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Mr X, The Sunday Times and The National Gallery of Ireland (FOI Act 2014)

Case Number: 160396

Whether the Gallery was justified in refusing access to a list of artworks for which an export licence was issued between 1 July 2015 and 11 July 2016

Conducted in accordance with section 22(2) of the FOI Act by the Information Commissioner

Background

In a request dated 13 July 2016, the applicant sought access to a list of the artworks for which an export licence was requested between 1 July 2015 and 11 July 2016 and an indication as to whether the application was successful. (The applicant will be referred to as the "review applicant" in this decision to distinguish him from the applicants for the export licences concerned.) This request followed a similar request that had been made by the review applicant the year before. The previous request was the subject of some discussion in my Office's decision in Case 160056 (Mr X and the National Gallery of Ireland), available at www.oic.ie. The Gallery maintains a spreadsheet or schedule of the export licences issued. In response to the previous request made by the review applicant, the Gallery granted access to certain columns in the relevant schedule, including the column headed "Title of Work", but it did so without notifying the affected third parties of the request. On this occasion, the Gallery consulted with the applicants for the export licences who would be affected by the release of information about the artworks concerned. Having regard to the responses received, the Gallery granted access to the relevant schedule in part but refused access to most of the pertinent entries in the schedule under sections 35 (information obtained in confidence), 36 (commercially sensitive information), and 37 (personal information) of the FOI Act. On 21 September 2016, the applicant applied to this Office for a review of the Gallery's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the review applicant and the Gallery. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

The review applicant's request was limited to a list of the relevant artworks and an indication of whether the export licence application was successful; it did not seek an actual copy of the export licence applications upon which the list was based or other information concerning the applications. As with the previous request made by the review applicant, the Gallery regarded the schedule it maintains as the relevant record falling within the scope of the request, insofar as the schedule covers the period of interest. The schedule includes columns identifying the following for each export licence application concerned: applicant, owner (if different from applicant), artist, title of work, value, and export destination. Access to the value column was refused in full. Access to the remaining pertinent entries (applicant, owner, artist, title of work, export destination) was refused unless the relevant third party consented to the release of information.

In his submissions to this Office, the review applicant has clarified that he is seeking "only a list of the names of artworks that have been granted a licence" and that he is not interested in the name of the person applying for the licence, the identity of the owner, or the value of the work concerned. I take it in the circumstances that he is also not interested in the export destination as opposed to the fact that an export licence has been issued for the artworks concerned. Accordingly, my review is concerned solely with the question of whether the Gallery's decision to refuse access in large part to the column in the relevant schedule headed "Title of Work" was justified under the FOI Act.

Preliminary Matters

Before setting out my findings, I should point out that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited. However, I am mindful of the burden of proof under section 22(12)(b) of the Act, which requires the Gallery to show to my satisfaction that its decision to refuse to grant the request was justified.

In addition, I wish to explain the approach of this Office to the granting of access to parts of records. Section 2 of the FOI Act defines "record" as including part of anything that is a record. Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, I take the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."

The Gallery's position
According to the Gallery's submissions, the list at issue in this case identifies artworks for which an export licence was sought under section 49 of the National Cultural Institutions Act 1997 ("the 1997 Act"). Section 49 applies to certain specified categories of "articles", including at subparagraph (b): "any painting (other than a painting in the ownership of the person who painted it) not less than 25 years old of a value exceeding such amount (if any) as may be specified by order made by the Minister which is painted entirely by hand on any medium and in any material and which either (i) originated in Ireland, or (ii) has been in the State for not less than 25 years". None of the works concerned has been entered in the cultural register that is maintained by the Minister for Arts, Heritage and the Gaeltacht under section 48 of the 1997 Act. The authority to issue export licences has been delegated by the Minister to the Board of Governors & Guardians of the Gallery (the Board), but the Board has no discretion to refuse any application presented to it for approval.

The Gallery refers to the decision of this Office in Case 160056 in arguing that section 35(1)(b) applies to information requested. It contends that it owes the owners of the listed artworks and the applicants concerned a duty of confidence with respect to the information obtained from the export licence applications. According to the Gallery, the information concerns private matters, namely, applications for export licences on behalf of galleries, private commercial entities or individuals in accordance with applicable legislation. The Gallery states that the nature of the art market in Ireland is also of relevance here:


"Our view is that to publicly disclose certain of the information received in relation to export licence applications (e.g., the title of the artwork in question) would be, in effect, to disclose the full identity of the owner, the value of the artwork and its destination (and, often, likely sale). This is due to the close-knit nature of the art market, both internationally and, in particular, in Ireland. A small number of Dublin-based auction houses dominate the market here . . ., with certain international auction houses . . . holding pre-sale exhibitions in Ireland from time to time. There is an extremely limited number of collectors in Ireland who have works of the type and value as those that were subject to the export licence applications in case here, and to disclose, for example, the title of artworks in question, would be tantamount to disclosing their owners, their value, their likely destination and, in many cases, probable sale."

