of the Oireachtas since April 1998.All other expenses claimed by each member of the Oireachtas since April 1998.On 21 January 1999, following discussions with the Office, he indicated that he sought the total expenses paid to each member under each heading outlined above rather than a detailed breakdown of those amounts. While differences may arise for a whole variety of reasons, including legitimate mistakes, between the amounts of expenses claimed and of those paid, I am treating the two as synonymous for the purposes of this decision.The Office examined the records relevant to the request and decided that the records fell into two categories. The first category referred to those records which were not considered to relate to personal information of the members on the basis that they contained details of sums payable in fixed amounts in annual or monthly instalments in accordance with statutory instruments and were payable to all members of the Oireachtas. These records contained details of the following types of expenses:Special Secretarial allowance - This allowance is paid automatically in two instalments each year without having to be claimed by members and the amounts are specified in the Act.Expense allowance - The amount of the allowance is specified in the relevant Regulations and the allowance is paid automatically with salary without having to be claimed by members.Constituency travel allowance (paid to TDs only) - The amount of the allowance is specified in the relevant Regulations and the allowance is paid automatically with salary without having to be claimed by members. The second category identified by the Office consisted of those records which it considered related to personal information and covered payments to individual members of the Houses of the Oireachtas in the period April 1998 to 14 January 1999 to meet the following expenses:Official travel expenses (mainly travel expenses arising from the work of committees).Oireachtas attendance allowances and mileage expenses (encompassing daily allowance, overnight allowance and travel expenses incurred in attending Leinster House).Telemessage arrears payments.Mobile telephone expenses [paid in respect of holders of certain offices only - Ceann Comhairle, Leas-Cheann Comhairle, Cathaoirleach, Leas-Chathaoirleach, Party Whips, Leader of the Seanad.
On 28 January 1999 the Office advised Mr Oakley that it considered that the records in the second category contained information which was exempt under section 28(1) of the FOI Act but that the Office was considering release in the public interest. Before doing so, consultation had been undertaken with all the members of the Houses of the Oireachtas in accordance with section 29 of the FOI Act.
Section 29 provides for a consultation procedure where a public body is considering the release of a record to which section 28 applies and where it considers the public interest favours release. It requires that the relevant third parties be notified of the request and of the preliminary views of the public body concerned and that submissions be invited from the third parties within three weeks. The public body is then required to consider the submissions received and make a decision on the matter within two weeks. When the final decision has been made, the third parties are notified of the decision and have a right of appeal to me.
On 11 February 1999 the Office made a decision to grant the requester access to the records detailed in the first category above. In the letter notifying the requester of the decision, he was also advised that a further decision would be made in relation to the records in the second category above.
The members of the Houses of the Oireachtas were consulted in accordance with section 29 on 28 January 1999. A number of submissions were received from the members and a decision on those records to which section 29 applied was made on 9 April 1999. The Office decided that the public interest in disclosing the detailed amounts paid in expenses to individual members outweighed the public interest in non-disclosure of these records. However, it was decided that the privacy rights of the members outweighed the right to have records disclosed with the amounts paid associated with the names of the appropriate individual members.
The requester sought a review of this decision by me on 13 April 1999.
I accepted the application for review and sought submissions from the requester and the Office on 7 May 1999. I also consulted with the Whips/Spokespersons for the various parties and groups in both the Dail and Seanad and invited submissions from them on behalf of the members of the Houses of the Oireachtas. I advised them that, in the event of individual members wishing to make submissions in their own right, any such submissions would also be considered by me in making my decision.
Mr Oakley claimed that expenses paid to named Ministers and Ministers of State were released earlier this year. He said that no attempt was made by the relevant departments to rely on privacy arguments. In addition, the detrimental effects of release mentioned in the decision letter of 9 April (and referred to later in this decision) did not occur in the case of the Ministers/Ministers of State, which, he argued, suggested that such effects were not likely to occur in the case of other members of the Oireachtas.
He pointed out that the Sunday Tribune had sought similar information from local authorities recently and it had not been argued that the privacy rights of elected members outweighed the public interest in the release of the information. He claimed that, before the legislation came into effect, the members of the Oireachtas were informed by the Government that their expenses claims could be sought under the FOI Act. He argued therefore that section 28(2)(d) of the Act was relevant in allowing disclosure of information in circumstances where the individual was aware that the information belonged to a class of information that would or might be made available to the general public.
