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Whether the Service's decision to refuse the applicant's request to be given a particular Kenyan mobile telephone number, redacted from a list of the most expensive telephone calls made from the Houses of the Oireachtas, was justified under the FOI Act.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (FOI Act)

Background

This review involves the applicant's FOI request to the Houses of the Oireachtas Service, dated 1 March 2013, to be given a Kenyan mobile telephone number to which many calls had been made from within the Houses of the Oireachtas during 2011 and 2012. This mobile number had been redacted from an Excel document released to the applicant in response to a previous FOI request made to the Service. The calls to the Kenyan number were the most expensive of the calls made from the Houses of the Oireachtas in the period covered by the previous FOI request. In fact, according to information already provided to the applicant by the Service, over €1,400 was spent on the telephone calls to that Kenyan number in less than a year. The Service found that the mobile telephone number was the personal information of the recipient of the calls and it refused the access request under section 28(1) of the FOI Act. By letter received on 6 May 2013, the applicant applied to this Office for a review of the Service's decision.

In his review application to the Commissioner, the applicant was critical of the failure by the Service to deal with the public interest test in either its original or internal review decisions. Where section 28(1) is relied on to refuse a FOI request, it is necessary to consider whether the request should be granted in the public interest. It is clear from the documentation provided to this Office by the Service that the initial decision maker did, in fact, consider whether release of the information was warranted in the public interest. For whatever reason, this consideration was not reflected in the decision actually sent to the applicant.

With the authority delegated to me by the Commissioner, I have now completed my review in accordance with section 34(2) of the FOI Act. In carrying out my review, I have had regard to the application for review, to the correspondence between the applicant and the Service which has been made available to me, to a submissions made by the Service, and to the provisions of the FOI Act. For the purposes of the review also the Service provided copies of material released previously to the applicant and which prompted the FOI request now at issue in this present review.

Scope of the Review

The sole issue in this review is whether the Service is justified, under the FOI Act, in its decision to refuse the applicant's request to be given the Kenyan mobile telephone number redacted from the Excel document, prepared by the Service, setting out the most expensive telephone calls made from the Houses of the Oireachtas during the period 2011 - 2012.

Analysis and Findings

The Commissioner has found in previous decisions that the personal mobile phone number of an individual constitutes personal information and that, in the normal course, such a number is subject to exemption under section 28(1) of the FOI Act. This position is one which has been approved by the High Court in the case of The Health Service Executive and The Information Commissioner [2007 No. 59 MCA]. The first issue to be decided, therefore, is whether the mobile number in question is in fact a personal number as opposed to the number of a mobile phone used by the holder for official or some other non-personal purpose. One possibility considered by this Office is whether, for example, the telephone number at issue in this case might belong to an employee of the Irish State in Kenya. The unredacted phone records of the Service show that the number in question is one provided by a local Kenyan operator and contains the Kenyan country code and other such prefixes. The number in question is not the number for an Irish mobile phone being used in Kenya. However, the mere fact that the mobile in question operates within a Kenyan network does not exclude the possibility that it belongs to an Irish State employee and that it is in use for official or other non-personal purposes.

This Office discussed these matters directly with the Service's original decision maker who, in turn, had spoken directly with the owner of the mobile telephone number in response to the applicant's arguments on internal review. The decision maker said that she formed the impression from her contact that the individual was likely to be a Kenyan or, at any rate, did not have an Irish accent. The decision maker said, while she is not in a position to know the actual nature of the telephone calls made, that it is possible that Members of the Oireachtas or their staff may make work-related international telephone calls which involve the private affairs of the individual recipient of the calls. This Office asked the decision maker to investigate the matter further to determine whether the recipient of the telephone calls made in this case is a private person or one who may work in an official capacity on behalf of the State. Subsequently, in a submission dated 25 June 2013, the Service's decision maker said she was satisfied that the Kenyan number is "a local mobile number of a personal phone of a private person".

