Annual Report of the Information Commissioner 2016

Chapter 3: Decisions

Table of Contents

Formal decisions

My Office reviewed 502 cases in 2017 and issued formal decisions on 288 of those reviews, representing 57% of all reviews completed during the year. The remaining 214 reviews were closed by way of discontinuance, settlement or withdrawal.

Case completions increased by 16% over 2016

The table below provides a percentage comparison of the outcomes of all reviews completed by way of formal decision (affirmed, varied or annulled) in 2017. See Table 15, Chapter 4 for a three year comparison of the outcome of all reviews completed in the year.

Decisions of interest

The following cases represent a sample of cases my Office reviewed during the year that were concluded by way of a formal decision. The full text of all formal decisions issued during 2017 is available at

Dublin City Council directed to release details of hotels/B&Bs providing emergency accommodation to homeless people - Case 160313

The Council released details of its total annual expenditure on hotels/B&Bs providing emergency accommodation to homeless people but refused to disclose the identities of the accommodation providers or the individual amounts paid. Among other things, it argued that the accommodation providers would withdraw their services if the information was released.

A number of hotels submitted that they would lose business to competitors if it was known that they accommodated homeless people on behalf of the Council. A number also stated that they would stop providing emergency accommodation if the information sought became public. This differed from a previous case concerning Galway City Council where no hotels/B&Bs made submissions objecting to the release of similar records.

In my decision, I accepted that there was a possibility that disclosure could have some effect on the supply of accommodation to the Council as well as on the commercial interests of the third parties. I also accepted that the information was commercially sensitive.

On the other hand, I noted that there is a strong public interest in the enhancement of openness and transparency of public bodies and that such openness is a significant aid to ensuring effective oversight of public expenditure, in ensuring that the public obtains value for money and in preventing corruption, waste and misuse of public funds.

I concluded that, on balance, the public interest would be better served by the disclosure of the information at issue. This was due in part to the substantial public monies involved. It had been reported that in 2016 alone, €38.9 million was spent by the Council on such accommodation.

[Note: Dublin City Council has appealed this decision to the High Court]
A request revisiting matters the subject of a previous settlement agreement deemed vexatious - Cases 160563 and 170088

The request in Case 160563 referred to matters of dispute the applicant previously had with the relevant public body and sought various records relating to the applicant. The body refused the request on a number of grounds including under section 15(1)(g), namely that the request was frivolous or vexatious.

The body said that the applicant had entered into a settlement agreement with the body to resolve the matters of dispute, and that the FOI request concerned matters covered by the agreement. I accepted that the matters of dispute had apparently concluded on foot of the agreement.

I take the view that a relevant factor in considering whether a request can be deemed to be frivolous or vexatious is the purpose for which the request was made. One such purpose, according to the applicant, was to ensure that the body can be held accountable for its actions. I accepted that this was a legitimate purpose. Otherwise, though, it appeared to me that the applicant was seeking to revisit the matters of dispute and thus to accomplish an objective unrelated to the access process. I also considered the request to be excessively broad and burdensome. I found the request to be one to which section 15(1)(g) applies.

The request in Case 170088 involved the same parties and was for records relating to a particular procurement competition. The body maintained that this request also concerned the matters the subject of the settlement agreement. However, it did not give any other reasons to explain why it considered the request to be frivolous or vexatious. For example, it did not argue that the request was intended to revisit the matters of dispute and/or to accomplish an objective unrelated to the access process. I found the body not to have justified its reliance on section 15(1)(g). I annulled the decision and remitted it for fresh consideration.

The four month closure rate has increased by 37% since 2013

Public bodies are not generally required to process information held in hard copy records to grant a request - Case 170106

The applicant sought information relating to breech vaginal deliveries in a named hospital. The HSE provided certain limited information and refused access to the remaining information under section 15(1)(a) on the ground that it did not hold the records sought.

The Act does not require public bodies to create records if none exist, apart from a specific requirement to extract records or existing information held on electronic devices in certain circumstances. I established that the information was not held electronically and could not be retrieved by extracting information from a database.