He also argued that, as members of the Dail and Seanad were public representatives and the expenses were paid out of public monies, the public had a right to know the identities of those who received payments as well as the amounts the individuals were paid.
The Office did not make a formal submission to me in relation to this case. However the factors which were considered by the Office in reaching its decision were outlined in detail in the notice of the decision to the requester.
Disclosure of the identities of the members was refused in accordance with the provisions of section 28(1) and, following consideration of the public interest as required by section 28(5), it was considered that the right to privacy of members in respect of personal information relating to their financial affairs outweighed any public interest in knowing the identity of the members to whom the amounts were paid.
The following are the findings on material facts taken into account by the Office in reaching its decision:
The following public interest factors were taken into consideration:
During the course of my review, I asked the Office to explain whether it considered that it held details of the expenses claims of members on the understanding that they would be treated as confidential and whether there was any understanding with the members that the information would be treated as confidential apart from a possible assumption on the part of the Office that the practice which existed prior to the enactment of the FOI Act would continue. In reply the Office confirmed that it considers that
"it holds the information in members' claims for expenses on the understanding (i.e. the understanding of members - the subject matter of information) that it would be treated by this Office as confidential. The Office considers that this is the basis on which it held the information concerned prior to and since the commencement of the Act. This consideration by the Office is consistent with the views expressed to it by members both prior to and since the commencement of the Act and with the reasonable expectation on the part of members that this information will be maintained as confidential.
It is the understanding of this Office that the provisions of section 2 (specifically s. 2(1)(I)), as regards the definition of "personal information" are such that, for example, the claims of expenses of a memberof the staffof this body could not be classified as "personal information" and would thus have been specifically made subject to disclosure under the Act. However, the Act makes no similar specific exclusion from the definition of "personal information" of, for example, the claims of expenses of members of the Houses of the Oireachtas whoare clearly notmembers of the staff of this public body. There would therefore have been no basis on which, at the commencement of the Act, the Office would have discontinued any practice or assumption in relation to expenses claims of members of the Houses. Prior to the commencement of the Act the Office sought specific legal advice in relation to the position of such claims vis-à-vis the Act and acted in accordance with that advice following the commencement of the Act."
I received submissions from the Government Chief Whip, the Fine Gael Whip, the Labour Party Whip and the Spokesperson for the Progressive Democrats in the Seanad. These submissions largely made the point that they agreed with the decision of the Office and with the reasons for its decision. In particular the submissions emphasised that:
In addition, some arguments were made which had not been raised in the decision letter of the Office. These were that:
The net result of the decision of the Office in this case is that Mr Oakley has been given a list of the total expenses paid to each member under the various headings but not a corresponding list of names of members. Mr Oakley has asked me to review the decision not to identify the members whose expense details have been released and that is the only matter before me in this review.
It seems to me that the question of whether or not the identities of the individual members should be released raises three separate issues. The first is whether revealing the identities of the members would disclose personal information about them. The second is whether, if identifying the members would disclose personal information about them, the public interest in granting the request outweighs the public interest that the right to privacy of each member should be upheld. The third is whether or not the records concerned are official records of the Houses of the Oireachtas and, by virtue of Article 15.10 of the Constitution, have been "protected" from release, thereby putting them outside the scope of the Act as provided by section 46(1)(e).
The decision of the Office is based on the view that information about the expenses claims at issue in this case is personal information about each claimant. It is clear that the various submissions of the Whips/Spokesmen are based on the same view.
In his written submission to me, however, Mr Oakley said that he did not accept the argument that the information in this case was personal information nor did he accept that the members' right to privacy outweighed the public interest.
The term "personal information" is defined in section 2 of the Act in the following way:
"Personal information" means information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only 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,
and without prejudice to the generality of the foregoing, includes -
........... (ii) information relating to the financial affairs of the individual.........
The definition lists eleven other categories of information which, like (ii) above, are included in the term "personal information". It then provides for three specific exclusions, numbered (I) to (III), of which (I) is relevant to this review and which I quote as follows:
(I) 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.
