Office of the Information Commissioner 18 Lower Leeson StreetDublin 2January 10, 2010FOI Ref: FOI/2009/898

Appeal under the Freedom of Information Acts 1997 and 2003

Dear Madam,I wish to appeal to the Information Commissioner relating to a decision by the Department of Arts,Sports and Tourism to refuse to release records under Section 7 of the above mentioned Act.The original request:In a request dated October 5, 2009, I sought the following information from the Department:

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

My request was rejected in its entirety on the basis that fulfilling it would compromise the "integrity of financial IT systems". The Department cited Section 28 (Personal Information), Section 21 (Functionsand negotiations of a public body) and Section 23 (Law enforcement and public safety) of the Act.The internal review:I sought an internal review of this decision in a request dated November 26, 2009. In his reply,Principal Officer at the Department, Kevin Lonergan (dated December 17, 2009), agreed with theoriginal decision, solely stating:"Each part of your appeal has been reviewed again and I have decided to agree with theoriginaldecision taken on your request."The record in question:In my appeal for internal review I pointed to a number of reasons as to why the cited exemptions didnot apply to the sought record, and how my request could not possibly compromise the integrity of financial IT systems at the Department.I believe that the Department's claim that the information I sought was exempt under Section 28 waswithout foundation. I pointed out that in the

Health Services Executive vs The InformationCommissioner[2008] IEHC 298

,Mr Justice Bryan McMahon found that "record number 25"containing "names and job titles of employees of a national school within the State education sector","are not personal information of third parties for purposes of the FOI Act and, consequently, are notprotected by the exemption of section 28(1)."I argued that as a result of this decision, the names (and/or job titles) of employees of theDepartment, as they are held in the Oracle iExpense database, are likewise not protected by theexemption of Section 28(1).I also pointed to the decision in Britain of

Durrant v Financial Services Authority[2003] EWCA Civ 1746

where it was found that personal data must relate to the individual and must affect theindividual’s privacy. In no way could the information being sought relate to or affect in any way anindividual's privacy.

The system in question records the expenditure of public monies and contains the names and jobtitles of employees of a Government Department. There is also precedent for the Departmentreleasing information related directly both to expenses, and to the system in question, to the SundayTribune in 2009. This information contained elements of the database I am seeking. No Section 28exemption was applied by the Department in this case, nor I believe, does it apply in this case.An exemption under Section 28, it is respectfully submitted, could not possibly apply to my request.The Department further claimed an exemption under Section 21 (Functions and negotiations of apublic body).I pointed out that inMr Eamonn Murphy & the Industrial Development Agencythe InformationCommissioner stated that in order for this section to apply "a convincing argument" and justifyingevidence must be produced by the IDA "to justify, its position that release of this particular recordwould prejudice its ability to conduct similar investigations in the future".No such evidence was produced by the Department in this case.I also pointed toDeputy Enda Kenny & the Department of Education and Sciencewhere theCommissioner found that Section 21(1)(a) did not apply. She did not accept that the Department'sexpectation of prejudice arising from the release of records was reasonable. It was noted that suchreports had been released by other Department's on foot of separate FOI requests without the harmsenvisaged by the Department of Education and Science arising.It should again be emphasised that in relation to prior requests the Department has already releasedelements of the database to which my request directly relates. To argue, after that fact, that therecords I am seeking are exempt under Section 21 because its release would compromise thefunctions of the Department is, I submit, contradictory. Since elements of the database have alreadybeen released by the Department (and this release was not found to compromise the record),releasing the rest of the database would similarly not compromise the functions of the Department.The Department further claimed an exemption under Section 23 (Law enforcement and public safety).I pointed toThe Sunday Times and the Department of Justice, Equality and Law Reform, wheretheCommissioner found that the Department had not identified the manner in which it expected thePetitions Scheme to be prejudiced (that is to say, injured or potentially injured) or impaired (that is tosay, damaged or weakened) by the release of the records in question.The Department has not indicated in any substantive way how releasing the records in questionwould injure, potentially injure or impair the record. The Commissioner also commented in relation tothe above case that the increased public scrutiny that may result from release of the list requested inthis case, was more likely to facilitate rather than prejudice or impair the administration of the currentPetitions Scheme in accordance with the 1995 High Court judgment by highlighting the role of thepetitioning Deputies in the process. It was also found that the Department had failed to show that itsexpectation of any harm arising was reasonable. The Commissioner also found that the Departmenthad not adequately justified its refusal of the request under section 23(1)(a)(ii).I submit that the Department has similarly not demonstrated that its expectation of any harm wasreasonable. Nor has it justified its refusal, besides claiming that such a release would compromise theintegrity of the financial IT systems of the Department - a broad and unspecific conclusion. It does notexplain exactly how this could be the case.I argued that in addition, were particular aspects of the database such as ID numbers, considered tobe too sensitive for release (aside from some having been released already), it would be a simpleprocess to strip such data out of an export of the database. The Department at no point offered tonarrow to terms of the request in this way in order for the exemption not to apply to my request.