How the Freedom of Information Act can help save money for the taxpayer – Leo Varadkar’s repayment of €1,970.40

Some of you may remember a story I did last year about how Minister Leo Varadkar had made a double claim for expenses at a higher mileage rate than he was allowed.

These are the background documents to that, which show how Mr Varadkar ended up making a repayment of €1,970.40. This is a copy of the note from the minister that accompanied the refund he had to make.

Cheque Submission

This extract from an internal email sums up what happened quite well. All that I would say is that if you don’t notice an over-payment of close to €2,000 into your bank account, then either you – or your personal staff – need to start looking a lot more closely at what you are claiming for.

Briefing Note Varadkar

For reasons best known to themselves, it took the Department of Health the best part of six months to respond to the original FOI request I submitted on this.

It was only answered following an internal review when the original request was deemed a refusal.

Something to keep in mind for anybody dipping their toe into FOI requests is the fact that if a public body fails to meet the deadline for dealing with a request without reason – then you are entitled to seek an internal review free of charge.

Any redactions in document below are my own where I’ve removed unnecessary personal details:

 

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Guide to political salaries and expenses

These are the latest guides issued to TDs and Senators to tell them about how they are going to be paid and how they can claim expenses.

It takes all of 32 pages to give a full run-through of the political expenses system, and 48 to explain how the pay and pensions system works.

I’ve already raised the issue of the €1,200-a-year that TDs get in “petty cash” as part of their entirely vouched system (payment slightly smaller for Senators).

Petty CashSocial media platforms will also be delighted to learn that Facebook promotion and so on is now considered an allowable expense.

 

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The scourge of politicians and their “private papers”

ONE of the most common criticisms politicians have of journalists is that they are obsessed with TD’s expenses and government waste.

Quite aside from the fact that this obsession is in the public interest, there is actually another much more practical aspect to it.

Ireland’s Freedom of Information law is severely limited, containing a raft of exemptions that cover issues like commercial sensitivity, security matters, personal information, deliberative processes … the list is endless (maybe not quite).

There are so many exemptions in fact that government departments and public bodies will, when refusing access to certain records, often frequently list four or five separate reasons why they do not have to disclose them.

One area, where it seemed that there were none, or at least very few, restrictions was in the realm of political expenses, and their release to the public.

Back in 1999, the Information Commissioner (in a case involving Richard Oakley, then of the Sunday Tribune) decided that political expense claims could not be considered “private papers” of TDs and Senators and that the public interest in releasing them outweighed any right to privacy.

Four years later, the original Freedom of Information Act was gutted by the then Finance Minister Charlie McCreevy, which included  the introduction of charges for journalists to make requests.

Yet the changes in 2003 made little difference in the area of political expenses, and they remained one of the most easily requested categories of public records.

In 2009, controversy over political expenses claimed its first high-profile casualty when then Ceann Comhairle John O’Donoghue was forced to resign amid a furore over his travel expenses.

Then, two ex-Ministers – Ivor Callely and Ned O’Keeffe – were discovered to have made fraudulent claims for mobile phone expenses and were subsequently convicted of that.

All the time, pressure had been growing for reform of political expenses and a new system for paying TDs and Senators was eventually decided upon.

It actually ended up being much less transparent than what came before.

Henceforth, TDs and Senators would be paid an allowance for travel and accommodation, the level of which is based on how far they live from Leinster House. They do not submit receipts or invoices to cover that.

A second allowance to cover their political day-to-day expenses was also created. This part of their parliamentary standard allowance is, we are often told entirely ‘vouched’, but it’s nowhere near that simple.

By vouched, it actually means a system whereby TDs and Senators could be selected for random audit each year but otherwise, they would never actually hand over the receipts and invoices to the Oireachtas.

This, it was planned, would protect those records from public scrutiny as if they never left the possession of the TD or Senator, they could more easily be designated as “private papers” or personal information.

There was a weakness however, and that was the fact that the unlucky 10% of politicians selected for audit each year did actually have to hand over their receipts and invoices to the accountancy firm Mazars for scrutiny.

And it was access to those records, held by Mazars under a contract from the Oireachtas, which I first sought access to.

As I suspected they would, Leinster House refused my request. I appealed it, lost. And in a final appeal to the Information Commissioner, I lost again.

