Whether the Service was justified in refusing access, under section 37(1) of the Act, to details of Deputies and Senators for whom reconciliations were made in respect of their attendance at Leinster House for reasons of ill-health or extraordinary circumstances and the dates for which the reconciliations were made

14 November 2019

Background

The Oireachtas (Allowance and Facilities) Regulations 2010 (S.I. 84 of 2010) provides for the payment to members of the Oireachtas of an annual allowance known as the Parliamentary Standard Allowance (PSA). The PSA includes an allowance in respect of travel and accommodation expenses members incur in the performance of their duties.

In order to retain all amounts paid, members must record a minimum period of attendance at Leinster House during the relevant period (generally 120 days within 12 months). If a member cannot attend at Leinster House, he/she may still be able to have certain days counted (or reconciled) for the purpose of recording the minimum period of attendance in certain specified circumstances.

The circumstances in which a member may reconcile records of attendance are set out in S.I. 84 of 2010 and in an administrative policy agreed by the Oireachtas Commission.

S.I. 84 of 2010 provides that a member may apply to reconcile his/her attendance for days where he/she can show that he/she could not attend Leinster House due to

• ill-health which has been certified by a medical practitioner as preventing the member from carrying out his/her duties as a member
• attendance abroad in the performance of his/her duties as a member or as an Office Holder, or in the State (otherwise than in Leinster House) as part of, or on behalf of, an Oireachtas Committee, or
• extraordinary circumstances that precluded the attendance of the member at Leinster House, determined by the Ceann Comhairle or Cathaoirleach, as may be appropriate, to be good and sufficient and which could not have been foreseen by the member

According to the Service, members record their attendance on the System for Recording Attendance time terminal. Members who have not recorded their attendance on certain days may reconcile their records under S.I. 84 of 2010 or under the administrative policy. It said that on a practical level, a member who forgets his/her key fob or fails to record attendance can reconcile his/her attendance with evidence of attendance, e.g. voting record.

On 9 May 2019 the applicant submitted a request to the Service for a list of all dates for the current sitting Government (the 32nd Dáil who took their seats on 26 February 2016) for which Deputy attendance was reconciled in hindsight for the purposes of the Service’s official attendance records. He stated that the list should include dates which were reconciled for illness, official business, unforeseen circumstances or any other event which allows the official record to be reconciled.

On 29 May 2019 the applicant sought the same information in relation to the list of all dates for which Senator attendance was reconciled in hindsight for the purpose of the Service’s official attendance records.

On 6 June 2019 the Service issued a decision on the request for information relating to Deputies in which it part granted the request. It released a list of all dates for which reconciliations had been made to the attendance record of current Deputies, apart from certain dates that were withheld under section 37 of the Act where reconciliations arose due to matters such as a member’s ill health.

The following day, the applicant emailed the Service and stated that he had been seeking the names of the Deputies to be associated with the dates. On 19 June 2019 the Service provided an amended list comprising dates with the associated Deputy names and reasons for the reconciliations but, as before, certain dates were excluded where the reconciliations were for reasons such as ill health. On 25 June 2019 the applicant sought an internal review of that decision.

On 26 June 2019 the Service issued a decision on the request for information relating to the Senators in which it part granted the request. It released a list comprising dates with the associated Senator names and reasons for the reconciliations. However, it again withheld certain dates under section 37 of the Act.

On 9 July 2019 the applicant sought an internal review of the decision relating to the Senators, in which he expressed his concern that neither decision had indicated that certain dates were also withheld where the reason for the reconciliation was due to extraordinary circumstances.

In its composite internal review decision of 26 July 2019, the Service affirmed its original decisions and also sought to rely on section 42 (k) of the Act to refuse the information sought. On 30 July 2019 the applicant sought a review by this Office of that composite decision.

I consider it appropriate to conclude this review by way of a formal, binding decision. In conducting my review, I have had regard to the correspondence between the Service and the applicant as outlined above and to correspondence between this Office and both the Service and the applicant on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the Service in the Schedule of Records it forwarded to this Office for the purposes of the review.

Scope of the Review

Records 1 to 12 have been released to the applicant. Records 1 to 4 comprise lists containing dates upon which certain reconciliations were made. Records 5 to 12 comprise lists containing details of Deputies and Senators for whom certain reconciliations were made, the dates on which they were made and the reasons for the reconciliations.

Records 13 and 14 comprise lists containing details of the reconciliations that were withheld from the lists released. They contain details of Deputies and Senators for whom reconciliations were made for reasons of either “Medical Cert Presented” or “Extra Ordinary Circumstances” and the dates for which the reconciliations were made. 

This review is concerned solely with whether the Service was justified in refusing access to the information contained in records 13 and 14 under sections 37(1) and 42(k) of the FOI Act.

Analysis and Findings

While the Service relied on both sections 37(1) and 42(k) in refusing access to the withheld records, I am of the view that, in the particular circumstances, section 37 is of most relevance in this case.

