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Whether the Council was justified in its decision to refuse access to certain records and parts of records concerning DEIS 2013 award scheme, under the provisions of sections 21(1)(b), 26(1)(a), 27(1)(b) and 28(1) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 11 July 2014 the applicant made an FOI request to the Council. The request was a narrowing and clarification of the scope of an earlier, broader request following contact between the applicant and the Council. The applicant sought access to all records relevant and related to conflict of interest management in general and to the Deis Round 2, 2013 in particular. Deis is a scheme through which projects in the traditional arts are funded.

In its original decision of 22 August 2014, the Council granted access in part to some records and refused access to others on the basis of sections 20(1), 21(1)(b), 26(1)(a), 27(1)(b) and 28(1) of the FOI Act. However, following an internal review, the Council released additional records to the applicant. The applicant then wrote to this Office on 24 September 2014 seeking a review of the Council's decision.

During the course of this review, this Office found that the decision schedule forwarded to the applicant was not the same as the schedule which the Council had given to this Office. A total of 40 records were scheduled - many containing multiple pages. Consequently, at the Investigator's request, the Council gave the applicant a copy of the more detailed schedule. In so doing, it also decided to release additional parts of some records to the applicant, such that it no longer relied on the provisions of section 20(1).

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting my review, I have had regard to the Council's decision in this matter, to correspondence between this Office and the Council, to correspondence between the applicant and the Council and to correspondence between the applicant and this Office. I have also had regard to the records in question and the provisions of the FOI Act.

Scope of the Review

This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to the remaining withheld records and parts of records under sections 21(1)(b), 26(1)(a), 27(1)(b) and 28(1) of the FOI Act. The remaining records to which the Council applied the exemptions are records 2, 3, 6, 7, 9, 12-16, 18, 19, 21-26 and 31-35. In some cases, only a small amount of the record has been redacted with the remainder having been released.

As regards records 5 and 39, the Council stated that the redacted parts of those records related to matters outside of the scope of the request. Having examined the redacted material, I agree that it relates to matters other than the conflict of interest issue, or the Deis scheme and I will not consider those records any further.

Preliminary Matters

Before setting out my findings, it is important to note that section 34(12) of the FOI Act provides that a decision to refuse a request shall be presumed not to be justified unless the public body shows to the Commissioner's satisfaction that its decision as justified. I should point out also that while I am required by section 34(10) to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. I also wish to make it clear that this review does not extend to an investigation into the procedures of the Council or how it conducts its business; neither can I consider separate requests made by the applicant.

Analysis and Findings

Section 26(1)(a)

Record 2 was withheld under section 26(1)(a) of the FOI Act on the basis that it contains information given to the Council in confidence. It comprises the 24 completed applications received for Round 2 of the 2013 Deis awards.

Section 26(1)(a) provides for the mandatory refusal of a record containing information:

• given to a public body in confidence and,
• on the understanding that it would be treated by it as confidential and,
• in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

 

The record contains detailed information, including financial information, about each of the applicants and other persons (third parties) proposed to be involved in the projects. The Council stated that all applicants apply to it on the understanding that information relating to their applications will be dealt with confidentially, particularly given the issue of commercial sensitivity, copyright of original artistic ideas and personal data. The Council also referred to its reputation and stated that artists trust that the Council will maintain a confidential relationship with them. I am satisfied that, at the initial stage of the Deis award process, applications are provided to the Council in confidence. Also, I consider that, at that initial stage, an applicant is entitled to rely on the undertaking of the Council that all information provided will be treated as confidential, notwithstanding the use to which that information may be put following a successful application. The Council describes schemes such as the Deis award as a "core function of the Arts Council". In its submission, the Council stated that "[no] artist would apply to the Arts Council if they didn't feel that the Arts Council dealt confidentially with their personal information and creative ideas." While I do not agree fully with that assertion, I accept that the level of detail supplied might be compromised and that it is important that the Council continues to receive high quality, original and detailed proposals with proper costings, so that a thorough evaluation can be made. Having examined record 2, I find that the four requirements as set out above have been met and that the Council was justified in refusing access to parts it under section 26(1)(a) of the Act.
Section 26(2) does not dis-apply section 26(1) in this case, as the records were not prepared by a head, directors or staff members of a public body, or "a person who is providing a service for a public body under a contract for services" in the course of the performance of his or her functions.

Section 26(3) - the Public Interest
Section 26(3) of the FOI Act provides that the exemptions contained in section 26(1) are not to apply in relation to a case:
"in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request .....".
In her application to this Office, the applicant stated that there was a public interest in this matter as it has been featured on the front page of a national newspaper and also been raised in the Dáil. I accept that the media reported on a conflict of interest that was identified during the award process. In addition, the matter was raised at a meeting of the Oireachtas Joint Committee on Environment, Culture and the Gaeltacht, in February 2014. However, it does not necessarily follow that it must be in the public interest that the records be released.