The Information Commissioner Peter Tyndall effectively overturned the original decision from 1999 on political expenses saying the new Freedom of Information Act of 2014 had introduced a new provision on what constituted the “private papers” of members.

“It is quite broad in nature and affords a more significant protection for private papers of members of the Houses than previously existed,” wrote Mr Tyndall.

I don’t agree and am still trying to get access to those receipts and invoices (this time for a different year), a process which is still ongoing with the assistance of Right to Know.

Separate to that, the battle over what constituted “private papers” opened on a second front when the Oireachtas introduced new standing orders to expand the definition of what could fall under this umbrella.

It was brought before the Dáil on 17 December, which was the final sitting day before Christmas. From start to finish and without debate – it took just seventeen seconds to introduce.

The definition of “private papers” has been dramatically widened and it is not just requests for political expenses that will suffer.

A separate request I made for the diary of the former Ceann Comhairle Sean Barrett has also been refused on the grounds that calendar entries in his email account are “private”.

Ceann Comhairle

This is despite the fact that diaries of other officeholders like government ministers – even senior civil servants – are being routinely published by other departments.

The idea of “private papers” has its root in the Constitution; where it talks about protecting TDs and Senators from anybody “interfering with, molesting or attempting to corrupt its members in the exercise of their duties”.

This idea had in mind private communications between politicians and their constituents, material relating to official inquiries or committees, perhaps even communications with whistle-blowers … the type of material that needs special protection.

It was never intended simply to keep expenses – or other material – out of the public domain, simply because the release of them might be inconvenient or embarrassing.

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Government orders new expenses regime for all public servants with one notable exception … Irish politicians

THE government wanted to introduce a new system of travel and subsistence expenses right across the public service with one exception … and it’s no surprise to know that it is once again politicians who are deemed exceptional.

An internal submission released by the Department of Public Expenditure explained how the travel and accommodation regime for politicians was drawn up to reflect their “constitutional obligations to attend Leinster House” as well as the “constituency obligations” of TDs and Senators.

“Therefore, it would not be intended that these changes would apply to Members of the Oireachtas, particularly since their travel and accommodation regime was cut by 10% (25% in the case of Dublin members) from 1 January 2013 and that … [it] also took account of the 2009 25% reductions,” it said.

It should be pointed out that the payments to Dublin members (the ones subject to those later 25% cut) is the €9,000 a year for TDs (€5,250 for Senators) they get simply for managing to get to work.

You can read the full submission here.

 

Plans to introduce the new regime for travel and subsistence expenses across the wider public sector have also hit a series of obstacles with difficulties introducing the scheme for soldiers, gardai, prison officers and the judiciary.

The reform of expenses for the civil service was introduced last summer, which saw overnight rates increased to €125-per-night, a rise of 14%.

However, an even more significant change was made to almost double the distance a civil servant must be away from home – to 100 kilometres – before they are allowed to claim an overnight.

The Department of Public Expenditure and Reform believe the new system will save €2 million-a-year within the civil service, according to a ministerial submission released after an FOI request (but which was released outside of FOI for those interested in such things).

The submission reveals how the Department had originally planned to extend the new regime – to cover gardai, prison officers, soldiers, and the judiciary – and that this would save another €5 million-a-year.

The changes are being resisted by some however, with at least one representative body arguing that there are strong reasons why different rules should apply for their members.

The Department briefing document said that differences in systems for paying expenses existed for “largely historic reasons”.

“It would be difficult to defend having significantly different occupational regimes in place for different groups of public servants,” it said.

However, the soldier’s representative body PDFORRA said that there were clear “operational reasons” why a different expense regime should apply for the Defence Forces.

General Secretary Gerry Rooney said soldiers did not work normal office hours, and that a system put in place for civil servants would not be suitable.

Soldiers have traditionally been paid a 15-hour subsistence rate, for when they might have to travel long distances between barracks or for extended duty. That special rate would face abolition under the Department’s plan for a blanket scheme.

Significant issues also arose in negotiations with prison officers who have been seeking to keep their old system in place for payment of expenses.

The Department of Public Expenditure confirmed that an adjudicator had said earlier this month that prison officers should be allowed to retain the old system.

They said: “The Irish Prison Service is considering the decision and will be consulting further with the Prison Officer’s Association in its implementation.”

