Cinneadh
Mr. Ken Foxe Right to Know and Standards in Public Office Commission
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156552-J8M2S8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-156552-J8M2S8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Commission was justified in refusing access to certain information relating to a request made under section 22 of the Regulation of the Lobbying Act 2015 to waive the ‘cooling-off’ period on specific post-term employment by an official previously employed in the Department of the Taoiseach
5 November 2025
Section 22 of the Regulation of Lobbying Act 2015 (the Lobbying Act) provides for post-employment restrictions for certain designated public officials once they leave office. Specifically, Ministers, Ministers of State, ministerial advisors, and prescribed public servants are prohibited, for a period of one year, from lobbying their former public body or former colleagues with whom they were connected in their last year in office, or from being employed by, or providing services to, a person who lobbies in such circumstances, without the consent of the Commission. A person subject to the Act’s post-employment provisions may apply to the Commission to waive or reduce the cooling-off period. The Commission may refuse the request, grant it, or grant it subject to conditions.
In a request dated 10 December 2024, the applicant sought access to a copy of any records held relating to an application made by a named official who was previously a designated public official within the Department of the Taoiseach for consent to waive or reduce the cooling-off period arising from his work in the public service. In its decision dated 20 January 2025, the Commission refused access to all records it identified as falling within the scope of the request, under sections 37(1) and 41(1)(a) of the FOI Act. On 23 January 2025, the applicant sought an internal review of that decision, following which the Commission affirmed its decision to refuse the request. On 14 February 2025, the applicant applied to this Office for a review of the Commission’s decision. He noted that the fact that a waiver was granted by the Commission for the individual in question was already in the public domain.
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 Commission 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 Commission was justified in refusing access, under sections 37 and/or 41 of the FOI Act, to records relating to an application made by a named former designated public official for consent to waive or reduce the cooling-off period arising from his work in the public service.
In his application for review, the applicant raised queries concerning the role of the Information Commissioner as a member of the Standards in Public Office Commission and how this Office manages a potential for conflict of interest arising from the dual role. The applicant asked if the Information Commissioner would be consulted during the decision-making process of this review, sign off on the final decision, or have any input into the review. He also asked whether it was appropriate for this Office to adjudicate on such a case in the first place and whether the matter should be dealt with in a different manner, by way of the courts if required.
The Office of the Information Commissioner and the Standards in Public Office Commission, along with four other statutory Offices, function as a single amalgamated agency under one Vote, namely the Office of the Ombudsman, while simultaneously protecting and preserving the statutory independence and functions of each of the constituent parts. Each Office has its own staff complement but the staff and systems of finance, human resources, legal, communications and information technology are shared. Staff occasionally move across offices, but decision-making within each statutory office remains independent and care is taken in the assigning of work to avoid potential conflicts. In this case, I confirm that I have conducted the review and made this decision under powers delegated to me by the Information Commissioner in accordance with the provisions of paragraph 9 of the Second Schedule of the FOI Act. I confirm that the Information Commissioner has had no involvement whatsoever in this review. As such, I am satisfied that no conflict of interest arises.
On the matter of the appropriateness of this Office adjudicating on a case concerning the Commission, the FOI Act does not provide for an alternative review mechanism as suggested by the applicant. Indeed, had the Oireachtas considered that the involvement of this Office in reviews concerning the Commission might give rise to a potential conflict of interest, it would have been a straightforward matter to provide for an alternative review mechanism within the FOI Act itself. No such alternative was provided. Neither do I consider such an alternative to be necessary in circumstances where this Office can and does take appropriate measures to avoid potential conflicts of interest.
Section 41(1)(a) of the FOI Act provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by law of the European Union or by an enactment which is not listed in Schedule 3 to the FOI Act. In essence, the non-disclosure provision overrides any right of access under FOI, unless that particular provision is specified in Schedule 3.
In its submissions to this Office, the Commission said the disclosure of the records at issue is prohibited by section 25 of the Lobbying Act and by section 35(1) of the Ethics Acts. Section 25 of the Lobbying Act provides that the Commission must prepare an annual report relating to the operation of the Act each year and that the report shall include, in a form which does not enable the identification of the persons involved, information relating to any applications for consent under section 22, and all decisions on such applications, made in that year.