As a preliminary point I should note that to identify the members in this case would undoubtedly disclose information about them i.e. the information that they were paid certain amounts of money on foot of expenses claims.
It is also clear that, in a general way, this information can be said to be information relating to the financial affairs of those individuals. However, in my view, when considering the application of any one of the examples of "personal information" in paragraphs (i) to (xii) of the definition to any set of facts, regard must be had to the opening words of the definition and to paragraphs (a) and (b) for guidance as to whether or not the particular paragraph applies to the particular information.
I do not think that the information in this case can really be said, in the ordinary course of events, to be known only to the individuals concerned, members of their families or friends. This is because it is information of a kind which did not, for example, come into the hands of the public body concerned by some inadvertent means but rather was always going to be known to both the body and to the individuals. Therefore, paragraph (a) of the definition is not satisfied.
However, arguably, paragraph (b) is satisfied in this case. In the period prior to the enactment of the FOI Act there was a general understanding that much information held by public bodies was held on the basis that it would be treated as confidential, either because of the specific nature of the information or because the public officials holding the information were covered by the provisions of the Official Secrets Act, 1963. I have no doubt but that this general understanding extended to information held by the Office about the expense claims of members. However, the records at issue in this review were created after the commencement of the FOI Act. In the circumstances, one must question whether whatever understanding as to confidentiality which existed prior to the commencement of the FOI Act and which clearly covered records created before that time could continue after the enactment of an Act, which according to its Long Title
is to enable members of the public to obtain access to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies........
In addition, section 48 of the Act specifically amends the Official Secrets Act, 1963.
In saying this I am not suggesting, by any means, that all understandings as to the confidential nature of information which previously existed between public bodies and third parties are called into question by the enactment of the FOI Act. Many, if not all, of the types of information referred to in the list of items (i) to (xii) were understood by the parties to be confidential in the past, not because of the general understanding about the status of information held by the public bodies to which I referred above and the provisions of the Official Secrets Act, 1963, but because society expected (and still expects) these matters to be treated as confidential regardless of whether the party who acquires knowledge of them is a public body, a private institution or another individual. Generally speaking, the enactment of the FOI Act does not affect existing understandings that information about an individual of an essentially private character be treated as confidential.
Information relating to an individual's financial affairs is a case in point. It is normally understood that when an individual discloses details of his/her financial affairs to someone (including a public body), the information will be treated as confidential and will not be disclosed to any other party without his/her permission. As a general proposition I would accept that, when an individual discloses details of his/her financial affairs including details of financial transactions with third parties to a public body, there is an understanding that the information is given in confidence. However, does such an understanding normally exist in relation to the payment of public money to individuals, be they members of the Oireachtas or employees of a public body? It is pertinent to recall at this point that the information at issue in this case concerns amounts paid to individuals to defray expenses incurred by them in discharging their functions as public representatives. The payments do not arise out of some private activities or private aspect of their lives. On this point they can be distinguished from, say, a payment made to a claimant under the Social Welfare Acts, where there is an expenditure of public money but the payment derives from some private aspect of the claimant's life such as family circumstances or inadequacy of means.
It is further the case that other aspects of the financial affairs of the members of the Oireachtas relating to their status as members are not treated as confidential. Details of salaries, allowances and certain fixed expense allowances are not so treated. In the circumstances, I find it difficult to see that it is either necessary or appropriate that particular aspects of the financial affairs of the members, which relate to their duties as public representatives viz. details of variable expenses claimed by them, should be held by the Office on the understanding that they will be treated as confidential.
Nevertheless, the Office has put it to me, and I accept, that there was, and is, an understanding with the members that details of their expenses will be treated as confidential. This understanding is not simply the continuation of the practice which existed prior to the enactment of the FOI Act but is based on a mutual acceptance that details of the expenses of the members is a private matter for each member, deserving of confidential treatment and, even after the enactment of the FOI Act, entitled to such treatment. In the circumstances, I accept that paragraph (b) applies in this case and that, as a consequence, the information sought is personal information about each member.
Before dealing with the question of the public interest, I wish to comment on the significance of the exception provided for in paragraph (I) of the definition. I do so because, in effect, the Office relied on the omission of any mention of the members in paragraph (I) as justification for accepting that the pre-existing understanding as to the confidentiality of the details of members' expenses should continue after the enactment of the FOI Act.