That adjudication could mean some prison officers will now have to be repaid expenses, which they would have been entitled to under the previous system – but which have not been paid since July of last year.

Plans to extend the scheme to An Garda Siocháná were also dropped and have instead only been applied to civilian staff of the force.

The Department of Public Expenditure explained that the Department of Justice had been in discussions with gardai about the new scheme.

However, “garda management pointed out that the administrative burden of applying two different systems to this category, depending on whether the travel and subsistence arises from their 9-5 duties or occasional duty on the front-line, would be overly burdensome.”

This may be interesting in light of the Toland report findings last year of a “deferential relationship” between the Department of Justice and gardai and one could be forgiven for wondering just how far this was pushed. The tail may still be wagging the dog here.

Garda StatementNegotiations are also taking place with the Association of Judges of Ireland about applying the new rules to their members, some of whom travel frequently, particularly if serving in the District Court.

The Department said: “Discussions are ongoing with the Courts Service and the Association of Judges of Ireland on the implementation of [the circular] to the Judiciary.”

An edited verison of this story appeared in the Sunday Times at the weekend. You can read it here

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How long did it take to change the rules to keep political expenses secret? All of seventeen seconds

There was an interesting discussion on Broadsheet following my last post on the battle to bring the expense claims of TDs and Senators out into the open. You can read a selection of the comments here

One of the things on which questions were raised was this idea that something could be “quietly” introduced in the Dáil, without journalists or politicians even really noticing what was happening.

And some suggested this was not an accurate description of what had happened.

“If it went through the Dáil, it wan’t quietly introduced, it just probably wasn’t noticed,” said one poster, and maybe that’s a point.

So, I thought it would be worth a look back to see just how long it did take to change the rules so that politicians could keep their expenses secret.

And the answer was … all of seventeen seconds. Scroll to around 4:12.26 on the day (blink and you will miss it, well almost).

Notice the way this happened “without debate”. You can watch the edited clip via my Twitter account here

And so you see this big long descriptive account of what happened, as we would read it on the Oireachtas website (via kildarestreet.com) – none of that detail was made public.

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€940,000 in parachute payments for TDs that lost or resigned seats prior to election

This is a list of all payments made to outgoing TDs in the weeks following the general election, which was released following an FOI request to the Oireachtas.

These payments are made separate to the Oireachtas pension scheme, with which people are probably more familiar, and which has not kicked in for new members just yet.

The documents also include budget estimates for how much pensions are expected to cost over the next two years, around €10.7 million.

That will not be the full cost however, as ministerial pensions are paid by the Department of Finance.

These dissolution guidelines issued to TDs give a rundown of what has been happening over the last number of months to smooth the way for politicians back into civilian life.

There are three types of payments detailed in the document: termination lump sums, termination pay and sign-off payments on dissolution.

The highlights:

  • Over €680,000 paid out to 47 TDs in once-off termination lump sums. Average of around €14,500 dependent on length of service.
  • Around €257,000 in termination pay for the 47 TDs, an average of around €5,500. These payments can continue for up to twelve months dependent on whether the person is eligible for pension and their length of service.
  • 165 TDs paid almost €800,000 (average of €4,848) in a final sign-off payment to cover them from the date of dissolution until the general election. Paid to all members except for the Ceann Comhairle who retained his seat.

A version of this material appeared in an article in the Sunday Times at the weekend.

If you want to contact me about any FOI requests, or any other stories that you think are worth inquiring into, email me at ken.foxe@gmail.com

Any information will be treated in the strictest confidence. In an era in which public trust in journalism is being eroded: it’s important to restate that the identity of sources will never be revealed under any circumstances to anybody.

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Irish politicians introduced a “new protection” which stops their expense claims being made public

First, the bad news.

An appeal to get access to the invoices and receipts used by TDs and Senators for claiming their expenses has, perhaps unsurprisingly, been unsuccessful.

In their internal review, the Oireachtas has upheld their original decision that these documents are “private papers” and therefore exempt from Freedom of Information legislation.

They have also pointed out that there is now a “new protection” for these documents in the form of standing orders quietly introduced on the final sitting day of the Dáil last year.

These standing orders were adopted on December 17 and printed on 28 January 2016, just a week before dissolution and the start of the general election campaign.

The Oireachtas believe this offers another means to keep the documents from public view.