The NGI also states, based on over 30 years of administering the export licence regime under an authority delegated to it by the Minister, that applicants for export licences communicate the sensitive data included in export licence applications, in compliance with their statutory obligation to do so, on the reasonable expectation that such information will be treated confidentially and will not enter the public domain. In support of its position, the Gallery refers to the statements of opposition made by the relevant third parties following their notification of the request. The Gallery considers that disclosure in the circumstances would result in an unauthorised use of the information concerned to the detriment of the parties communicating it and (where different) the owners of the artworks on whose behalf the information was communicated.

The review applicant's position
In his submissions, the review applicant refers to the "considerable public disquiet" that arose from the export of works by artists like Rubens from the Beit collection at Russborough House in Blessington, Co. Wickow, to London for sale at auction in 2015. He notes that in a press release issued on 8 June 2015, the Gallery itself described the current licensing system as "wholly inadequate", because it "provides no basis upon which the export can either be refused or made subject to conditions". He also notes that the section 48 register referred to by the Gallery contains only a very limited number of paintings, all in the ownership of the Gallery, and that (at the time of his submissions) the register had not been updated since 1997.

The review applicant contends that it is unacceptable that "[i]mportant works of art are being exported under a cloak of secrecy and anonymity". He does not consider that the objections of collectors "to having their names in the newspapers" should justify the "state seal of secrecy" with respect to the names of the artworks that are "being spirited away". He argues that the export licensing system should instead "operate with maximum transparency". He states:


"Put simply, Irish people need to know what important paintings are being exported out of the country, many never to return or be seen again. Given the stance being adopted by the [Gallery], however, they will never know. If the writ of the [Gallery's] refusal to my FOI request was to rule, we will never find out the name of any other painting ever exported again. Indeed had the Beit Foundation not volunteered the information that it was exporting paintings from Russborough House, Irish people might never have been the wiser."

The review applicant also argues that releasing the list of artworks alone would not compromise confidentiality unless the collectors concerned have already openly identified themselves as the owners of the artworks in question. As for collectors who have been more private or discreet about their collections, he says:


"[T]hose within the 'private sphere' of the owner will already know the work is being exported, as he/she will employ a solicitor, a remover, an auctioneer, a valuer etc etc. Also, visitors to his/her home, family members etc, will obviously notice the Monet or the Yeats or [other work of art] missing off the wall. So mere publication of the fact that X painting has been exported will only potentially alert a tiny number of people that Mr Y collector has received an export licence."

Based on his own knowledge of the artwork, the review applicant adds: "[The only way you know Mr Y owns a certain painting is if he has acknowledged this. Auctioneers and art dealers are extremely discreet - they have to be, or they would lose business." He suggests that a collector's right to privacy or confidentiality should be weighed against the importance of the State ensuring that important cultural objects and artworks remain in the country. He also refers to the more recent example of the final order of surrender by Pádraig Pearse, where it was revealed by the auctioneers involved, apparently with the owner's consent, that an export licence would be sought following the refusal of the Government to bid for the document to ensure that it remained in Ireland.

Conclusions
In Case 160056, this Office found that section 35(1)(b) of the FOI Act applied to records relating to export licence applications made by or on behalf of Anthony O'Reilly, Chriss O'Reilly (née Goulandris), Neva Group Limited and/or Genetix Holdings Limited for artworks over a six-year period. Section 35(1)(b) is a mandatory exemption that applies where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law". Having regard to the judgment of Fennelly J of the Supreme Court in Mahon v. Post Publications [2007] IESC 15, my authorised official was satisfied that disclosure of the information contained in the records concerned, including the Gallery's schedule of the export licences issued, would constitute a breach of an equitable duty of confidence.

The review applicant considers that this case is distinguishable because he only seeks the list of the names of the artworks concerned. He contends that the owners concerned have either, like the O'Reillys, already openly revealed themselves as the owners through other means or are essentially anonymous outside their "private sphere". I wish to emphasise, however, that, for the most part, the list at issue identifies private, as opposed to public, property. Most of the owners are identified as private individuals. With one exception, the institutions and commercial entities involved that are identified as owners are not State-owned bodies. While in some instances the owner of certain paintings may be widely known, the paintings are nevertheless private property.

Moreover, the list does not merely identify artworks in situ in Ireland that have come to the attention of the Gallery through its own investigative work for the purpose of determining whether they should remain in Ireland. Rather, the lists identifies artworks for which an export licence was sought under section 49 of the National Cultural Institutions Act 1997 regardless of whether the State might have an interest in acquiring them for their cultural importance. While the artworks on the list at issue are generally valuable, a wide range of valuation amounts is provided in the full schedule. The renown of the artists involved also varies. In other words, not every painting listed is akin to a Rubens, a Monet, or a Yeats.

I further note that the reason for export may have been a sale, whether by auction or in a purely private transaction, but in some instances it merely involved a temporary loan. As one third party objector stated: "If potential lenders can't rely on the museum to honor our agreements or trust that we keep information confidential there is a real risk that collectors won't agree to lend their works in the future." Another third party objector referred to the surprise and upset caused by the mere notification of the request given his understanding that his dealings with the Gallery were "totally confidential".

Thus, even where the identity of the owner of a particular painting may be well known, at least in certain circles, it may not be public knowledge that the owner wishes to export the painting for whatever reason, and in this case the owners have not consented to the disclosure of this information under FOI to the "world at large". Indeed, it is relevant to emphasise here that, as in the case of the O'Reillys, the owner may be identifiable through other sources and that disclosure of the title of the work alone may result in unwanted publicity.

The review applicant suggests, however, that the more private or discreet a collector has been, the less need there is for confidentiality in relation to the export licence application because so few would be aware of the matter. I disagree. First of all, I do not believe that it would be wise for me to underestimate the resourcefulness of investigative journalism in relation to uncovering the identity of a collector who has decided to export newsworthy works of art. In any event, the fact that ownership may not be widely known does not deprive a collector of the right to privacy and confidentiality with respect to his or her personal property or financial affairs - quite the contrary. Those within a collector's "private sphere" may be aware of the contents of a private collection but not the decision to export whether or not the artwork concerned was previously on display in a private setting and is no longer seen in its usual position if and when visits are made. Thus, disclosure of the list of artworks could give rise to unwanted attention even within the "private sphere". As one third party objector stated, the "disposition of [the artworks concerned] is a private family matter". It is not the role of FOI to shed light on such private matters.

In the circumstances, I am satisfied that disclosure of the list of artworks in private ownership for which an export licence has been sought would constitute a breach of an equitable duty of confidence where the owners have not consented to disclosure. The information has the necessary quality of confidence about it in that it concerns private matters. The title of each artwork concerned was communicated to the Gallery for the limited or restricted purpose of applying for an export licence, and I accept that the applicants concerned had a reasonable expectation that the information contained in their applications, including the title of work, would be treated as confidential and would not be released into the public domain without consent. The review applicant's own comments regarding the discretion of auctioneers and art dealers support this view. In the circumstances, I am satisfied that the information was communicated in circumstances imposing an obligation of confidence on the Gallery. I also accept that, in the absence of consent, disclosure of the information under FOI would result in an unauthorised or wrongful use of the information to the detriment of the relevant third parties. Accordingly, with certain exceptions, I am satisfied that section 35(1)(b) applies as claimed. For the sake of completeness, I note that where private individuals are concerned, the title of the work would also qualify for exemption under section 37(1) of the Act.

Section 35(1)(b) is not subject to a general public interest balancing test, but even if it were, the public interest would require, in the words of the Supreme Court, "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law" (The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]). Notwithstanding the arguments of the review applicant, I do not accept that any such public interest exists in this case. As the review applicant is aware, while certain information may be of interest to the public in the sense that it may satisfy public curiosity, this does not necessarily mean that there is a public interest in disclosing the information. Under the relevant legislation, the Board of the Gallery has no discretion to refuse to grant an export licence application presented to it for approval. Thus, the export licence application process does not involve any consideration as to whether the artworks concerned should remain in Ireland regardless of whether they originated in Ireland or, like a Rubens or other continental masterpiece that has been in the country for long enough, they may otherwise regarded by some as worthy of acquisition through taxpayer money. The question of whether there should be greater control on the export of artworks is a matter of policy for the Government and the Oireachtas to determine, having regard to the competing interests and costs involved, including the impact on the art market that could arise from increased State intervention. Following the guidance provided by the Supreme Court in the Rotunda Hospital case, I do not consider that it is for me as the Information Commissioner to find a public interest in relation to a policy matter that has yet to be so determined.

This is not to say, of course, that the question of acquisition does not occasionally arise. Under section 48 of the 1997 Act, the Minister is required to maintain a register of cultural objects. . . whose export from the State would constitute a serious loss to the heritage of Ireland". Presumably, the purpose of the register is to identify cultural objects that the State may wish to consider acquiring for the benefit of the people of Ireland. The register is arguably not as inclusive as it should be, but again, this is a matter for the Minister; it is not within my remit as the Information Commissioner to make value judgments in relation to the list at issue in an effort to remedy perceived shortcomings in the register. I recognise that the revelation that certain artworks or other cultural objects are potentially being exported for sale abroad can result in public pressure on the Minister to take action to address the situation. Indeed, such a revelation can occasionally be made by the owner concerned in a manner that tends to force the issue, whether deliberatively or not. However, in the absence of a relevant policy change adopted by the Oireachtas, I take the view that FOI is not the appropriate vehicle for seeking to exert such pressure in cases where the owner wishes to keep the matter private or confidential. I therefore do not accept that any grounds have been identified that would justify or excuse a breach of a duty of confidence or a violation of the right to privacy in this case.

The exceptions, however, arise in relation to four licences for which the Gallery itself was the applicant. No other owner of the artworks concerned is identified in either the schedule or the third party documentation provided. Having regard to section 22(12)(b) of the Act, I find no basis for withholding the titles of the artworks concerned.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the Gallery. I affirm its decision to refuse access to the list of undisclosed titles of artworks shown to be in private ownership. I annul its decision in relation to export licences for which the Gallery itself is identified as the applicant/owner and therefore direct that access be granted to the titles associated with licence numbers EL.2015.72, EL.2015.73, EL.2015.74, and EL.2015.75.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

 


Peter Tyndall
Information Commissioner