I was also satisfied that the HSE did not collate the requested information, and that no stand-alone records containing those details existed. While the applicant argued that the information could easily be ascertained by examining medical charts, I found that this would essentially require processing the contents of medical files to create a record that did not previously exist. I did not accept that the Oireachtas intended FOI bodies to do this. I found that the HSE was justified in refusing the request.

I noted that there will be occasions where directing the release of parts of records may be appropriate in other cases. I noted, for example, that it may be appropriate to extract particular matter sought from the minutes of a meeting of a public body. In such a case, the body should be in a position to readily identify the information sought, as a stand-alone piece of information. I found that a reasonable and proportionate approach should be taken, based on specific circumstances and the context in which the request falls to be considered.

Information about the performance of hospital consultants not required to be released in the public interest - Case 160509

The applicant sought information from Beaumont Hospital about how consultants were complying with the public/private aspect of their contracts, including identifying information (the consultants’ names, specialties and sub-specialties). The Hospital granted information about compliance levels of individual consultants, but refused to release the identifying information.

Under the Act, a public servant’s name is not considered to be personal information. However, the definition provides that personal information includes information relating to the employment or employment history of public servants and information relating to public servants in personnel records. A personnel record is defined as a record relating wholly or mainly to the competence or ability of the public servant, or his or her employment history, or an evaluation of his or her work performance.

In this case the request concerned the performance of the hospital consultants as public servants. In that context, I found all of the identifying information to be personal information about the consultants in question.

In my consideration of whether the public interest in granting the request would, on balance, outweigh the privacy rights of the consultants, I accepted that there was a public interest in disclosing information about how the Hospital carries out functions such as monitoring consultants’ compliance with their contracts. However, I found that this public interest had been served to some extent by the information already released.

I noted that the FOI Act is concerned with enhancing transparency and accountability in respect of the activities of FOI bodies generally, rather than in respect of the performance of identifiable public servants. I found that granting access to information about the performance of individual consultants would result in a significant invasion of their privacy rights. It would also give an insight into their private (i.e. non public funded) work. I found that directing release of the identifying information was not warranted in the public interest.

Release of data sets could result in an unwarranted benefit to parties - Case 160529

The Catchment Flood Risk Assessment Management (CFRAM) project is a core component of the National Flood Policy that was adopted by Government in 2004. The CFRAM project commenced in 2011. Further to six national studies, including river surveys, detailed flood maps will be produced and flood risk management measures identified, assessed, and prioritised.

The review in this case concerned the refusal of the Office of Public Works (the OPW) to grant a request for certain river survey data collected under the CFRAM project. The data was gathered to produce detailed flood maps and to prioritise appropriate flood risk management measures. The OPW relied on a number of exemptions to refuse the request including section 40(1)(d) which provides for refusal where release of the records sought could reasonably be expected to result in an unwarranted benefit or loss to a person or class of persons.

At the time of my decision, the CFRAM data sets had been restricted but the OPW was considering making them publicly available under licensing arrangements. Complete flood data in Northern Ireland (fifteen times less data than that gathered under the CFRAM project) is available under similar arrangements for a cost of over £45,000. I accepted that the licensed full value of the CFRAM data would be substantial. I also accepted that release of the requested data could reasonably be expected to result in an unwarranted benefit to the applicants and others, and would deprive the State/OPW of licensing revenue. I found section 40(1)(d) to apply.

I found that the requested information would not enable any significant insight into how the OPW carries out functions such as deciding on funding prioritisations. I did not consider there to be a significant public interest in its release. However, I accepted that there was a public interest in protecting information that could reasonably be expected to result in an unwarranted benefit to various parties. I directed that the data sets be withheld.

Release of correspondence between the Department of Social Protection and the Data Protection Commissioner relating to the Public Services Card not contrary to the public interest - Case 170255

The Department refused to release its correspondence with the Office of the Data Protection Commissioner (the DPC) relating to the Public Services Card (the PSC), on the ground that it related to an ongoing deliberative process and that release would be contrary to the public interest. It argued that the views expressed by the DPC would misinform the public about the PSC and erode public confidence in the PSC project and/or the Office of the DPC. However, it did not explain the reasoning used to arrive at this conclusion.

