21 The CourtyardCastleredmondMidletonCo Corkgavinsblog@gmail.comFOI UnitDepartment of Arts, Sports and TourismRoom 1.12New RoadKillarneyCo KerryOctober 5, 2009

Request for access to records under the Freedom of Information Acts 1997 and 2003

Dear Sir/Madam,In accordance with Section 7 of the above mentioned Acts, I wish to request the following recordswhich I believe to be held by the Department of Arts, Sports and Tourism ("the Department"):

1) A copy (or 'datadump') of the entirety of the Department's Oracle iExpense database.

I am already aware that the Department accesses records via the Oracle iExpense web application.I am also aware that data can be 'dumped' onto a spreadsheet, and that this process would in no waycompromise any IT systems at the Department, as such a tabulation is merely the product of thedatabase and could in no way compromise the integrity of any IT system.Indeed in prior Freedom of Information requests, other Government departments have releasedspreadsheets containing similar information, produced by tabulating data (using tighter criteria, suchas certain date ranges) from the same Oracle system.Similarly, the Department has already released printouts of tabulations of this information, albeit inhard copy. These printouts contain the same information, on a smaller scale, that is the subject of thisrequest. Data already released includes the ID numbers of John O’Donoghue and his wife, costcentre numbers, the Graphical User Interface (GUI) of the expenses system in use, and the broadfields in the database under which information is recorded.Additionally, many of the manuals for the software in use at the Department, such as Oracle e-Business Suite, are already in the public domain and freely available from the Oracle website. Theseinclude manuals relating to the operation and administration of Oracle iExpense. It even includesinstructions on installing and managing Oracle iExpense. It could not be argued that a tabulation of data from the department could compromise IT systems, given that information such as this is alreadyavailable.Indeed the availability of such information could be considered a greater risk to the integrity of theDepartment’s IT systems than would a mere tabulation of data contained in the expenses database.Exemptions under Sections 21 or 23

do not apply

. Additionally, since the judgment ofMr JusticeBryan McMahon in the

HSE vs the Information Commissioner

, exemptions under Section 28 also donot apply as the information contained in the database (the names of people who have claimedexpenses) is not “personal information” as defined under the Act

. (Please see pages 2,3,4 of thisrequest)

Should you find yourself in any difficulty I would be happy to discuss how the information can betabulated electronically in a straightforward, fast and cost-effective manner.Since data in Oracle iExpense can be tabulated concurrent to other processes, I cannot imagine therequested information taking very long to gather and submit, or it interfering with normal day-to-dayactivities. Even if it does take some time, the processes can be run outside of office hours, andtherefore would not impinge on the work of the Department.

______________________________________________________________________

In order to clarify the legal position, and to identify the legal arguments at an early stage to savecosts, I put forward the legal arguments on possible defences here.

S21: Functions and negotiations of public bodies

This exemption does not apply.InMr Eamonn Murphy & the Industrial Development Agencythe Information Commissioner statedthat in order for this section to apply "a convincing argument" and justifying evidence must beproduced by the IDA "to justify, its position that release of this particular record would prejudice itsability to conduct similar investigations in the future".As far as I am aware there is no such evidence. It is respectfully submitted that the Department wouldstruggle to firstly identify any harm from the release of the records I am requesting let alone be able toshow that any expectation of such harm arising is reasonable.InDeputy Enda Kenny & the Department of Education and Sciencethe Commissioner found thatSection 21(1)(a) did not apply. She did not accept that the Department's expectation of prejudicearising from the release of the records was reasonable. It was noted that such reports had beenreleased by other Department's on foot of separate FOI requests without the harms envisaged by theDepartment of Education and Science arising.In the case of my request I would like to stress that the expenses of former Minister JohnO'Donoghue, his wife, and that of his private secretary have been released by the Department andthat this section did not apply.Furthermore it is my contention that section 21(1)(a) would not apply and following the authority inDeputy Enda Kenny and the Department of Education and Scienceif information does not fall under section 21(1)(a) then it will not fall under section 21(1)(b) as the test is more stringent.

S23: Law enforcement and public safety

This exemption does not apply.InThe Sunday Times and the Department of Justice, Equality and Law Reformthe Commissioner found that the Department had not identified the manner in which it expected the Petitions Scheme tobe prejudiced (that is to say, injured or potentially injured) or impaired (that is to say, damaged or weakened) by the release of the records in question.The Commissioner commented that he considered the increased public scrutiny, that may result fromrelease of the list requested in this case, was more likely to facilitate rather than prejudice or impair the administration of the current Petitions Scheme in accordance with the 1995 High Court judgmentby highlighting the role of the petitioning Deputies in the process. He also found that the Departmenthad failed to show that its expectation of any harm arising was reasonable. The Commissioner alsofound that the Department had not adequately justified its refusal of the request under section23(1)(a)(ii).It could not reasonably be argued that the making available of all expenses data in the formatrequested and held by the Department on its expenses systems could harm impair, damage or weaken the record, or the administration of that record.

Indeed, under Section 23(3)(b) the public interest would, on balance, be better served by granting arequest for all expenses data held on the Oracle system. This would ensure the resources of thetaxpayer are used efficiently and effectively; it would enable the public to assess the merits andshortcomings of practices within the department; it could potentially disclose where Governmentbodies may have failed to act in an accountable way and it would be an effective mechanism tomaintain public confidence in Government bodies by access to information on their performance of function.The Department would not be disadvantaged in its discharge of key responsibilities by releasing suchdata, nor could its release facilitate the committing of an offence. Releasing such data would notdamage any investigation or process, nor could it reasonably be argued that releasing such datawould in any way compromise the effective administration of the Department.The records I am seeking reveal nothing concerning lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. I respectfully submitthat the release of expenses data from the database is wholly within the public interest under Section23(3)(b).

S28: Personal Information

This exemption

does not apply

.In the

Health Services Executive vs The Information Commissioner[2008] IEHC 298

,Mr JusticeBryan McMahon found that "record number 25" containing "names and job titles of employees of anational school within the State education sector", "are not personal information of third parties for purposes of the FOI Act and, consequently, are not protected by the exemption of section 28(1)."The names (and/or job titles) of employees of the Department, as they are held in the Oracledatabase, are likewise not protected by the exemption of Section 28(1).In

Von Hannover v Germany (2005) 40 E.H.R.R. 1

theEuropeanCourtof Human Rights outlined thelimits of private and confidential information. It was stated that: "A fundamental distinction needs to bemade between reporting facts - even controversial ones - capable of contributing to a debate in ademocratic society relating to politicians in the exercise of their functions, for example, and reportingdetails of the private life of an individual who, moreover, as in this case, does not exercise officialfunctions."The case later went on to conclude that "the decisive factor in balancing the protection of private lifeagainst freedom of expression should lie in the contribution that the published information makes to adebate of general interest".In Britain, in

Durrant v Financial Services Authority[2003] EWCA Civ 1746

it was found that personaldata must relate to the individual and must affect the individual’s privacy.The British Court of Appeal identified two notions that may assist in determining whether information"is information that affects [an individual’s] privacy" and, therefore, "relates to" an individual:"The firstis whether the information is biographical in a significant sense, that is, going beyond the recording of [the individual’s] involvement in a matter or an event which has no personal connotations…"The second concerns focus. "The information should have the [individual] as its focus rather thansome other person with whom he may have been involved or some transaction or event in which hemay have figured or have had an interest…"Where an individual's name appears in information thename will only be "personal data" where its inclusion in the information affects the named individual'sprivacy.Simply because an individual’s name appears on a document, the information contained in thatdocument will not necessarily be personal data about the named individual.