And they have said that even if the original decision on the release of these expense documents were to be reconsidered (read the background here) … this “new protection” would now also have to be considered.

The new standing order states that “private papers” are all documents for which a TD or Senator has a “reasonable expectation of privacy”. And that it includes documents prepared for the purposes of “transacting any business of the Dáil or any Committee of the Dáil”.

The good news.

There are still two more avenues for appeal, first to the Information Commissioner, and failing that, to the High Court.

You can read the internal review decision letter here (redactions are mine). Please do make contact if you have any strong views on areas of appeal.

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Ending the secrecy that surrounds political expenses in Ireland – the battle resumes

Some of you will recall my efforts to get access to the invoices and receipts submitted by TDs and Senators as part of their expense claims.

I’ve written previously on this, and how these invoices and receipts are now being classified as the “private papers” of politicians, and therefore exempt from Freedom of Information legislation.

Not satisfied with this, I have restarted the process of getting access to them, this time seeking to get copies of the receipts and invoices that were submitted for audit in 2014.

You can read the previous posts on this here and here to fill in the background.

My original request for this new set of documents was submitted back in February and a month letter, access was again unsurprisingly refused by the Oireachtas.

Extract from the letter refusing access

Private Papers

I have sought an internal review – which I am republishing here – and intend to update the blog at every step of this process.

If the internal review fails, I will appeal to the Office of the Information Commissioner, and if that fails, I think this issue is of sufficient public interest to take it to the High Court.

The Freedom of Information Act 2014, we were told, was supposed to increase transparency and openness … not bring further secrecy to something as fundamental as political expenses.

If anyone has any advice or suggestions as this progresses, please feel free to contact me at ken.foxe@gmail.com. Many thanks to solicitor Fred Logue for his assistance so far.

 

Text of letter seeking internal review

Under the FOI Act 2014, I am seeking an internal review of the decision made in the case R1066 where I sought the following records:

–       Copies of all receipts/invoices held by the Oireachtas in relation to the 2014 audit of the public representation allowance conducted by Mazars.

–       Copies of all receipts/invoices submitted for review by the members chosen for the 2014 audit.

I am making this appeal on two grounds.

Firstly, there is no way in which these papers can be considered “private papers” when they clearly do not meet that definition under the legislation.

They were not created or transmitted in confidence nor are they exclusively held in possession or control of that member in relation to his/her political role or capacity as a member.

They are invoices and receipts, which are provided by a third party, who is also by default a holder of the records.

Furthermore, the member is obliged to give these “private papers” to an independent audit agency Mazars and are under instructions to retain them for a set period of time without destroying them.

Therefore, it is impossible to see how they are in the possession or control of that member when they can be compelled by an outside agency to hand them over, and compelled by the Oireachtas to hold those records for a set period of time.

Secondly, the definition of “private papers” is not an arbitrary one, which can be used at the whim of the Houses of the Oireachtas Service to withhold documents of considerable public interest from the public domain.

Instead, as outlined by Minister Brendan Howlin in June 2013, such documents have to be designated and regulated so that it can be determined that they constitute “private papers”.

This process was explained in response to a parliamentary question by Mr Howlin (Ref: 31442/13):

“In the first instance, it is a matter for the Houses to regulate which documents will be designated as private papers. Section 107 of the Bill provides that a member may at any time apply to the committee designated for this purpose (the “Part 10 committee”) for a determination as to whether a document is a private paper.

“Additionally, Section 108 of the Bill empowers a House to prepare and issue guidelines to provide practical guidance for members including protocols to be followed relating to maintaining a document as a private paper.”

As you might be aware, I submitted a press query to the Houses of the Oireachtas Service on October 29, 2015 seeking the following:

–       Has either House, or a Committee of either House considered or passed a resolution regarding members private papers for the purposes of Article 15 of the constitution, or for the purposes of Section 42(k) of the FOI Act 2014. If so, can I get details of that resolution.

–       Has a Part 10 Committee been appointed in either House, and if so, has the committee met? If a Part 10 Committee has been appointed, who are its members, what are its terms of reference, and what guidance, if any, has it received in relation to its role and procedures. I also wanted to find out how exactly members were chose, or will in future, be chosen to sit on a Part 10 committee.

On October 29, the Oireachtas press office responded to say that neither the Dail nor the Seanad had appointed a committee to perform those functions.

