Decision
Mr A. and Department of Public Expenditure, NDP, Delivery and Reform
From Office of the Information Commissioner (OIC)
Case number: OIC-150871-V9Y7D5
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150871-V9Y7D5
Published on
Whether the Department was justified in refusing access to records relating to the Senior Post Remuneration Committee (SPRC) under sections 29(1)(a), 30(1), 35(1)(a), 36(1)(b) and36(1)(c) of the FOI Act
30 June 2025
In a request dated 9 May 2024, the applicant made a 2-part request to the Department seeking (i) access to correspondence between the Minister for Public Expenditure and the Chair of the Senior Post Remuneration Committee (SPRC) since 1 March 2024 and (ii) the terms of reference of the SPRC and any briefing or advisory material provided to its members by the Department. By way of background, the SPRC was established in 2024 to provide objective and independent advice to the Minister regarding the remuneration of senior roles in the Public Service. The SPRC commenced a review of the remuneration of Chief Executive Officers (CEOs) of Commercial State Bodies (CSBs) in April 2024, phase 1 of which was completed in March 2025 and published in April 2025.
The Department identified 4 records as falling within the scope of the request and in a decision dated 31 May 2024, it part granted the request. Record 1 was released in full. Record 2 was withheld under sections 29(1) and 30(1) of the Act, record 3 was withheld under section 29(1), while record 4 was withheld under sections 29(1), 35(1)(a), 36(1)(b), and 36(1)(c). The applicant applied for an internal review of that decision on 19 June 2024, following which the Department varied its decision and granted partial access to record 2. On 30 July 2024, the applicant applied to this Office for a review of the Department’s decision.
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 applicant’s comments in his application for review and to the submissions made by the Department in support of its decision. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in refusing access, in whole or in part, to records 2, 3 and 4 under sections 29(1)(a), 30(1), 35(1), 36(1)(b, and/or 36(1)(c) of the FOI Act.
Before I address the substantive matters arising in this case, I wish to make a number of preliminary comments. First, it is important to note a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision.
Secondly, section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. In this case therefore, the onus is on the Department to satisfy this Office that its decision to refuse to grant access to the records was justified.
Finally, it is relevant to note that the SPRC published Phase 1 of its review on 29 April 2025. This Office contacted the Department to seek an update of its position regarding the exemptions relied upon to refuse access to the records at issue. The Department confirmed that it is continuing to rely on sections 29(1)(a), 30(1), 35(1), 36(1)(b) and 36(1)(c) to refuse access to records 2, 3 and 4 stating it would be inappropriate to disclose at this stage any details of an approach to decisions which may have a bearing on CSBs and the Minister’s negotiations with members of this cohort.
Record 2 is a letter dated 25 April 2024 sent by the Secretary General of the Department to the Chair of the SPRC requesting the commencement of a review of the remuneration arrangements for the CEOs of CSBs. Certain comments concerning the carrying out of the review have been redacted. Record 3 is a 21-slide introductory presentation for the members of the SPRC, containing information on the background and context to, and role of, the Committee, and some information concerning the CSBs review. Record 4 is a 6-slide presentation containing certain remuneration information of relevance to the CSBs review.
The Department withheld part of record 2 and records 3 and 4 in their entirety under section 29(1) of the Act. That section provides for the discretionary refusal of a request if the record concerned contains (a) a matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes and (b) the body considers that the granting of the request would be contrary to the public interest. The exemption has two independent requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. The fact that the first is met carries no presumption that the second is also met. It is therefore important that public bodies satisfy this Office that both requirements are met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the FOI body proposes to make.
It is also important to note that the exemption does not apply insofar as the records(s) contain any of the information or matter referred to in section 29(2) of the Act, including, at subsection 2(b), factual information.