Section 37(1)

Section 37(1) provides for the mandatory refusal of a request where the public body considers that access to the record sought would involve the disclosure of personal information relating to an individual other than the requester, including personal information relating to a deceased individual.

For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal information, without prejudice to the generality of the foregoing definition, including "information relating to the educational, medical, psychiatric or psychological history of the individual”. Once information falls within one of the 14 listed categories, it is personal information for the purposes of the Act.

As outlined above, the records at issue contain details of members for whom reconciliations were made, the dates for which the reconciliations were made, and where the reason for the reconciliation was recorded as “Medical Cert Presented” or “Extra Ordinary Circumstances”.

In its correspondence with this Office, the Service stated that requests for reconciliations due to extraordinary circumstances tend to involve family bereavements, family illnesses and absences normally contemplated under force majeure leave for employees.

Having considered the nature of the withheld information and the explanation provided by the Service, I am satisfied that the disclosure of the records at issue would involve the disclosure of personal information relating to the relevant members and that section 37(1) applies.

Section 37(2)
There are certain circumstances, provided for under sections 37(2) and 37(5), in which the exemption set out in section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case.

Section 37(5)

Section 37(5) provides that a record which is otherwise exempt under section 37 may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual.

I do not consider that the release of the information at issue would benefit the members concerned, as envisaged by section 37(5)(b) of the FOI Act. I find, therefore, that section 37(5)(b) does not apply.

On the matter of whether section 37(5)(a) applies, I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the members to whom the information relates.

In his correspondence with the Service, the applicant argued that there is an obvious public interest case for disclosing all of the days a member has had reconciled, including days reconciled for health reasons, since the public has a right to know whether their elected representatives make proper use of the procedures designed to record attendance. He argued that the reconciled days end up forming part of a record which is in the public domain, namely the final attendance record. He argued that the final attendance record is one which has already been deemed to be relevant to the public interest and that withholding days reconciled for reasons such as ill health damages the veracity of the record since members of the public are unable to access information about how the record was complied.

The applicant further argued that the privacy invasion is minimised since he is not seeking any details about the type of health reasons. He argued that days reconciled for health reasons remains sufficiently broad to avoid undue invasion of privacy and the data would not allow anyone to identify whether a member had any particular illness. He also argued that members are not typical public servants, that they occupy special positions, and that they should have a diminished expectation to privacy relative to unelected public servants.

In its internal review decision, the Service essentially acknowledged that there is a public interest in enhancing the transparency and accountability of how elected officials carry out their functions but argued that the release of the information at issue would not serve those public interests.

It argued that while the refusal to release the information sought may not allow for the veracity of the final attendance record to be substantiated, it does not damage the veracity of the final attendance record.

It also argued that the FOI Act does not entirely negate a public representative’s right to privacy. It accepted that members should have a diminished expectation to privacy but that the diminished expectation is not unlimited and does not extend beyond political activity into the area of an individual’s private life.

It is clear that a certain amount of transparency and accountability currently exists in relation to the recording of member attendance. I accept that the release of the information at issue would serve to further enhance such transparency and accountability. It would, for example, allow the public to draw more fully informed conclusions about compliance by members with the requirements of S.I. 84 of 2010 relating to the payment of travel and accommodation expenses. The question I must consider is whether the public interest in further enhancing that transparency and accountability by releasing the records at issue outweighs, on balance, the privacy rights of the individuals to whom the information relates.

The FOI Act recognises a very strong public interest in the protection of the right to privacy, as reflected both in the language of section 37 and in 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. 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 find it difficult to accept that information that disclosed nothing more than the fact that attendance at Leinster House had been reconciled for certain members on certain dates should be withheld. Indeed, the Service has already released the majority of such information. However, the release of the information at issue in this case would disclose more than that. It would also disclose the fact that the reconciliations had been carried out for reasons relating to aspects of the private lives of the relevant members.

It seems to me that a distinction may be drawn between the disclosure of information relating to the manner in which members of the Oireachtas carry out their functions and the disclosure of information which also discloses information relating to private activities or private aspects of their lives. There is nothing in the Act to suggest that elected representatives should be deprived of their privacy rights generally.

In the circumstances, in light of the nature of the information that would be disclosed if the records at issue were released, I find that the public interest in favour of granting access to the withheld records does not, on balance, outweigh the public interest in protecting the privacy rights of the individuals concerned.

I find, therefore, that the Service was justified in its decision to refuse access to the withheld information under section 37(1) of the FOI Act. Having found section 37(1) to apply, I do not consider it necessary to consider the applicability of section 42(k) of the Act to the records. Although for the benefit of the Service, I would say that I would find it difficult to accept an argument that the records at issue comprise private papers of the members or records relating to such private papers.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Service to refuse access to the withheld records under section 37 of the FOI Act.

Right of Appeal

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