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Office of the Information Commissioner

18 Lower Leeson Street
Dublin 2

January 10, 2010

FOI 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 (Functions
and 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 the
original decision, solely stating:

"Each part of your appeal has been reviewed again and I have decided to agree with the
original decision 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 did
not 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 was
without foundation. I pointed out that in the Health Services Executive vs The Information
Commissioner [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 not
protected 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 the
Department, as they are held in the Oracle iExpense database, are likewise not protected by the
exemption 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 the
individual’s privacy. In no way could the information being sought relate to or affect in any way an
individual's privacy.
The system in question records the expenditure of public monies and contains the names and job
titles of employees of a Government Department. There is also precedent for the Department
releasing information related directly both to expenses, and to the system in question, to the Sunday
Tribune in 2009. This information contained elements of the database I am seeking. No Section 28
exemption 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 a
public body).

I pointed out that in Mr Eamonn Murphy & the Industrial Development Agency the Information
Commissioner stated that in order for this section to apply "a convincing argument" and justifying
evidence must be produced by the IDA "to justify, its position that release of this particular record
would prejudice its ability to conduct similar investigations in the future".

No such evidence was produced by the Department in this case.

I also pointed to Deputy Enda Kenny & the Department of Education and Science where the
Commissioner found that Section 21(1)(a) did not apply. She did not accept that the Department's
expectation of prejudice arising from the release of records was reasonable. It was noted that such
reports had been released by other Department's on foot of separate FOI requests without the harms
envisaged by the Department of Education and Science arising.

It should again be emphasised that in relation to prior requests the Department has already released
elements of the database to which my request directly relates. To argue, after that fact, that the
records I am seeking are exempt under Section 21 because its release would compromise the
functions of the Department is, I submit, contradictory. Since elements of the database have already
been 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 to The Sunday Times and the Department of Justice, Equality and Law Reform, where the
Commissioner found that the Department had not identified the manner in which it expected the
Petitions Scheme to be 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 Department has not indicated in any substantive way how releasing the records in question
would injure, potentially injure or impair the record. The Commissioner also commented in relation to
the above case that the increased public scrutiny that may result from release 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 judgment by highlighting the role of the
petitioning Deputies in the process. It was also found that the Department had failed to show that its
expectation of any harm arising was reasonable. The Commissioner also found that the Department
had 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 was
reasonable. Nor has it justified its refusal, besides claiming that such a release would compromise the
integrity of the financial IT systems of the Department - a broad and unspecific conclusion. It does not
explain exactly how this could be the case.

I argued that in addition, were particular aspects of the database such as ID numbers, considered to
be too sensitive for release (aside from some having been released already), it would be a simple
process to strip such data out of an export of the database. The Department at no point offered to
narrow to terms of the request in this way in order for the exemption not to apply to my request.
I also argued that under Section 23(3)(b) the public interest would, on balance, be better served by
granting a request for all expenses data held on the Oracle system. This, I argued, would ensure the
resources of the taxpayer are used efficiently and effectively; it would enable the public to assess the
merits and shortcomings of practices within the department; it could potentially disclose where
Government bodies may have failed to act in an accountable way and it would be an effective
mechanism to maintain 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 such
data, nor could its release facilitate the committing of an offence. Releasing such data would not
damage any investigation or process, nor could it reasonably be argued that releasing such data
would in any way compromise the effective administration of the Department.

In addition, elements of the database in question have already been released, and an exemption
under Section 23 was not applied.

In conclusion, in Von Hannover v Germany (2005) 40 E.H.R.R. 1 the European Court of Human
Rights outlined the limits of private and confidential information. It was stated that: "A fundamental
distinction needs to be made between reporting facts - even controversial ones - capable of
contributing to a debate in a democratic society relating to politicians in the exercise of their functions,
for example, and reporting details of the private life of an individual who, moreover, as in this case,
does not exercise official functions."

The case later went on to conclude that "the decisive factor in balancing the protection of private life
against freedom of expression should lie in the contribution that the published information makes to a
debate of general interest".

I contend that the release of the information as sought is of critical importance to a debate of general
public interest. It would provide the public, with minimal cost to the Department, with an understanding
of the administration of expenses and open up the Department to public scrutiny - something I believe
the Freedom of Information Act intended to its core.

Sincerely

Gavin Sheridan