For section 29(1) to apply to a record, the record must contain material relating to the ‘deliberative process’ of an FOI body. For an FOI body to rely on this exemption they should identify both the deliberative process concerned and any material in the records which relate to these processes. A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various material with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The Department first made submissions in this case on 18 February 2025, before the SPRC had completed the first phase of its CSBs review and before the publication of its report on the matter. It said the information redacted from record 2 gives detail on the SPRC’s approach to the review. It said the development of said approach forms a core part of the SPRC’s deliberations, and that in order to maintain the highest levels of integrity and impartiality in these deliberations, it is not intended to release these details until the publication of the SPRC’s final report. It said record 3 contains some details of draft legislation that is being prepared by this Department to put the SPRC on a statutory footing. It said this legislation is still a work in progress in partnership with the Attorney General’s Office and has not been published. It argued that as such, it would not be in the public interest to release details of draft legislation that is still under legal review. It said record 3 also contains some details of the SPRC’s proposed methodological approach to their review which is not yet fully finalised. It said the SPRC requires more time to close out their deliberations in this regard before being in a position to publish their report which will at that stage include a comprehensive description of their methodology. It said record 4 contains sensitive information that is still under consideration by the SPRC as part of their deliberative process. It argued that it would be prejudicial to the integrity of the SPRC’s process to publish it, undermining the confidential treatment of data in a live review and compromising the SPRC’s ability to report to the Minister as requested.
In his correspondence with the Department, the applicant argued that the terms of reference provided to a Government-appointed body cannot be withheld on the grounds of deliberative process or that it could compromise its work. He said terms of reference of bodies established by the Government to carry out specific functions are published routinely and that briefing material provided by Government departments to bodies established to carry out particular roles is essentially to set out a background for members. He argued that if the body established is independent in its operation, any material provided by the Government department cannot interfere with the deliberative process, unless the department is seeking to instruct the body to act in a specific manner. He said he did not ask for any records relating to how the new SPRC would decide or act.
As the Minister published the SPRC’s report on 29 April 2025, this Office’s Investigator contacted the Department to clarify if it wished to review its position ion respect of the records at issue. In response, the Department said it wished to continue to rely on the exemptions citer in its internal review decision. In relation to section 29, it said record 2 and 3 contain information that gives detail on the SPRC’s approach and future plans. It said the Minister is yet to issue communication to all relevant Ministers or relevant Shareholders regarding operational details and guidance related to new salary bands and Board salary proposals. It said it would be inappropriate to disclose at this stage any details of an approach to decisions around remuneration that may have a bearing on CSBs’ and the Minister’s negotiations with members of this cohort currently.
For section 29(1) to apply, the record at issue must contain matter relating to the deliberative processes of an FOI body. The Department’s argument is that the three records at issue relate to the deliberative process of the SPRC, namely its review of the remuneration of the CEOS of CSBs. Record 2 was issued to the SPRC in advance of the commencement of the review. Having carefully considered the redacted information, I believe it can reasonably be described as information relating to the methodology of the review as opposed to matter relating to the deliberative process actually undertaken by the SPRC. I note that details of the methodology proposed was included in the SPRC report that was published in May 2025. Record 3 comprises an introductory presentation for the SPRC members. It contains information on the background to the Committee, its purpose and remit, its structure and governance, and some limited information on the CSBs review. None of the information comprises matter relating to the deliberative process undertaken by the SPRC in my view.
Record 4, on the other hand, does indeed appear to contain matter relating to the SPRC’s deliberations. The presentation was presented to the SPRC at the outset of the review to provide context to the review. I accept that it contains information that relates to the CSBs review. However, section 29(2)(b) is also relevant here. As I have outlined above, that section provides that section 29(1) shall not apply to a record in so far as it contains factual information. Having examined record 4, I am satisfied that the first five slides contain factual information and that section 29(1) cannot therefore apply. Accordingly, only slide 6 remains to be considered.
I am satisfied that slide 6 contains matter relating to the deliberative processes of the SPRC and that it is not factual information. Nevertheless, for section 29(1) to apply, the Department must also show that the release of the slide would be contrary to the public interest. It seems to me that the Department’s argument in support of its decision to refuse access to record 4 was based on the information contained in slides 2 to 5. There is nothing in slide 6, in my view, whose release could possibly be prejudicial to the integrity of the SPRC’s process. I find that the Department has not shown that the release of slide 6 would be contrary to the public interest.
In conclusion, therefore, I find that section 29(1) does not apply to any of the records at issue.