I am given to understand that no such guidelines or protocols have issued to members regarding procedures for maintaining a document as a private paper.

In the absence of any determination, regulation, guidelines or protocols on what constitutes a “private paper”, I therefore can see no grounds by which the Oireachtas can maintain the records requested constitute “private papers”.

Yours sincerely,

Ken Foxe

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How seriously did Fine Gael coalition take climate change and environmental taxes … not as seriously as upsetting road hauliers

The option of increasing tax on diesel to cut dangerous emissions was discarded by the outgoing government amid concerns of upsetting road hauliers and increasing the cost of doing business in Ireland.

A second possibility of raising carbon tax on solid fuel was also ignored by then Minister of Finance Michael Noonan because of fears over smuggling from across the border and a possible rise in “fuel poverty”.

The two options were contained in a pre-Budget submission prepared for Finance Minister Michael Noonan last September, which has been obtained under Freedom of Information legislation.

You can read the full submission here:

The submission on “energy and environmental options” was discussed in advance of Budget 2016 but none of the suggestions contained within it were acted upon despite growing pressure on Ireland to meet its 2020 emissions targets.

The economic cost of air pollution in Ireland has been estimated by the World Health Organisation at $2.5 billion annually but the Department of Finance submission suggests that political concerns may have played a more important role in last year’s internal Departmental debate.

An Taisce said the decision not to make the tax changes illustrated how little priority had been placed on the environment by the outgoing government of Fine Gael and Labour

Calls from the Organisation for Economic Cooperation and Development (OECD) for “equalisation” of excise rates on petrol and diesel were disregarded, with the Department submission highlighting potentially “strong opposition”, particularly from road hauliers.

The submission explained: “There is a significant difference between the rates of excise on petrol and diesel in Ireland.

“This increased during the [economic] crisis when increase in excise on mineral oils were used to raise revenue but at the same time increases in diesel were tempered in order to protect business as much as possible.”

The submission said that changes to vehicle registration tax and the different rates had now incentivised the purchase of diesel vehicles.

However, it explained: “It should be noted that diesel is a dirtier fuel than petrol as emissions also include higher levels of nitrous oxides and particle matter.”

It said the lower tax rate on diesel of 48 cent per litre failed to take account of the “social and health” impacts from its use and made three proposals on how the system could be reformed.

A plan to increase the rate of tax on diesel to equal petrol (59 cent per litre) would have yielded an extra €298 million a year to the Exchequer.

The opposite idea of reducing tax on petrol to bring it into line with diesel would have cost the State €172 million annually.

A third idea – of letting the tax rates meet at half way (53 cent per litre) – would have brought in an extra €65 million in revenue each year, the submission explained.

However, in the end the excise rates remained untouched with the executive summary of the submission explaining: “Any increase in excise [on diesel] would have a negative effect on the cost of doing business in the State.

“The Irish Road Haulier’s Association have campaigned for a reduction in costs and any increase in the rate of excise is likely to be met with strong opposition.”

The submission later explained that the tax rate on diesel – 5.5% above the EU average – along with the additional costs of being an island state were affecting “Ireland’s overall competitiveness”.

John Gibbons of An Taisce’s Climate Change Committee said: “There is no justification for diesel to be cheaper. This suggestion of having the tax rates meet in the middle would have actually given a profit to the State.”

Proposals for an increase in carbon tax were also jettisoned by the Department. The submission explained that the carbon tax had been extended to solid fuels in 2012 but was now causing people to source fuel from across the border.

It said: “A rate increase could lead to an upsurge in solid fuels being sourced from Northern Ireland and further exacerbate the issue.”

An Taisce’s John Gibbons said it was absurd for a government department to be setting policy on the basis of the possibility of illegal smuggling.

He said: “Since when do we set policy like this in response to people breaking the law. The answer to this is enforcement. We do not apply this logic to cigarettes so why would we do it for fuel?”

The submission also suggested that increased carbon taxes could exacerbate the problem of “fuel poverty”. “According to the ESRI, low income households are more likely to use cheaper but more carbon intensive solid fuels,” it explained.

However, John Gibbons said this was flawed logic and that allowing the poorest households continue to use such fuel was just increasing “health inequality” instead.

“If your concern is for fuel poverty,” said Gibbons, “then the answer is not cheaper solid fuels. Retrofitting is the answer, not cheap coal or other similar fuels. We are penalising these communities even further with ill health. It is a very poor argument.