In addition, the Whips made the point to me that there was some significance in the fact that the Act deals with official records of the Oireachtas but does not define members as employees thereby, it could be said, placing "records of members" outside the scope of the Act. I note that the records in this case are not "records of members" but records held by the Office, and, in fact, created by it. However, I assume that the point that is being made is that the Oireachtas saw fit to exclude specifically from the scope of the definition of personal information, details of the terms and conditions subject to which an individual holds office as a director or as a member of staff of a public body. It did not make the same specific exclusion in relation to members of the Houses of the Oireachtas.
I should note at this point that, even if members had been included in the exception provided for in paragraph (I), the specific details of their expenses would have fallen outside the exception, as such details are not included in the expression "terms upon which and subject to which [ an office or position] is held". In my view there is no significance to be attached to the omission of any reference to members of the Houses of the Oireachtas in paragraph (I). There was no need to include reference to the members in paragraph (I) of the definition because the terms upon which and subject to which they hold office are publicly available and could not be personal information by reference to the earlier part of the definition. The same may be true of other public servants in the sense that in many cases their terms of employment are published. However, a public servant's grade or position may not be published in all cases and one effect of the exclusion is to ensure that a public servant could not argue that details of his/her grade or, indeed, anything recorded by him/her in the course of his/her employment was personal information about him/her. A provision of this kind would clearly not be appropriate in the case of members of the Oireachtas. In my view, therefore, the failure to include a reference to members of the Oireachtas in paragraph (I) is of no relevance in considering whether details of payments made to the members in respect of expenses constitute personal information about them.
Having taken the view that the information in this case was personal information about the members, the Office then decided that the provisions of section 28 (1) applied.
Section 28(1) provides that
Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).
Section 28(5) further provides that
Where, as respects 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 to whom 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.
Before dealing with application of section 28(5), I wish to refer to one argument raised by Mr Oakley viz. that section 28(2)(d) applies in this case.
Section 28(2)(d) provides that the prohibition on releasing personal information contained in section 28(1) does not apply where
the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public.
Mr Oakley says that members of the Oireachtas must have been aware that information about their expenses fell into this category. He claims that the members were specifically informed by members of the Government that their expenses claims could be sought under the terms of the FOI Act. Mr Oakley may very well be correct in what he says but, in my opinion, it does not follow that section 28(2)(d) applies. I have been told by the Office, and I accept this to be the case, that it did not inform the members that their claims belonged to a class of information that would or might be made available to the general public. Section 28(2)(d) requires that the individual be informed by the public body or on its behalf that the information would or might be made available to the general public. Since this did not happen in this case, I find that section 28(2)(d) does not apply.
Turning now to the possible application of section 28(5), I will deal first with the members' right to privacy. The Whips, in their submissions, pointed out that the right to privacy is an implied constitutional right and urged me to uphold it in this decision.
In relation to the Constitution, it is true that the Courts have recognised the right of privacy as one of the unenumerated personal rights protected by the Constitution. It is not necessary for me to review the legal authorities on this matter in detail. However, I note that no general test as to the existence of a right of privacy has been developed by the Courts. Instead each claim has been examined by the Courts in the light of the particular facts of the case. In the case of Norris v Attorney General  IR 36 the majority of the Supreme Court held that the State's interest in the general moral well-being of the community enabled it to regulate the field of private morality. It held that the right of privacy can never be absolute. In that case Henchy J, although dissenting from the majority decision, recognised that the right of privacy was subject to limits, stating that:
"[The right of privacy is] a complex of rights, varying in nature, purpose and range, each necessarily a facet of the citizen's core of individuality within the constitutional order .... There are many other aspects of the right of privacy, some yet to be given judicial recognition. It is unnecessary for the purpose of this case to explore them. It is sufficient to say that they would all appear to fall within a secluded area of activity or non-activity which may be claimed as necessary for the expression of an individual personality, for purposes not always necessarily moral or commendable, but meriting recognition in circumstances which do not endanger considerations such as State security, public order or morality, or other essential components of the common good".