Section 30(1) of the Act protects certain records relating to the functions of FOI bodies. In its decision on the request, the Department said it relied on section 30(1) to refuse access to record 2, stating the release of the record would prejudice the effectiveness of inquiries being made in this matter. It said release record would also risk disclosing plans, procedures and criteria to be used/followed in relation to negotiations to be carried on. While the Department did not specify which particular subsections of section 30(1) it deemed to apply, I consider its arguments to refer to sections 30(1)(a) and 30(1)(c) of the Act. Section 30(1) is also subject to a public interest test under section 30(2).
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Section 30(1)(c) provides that an FOI request may be refused if access to the record concerned could reasonably be expected to disclose the positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purposes of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.
The Department said record 2 contains information that gives detail on the SPRC’s approach to the review. It said that as the purpose of this review was to provide the Minister with impartial, independent advice regarding the remuneration of a very senior cohort of individuals in State Bodies, it is crucial for the SPRC to conduct their activities without any influence and without revealing any methodological considerations that might indicate to relevant interested parties the direction in which their conclusions may go. It said matters of recruitment and retention at the CEO level in CSBs are sensitive and complex, and it would be inappropriate for the SPRC to disclose at this stage any details of an approach to decisions around remuneration that may have a bearing on CSBs’ and the Minister’s negotiations with members of this cohort currently.
For section 30(1)(a) to apply, the Department should explain how and why, in its opinion, release of the specific record could reasonably be expected to rise to any of the harms identified in the section. The Department has not done so. Instead, it has simply argued that it would be inappropriate for the SPRC to disclose at this stage any details of an approach to decisions around remuneration that may have a bearing on CSBs’ and the Minister’s negotiations with members of this cohort. Having considered he details of the record, I simply cannot see how its release could possibly prejudice the effectiveness of the first part of the review already undertaken or any future part, or how it might possibly prejudice procedures or methods employed for the conduct of the review. I am satisfied that section 30(1)(a) does not apply to the information redacted from record 2.
Neither do I accept that the release of the record would disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. The redacted information is simply high level information relating to the possible methodology for conducting the review. It contains no information of the type captured by section 30(1)(c). I find that section 30(1)(c) does not apply to the information redacted from record 2.
The Department refused access to record 4 under section 35(1)(a) of the Act which provides for the mandatory refusal of a request if the record sought contains information given to an FOI body in confidence. For section 35(1)(a) to apply, it is necessary to show the following :
• that the information was given to an FOI body in confidence and,
• that the information was given on the understanding that it would be treated by the FOI body as confidential and,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• that it is of importance to the body that such further similar information should continue to be given to the body.
All of the requirements of section 35(1)(a) must be satisfied for it to apply. However, even if all four requirements have been met, the section is subject to the public interest balancing test set out in section 35(3) where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
Record 4 was prepared by the SPRC secretariat which comprised of officials within the Department. Accordingly, pursuant to section 35(2), section 35(1)(a) cannot apply to record 4 unless disclosure of the information in the record would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
The Department said Record 4 contains information regarding historical and current remuneration arrangements for the posts under review, making each individual personally identifiable. It said this information has a material linkage with subsequent research activities that the SPRC has carried out as part of its review. It said that specifically, the SPRC conducted a survey of CSBs requesting the details of the remuneration arrangements for each CEO and members of the executive team. It said that as this exercise involves a processing of personal data, with attendant concerns regarding the appropriate treatment and protection of such data, this Department provided assurances to the relevant parties that sensitive personal information would be treated in confidence.
Noting that the requester stated that, “it is not credible that a State-owned company would refuse to provide information to a government department as it could be released under FOI legislation”, it said that while this is true for information that is already in the public domain, the survey also queried information that is not already in the public domain. It said the record does not contain the survey results but it is important to note that some of the information in Record 4 has a material linkage with the survey, and it argued that its release at this particular stage of the review process risks creating the perception that the survey’s confidentiality was breached. It said this would severely undermine the SPRC’s credibility and diminish their ability to perform similar research in the future. It said the integrity of the review process must be protected in order for the SPRC to fulfil their duties to the Minister. It said it is worth reiterating that the final report of the SPRC will be published in due course, which will reflect their researches and deliberations once these have concluded.