It is necessary to identify the various public interests served by the release of the particular record, as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other. In my view, there is a public interest in increasing openness and transparency within public bodies, particularly, as in this case, where a public body is disbursing public monies. I also consider that there is a strong public interest in ensuring that public bodies are accountable in how they process funding applications for schemes such as Deis. Factors favouring the withholding of the records include the public interest in members of the public, including the arts community, being able to communicate in confidence with public bodies, without fear of disclosure, in relation to sensitive matters, and the public interest in public bodies being enabled to perform their functions effectively and efficiently.

Access to a substantial amount of information about applicants to the Deis award scheme has been granted by the Council, including amounts awarded, elements of the scoring system used in the decision making process together with the proposals of successful applicants. Thus, the public interest in openness, transparency and accountability in the expenditure of public monies has been satisfied to a large extent. Furthermore, I am satisfied that the confidential information in the application forms does not disclose matters of conflict of interest or governance. On balance, I am of the view that the advantages in terms of openness and transparency of disclosing record 2 do not outweigh the right of applicants to have their personal information, artistic proposals and costings treated as confidential. I find, therefore, that the public interest would not, on balance, be better served by the release of the record at issue in this case.

Section 27(1)(b)
Records 15 and 16 were refused by the Council on the basis that they contain commercially sensitive information and are exempt from release on the basis of Section 27(1)(b) of the FOI Act. I will also consider here the withheld parts of records 3, 6, 7, and 9 which relate to elements of the proposals commented upon in the assessment of unsuccessful applications and budget details of the projects put forward.

Section 27(1)(b) provides for the refusal of a request if the record contains financial, commercial, scientific, technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
The essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The Council stated that release of these records could jeopardise the applicant/organisation's capacity to conduct its business, to secure funding and realise its artistic ideas. For the exemption at section 27(1)(b) to apply, the only requirement that has to be met is that disclosure could reasonably be expected to result in financial loss or could prejudice the competitive position of the person concerned. The standard of proof necessary to meet this test is relatively low. Having examined the records, I am satisfied that the release of the information could cause the type of harm envisaged in the exemption to the applicants/organisations in relation to their professions or businesses. I find, therefore, that section 27(1)(b) applies.
Section 27(2) goes on to set out five specific sets of circumstances in which section 27(1) will not apply, none of which appear to me to be relevant to this case.

Section 27(3) - The Public Interest
Section 27(3) of the FOI Act provides that the exemptions contained in section 27(1) are not to apply in relation to a case:
"in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request .....".
The Council put forward factors favouring release of the records such as the rights of the applicant to have access to records, the need for transparency and accountability and the public interest in disclosure of documents relating to issues that affect the wider community. Its arguments against release were that applicants and third parties should not be impeded in the effective pursuit of their enterprises.
As discussed above under section 26, there is a very significant public interest in ensuring the maximum openness in relation to the use of public funds. There is also a public interest in ensuring that the Council's award process was conducted thoroughly and fairly. On the other hand, there is a legitimate public interest in persons being able to conduct transactions with public bodies without fear of suffering commercially as a result; it is this public interest which section 27(1) seeks to protect. I note in this regard that information about the process and the successful proposals has been released. In the case of the records which disclose feedback given to unsuccessful candidates, I am satisfied that none of this concerns matters related to conflict of interest or other governance matters. In the circumstances of this case, I find that, on balance, the public interest would not be better served by the release of the records to which section 27(1)(b) applies.

Section 28 - Personal Information
Records 36, 37 and 38 were granted in part by the Council under section 28(1). I also consider that the mandatory exemption at section 28 falls to be examined in relation to the withheld parts of records 12-14, 18, 19 and 21-26. Personal information in parts of records 31-35 is dealt with separately below.

Section 28(1)
Section 28(1) of the Act provides that a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information. Section 2(1) of the Act defines "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or is held by a public body on the understanding that it would be treated by it as confidential. Having carefully examined those records, I note that they contain personal information including name, address and other contact details and financial information of successful, unsuccessful and ineligible applicants for the Deis award scheme. Some of the records also contain personal contact details of the scheme's assessment panel members and personal information relating to third parties. Therefore, I find that, subject to the provisions of section 28(2) and section 28(5), which I examine below, the records are exempt from release on the basis of section 28(1) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2) of the FOI Act, in which the exemption at section 28(1) does not apply. Having examined the details to which I have found section 28(1) to apply, I am satisfied that none of the circumstances identified at section 28(2) arise in this case.

