Case number: OIC-108628-V0L3Z7

Whether the OPW was justified in refusing access, under section 37(1) of the Act, to the identities of certain individuals contained in records relating to the purchase of certain properties, on the ground that the withheld information comprises third party personal information

 

OIC-108628-V0L3Z7

 

30 September 2021

 

 

Background

 
The OPW provided the following background information in respect of the request that is the subject of the review in this case. A recent RTÉ Investigates programme, which aired on 1 April 2021, was based on a 2017 report prepared by OPW Valuers entitled “An examination of five completed OPW Property Acquisitions to identify accountability vulnerabilities in the context of non-optimal outcomes”. The cases highlighted in the 2017 Valuers’ Report included the acquisition by the OPW during 2008 to 2010 of the properties at 91-93 Merrion Square and 8 Apartments in Clare Lane, Dublin 2.
 
The OPW purchased 91-93 Merrion Square and a number of apartments in the 8-Apartment block at Clare Lane, Dublin 2 from the Merrion Square Co-ownership Group (MSCO) in 2007/2008. MSCO comprised an individual and two companies limited by guarantee. The acquisition of 91-93 Merrion Square was completed around December 2007 and a number of the apartments were acquired in March 2008. The OPW said that as it was imperative to retain confidentiality around the acquisition of the remaining apartments, it engaged the assistance of MSCO to liaise with the owners. In an effort to reduce the costs of the acquisitions, MSCO was incentivised via an agreement where it would receive 50% of the savings achieved. The acquisition of all of the remaining apartments was completed in mid-2010. The OPW said that as per the agreement, the MSCO was paid 50% of the savings of c.€1m achieved (plus VAT) - €550k – on completion of the acquisitions in 2010.
 
In a request dated 17 April 2021, the applicant sought access to;
 
• copies of any contract documents between the OPW and MSCO with regard to the purchase of a number of properties in Dublin 2. 
• copies of any invoices/receipts/payment notes/purchase orders associated with MSCO and the purchase of a number of properties in Dublin 2. 
 
In a decision dated 17 May 2021, the OPW part-granted the applicant’s request. It refused access to parts of the records sought under section 37 of the FOI Act, which is concerned with the protection of third party personal information. On 18 May 2021, the applicant sought an internal review of that decision, wherein he contended that the OPW incorrectly redacted the names of government officials and the name of one of the parties involved in the contractual arrangement for the purchase of the Merrion Square properties. On 2 June 2021, the OPW affirmed its original decision, following which the applicant sought a review by this Office of the OPW’s decision.
 
I have now completed my review in this case. I have decided to bring the case to a close by way of a formal, binding decision. In conducting the review, I have had regard to the correspondence between the applicant and the OPW as outlined above and to the communications between this Office and both the applicant and the OPW on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the OPW in the schedule of records it prepared when processing the request.
 
 

Scope of the Review

 
This review is concerned solely with whether the OPW was justified in redacting certain information from the records at issue pursuant to section 37 of the FOI Act.
 
During the course of the review it came to light that due to a scanning error, the OPW failed to release certain pages from records 13, 16, 19 and 20 that it had intended for release. The OPW informed this Office that it is prepared to release the missing pages to the applicant, subject to the redaction of certain information from page number 238 of Record 19. The redacted information comprises the signature of an individual. While it appears that the OPW’s intention in making the redaction is to withhold the identity of the individual in question, it also appears that the OPW has inadvertently failed to redact the name of that individual that is contained elsewhere on the page. As such, I will also consider whether the OPW was justified in redacting the identity of the individual from all parts of the page in question, under section 37. 
 
 

Analysis and Findings

 
Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the records sought would involve the disclosure of personal information relating to individuals other than the requester.
 
Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by the body as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual and (xiii) information relating to property of the individual (including the nature of the individual’s title to any property).
 
Pursuant to the findings of the Supreme court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner [2011] IESC 26 (more commonly referred to as "the Rotunda Hospital case"), it is important to note that  paragraphs (a) and (b) of the definition of personal information are not overarching prior requirements and that information falling into any of the categories set out at (i) to (xiv) constitutes personal information, even if neither of the requirements of paragraphs (a) or (b) are satisfied. 
 
Certain information is excluded from the definition of personal information. The Act provides that personal information does not include:
 
(I) in a case where the individual holds or held—
(A) office as a director of, 
(B) a position as a member of the staff of, or
(C) any other office, or any other position, remunerated from public funds in,
 
an FOI 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,
 
(II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service.
 
In its submissions to this Office, the OPW said that the information is held by the OPW because it relates to Contracts for Sale for the properties bought by the OPW during the years 2008 to 2010. It said the parties involved are:
 
i. solicitors representing the owners of the properties,
ii. the persons negotiating on behalf of the OPW at the time – MSCO
iii. a former deceased senior Civil Servant who authorised the sale and monies transferring
iv. retired Civil Servants who were involved in the acquisition and payments process, who are now private individuals
v. the owners of the properties sold to the OPW, who are private individuals
vi. employees of the OPW who are still in the employ of the OPW. 
 
The OPW argued that the disclosure of the names of the parties involved would involve the disclosure of personal information relating to those individuals. It said that, given the nature of the programme aired and the follow up information sought by the requester, it had concerns in relation to personal rights and any impact on those rights that may arise in the release of personal data. In relation to MSCO, the OPW said that the individual whose name was redacted is one of three partners of the Co-Ownership – the other two being companies limited by guarantee. It said the Group was the service provider, not the individual.
 