“I think we have seen from 2011 to 2016, the outgoing government never prioritised environmental issues. They were happy to make noise about it and go through the motions but in terms of translating that into policy, it just hasn’t happened.”

A third proposal was also included in the Department of Finance submission for an increased electricity tax for business use.

The rate is currently set at 50 cent per MegaWatt hour (MWh), which is the lowest permissible rate under the EU Energy Tax Directive. It was suggested that this could be increased to €1.

However, the proposal, which would have generated an extra €4.5 million each year, also slipped off the table and was not introduced.

As a Budget summary released by the Department of Finance explained: “There are no changes to any of the rates for electricity, mineral oil, solid fuel carbon or natural gas carbon taxes.”

Asked for comment, the Department of Finance said: “In the course of preparing for the budget a range of options are presented to the Minister for Finance across all tax heads.

“Ultimately, the decision to implement particular options is a matter for the Minister and the Government.”

An edited version of this article appeared in the March edition of Village Magazine

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If your Freedom of Information request is refused on the grounds of personal information – this may help

One of the most widely used – and misused – sections of the Freedom of Information Act is the exemption for “personal information”.

Like commercial confidentiality, it is being used as a catch-all by government bodies to refuse access to records whether justified or not.

Many state bodies calculate (often correctly) that journalists are unlikely to pursue internal reviews or appeals to the Information Commissioner, because of a/ cost and b/ the time it takes.

This is the text of an internal review undertaken by the Houses of the Oireachtas Service where an original decision to refuse access was overturned.

I don’t agree with it all and think some of the points in it could be challenged but this at least shows a public body taking their duties seriously and giving matters serious consideration.

More importantly though … if you have submitted an FOI request for personal information that has been refused, you may be able to use some of the very valuable points made in this decision to get it overturned.

I’ve taken the name of the original decision maker out.

 

Re: FOI R975  re compensatory leave records

Dear Mr. Foxe,

I refer to the application you submitted to the Houses of the Oireachtas Service seeking an internal review of the decision made in your request regarding access to records regarding compensatory leave awarded to staff of the Houses of the Oireachtas Service.

I am a more senior member of the staff of the Service than XX XX, who made the original decision in relation to your application, and I have today decided to vary the original decision on your request.  This decision on review arises from a de novo consideration of your request, and the basis for my decision is outlined below.

Conflict of interest
I feel that I must declare a conflict of interest as I was a recipient of compensatory leave during the period in question.  All other internal reviewers in the Service would be similarly conflicted as they were also beneficiaries, or potential beneficiaries, and I have decided to address this potential conflict of interest by stating that it exists, and by providing details of my own compensatory leave allocations for the period to which your request relates.

In the 2014 / 2015 parliamentary session, I received a compensatory leave allocation of 16 days.  The maximum permitted that year was 16 days.

In the 2013 / 2014 parliamentary session, I received a compensatory leave allocation of 14 days.  The maximum permitted that year was 14 days (not 16 as stated in Ms. Scott’s initial response to your request).

In the 2012 / 2013 parliamentary session, I received no compensatory leave.  The maximum permitted that year was 19 days.

In the 2011 / 2012 parliamentary session, I received a compensatory leave allocation of 7 days.  The maximum permitted that year was 16.5 days.

Background to compensatory leave

I think it’s important to note that compensatory leave is granted to staff in more senior grades who do not qualify for overtime payments, and who are required to work additional hours due to the sittings of the Houses of the Oireachtas.  The compensatory leave entitlement of each person arises from an individual calculation, based on that person’s additional attendance.  In recognition of the fact that more senior staff are required to work some additional hours without compensation, the number of hours actually worked is divided by two, and the resultant figure is then divided by 8 (the number of hours in a working day until 2012) or by 8.5 (the number of hours in a working day since 2012, arising from changes introduced by the Haddington Road Agreement).  The net effect is that the compensatory leave is granted at a rate which reflects only one half of the hours actually worked, in contrast to overtime salary payments, which usually attract a premium.  The award of compensatory leave also serves as an effective mechanism of using staff time in an environment where some staff are not required during recess periods – it enables the Service to gain the staff time during sitting periods when it is needed, and ‘reduce’ staff time (through compensatory leave) during recess periods when it is not needed.  The Service and the taxpayer incur significant savings through the operation of this scheme.