Section 28(5) - The Public Interest
Under section 28(5), however, access to the personal information of a third party may be granted where:
(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.
I do not believe that the grant of the information would be to the benefit of the third parties concerned and therefore section 28(5)(b) does not apply.
The FOI Act also recognises a very strong public interest in protecting privacy rights - both in the language of section 28 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 worth noting that the right to privacy also 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. As discussed above, I consider that there is a public interest in openness and accountability. I am satisfied that the public interest in this case has been met to a considerable extent by the records released to the applicant to date and is outweighed by the privacy considerations. On balance, I am not satisfied that the significant invasion of the privacy rights of artists and third parties, which would be the consequence of releasing the remaining records and parts of records, is warranted.
I find, therefore, that section 28(5)(a) of the FOI Act does not apply.

Records 31-35
The Council cited section 21(1)(b) and section 28 in withholding parts of records 31-35. During the review, it argued that these were not within the scope of the request. I cannot accept that this is the case having regard to their content and the fact that the records relate to the Council's handling of the conflict of interest arising from the Deis round at issue. Therefore, I must consider the withheld parts under the exemptions claimed by the Council.

Section 21(1)(b)
Section 21(1)(b) of the FOI Act provides that a request for access to a record may be refused if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff). A record found to be exempt under section 21(1)(b) may be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned (section 21(2) refers).

Records 31, 33, 34 and 35 were released in part by the Council so that the applicant is already aware of the context in which they were created. Access was refused to record 32 in full, so I am restricted in the description that I can give of its content, given the provisions of section 43(3). It is fair to say that this group of "internal" records all relate to the Council's handling and review, at a senior level, of the conflict of interest issue, the subject of the request. In its submissions to this Office, the Council contended that release of these records would adversely affect certain employees and that the redactions related to a subsequent "disciplinary investigation ". In this regard, I note that the Council had confirmed to the media in early 2014 that there was a disciplinary procedure underway following the conflict of interest incident in the Deis process and that issues of conflict of interest in relation to governance would be revisited. I further note that records released to the applicant with personal information redacted confirmed that the Council had determined that a breach of its staff Code of Conduct had occurred. In any case, it seems to me that these records cover the period prior to any disciplinary action when the conflict of interest was still being investigated by management.

Apart from the redaction of the name of the staff member who brought certain matters to the attention of the Council which, in the circumstances of this case, constitutes personal information under section 28 of the Act, I consider that the Council has not justified its refusal of access to record 32. The record primarily sets out the steps taken in relation to the Council's investigation of the conflict of interest issue. Similarly, I cannot see how the release of the few lines redacted from record 31 - which describe some elements of the investigation without identifying any staff member - would undermine the trust between employees and the Council. Indeed, it could be argued that the records mainly demonstrate the methods used by management to investigate what happened. As regards the redactions in records 33, 34 and 35, I agree with the Council that a staff member's name, panel members' names, applicant's name and reference to banking details in the body of emails, or memos, should be redacted as exempt since these are the personal information of those individuals under section 28(1); I do not consider that the Council has justified its position that release of the remainder of the email would cause the harm envisaged by section 21(1)(b).

Even if I were satisfied that access to these records could reasonably be expected to have a significant adverse effect on the performance of the Council's management functions in relation to staff disciplinary matters and that the exemption in section 21(1)(b) applied, section 21(2) of the Act provides that the exemption shall not apply in a case in which, in the opinion of the head of the public body, the public interest would, on balance, be better served by granting than by refusing to grant the request. In my view there is a clear public interest in the Council being able to investigate matters involving allegations against staff effectively. On the other hand, there is also a public interest in increasing transparency and accountability in how the Council manages investigations of this nature. The records at issue here concern the Council's handling of a conflict of interest issue which is in the public domain. I consider that the release of the remaining information in this group of records (apart from the personal information described above) would serve to increase the transparency of the Council's processes without adversely affecting staff relations. On balance, I would find that the public interest favours the release of the information under section 21(5) with the exception of personal information described above, which I find to be exempt under section 28(1), for the reasons outlined earlier in this decision. I do not consider that there is an overriding public interest in granting the request in relation to the personal information under section 28(5).

Decision

Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the Council's decision. I affirm part of the decision and find that the Council was justified in its refusal of access to records or parts of records 2, 3, 6, 7, 9, 12-16, 18, 19, 21-26 and 31-35 (personal information only), under sections 26(1)(a), 27(1)(b) and 28(1) of the Act. I annul its decision in relation to the remainder of records 31-35 and direct the release of those records subject to the redaction of the personal information identified in this decision.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator