21 The Courtyard

Castleredmond
Midleton
Co Cork

gavinsblog@gmail.com
FOI Unit
Department of Arts, Sports and Tourism
Room 1.12
New Road
Killarney
Co Kerry

October 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 records
which 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 way
compromise any IT systems at the Department, as such a tabulation is merely the product of the
database and could in no way compromise the integrity of any IT system.

Indeed in prior Freedom of Information requests, other Government departments have released
spreadsheets containing similar information, produced by tabulating data (using tighter criteria, such
as certain date ranges) from the same Oracle system.

Similarly, the Department has already released printouts of tabulations of this information, albeit in
hard copy. These printouts contain the same information, on a smaller scale, that is the subject of this
request. Data already released includes the ID numbers of John O’Donoghue and his wife, cost
centre numbers, the Graphical User Interface (GUI) of the expenses system in use, and the broad
fields 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. These
include manuals relating to the operation and administration of Oracle iExpense. It even includes
instructions 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 already
available.

Indeed the availability of such information could be considered a greater risk to the integrity of the
Department’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 of Mr Justice
Bryan McMahon in the HSE vs the Information Commissioner, exemptions under Section 28 also do
not apply as the information contained in the database (the names of people who have claimed
expenses) is not “personal information” as defined under the Act. (Please see pages 2,3,4 of this
request)
Should you find yourself in any difficulty I would be happy to discuss how the information can be
tabulated electronically in a straightforward, fast and cost-effective manner.

Since data in Oracle iExpense can be tabulated concurrent to other processes, I cannot imagine the
requested information taking very long to gather and submit, or it interfering with normal day-to-day
activities. Even if it does take some time, the processes can be run outside of office hours, and
therefore 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 save
costs, I put forward the legal arguments on possible defences here.
S21: Functions and negotiations of public bodies

This exemption does not apply.

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".

As far as I am aware there is no such evidence. It is respectfully submitted that the Department would
struggle to firstly identify any harm from the release of the records I am requesting let alone be able to
show that any expectation of such harm arising is reasonable.

In Deputy Enda Kenny & the Department of Education and Science 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 the 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.

In the case of my request I would like to stress that the expenses of former Minister John
O'Donoghue, his wife, and that of his private secretary have been released by the Department and
that this section did not apply.

Furthermore it is my contention that section 21(1)(a) would not apply and following the authority in
Deputy Enda Kenny and the Department of Education and Science if 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.

In The Sunday Times and the Department of Justice, Equality and Law Reform 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 Commissioner commented that he considered 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. He 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).

It could not reasonably be argued that the making available of all expenses data in the format
requested 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 a
request for all expenses data held on the Oracle system. This 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.

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 submit
that the release of expenses data from the database is wholly within the public interest under Section
23(3)(b).

S28: Personal Information

This exemption does not apply.

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)."

The names (and/or job titles) of employees of the Department, as they are held in the Oracle
database, are likewise not protected by the exemption of Section 28(1).

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".

In Britain, in Durrant v Financial Services Authority [2003] EWCA Civ 1746 it was found that personal
data 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 first
is 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 than
some other person with whom he may have been involved or some transaction or event in which he
may have figured or have had an interest…" Where an individual's name appears in information the
name will only be "personal data" where its inclusion in the information affects the named individual's
privacy.

Simply because an individual’s name appears on a document, the information contained in that
document will not necessarily be personal data about the named individual.
In my view the release of this information is overwhelmingly in the public interest and would fall within
the distinction outlined in the Von Hannover case for the following reasons:

i) The database contains information relating to the spending of taxpayer monies.

ii) There is an overwhelming case for public interest in the administration and spending of expenses,
by both politicians and civil servants.

iii) It goes to the heart of all democratic values including, openness, accountability and transparency
of dealings. There is a significant public interest in knowing exactly where taxpayer funds have been
spent and by whom. The inclusion of names ensures that the public can have maximum and sufficient
scrutiny as well as accountability. It is respectfully submitted that there can and should be no
expectation of privacy when it comes to the spending of public funds.

My preferred form of access to these documents is in digital format. Please find enclosed a cheque in
the amount of €15 in respect of the fee for a request under the Acts. I look forward to hearing from
you in the time period prescribed.

If you decide to request further payment I would like to be provided with an itemised fees receipt
outlining precisely why an additional cost is required. If, for any reason, this request is rejected in any
form, I wish to be notified of the sections and subsections of the Act on which the rejection is based,
as is my right under the Act.

Please contact me by email to discuss any problems which may occur with this request.

Sincerely,

Gavin Sheridan