Your request
In your original request, you had sought access to records as follows –
“Under the FOI Act 2014, I am seeking the following:
– a list/database/table of all staff who have received compensatory leave due to late workings of Dail or Seanad since March 2011.
– the average amount of extra leave granted each year and the number of persons granted such leave.
– a list of the ten people who have received the most compensatory leave and how many hours it worked out at in period since March 2011.”

In our conversation on 21st January, you agreed–

to limit the scope of the request to the compensatory leave records of staff who are still serving in the Service – the records of retired staff, deceased staff and staff who have transferred out to other Departments are out of scope.

that the last clause of the third part of you request should read “in each period since 2011”, with each period relating to a ‘compensatory leave year’, running from September to the following July.
Decision

I have decided to vary the original decision, and that you should be given access to a list of the names of staff who received compensatory leave (the first part of your request), but that “a list of the ten people who have received the most compensatory leave and how many hours it worked out at in period since March 2011” (the records sought in the third part of your request) should not be released.  The average and total amounts of leave granted each year (the second part of your request) have already been issued by the original decision maker.

My decision in relation to the first part of your request arises because the names of public officials are clearly not ‘personal information’.

My decision in relation to the third part of your request arises because in my opinion, the records sought DO constitute personal information, and I do not believe that a sufficiently strong public interest exists in granting access to those records to merit their disclosure and thereby interfere with the right to privacy of the persons whose personal information would be released.

Rationale and approach

My approach to this review centred around consideration of sections 2, 21, 35 and 38 of the Act, although as my thinking clarified and I decided that the information is personal information which is exempt from release, even after consideration of the public interest test, section 38 became less relevant.

In reaching my decision, I was  guided by analysis of exclusions I and II in the definition of “personal information” in Section 2 of the Act, which were cited by you in your request for an internal review, and which are treated at paragraphs 14-56 to 14-59 of Professor Maeve McDonagh’s book  Freedom of Information Law, 3rd edition.

I also had regard for the principles set out in Section 11(3) of the Act, and am acutely aware of the responsibility which they place on me.

I read and considered the Commissioner’s decision in case number 060130 re Mr. X and a county council, which you cited in support of your application for an internal review.  I note in particular the Commissioner’s comment that “The underlying presumption of the FOI Act is that requests for access to records will be granted, subject only to prescribed exemptions”.  I feel that the background and context of 060130 are sufficiently different to render it an unsuitable comparator for the current case, not least because 060130 related to an investigation report of a complaint under the council’s Grievance and Disciplinary Procedure which involved the applicant, whereas none of the information to which you are seeking access relates to you.

I found that the decision of the Information Commissioner in case number 020248 is much more relevant to your application.   020248 can be accessed in full at this link –
http://www.oic.gov.ie/en/Decisions/Decisions-List/Mr-X-and-RTE1.html .  It dealt with an application for access to the specific salary details of a public service employee, (which I believe is analogous to your application for the specific leave details of public service employees).  That case confirmed that, the details of an individual public servant’s salary are personal information, and are not releasable under Freedom of Information legislation, but the salary scale applicable to a post is not personal information, and therefore is releasable.  The Commissioner required RTE to release information relating to salary scales generally, but without revealing details of the salary of the individual to whom the request related.  In his decision, the then Commissioner, Kevin Murphy, stated, in relation to the public interest ;-

“I acknowledge the right to privacy of Mr A in relation to details of his earnings and recognise the importance attached to the protection of privacy. I also acknowledge that this case involves the expenditure of public funds by RTÉ. I consider that the public interest in openness about public expenditure is of very great significance. Mr A is employed under a contract to which a salary scale attaches. In this case, the salary scale that applies to Mr A has been made known and I consider that this sufficiently addresses the public interest in the use of public funds. Accordingly, I find in this case that the public interest in upholding the right to privacy of Mr A is not outweighed by the public interest that the request should be granted.”
This case, no. 020248, is also mentioned by Prof. Maeve McDonagh in her Freedom of Information Law, 3rd Edition, in paragraph 14-59, in her treatment of the exclusions I (information relating to public servants) and II (information relating to contractors).

