September 2020 Reference: FOI/173/2020 Mr. Ken Foxe Right to Know ken@righttoknow.ie Dear Mr. Foxe, I refer to your request of 04/08/20 made under Section 12 of the Freedom of Information Act 2014 for information on the following:- “… copies of any briefings or submissions prepared for either the Minister or the Secretary General with regard to the following announcement: https://www.gov.ie/en/press-release/50a6d-minister-donohoe-reinstatesproprietary-directors-to-the-employment-wage-subsidy-scheme/ “ Decision As the Decision Maker in this case, I made a final decision on your request on 3 September 2020. Under Section 13 of the FOI Act, I have decided to grant partial access to the information covered by your request, as set out in the schedule appended to this letter. Section 37 of the FOI Act 2014 states:“(1)…a head shall refuse to grant an FOI request, if in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).” The records withheld under this section contain personal information of third parties, i.e. other individuals and not you. We do not have the consent of these third parties to release their personal information and therefore these documents are exempt from release. Section 37(5)(a) provides for the release of personal information relating to third parties where the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates. To apply section 37(5), it is necessary to identify the various public interests served by the release of the particular record as well as those served by the withholding of that record. Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other. I have considered the public interest issues which arise in this case and have taken account of the following factors in favour of release:  the public interest in the public knowing how a public body performs its functions Tithe an Rialtais, Sráid Mhuirfean Uacht, Baile Átha Cliath 2, D02 R583, Éire Government Buildings, Upper Merrion Street, Dublin 2, D02 R583, Ireland T+353 1 676 7571 LoCall: 1890 66 10 10 www.finance.gov.ie  the public interest in members of the public knowing that information held by public bodies about them, or those they represent, is accurate  the public interest in members of the public exercising their rights under the FOI Acts In considering the public interest factors which favour withholding the records I have taken account of the following:  the public interest in protecting the right to privacy of members of the public  the public interest in members of the public being able to communicate in confidence with the Department of Finance and without fear of disclosure in relation to personal or sensitive matters  the public interest in the Department of Finance being able to perform our functions effectively  the public interest in safeguarding the flow of information to the Department of Finance. I consider that the public interest in preserving the privacy of the third parties involved outweighs the public interest that would be served were the records to be released in their entirety to you. Right of Appeal Upon receipt of this reply, if you are not content with the outcome or the decision made, you are entitled to seek an internal review under Section 21(7) of the Act. A request for an internal review should be made within four weeks of the date of this decision to: FoI Unit Department of Finance Upper Merrion Street Dublin 2 DO2 R583 Please include the FOI reference number with your request for internal review. The making of a late request for internal review may be permitted in certain circumstances. If your request relates to non-personal information you are liable for a fee of €30 (€10 for Medical Card holders) when you request an internal review. Payment for Personal requests can be made by way of bank draft, money order, postal order or personal cheque, and made payable to Department of Finance. However, payment for non-Personal requests can only be accepted by electronic means to the following account: BANKING DETAILS FOR ELECTRONIC PAYMENTS: Finance (Finance EFT Receipts) Name: Danske Bank IBAN: IE35DABA95199040004901 ….. 2 Account: 40004901 Sort Code: 951990 BIC: DABAIE2D If you are unhappy with the response you receive to your internal review request, you hav e a right to appeal to the Office of the Information Commissioner. This appeal must be made within 6 months of the date of the internal review decision and may be made by writing to:Mr. Peter Tyndall, Information Commissioner, 6 Earlsfort Terrace, Dublin 2, D02 W773. If your request relates to non-personal information you are liable for a fee of €50 (€15 for Medical Card holders) and this fee is payable to the Office of the Information Commissioner on lodging your appeal. Publication of Decisions In accordance with our obligations under Section 8 of the FOI Act, it is the intention of the Department of Finance to publish FOI decisions relating to non-personal records. Such decisions will be published in our Disclosure Log on our website and are available at https://www.gov.ie/en/collection/19fcb4-foi-decisions/ Yours sincerely, _______________________ Mairéad Ross Tax Policy Division Department of Finance ….. 3 FOI Request 173/2020 Record Number 1 Brief description Email chain re Propriety Director's issue 2 Email re Propriety Director's issue 3 Email chain re Propriety Director's issue with briefing attached Date Number of pages 31/07/2020 5 31/07/2020 2 Decision: Grant/Part Basis of Refusal: Section of Act Refuse/Refuse Part Grant Part Grant 6 Part Grant 1 Grannt S37 (1) S37 (1) S37 (1) Reasons for Decision Public Interest Considerations (if applicable) (for and against release) For: Transparency The record contains personal information. The Against: The information is personal and would not enhance release of this information would not enhance the transparency of the process the transparency of the FOI process Conclusion: Public interest does not support release For: Transparency The record contains personal information. The Against: The information is personal and would not enhance release of this information would not enhance the transparency of the process the transparency of the FOI process Conclusion: Public interest does not support release For: Transparency The record contains personal information. The Against: The information is personal and would not enhance release of this information would not enhance the transparency of the process the transparency of the FOI process Conclusion: Public interest does not support release 31/07/2020 3.1 4 5 Briefing on Propriety Director's issue Email chain re Propriety Director's issue Email chain re Propriety Director's issue 31/07/2020 31/07/2020 31/07/2020 5 7 Part Grant Part Grant S37 (1) S37 (1) For: Transparency The record contains personal information. The Against: The information is personal and would not enhance release of this information would not enhance the transparency of the process the transparency of the FOI process Conclusion: Public interest does not support release For: Transparency The record contains personal information. The Against: The information is personal and would not enhance release of this information would not enhance the transparency of the process the transparency of the FOI process Conclusion: Public interest does not support release Proprietary Directors and EWSS  It is recalled that an objective of the Employment Wage Subsidy Scheme (EWSS) is to maintain the relationship between employee and employer.  A proprietary director is a person who is the owner (or co-owner) of a company1.  It is therefore considered that such a position is much less likely to be considered a vulnerable employment when compared with a “regular” employee.  The exclusion of proprietary directors in the EWSS legislation is in place primarily to minimise deadweight in the scheme, which is estimated to cost a total of €2.35 billion by the end of March 2021.  Some proprietary directors would have been included in the preceding Temporary Wage Subsidy Scheme (TWSS), if they were on the payroll in February 2020. That will not be the case for the EWSS, in line with the general transition from the TWSS to EWSS 2.  Further, proprietary directors are analogous with self-employed sole traders who also do not qualify for the TWSS or EWSS. Both proprietary directors and sole traders are treated the same for social welfare purposes (Class S PRSI).  Additional criteria being applied to proprietary directors is not a novel measure and is a standard feature for anti-avoidance purposes, for example in respect of the obligation to operate the PAYE system on Directors fees. 1 director of a company who is either the beneficial owner of, or is able directly or indirectly to control, more than 15 per cent of the ordinary share capital of the company 2 It is estimated that there are around 60,000 prop directors paid per month (2019 data) but up to 100,000 paid within the calendar year.