Case number: OIC-127195-C1J7S9, OIC-127197-D4L9S8
10 November 2022
This decision relates to two requests for records relating to allowances paid to a particular grade within the Irish Coast Guard. The applicant is a staff member at the relevant grade.
In a request dated 10 June 2022, the applicant sought access to the total amount paid to staff within the Irish Coast Guard, at the grade of Coastal Unit Sector Manager, for the ‘on-call allowance’ for the period 1 October 2009 to 31 December 2017. That request was processed by the Department under case reference TRA-FOI-2022-0119.
On the same date, the applicant also sought access to the total amount paid to staff within the Irish Coast Guard, at the grade of Coastal Unit Sector Manager, for the ‘shift allowance’ for the period 1 October 2009 to 31 December 2017. That request was processed by the Department under case reference TRA-FOI-2022-0120.
The Department issued decisions on both requests on 7 July 2022. The Department provided the applicant with the total payment which he received for the on-call and shift allowance respectively for the period in question. In both cases it indicated that it could not provide any pay information for other Coastal Unit Sector Managers as this was their personal information.
The applicant appealed both decisions and on 9 August 2022 the internal reviewer in both matters issued her decisions which upheld the original decisions.
On 12 August 2022, the applicant applied to this Office for a review of the Departments’ decisions.
I have now completed my reviews in accordance with section 22(2) of the FOI Act. In carrying out my reviews, I have had regard to the correspondence between the applicant and the Department as set out above and to the correspondence between this Office and both parties on the matter. I have also had regard to the contents of the records concerned. Given the clear overlap between the two cases I have decided to issue a formal, binding decision covering both cases.
The scope of this review is solely concerned with whether the Department was justified in refusing access to information relating to the total amounts paid to staff at the grade of Coastal Unit Sector Manager for the on-call allowance and shift allowance for the period 1 October 2009 to 31 December 2017 on the basis of section 37(1) of the FOI Act.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information relating to an individual or individuals other than the requester.
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(ii) information relating to the financial affairs of the individual’’.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph (I) provides that where the individual is or was a staff member, the definition does not include 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 those functions.
Paragraph (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at Paragraph (I) does not deprive staff members in FOI bodies of the right to privacy generally.
In its submission to this Office the Department argued that the number of individuals at the relevant grade; i.e. Coastal Unit Sector Manager, for the period in question was such that release of the information at issue would constitute the disclosure of personal information relating to these individuals. More particularly, the Department argued that at no point from October 2009 to 31 December 2017 were more than three staff members serving at the relevant grade, one being the applicant. The Department therefore concluded that the number of individuals was not of a sufficient quantity to ensure the anonymity of all individuals.
In his appeal to this Office the applicant emphasised that he was not seeking a breakdown of allowances paid to individuals but was rather seeking a global figure for the amount paid for each allowance for the period in question. The applicant indicated that as the allowances had been paid to four individuals in total over the period in question, one being himself, then it was not possible for the relevant information to disclose the personal information of other individuals.
Having carefully considered the matter, I am satisfied that the release of the information at issue would disclose the personal information of individuals other than the applicant and that section 37(1) applies to the information. I am satisfied that given the small group of individuals occupying the relevant grade, and the fact that the applicant as a member of this group is aware of the amounts received by him under each allowance, that release of the relevant information would disclose financial details of other staff members. Accordingly, I am satisfied that section 37(1) applies to the information.
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case.
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates. I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
In carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies.
However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.
Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner  IESC 26 ("the Rotunda Hospital case") in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.
On the matter of the applicability of section 37(5)(a), the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 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). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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 privacy.
Having examined the records at issue, and having regard to the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the Act places no constraints on the uses to which the information contained in those records may be put, I find no relevant public interest in granting access to the records at issue that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates.
I find, therefore, that the Department was justified, under section 37(1) of the Act, in refusing access to information relating to the total amounts paid to staff at the grade of Coastal Unit Sector Manager for the on-call allowance and shift allowance for the period 1 October 2009 to 31 December 2017 on the basis of section 37(1) of the FOI Act.
Having carried out reviews under section 22(2) of the FOI Act, I hereby affirm the Departments’ decisions.
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.