This Office considers that for section 41(1)(a) to apply, a provision must exist that explicitly prohibits the release of the records, that is clear in its meaning and effect, and that can be interpreted only as prohibiting disclosure of the information in question. In my view, section 25 of the Lobbying Act is not such a provision. I fully accept that the purpose of section 25(2) is to require the publication in the annual report of details of section 22 applications made and the respective decisions made, albeit in a manner that does not allow for the identification of the individual who made the application. I do not, however, accept that the section provides for a broader, general prohibition on the release of records relating to section 22 applications.
Section 35(1) of the Ethics Acts provides that a person shall not disclose information obtained by him or her under the Ethics acts or the Regulation of Lobbying Act or by being present at a sitting of a Committee or Commission held in private. In Case No. OIC-120760 involving the same applicant and FOI body as are involved in this case, I previously considered whether section 35 of the Ethics Acts serves to prohibit the release of records such that section 41(1)(a) of the FOI Act would apply. In my decision in that case, which concerned the question of whether the Commission was justified in refusing access to correspondence between the Commission and former Oireachtas members and former special advisers with regard to cooling-off periods, I was satisfied that the disclosure of the records at issue would involve the disclosure of information obtained by the Commission under the Lobbying Act and was of a type covered by section 35(1). I noted, however, that subsection (2)(c)(i) of section 35 serves to disapply subsection (1) to the disclosure of information by a person in the performance of his or her functions.
I found that the disclosure of records to a requester, when the FOI Act requires same, is a duty and function for the purpose of subsection (2)(c)(i), the effect of which is that if the records sought are not exempt from release under the FOI Act, then section 35(1) of the Ethics Acts cannot serve to prohibit the release of the records under section 35(1) as subsection (2)(c)(i) serves to disapply section 35(1) in such circumstances. I found, therefore, that before a finding can be made on whether section 35(1) of the Ethics Acts serves to prohibit the release of the records sought, consideration must first be given to whether a right of access to the records otherwise exists under the FOI Act. I am satisfied that the same considerations apply in this case. Accordingly, I will first consider whether the records at issue are exempt under section 37(1) of the FOI Act.
Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition, including (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11(6)(a) (a personnel record of a member of staff of an FOI body).
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual 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. The exclusion at Paragraph (I) does not provide for the exclusion of all information relating to current or former staff members of FOI bodies. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive staff members of FOI bodies of the right to privacy generally.
The records at issue in this case concern an application made by a named individual who was a designated public official within the Department of the Taoiseach for consent to waive or reduce the cooling-off period arising from his work in the public service in order to take up employment within the private sector. Among other things, they contain details of the individual’s proposed employment, correspondence with relevant parties in connection with the individual’s former and future responsibilities, an analysis of the application and the decision made on the application.
I am satisfied that the disclosure of the records would involve the disclosure of information that is held by the Commission on the understanding that it would be treated by the Commission as confidential, and that relates to the individual’s employment and employment history. I am also satisfied that the exclusion to the definition of personal information I have outlined above does not apply in this case. The records are not concerned with information relating to the position the individual held, or the functions of that position or the terms upon and subject to which the individual 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. Rather, they are concerned with the individual’s proposed employment and the effect of his having held a position as a designated public official on that proposed employment. I find, therefore, that section 37(1) applies to the entirety of the records at issue. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individual to whom the information relates has not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. On the matter of the applicability of subsection 2(c), while I accept that certain information concerning the individual concerned is in the public domain, I am satisfied that the release of the records would involve the disclosure of personal information that is not in the public domain. In so finding, I have had regard to section 18(1) of the Act which provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, we are not in favour of the cutting or "dissecting" of records to such an extent.
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 individual to whom the information relates.
In considering where the balance of the public interest lies in this case, I have had 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 doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In his application for review, the applicant said it is clear that a waiver of several months was applied by the Commission in this case without any explanation of why this was the case. He set out details of the individual’s previous roles and said the individual had a level of access to the political sphere and the civil service that could only be described as exceptional. He said all of that information is publicly available and none of it is private. He said the private information at issue in this case is how and why the Commission agreed to waive the cooling off period for the individual. He said that when a twelve-month period was set (in the Lobbying Act 2015), it was presumably done on the basis that this was considered an appropriate gap and that a shorter period was insufficient to ease public concerns over a 'revolving door' between political life and lobbying. He said there is no clarity over why a decision to break this twelve-month rule has taken place in this case. He said there is an enormous public interest involved here that has not even been considered by the Commission.
In its submissions to this Office, the Commission said anonymised statistics on waivers are released each year as required by the Regulation of Lobbying Act 2015. It said no consideration can be given for the public interest in releasing information about individual applicants when the release of such information is prohibited by the Regulation of Lobbying Act. It said that the release of information, which is prohibited by law, would cause the Regulation of Lobbying Act to be called into disrepute and prohibit the compliance-based approach applied by the Commission which strives to achieve conformity with the law under Section 22 of the Regulation of Lobbying Act. It said that granting access to the records would make public the private employment affairs of the individual concerned. It said the individual is entitled under the Regulation of Lobbing Act to have these affairs kept private. In its submissions concerning the applicability of section 41(1)(a) (which provides for the mandatory refusal of a request if the disclosure of the record sought is prohibited by an enactment which is not listed in Schedule 3 to the FOI Act) the Commission also said that section 35(1) of the Ethics Acts provides for the non-disclosure of information obtained under the Lobbying Act.
On the matter of the applicability of section 37(5)(a), I accept the applicant’s assertion that there is a strong public interest in the disclosure of the basis on which the Commission made its decision in this case. Such disclosure would enhance public understanding of the factors considered and the basis for the decision made in respect of section 22 applications and would enhance the accountability of the Commission in respect of such matters. Disclosure would also build confidence and trust in the Commission. On the other hand, 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.
I would add that while I do not accept the Commission’s contention that no consideration can be given for the public interest in releasing information about individual applicants when the release of such information is prohibited by the Regulation of Lobbying Act given my finding that the disclosure of the records at issue is not, in fact, prohibited by section 25, I believe that the section reflects the intention of the Oireachtas that while certain information relating to requests to waive the ‘cooling-off’ period should be published, identifying details should not. I consider that this provision represents a public interest policy of protecting the identities of those who make applications under section 22 of the Lobbying Act. I also consider that there is a public interest in ensuring that individuals can, as private citizens, engage in their work in that capacity without undue scrutiny.
The question I must consider is whether the public interest in the disclosure of the personal information contained in the records at issue outweighs, on balance, the privacy rights of the individual concerned. In my view, it does not. It is relevant to note that a certain level of transparency and accountability already exists around the Commission’s decision-making processes. I note, for example, that the Commission has published detailed guidance on section 22 on the lobbying.ie website, which contains details of, among other things, the Commission’s role under section 22 and its procedures, including details of the factors it may consider and the parties it generally consults before making its decision. I also note the requirement on the Commission, under section 25 of the Lobbying Act, to publish anonymised details of section 22 applications and the related decisions made in its annual reports. It seems to me that the Commission’s decision to withhold the information at issue is in keeping with the intent of the Oireachtas in ensuing that such third-party personal information is protected. It also serves to ensure that individuals can engage in their work in their capacity as private citizens without undue scrutiny. One of the primary purposes of the FOI Act is the enhance the transparency and accountability of FOI bodies, not private citizens. In keeping with the findings of the Supreme Court in the eNet case, I am aware of no sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure in this case. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the Commission was justified in refusing access, under section 37(1) of the Act, to the records at issue.
In this case, as I have found the records at issue to be exempt under section 37(1), it seems to me that in the particular circumstances of this case, section 35(2)(c)(i) of the Ethics Act does not serve to disapply section 35(1) of the Ethics Acts as no right of access under the FOI Act exists. Accordingly, I find that the disclosure of the records is prohibited by section 35(1) of the Ethics Acts and that section 41(1)(a) of the FOI Act therefore also applies.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Commission’s decision to refuse access, under sections 37(1) and 41(1)(a) of the FOI Act, to records relating to an application made by a named former designated public official for consent to waive or reduce the cooling-off period arising from his work in the public service.
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