The Courts have not, to-date, established that the constitutional right of privacy extends to such matters as details of payments made to a public servant or to a member of the Houses of the Oireachtas out of public money. It has never been suggested that details of the salaries of members of the Oireachtas or public officials were private matters meriting the protection of the Constitution. I have great difficulty in seeing that details of expenses claimed by members of the Oireachtas are any more private than their salaries. In the absence of any judicial direction on the matter I would doubt whether it is open to me to say that the constitutional right of privacy argued for in this particular case does exist.
Furthermore, it seems to me that it would hardly be appropriate to refer to details of expenses incurred by public servants or public representatives in the course of their duties as falling within a "secluded area of activity" referred to by Henchy J. In fact, the reverse is true. It is clear that any right of privacy in this area has to be greatly circumscribed by one essential component of the public good viz. accountability for the use of public funds in a democracy.
There are existing mechanisms designed to ensure accountability in relation to the expenditure of public funds and I make no comment on their adequacy in relation to expenses incurred by members of the Oireachtas. On a general level, I do not accept that the existence of current safeguards in relation to public expenditure means that there is no public interest in creating further safeguards. The very existence of secrecy carries with it the scope for abuse. In contrast, openness in relation to public expenditure is an important additional safeguard against abuses of all kind. I consider that the public interest in openness about public expenditure is of very great significance.
Recent Supreme Court decisions have accepted that the public interest in maintaining the confidentiality of certain private financial transactions can be outweighed by the public good. For example, in National Irish Bank Limited & Another v. Radio Telefis Eireann  2 IR 479, the Supreme Court accepted that information relating to the conduct of the plaintiffs and which concerned an alleged case of serious tax evasion was a matter of genuine interest and importance to the general public and that it was in the public interest that the general public, and not just the relevant regulatory authorities, should be given this information.
In the case of Haughey and Others v. Moriarty and Others [Supreme Court, unreported, 28 July 1998], the Court accepted that an encroachment on the rights of the plaintiff to confidentiality in his banking affairs was outweighed by the exigencies of the common good which required that enquiries, necessary to preserve the purity and integrity of public life, be undertaken.
In its decision, the Office recognised that there could exist a certain public interest in disclosing the identities of the members in this case. These factors were the public interest in the public having access to information, in the accountability of elected representatives, in a free and informed debate on the level of remuneration/expenses paid to elected representatives and in accountability for the use of public funds. However, the Office took the view that all these factors would be satisfied by releasing the detailed figures while preserving each individual member's anonymity.
I agree that the factors identified by the Office are the relevant factors but it seems to me that they are not satisfied by disclosure on an anonymous basis. I take the question of a free and informed debate as an example. The press commentary which followed the release of the anonymous records in April was hardly informed. It was characterised largely by speculation as to who claimed what. In my view this was a distraction which prevented, rather than contributed to, an informed debate. I also do not accept that there is true accountability for the use of public funds where the expense details are released on an anonymous basis. If members of the Oireachtas or senior public officials need only disclose their expenses or remuneration on a group basis then the inevitable result is that real and worthwhile public scrutiny of expenditure is reduced or eliminated.
Both the Houses of the Oireachtas and the Whips/Spokespersons pointed to a number of possible negative consequences to releasing the information sought in this case and I deal with these in turn below. It was argued that release might damage the image of the Oireachtas as an institution in the event of reduced public confidence in the integrity of members. Of course, there is no evidence that release will reduce public confidence in the integrity of members. Even if there were it is difficult to see how such confidence can be preserved, much less enhanced, in a situation where details of the expenses incurred by members are concealed from the public.
It was also argued that the public interest required that members be enabled to discharge their constitutional responsibilities without being put in a position where they are or may be subject to unjust attack for claiming financial entitlements which are theirs as a matter of law. As a further point it was claimed by the Office that comparisons, which could be simplistic and generalised, might be made which would be harmful to some members. There may very well be a public interest in not exposing an individual to the risk of having aspects of his/her private life uncovered and to the risks of having unjust attacks made against him/her which might cause distress and injury to reputation. However, in the present case the information sought is not, as I have pointed out, related to the private business of the parties concerned. Rather, it is related to their roles as public representatives. The payments are made to them in connection with their public duties. This is true regardless of the fact that, technically, the information comes within the definition of "personal information" for the purposes of the FOI Act. It is inevitable that members run the risk of unjust attack in relation to aspects of the performance of their public duties. This is greatly to be regretted but I cannot accept the possibility of unjust attack as reason enough not to disclose information such as that at issue in the present case and which pertains to the business of a public body.