In any event, I take the view that the possibility of information being misunderstood is not a good reason to refuse access to records under FOI, and I noted that it would be open to the Department to put further information in the public domain, if that were necessary, to clarify matters.

The introduction of the PSC has not been without controversy and I took the view that release of the records would further the public interest in openness and transparency, and also enable public debate about the issues raised by the DPC. I found that the Department had not adequately demonstrated that the release of the records at issue would be contrary to the public interest.

Flawed decision to impose a fee for search and retrieval costs - Case 160284

My review in Case 160284 followed an earlier decision by my Office to annul a decision of the Department of Jobs, Enterprise and Innovation to refuse a voluminous request as it had not assisted, or offered to assist, the requester in amending the request. The Department subsequently engaged with the requester following which an amended request was submitted.

The Department decided to process the amended request notwithstanding that it was entitled to refuse the request on the ground that the estimated search and retrieval costs exceeded the overall prescribed limit of €700. It sought to impose a fee for the estimated search and retrieval costs.

The relevant provisions in the Act relating to charging search and retrieval fees are quite complex. They are also subject to strict requirements and time-frames which can prove challenging for public bodies to meet, given the complexity of the issues to be considered.

Where the estimated search and retrieval costs exceed or are likely to exceed the overall ceiling limit of €700, the public body must notify the requester of that fact and it must offer to assist the requester in amending the request in order to reduce the charge to an amount less than or equal to €700. It must also issue a notice, not later than two weeks after the receipt of the request, requiring the payment of a deposit in the event that the requester amends the request, or the body decides to process the request regardless of any amendment.

The Department was of the view that the assistance initially offered to amend the request satisfied consultation requirements in respect of the search and retrieval costs. However, both provisions are completely separate.

I found that the Department should have informed the requester that the search and retrieval costs in respect of the amended request were likely to exceed the overall ceiling limit and given him a further opportunity to amend his request. I also found that it should have done so within two weeks of receiving the amended request under section 15(4). I annulled the Department’s decision to impose a fee for the estimated search and retrieval costs relating to the amended request.

Records of a particular investigation relating to the conduct of members of An Garda Síochána not subject to the Act - Case 160054

The applicant sought a review of the decision of An Garda Síochána (AGS) to refuse access to, among other things, an investigation file relating to the conduct of members of AGS. This was the first case in which my Office had to consider the extent to which records of AGS are subject to the Act.

Only the administrative records of AGS relating to human resources, or finance or procurement matters are subject to the Act. Records relating to the core functions of AGS, such as the investigation of criminal activity, are not included.

Generally, I consider records relating to staff discipline to be administrative records relating to human resources. However, in this case the records were distinguishable from those that might generally exist in relation to a disciplinary matter. They resulted from a complaint made by a member of the public to the Garda Síochána Ombudsman Commission (GSOC) that was referred to AGS for investigation. I found that the records were not “administrative records relating to human resources” within the meaning of Part 1(n) of the First Schedule.

While it did not affect my ultimate decision, I also found that the exclusion of certain GSOC records as set out in Part 1(y) of the First Schedule does not extend to such records where they are held by other public bodies, such as AGS.

The Commissioner has jurisdiction to review a decision of the Data Protection Commissioner to refuse a request for non-administrative records - Case 160447

The Office of the Data Protection Commissioner (the DPC) refused a request for access to records relating to lobbying of the Office on the ground that the records sought are not covered by the FOI Act as they do not relate to the general administration of the Office.

During the course of the review, the DPC argued that I had no jurisdiction to review its decision as the records sought concern matters for which the DPC is not a public body for the purposes of the Act.

Essentially, the DPC’s argument was that none of the provisions of the Act apply where the records sought do not concern the general administration of the DPC, notwithstanding the fact that the position taken by the DPC was contrary to the legal advice that the Office of the Attorney General provided to the Central Policy Unit of the Department of Public Expenditure and Reform on the matter, and to my decision in Case 150195 where I considered and rejected similar arguments made by the Central Bank of Ireland.

I found that as a public body, the DPC was required to make a decision in relation to an access request and in making that decision, it may look to the relevant provisions of the Act, including Part 1 of Schedule 1, in deciding whether or not to grant access, but it must otherwise adhere to the requirements of the Act, including in relation to the statutory rights of review.