I am satisfied that the disclosure of (i) the identities of the individuals who sold their properties and (ii) the identities of their representing solicitors, would involve the disclosure of personal information relating to those parties and that section 37(1) applies.
 
On the matter of the redaction of the identities of current and former civil servants from the records at issue, it is quite disappointing to note that a public body that has been subject to the FOI regime since its establishment would continue to argue that such information is personal information for the purposes of the FOI Act. The exclusion at Paragraph (I) to the definition of personal information makes it quite clear that the names of individuals who hold or held positions as staff members of public bodies is not personal information. While I fully accept that the exclusion does not deprive public servants of the right to privacy generally, it is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. Having regard to the nature of the records at issue in this case, I find that section 37(1) does not apply to the names of current or former civil servants that have been redacted from the records. I expect the OPW to bring this finding to the attention of its FOI decision makers to avoid similar issues arising in the future.
 
I note that the OPW said in its submissions that it is conscious of the need to protect personal data in line with the General Data Protection Regulation (GDPR). This Office has commented on the interplay between data protection legislation and the FOI Act in a number of past decisions. For the benefit of the OPW, I repeat that comment here.
 
Article 86 of the GDPR provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the Regulation. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86, personal data contained in a record may be disclosed where a request for access to a record is granted under and in accordance with the FOI Act 2014 pursuant to an FOI request.
 
Data protection legislation does not prohibit public bodies from processing FOI requests where the records sought contain personal information relating to individuals other than the requester, nor does it serve to override the exclusions to the definition of personal information in the FOI Act. The FOI Act is entirely independent of data protection legislation and requests made under the FOI Act for access to records must be processed in accordance with the provisions of the FOI Act.
 
On the matter of the redaction of the name of the individual who is one of the partners of MSCO, I note that the exclusion at Paragraph (II) provides that personal information does not include the name of the individual who is or was a service provider. It seems to me that the exclusion is of relevance where the service provider is an identifiable individual and that the effect of the exclusion is that section 37 cannot be used to protect his or her identity as a service provider. However, having regard to the definition of personal information, it also seems to me that that the term applies only to information about an identifiable individual, meaning a natural person as opposed to a legal person such as a company. For example, I do not accept that the exclusion serves to exclude the names of company directors or shareholders or the staff members of such companies from the definition of personal information. Having regard to the OPW’s submissions and to the contents of the records at issue, I accept that the service provider in this case was MSCO. As such, I find that section 37(1) applies to the name of the individual who is one of the partners of MSCO and to the names of the directors of the other partners of MSCO that were redacted from the records at issue.
 
In summary, therefore, I find that section 37(1) does not apply to the identities of current or former civil servants that has been redacted from the records at issue and I direct the release of that information. I find that section 37(1) applies to the remainder of the redacted information.
 
However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. Section 37(2) outlines a number of other circumstances where section 37(1) does not apply. I am satisfied that no such circumstances arise in this case.
 
Section 37(5) 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 benefit the person to whom the information relates. As no evidence has been presented to this Office to suggest that the release of the information at issue would benefit the individual(s) concerned, I find that section 37(5)(b) does not apply.
 
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in the Rotunda Hospital case cited above. It is noted that a public interest (“a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law”) should be distinguished from a private interest.
 
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have also had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 5. In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.
 
While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, I consider them to be relevant to the consideration of public interest tests generally. 
 
In his application to this Office, the applicant argued that the purchase of the properties in question has been raised by whistle blowers within the OPW who have raised serious questions over value for money for the taxpayer arising from the deal. He argued that a very considerable amount of public funds was spent on the properties and that they are now being used for purposes other than their intended use. He alleged that the arrangement was highly unorthodox. He argued that the records released present an incomplete picture of what happened, and require the names of individuals to give the full context/history of what happened. 
 
The question I must consider is whether, on balance, the public interest in granting access to any or all of the information to which I have found section 37(1) to apply, namely the identities of the individuals who sold their properties and their representing solicitors, the identity of the individual who is a partner of MSCO, or the identities of the directors of the other partners of MSCO, outweighs the public interest in protecting the privacy rights of the individuals concerned. 
 
In my view, it does not. It is worth stating that as a general principle, the purpose of the FOI Act is to achieve greater openness and accountability in the activities of public bodies. It was not designed as a means by which the operations of private enterprises or individuals were to be opened up to similar scrutiny. The OPW released the vast majority of the information contained in the records at issue in this case, including details of the arrangement it entered into with MSCO for the purchase of the properties at issue and the fee paid to MSCO for this service. In doing so, it seems to me that the OPW sought to strike a balance between providing access to the information sought to the greatest extent possible whilst seeking to protect third party privacy rights.  
 
It is also worth stating that both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Unlike other public interest tests provided for in the FOI Act, there is also 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. Moreover, it is important to note that the release of information under the FOI Act is, in effect, regarded as release to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put. 
 
Having regard to the nature of the information at issue, and given the strong public interest in protecting the right to privacy, I find no relevant public interest in granting access to the withheld information that, on balance, outweighs the right to privacy of the individuals to whom the information in question relates. I find therefore, that section 37(5)(a) does not apply.
 
 

Decision

 
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the OPW in this case. While I find that it was justified in redacting, under section 37(1) of the Act, the identities of the individuals who sold their properties and their representing solicitors, the identity of the individual who is a partner of MSCO, and the identities of the directors of the other partners of MSCO, I find that it was not justified in redacting the identities of current and former civil servants and I direct the release of that information.
 
 

Right of Appeal

 
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
 
 
 

Stephen Rafferty

Senior Investigator