It was also argued that the public may be misled by the records or may equate the level of payment of expenses with individual performances of members. As I have indicated in decision number 98078 (Mr Martin Wall and the Department of Health and Children), I do not accept that the possibility of the public misunderstanding information is, generally speaking, a good cause for refusing access to the records of public bodies. Apart from anything else, such an argument seems to be based on an assumption (which I do not accept) that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.
The point was also made that members might have to release "further" personal information relating to their financial affairs in order to deal with inaccurate public speculation as to their income and to repair perceived damage to their interests. It is not clear to me how or why release of details of expenses could have this effect. All that would be revealed by identifying the members in this case is that individual members were paid amounts, generally in accordance with a published scale, in respect of expenses incurred in the discharge of their duties as public representatives. The amounts paid are not income, so it is not clear why a member might have to reveal details of his/her income derived from sources other than his/her membership of the Oireachtas. It is true that amounts paid in respect of, say, motor mileage expenses, are derived from the actual mileage travelled, a mileage rate which varies with the size of the car engine and the level of the accumulated mileage. Requests for information on the breakdown of the various calculations would have to be dealt with in accordance with the provisions of the Act. I could not accept that the possibility of such requests occurring would justify a refusal of the information now being sought.
I think that it is also relevant to point out that, as matters stand, members are already required by law to disclose significant aspects of their private financial affairs. The Ethics in Public Office Act, 1995 requires members to disclose a wide range of registrable interests. The existence of this requirement is a recognition that the need to preserve and enhance public confidence in the integrity of public office holders can require an encroachment on the privacy of such persons which would be neither necessary nor appropriate in the case of the ordinary citizen.
In the light of the above, it seems to me that the public interest in ensuring accountability for the use of public funds greatly outweighs any right of privacy which the members might enjoy in relation to details of their expenses claims. I would also have to express serious concern that failure to disclose the information in this case would damage public confidence in the integrity of the members. Accordingly, I find that the public interest in release in this case outweighs the public interest that the right of privacy of the members be upheld.
The Whips in their submission made the point there was "some doubt" as to whether the records of members' expenses were official records of the Houses, in which case Article 15.10 of the Constitution might afford them protection. They also pointed out that Article 15.10 provided protection for private papers of the members. Finally, they suggested that the existence of Article 15.10 cast some doubt on the constitutionality of section 46.
Article 15.10 of the Constitution states:
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 protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duty.
Section 46(1)(e) of the 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.
I understand the comments made by the Whips to be made, not as a reliance on the protections of Article 15.10, but more as an expression of the significant public interest in protecting the ability of the Oireachtas to discharge its constitutional functions. All I need say on that point is that I am fully conscious of that public interest. If I thought it were at issue in the present case I would have to accord it the greatest weight in deciding whether the records should be released in this case. However, as will be apparent from my earlier comments, I do not accept that there is any danger to the operation of the Oireachtas arising from the release of the identities of the members in this case.
Without wishing to appear to offer an interpretation of the Constitution - a task which is not within my remit as Information Commissioner - it might be helpful if I were to make the following comments on the terms "official documents of the Houses" and "private papers of its members" - terms which appear in the FOI Act.
The records in this case were created by and are held by a public body, not by the members. In my view, this fact alone makes it difficult to see how they could be private papers of the members. Furthermore, as I have emphasised throughout this decision, the subject matter of the records does not concern the private business of the members or their dealings with constituents or other third parties but relates to the discharge of their public duties as Oireachtas members. In these circumstances I cannot accept that the records come within the term "private papers of its members".
The scope of the phrase "official documents of the Houses" is more difficult. However the case which has been made by the Office and the members is that the subject matter of these records concerns the private business of the members which they are entitled to keep confidential, even as against their fellow members of the Oireachtas. It seems to me that whatever the phrase official documents of the Houses means it could hardly cover records which individual members feel deal solely with their private business and which can properly be concealed from the gaze of other members.
In light of the findings set out above, I have decided to vary the decision of the Office dated 9 April 1999 that disclosure of the identities of the individual claimants in the records already released should not be made and I decide that these identities should now be disclosed to the requester.