While the Department did not specifically address the applicability of section 35(2), its submissions essentially reflect an argument that the release of the record would constitute a breach of a duty of confidence owed to the individuals who participated in the survey undertaken by the SPRC, i.e. the CEOs and members of the executive team of each CSB that participated. No argument has been made that a duty of confidence is provided for by an agreement or statute. However, a duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity.
In the Supreme Court decision in the case ofMahon v Post Publications Ltd [2007] 3 I.R. 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment ofMegarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:
“[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours" of the equitable doctrine of confidence as follows:
1) “the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”;
2) it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3) it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
I have adopted this approach in considering whether disclosure of the information in record 4 would constitute a breach of an equitable duty of confidence owed to the survey participants. In my view, it would not. The record contains historic information concerning the median pay of CSB CEOs over a number of years, a comparison of salary ranges in certain years, high level details of the components of CEO remuneration, high level pension arrangements in certain CSBs, and a number of high-level discussion topics for the review. Slide 3 contains indicators of the current salaries of the CEOs of named CSBs. This information is also contained within the published SPRC report. It is also worth noting that specific salary details of many CEOs of CSBs are already in the public domain, e.g. via the published Annual Reports of the relevant CSBs, as are some details of the types of pension arrangements available. Indeed, in its submissions, in response to the applicant’s assertion that “… pay of chief executives is also included in the annual reports of many organisations”, it said “it would therefore appear to be the case that, as per section 15(1)(d) of the Act, such information would not fall within the parameters of a FoI request”. This seems to me to be an implicit acceptance of the fact that such information is publicly available.
As such, it is not apparent to me that the information contained in record 4 has the necessary quality of confidence about it or that any of the survey participants could reasonably have expected that they communicated such details to the SPRC in circumstances which impose an obligation of confidence or trust on the SPRC. For these reasons, I also do not accept the Department’s argument that release of the record at this stage of the review process risks creating the perception that the survey’s confidentiality was breached or that it would severely undermine the SPRC’s credibility and diminish their ability to perform similar research in the future. I find that the release of the record would not constitute a breach of an equitable duty of confidence owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. Accordingly, I find that section 35(1)(a) cannot apply to record 4.
The Department also refused access to record 4, under sections 36(1)(b) and 36(1) (c).
Those sections provide, subject to subsection (2), for the mandatory refusal of a request if the record concerned contains—
b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or
c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
Essentially the test in section 36(1)(b) is not the nature of the information but the nature of the harm which may occur by its release. The harm test in the first part of subsection 36(1)(b) is that disclosure of the information “could reasonably be expected to result in material financial loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of possibilities or probabilities but with whether the expectation of harm by release of the record is reasonable. The harm test in the second part of subsection 36(1)(b) is whether disclosure of the information “could prejudice the competitive position” of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b). However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
The standard of proof required to meet the test in section 36(1)(c) is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
In submissions to this Office, the Department said that the record contains the historical and current salary for each of the CBS CEOs under review and also contains information regarding the value of benefits provided to three particular CEOs, making them personally identifiable. It said that as the individuals in question may be currently active in the employment market, it could be prejudicial to their negotiations with potential employers to disclose details of their current remuneration/benefits arrangements. It said it is in the public interest to support these important service-providing CSBs in attracting high-calibre individuals to the role of CEO on an ongoing basis, and therefore the Minister and the Department must be seen to treat these individuals with respect and integrity, and not undermine their personal ability to negotiate terms with future employers.
I do not accept that the release of the information at issue in record 4 might give rise to any of the harms identified by the Department. As I have outlined above, information concerning CEO salaries is already in the public domain. As for the pension arrangements for the CEOs of the three names CSBs, it seems to me that the arrangements relate to the related CEO post as opposed to any individual and are also publicly available. I find therefore, that the Department has not justified its decision to refuse access to record 4 under section 36(1)(b) or 36(1)(c) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that the Department was not justified in refusing access to records 2, 3 and 4 under sections 29(1)(a), 35(1)(a), 36(1)(b), or 36(1)(c) of the FOI Act and I direct release of the three records in full.
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.
Stephen Rafferty
Senior Investigator