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 journalistsÂ 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 beÂ 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 valuableÂ points made inÂ this decision to get it overturned.
I’ve taken the name of the original decision maker out.
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. Â This decision on review arises from a de novoÂ 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. Â 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. Â The maximum permitted that year was 16 days.
In the 2013 / 2014 parliamentary session, I received a compensatory leave allocation of 14 days. Â 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. Â The maximum permitted that year was 19 days.
In the 2011 / 2012 parliamentary session, I received a compensatory leave allocation of 7 days. Â 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. Â The compensatory leave entitlement of each person arises from an individual calculation, based on that person’s additional attendance. Â In recognition of the fact that more senior staff are required to work someÂ 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). Â 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. Â 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. Â The Service and the taxpayer incur significant savings through the operation of this scheme.
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 21stÂ 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.
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. Â 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 DOÂ 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 Â 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 Â 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. Â 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”. Â 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. Â 020248 can be accessed in full at this link –
“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, 3rdÂ 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 includeâ€”(I) in a case where the individual holds or heldâ€”(A) Â office as a director of,
(B) Â a position as a member of the staff of, or
(C) Â 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. Â 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 Â “records of the output of (former) officials acting in their (former) employment as officials are not personal to those people.”. Â 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. Â 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. Â 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.Â Freedom of Information law, Third Edition, by Maeve McDonagh. Paragraph 14-181Â
The Commissioner has also warned that those who are in receipt of public funds “should have a diminished expectation of privacy or confidentiality”Â 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. Â 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. Â 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 –
Â· 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. Â 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.