I am satisfied to rely on the enquiries made by the Service and to accept its conclusion in relation to the status of the mobile phone in question. I find, therefore, that the Kenyan telephone number at issue in this case is the personal information of the individual recipient of the telephone calls that were made to that number from the Houses of the Oireachtas. Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information. This exemption is not absolute as there are other provisions within section 28 which, if applicable, override section 28(1). In the context of this case, the two overriding provisions of relevance are (1) where the person, the subject of the personal information, gives consent and (2) where disclosure is warranted in the public interest. In this instance, the person concerned has not given consent to the release of his/her mobile phone number. This leaves for consideration the issue of the public interest.

Section 28(5)(a) of the FOI Act provides that personal information of a party other than the requester may be released where, on balance, "the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". There is a very strong public interest in ensuring maximum openness and accountability in relation to the expenditure of public money, including expenditure incurred by elected representatives or their staffs. In his detailed submission in support of his internal review application to the Service, the applicant invoked this public interest, saying: "there is a strong public interest in holding the Oireachtas accountable for its expenditure of public money. The placing of approximately €1,400 worth of calls to a single Kenyan number during the course of a year should be considered an exceptional cost to the taxpayer and therefore the public has a right to consider whether or not the costs were justified in the full circumstances of the calls. Internal notes released to me in separate FOI requests have already raised the possibility that such calls may be an abuse of the Oireachtas phone system." The applicant, who is a journalist, referred also to the strong public interest served in "the press being able to receive and impart information in order to educate and and inform public opinion".

It is important to clarify at this stage that the right to privacy under consideration here is that of the owner or user of the Kenyan mobile phone number. Release of the mobile phone number to the applicant will not involve any invasion of the privacy of any member of the Oireachtas or of any staff member working directly to an Oireachtas member. Any identification of the person making the calls to the Kenyan number would, as I understand it, depend upon that information being provided by the person in Kenya who received those calls. The position of the Service is that, in the case of Oireachtas members and their direct staff, there are no systems in place to monitor telephone usage. Systems are in place to monitor and control telephone usage by members of staff of the Service itself. The position regarding telephone usage by members and their direct staff reflects a view that the status of members of the Houses is such that their communications should not be monitored. The Service explained this to the applicant in a letter dated 13 November 2012:
"All Members of the Houses of the Oireachtas are entitled by law (Section 2 of the Oireachtas (Allowances to Members) Act 1962) to make free telephone calls from Leinster House to carry out their duties as public representatives. They are provided with telephone facilities to make these calls with connectivity for local, national and international calls, and with voicemail facilities where required, at Leinster House only. In view of their roles as parliamentarians and public representatives under the Constitution, calls made by Members are not logged by our phone system for reasons of privacy and confidentiality. As the Houses of the Oireachtas Service does not log calls from Members' handsets it has no way of categorically stating whether a specific Member is responsible for making or mandating any of the calls in the top lists supplied. The originating number on the reports refers to a main switchboard number. While Members' calls are not logged, those of civil service staff of the Service are logged and are monitored internally by the ICT Unit with regards to cost, duration and frequency. Refunds of costs are regularly sought and received from civil servants in cases of significant use which appears unrelated to the work of the Service, although reasonable personal usage is permitted."

Granting the applicant's request in this case would not, it seems to me, serve the public interest in transparency and accountability in relation to the spending of public money in that it would not identify the source of the calls to the Kenyan number. In order to establish who made those calls, it would be necessary to contact the recipient and persuade that person to disclose the identity of the caller. The person in Kenya has already made it clear that s/he regards the calls as having been received in a private capacity. Any contacts with that person, with a view to identifying the caller from within the Oireachtas, would amount to a further invasion of the right to privacy of that person.

The FOI Act recognises a very strong public interest in protecting privacy rights and this is reflected 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"). 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.

On balance, I find that the public interest served by the disclosure of the Kenyan phone number in this case is not of sufficient weight to displace the very strong public interest in protecting the right to privacy. Accordingly, I find that section 28(1) applies to the record at issue in this case and that it is exempt from release under the FOI Act.

While I appreciate that the applicant may have a genuine concern regarding possible mis-use of public funds, it is entirely a matter for the Houses of the Oireachtas Service as to whether, or how, it might monitor or regulate telephone usage by members of the Oireachtas and their staff.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Houses of the Oireachtas Service in this case.

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.

Fintan Butler
Senior Investigator
12 August 2013