I found that any decision to refuse access on internal review under section 21 of the FOI Act is in turn subject to review by my Office under section 22(1)(b) of the FOI Act. Accordingly, I found that I was entitled to review the DPC’s decision to refuse the applicant’s request. On the substantive matter, I found that the DPC was justified in refusing the request as the records did not relate to the general administration of its Office.

from an applicant
“I am happy that the matter has been settled since your intervention. I have received the report as originally requested.”

Department of Justice and Equality directed to release contractual information relating to the operation of road safety cameras - Case 160427

The applicant sought access to a contract for the provision and operation of road safety cameras. The parties to the contract were the Department of Justice and Equality, An Garda Síochána and GoSafe. All three parties objected to the full release of the contract. I accepted that the contract contained certain information that was commercially sensitive, under section 36(1)(b) of the FOI Act.

However, I found that the public interest in transparency and accountability in respect of a contract with a successful tenderer outweighed the public interest in refusing access to the information, except in relation to two schedules to the contract. I directed the Department to release the vast majority of the contract.

Local Government Management Agency directed to release records about a value-for-money report in the public interest - Case 170136

The Local Government Management Agency (the LGMA) commissioned PwC to conduct a value-for-money review of the insurance services provided by IPB Insurance to the local authorities. It did so on behalf of a steering group which oversaw the review.

The applicant sought access to the report and related records. The LGMA refused access to a number of records under a number of exemptions, including under section 35 on the basis of a non-disclosure agreement entered into between the LGMA, PwC and IPB Insurance, in relation to certain information which IPB Insurance provided for the purpose of the review.

The protection afforded to confidential information by section 35 does not apply where the record sought was prepared by a member of the staff of a public 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 a public body or a member of the staff of a public body or a service provider.

The LGMA argued that a duty of confidence was owed to IPB Insurance in this case. While it accepted that IPB Insurance is a service provider insofar as it provides services to the local authorities, it argued that the information which IPB provided to PwC in this context was furnished for a specific and limited purpose and does not relate to the services it otherwise provides under a contract for services.

I noted that according to the steering group’s own terms of reference, it was agreed to conduct a value-for-money assessment of the insurance services provided by IPB Insurance to its members. The records under review were prepared by the steering group or PwC and their subject matter was the value-for-money review. In those circumstances, I was satisfied that they relate to the services which IPB Insurance provides.

IPB Insurance provides insurance services to the local authorities and education and training boards. In the circumstances, I found that IPB Insurance was a service provider under the FOI Act. As such, I found that the LGMA had not identified an entity other than a public body or service provider to whom a duty of confidence is owed under the non-disclosure agreement. I found that section 35 did not apply.

I accepted that the records contained commercially sensitive information under section 36(1)(b). However, I found that under section 36(3), the public interest in transparency and accountability around the value for money obtained by FOI bodies outweighed the public interest in refusing access to the information. I directed the release of the records.

[Note: IPB Insurance has appealed this case to the High Court]
Tender details not identified as sensitive do not automatically fall for release - Case 160340

The applicant requested records relating to a particular contract awarded by Galway County Council. He argued that if bidders had not identified commercially sensitive or confidential information when tendering, as requested by the Request for Tenders (RfT), then the tenders could not be exempt under the confidentiality or commercial sensitivity exemptions (sections 35 and 36, respectively).

The RfT stated that when dealing with an FOI request, the Council would have regard to any explanations given by tenderers as to why particular details in their tender were commercially sensitive or confidential.

While I acknowledged that the relevant provision in the RfT was intended to assist public bodies when considering requests for tender submissions, I did not accept that the failure of a tenderer to identify confidential or commercially sensitive information in a tender submission, of itself, meant that the submission should be released on foot of an FOI request. I considered that such a proposition would be all the more unreasonable in the case of tenderers who were not successful and/or did not ultimately receive public monies.

I found that the public interest would not be better served by the release of additional information relating to the unsuccessful tenderers.

from an applicant
“Thanks for this and, to repeat, it has been a pleasure engaging with you on it. Thanks for the way you handled everything and best wishes”.

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