At this stage based on the precedent of case 060130, I considered that the records at issue in your application do constitute ‘personal information’, but that they must also be assessed against the part of Section 2 of the Act which you had cited in your request for an internal review. The exclusion you cited reads –

“but 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;”
In my opinion, the ‘names of the individuals’ are clearly exempted from the definition of personal information, and I have decided to release the names of individuals to whom compensatory leave was granted in each year.  However, the records do not relate to

“the office or position or its functions or the terms upon which and subject to which the individual holds or held that office or occupies or occupied that position”

nor do they relate to

“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” (underlining is my emphasis)
In relation to the latter part of this definition, I had regard to the Information Commissioner’s decision in case number 099183 in which he stated that  “records of the output of (former) officials acting in their (former) employment as officials are not personal to those people.”.  Professor McDonagh also cites case 099183 in her book at page 581, para 14-58.

The amounts of compensatory leave awarded are calculated individually, are commensurate with the inputs of each official and have no bearing on their outputs, ‘outputs’ being the concept to which the Information Commissioner referred in 099183 regarding Mr. Eamonn Murphy and the IDA.

Further, I believe that in the case of the ‘top ten’ recipients of compensatory leave, to release the names of those who were in the ‘top ten’ could affect their personal safety, and the security of their property, as to do so would identify them as persons who regularly or frequently attend work late, and return to their (possibly unattended) homes in the small hours.  On these two bases also, the information concerned is personal information, and should not be released.

Public Interest Test
 
I have already referred to this in the preceding paragraphs, but as it is a specific requirement of the Act, I will set out my consideration of the public interest test here.

As in my opinion, the records do constitute ‘personal information’, Section 37(5) of the Act requires that I conduct a ‘public interest test’ in order to determine where the public interest lies.  Where personal information is concerned, the Act requires that the public interest factors favouring disclosure be balanced against the right to privacy, and that the right to privacy is the only factor favouring the withholding of the requested records which may be considered. Freedom of Information law, Third Edition, by Maeve McDonagh. Paragraph 14-181 

The Commissioner has also warned that those who are in receipt of public funds “should have a diminished expectation of privacy or confidentiality”
 Freedom of Information law, Third Edition, by Maeve McDonagh. Paragraph 14-183, but that does not imply that the right to privacy shall be completely set at nought.  In this case, as I noted above, no charge on public funds arises.
 
Factors favouring disclosure of these records which I have identified are –
1. the public interest in openness regarding public expenditure and ensuring that the public obtains value for money;
2. the public interest in the accountability of officials;
3. the public interest in ensuring accountability for the use of public funds;
4. the public interest in public bodies achieving value for money;

1 and 4 above are similar, in so far as they relate to value for money, and I have already set out above the manner in which compensatory leave is calculated, and how the State avoids the costs of unnecessary attendance by staff who are not required during recess periods, and how it represents value for money when compared with overtime payments payable to staff in other grades.  Accordingly, I can assign little weight to these factors.

In relation to 2 above, I believe that the earlier release of statistical breakdowns of the amount of compensatory leave awarded each year have already satisfied the public interest in accountability, and that that accountability would not be further enhanced by releasing details of the amounts of compensatory leave awarded to individuals.

In relation to 3 above, no funds were disbursed – on the contrary, this scheme avoids disbursement of funds.

The sole factor against disclosure of these records is –
· the public interest in preserving the privacy of individuals, which interest is very strong, so much so that it is referred to in the long title of the Act (which states that the purpose of the Act 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 my opinion, the information at issue, if released, would be a significant intrusion into the privacy of individuals, and would create an unnecessary risk to their safety and the security of their property, and I therefore do not believe that the arguments in favour of releasing the records are strong enough to justify the breach of privacy of the individuals concerned if the records were to be released.

Access to records
I will arrange for the additional records at issue to be released to you in electronic format within one working day.

Right of appeal
You may appeal this decision by writing to the Information Commissioner at 18 Lower Leeson Street, Dublin 2, D02 HE97. There is a fee of €50 for such appeals, other than appeals against a decision to impose a fee. If you wish to appeal, you must usually do so not later than 6 months from the date of this notification.  Should you write to the Information Commissioner making an appeal, please refer to this letter.

If an appeal is made by you and accepted, the Information Commissioner will fully investigate and consider the matter and issue a fresh decision.

Yours sincerely,

Charles Hearne
Principal Officer

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