Mr. X and Department of Agriculture, Food and the Marine

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 16 March 2016
• Case Outcome: The Senior Investigator found that the Department had not justified its decision to refuse access to the record. She found that information about companies in the record did not come within the definition of "personal information". She found that information about individual vessels in the record was exempt under section 37 but that, on balance, the public interest in granting access to the record outweighed the public interest in upholding the right to privacy in the particular circumstances of this case. She annulled the Department's decision and directed the release of the record.
• Court: Information Commission
• Record Number: 150250
• Respondent: Department of Agriculture, Food and the Marine

Whether the Department was justified in its decision to refuse under section 37(1) of the FOI Act a request for access to fish quota entitlements of all vessels belonging to members of Fish Producer Organisations in Ireland in 2014.

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 1 July 2015, the applicant made a request under the FOI Act for access to details of fish quota entitlements of all vessels belonging to each Fish Producer Organisation (FPO) in Ireland in 2014. The Department refused the request on the basis of section 36(1)(b) of the FOI Act. However, following an internal review, a more senior official refused the request under section 37(1) of the Act. Section 37(1) applies where access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. On 18 August 2015, the applicant made an application to this Office for a review of the Department's decision.

By way of context, my understanding is that there are several officially recognised FPO's representing their members' interests in issues such as annual quota negotiations with the EU commission and at quota management advisory meetings with Department. The EU allocates fishing opportunities to Ireland each year and the Department allocates some of these to fishermen by reference to such criteria as species, area and allowable landing. According to the Department, membership of an FPO has no impact on individual allocations.

In conducting my review, I have had regard to the submissions of the Department, the applicant and third parties as well as to correspondence between the applicant and the Department. I have also had regard to the content of the records at issue, and to the provisions of the FOI Act.

Scope of Review

This review is concerned solely with whether the Department was justified in deciding to refuse access to the records on the basis of section 37(1) of the FOI Act. I note that the Department did not prepare a schedule of records for the applicant and originally informed this Office that a very large volume of records was at issue. Samples of authorisation records were provided for the purposes of this review; apparently these are held in respect of all entitlements authorised in the year. However, the position is that this FOI request is confined to fish quota entitlements of the vessels of FPO members. It does not extend to the names and addresses of the owners in the authorisation records. In the course of the review, the Department provided the Investigator with an electronic record listing the vessel name, port, quotas, species and related data. I take those parts of that record containing the information actually requested to be the record the subject of the review, since it contains information held by the Department that falls within the scope of the FOI request. Thus, references to the record in this decision are to that electronic record, as opposed to the individual authorisation documentation.

Preliminary Matters

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request under section 12 shall be presumed not to have been justified unless the head of the relevant FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department of satisfying this Office that its decision to refuse access to the records at issue was justified. Furthermore, Section 13(4) of the Act provides that, subject to the other provisions of the Act, any reasons that the requester might have for the making of the request shall be disregarded.

This decision does not address each of the arguments made in detail; however, all the relevant submissions have been carefully considered.

Analysis and Findings

Section 37
The Department's sole reason for refusing the request is Section 37(1) of the FOI Act which provides that access to a record shall be refused if access would involve the disclosure of personal information. For the purposes of the FOI 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 his/her family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including "... (ii) information relating to the financial affairs of the individual..."

Contact with vessel owners
Although the FOI request did not seek the names of any individuals, it was accepted in the Commissioner's decision in Case 140074 (available on www.oic.ie) involving records of FPO membership, that the Irish Fleet Register allows vessel names to be linked to their owners. Given the Department's position that the records disclosed personal information relating to the financial affairs of the vessel owners, this Office decided to contact those individuals to give them an opportunity to comment on the potential release of the records under FOI. To this end, the Department provided the record which showed a total of 68 fishing vessels registered to owners who were members of an FPO and who were allocated fish quotas in 2014.

Vessels registered to companies
Of the 68 vessels, the Department identified 37 whose owners were listed as companies. In Case 140074 referred to above, the Commissioner found that the companies' information could not be held to be "about an identifiable individual". I adopt that position in this case and find that those parts of the record relating to the 37 vessels registered to companies do not contain personal information within the meaning of the definition detailed above. The Department argued that, in the circumstances of this case, "company affairs" are known in the community and are personal...