Decision
Mr. A and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-144382-W3P4N9
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144382-W3P4N9
Published on
Whether the Department was justified in refusing access to certain records relating to the applicant on the basis of sections 29(1), 30(1)(a), 30(1)(b) and 37(1) of the FOI Act
19 June 2024
In a request dated 14 August 2023, the applicant sought access to records passing from or between named staff members in which the applicant is mentioned or in which he or his work as an employee of the Department forms part of the subject matter. In later correspondence he specified that the time period for the records in question is between 3 August 2020 and the date of the request. The Department said that on 6 September 2023, it was agreed between the FOI body and the applicant that 29 August 2023 would be marked as a start date for the FOI request. It said that on 13 September 2023 it was agreed that records or emails to which the applicant had been copied would be discounted.
In a decision dated 17 October 2023, the Department part-granted the applicant’s request on the basis of sections 29(1), 30(1)(a), 30(1)(b) and 37(1) of the FOI Act. On 31 October 2023, the applicant sought an internal review of the Department’s decision. He referenced the heavily redacted nature of the records released to him. In its internal review decision dated 23 November 2023, the Department affirmed its original decision. On 5 December 2023, the applicant applied to this Office for a review of the Department’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 applicant. Focused submissions were sought from the Department. No submissions were received by the deadline provided. An email was issued informing the Department of our intention to progress the review. The Department responded and apologised for the oversight. It said that submissions would be provided that day. Submissions were not received. Further emails were received from the Department acknowledging the delay and assuring this Office that submissions would follow. Focused submissions were ultimately received more than two weeks after the original deadline passed. Notwithstanding the delay, I have had regard to the submissions received. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The Department initially identified 78 records as coming within the scope of the applicant’s request. However, in the schedule provided, it indicated that six of the records are outside the scope of the applicant’s request. It also indicated that six of the records are duplicates of other records identified. Having considered the records in question, I am satisfied that records 30, 31, 33, 34, 38 and 39 are administrative records which do not reference the applicant or his work. I am satisfied that such records do not fall within the scope of his request. I am further satisfied that records 72-77 are duplicates of other records identified and that I do not need to consider them further.
In the schedule provided to this Office, the Department indicated that certain other records contain information that falls outside the scope of the applicant’s request. In most cases the records also contain information which does fall within scope. However, having carefully considered records 44-47, I do not accept that they fall within the scope of the request. The records contain no mention of the applicant or his work. I am satisfied that the records fall outside the scope of the applicant’s request and this review and I do not need to consider them further.
Of the records remaining, the Department granted access to 13 records in full. It part-granted access to 40 records and refused access to 9 records in full on the basis of sections 29, 30 and 37 and on the basis that information in the records falls outside the scope of the applicant’s request.
In its submissions, the Department noted that the name of the officer who processed the request appeared at the top of a number of the records and said that this was redacted. It said that the individual’s name would only have been placed on the record when it was being processed as part of the request and the Department therefore deemed it to be an addition outside the date range of the request. It said the name was therefore redacted as being outside scope. I am satisfied with this explanation and accept that the name of the relevant officer is outside the scope of the request and this review.
During the course of the review, the applicant confirmed that he was happy for records relating to the Department’s routine divisional work to be excluded from the scope of the review. He confirmed that he is not seeking records relating to wider teams and employees and which are not specific solely to him and his employment. A significant number of the records relate to routine divisional work; including operational statistics, performance indicators, routine nominations for courses, work planning documents and administrative correspondence. Taking into account the applicant’s confirmation and their specific contents, I am satisfied that the following records fall outside the scope of this review:
• Records 9-19
• Records 21, 23, 25
• Records 28-29
• Records 36-37
• Records 41-43
• Record 50
• Records 64-67
Accordingly, this review is concerned solely with whether the Department was justified in its decision to refuse access to the remaining 23 records, in whole or in part, on the basis of sections 29(1), 30(1)(a), 30(1)(b) and 37(1) of the FOI Act.
The records remaining at issue are records 2-6, 26, 32, 48, 51, 53-61, 63, 68, 70, 71 and 78.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. Firstly, I must comment on the Department’s processing of the applicant’s request and its engagement with this Office during the course of the review. Both the applicant and this Office had to contend with delays caused by the Department’s handling of the case. Both the original decision and the internal review decision issued to the applicant outside the statutory timelines. While there appears to have been engagement with the applicant in respect of the request and its processing, the fact remains that he made his original request on 14 August 2023 and did not receive a decision until 17 October 2023.
As noted above, the Department’s engagement with this Office was also unsatisfactory. FOI bodies are clearly informed that if no substantive response is received to our request for focused submissions by the deadline provided, it will be assumed that the body has no further submissions to make in relation to the records concerned. FOI bodies are informed that we may then proceed to a decision based on our analysis, without further reference to the organisation. In light of the Department’s initial non-response and persistent failure to provide submissions, I began to progress the case. The receipt of submissions two weeks after the deadline disrupted the work of the review and necessitated a re-consideration of relevant matters. The Department’s approach caused unnecessary delay and undermines the efficiency of our review processes.
While I fully accept that the Department has to make difficult decisions in terms of the allocation of scarce resources, as this Office has stated on many occasions, the administration of the FOI Act is a statutory function which should be afforded as much weight as any other such function. I expect the Department to have regard to my comments and to ensure that the FOI function is adequately resourced to ensure compliance with the relevant statutory requirements set out in the Act.
Secondly, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Thirdly, section 2 of the Act defines “record” as including “a copy or part” of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that neither the definition of a record under section 2 of the Act 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Finally, it is important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Having considered the records and the exemption provisions claimed, I propose commencing my analysis with a consideration of section 37.
Section 37(1) and 37(7)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. This is commonly known as joint personal information.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by the FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information. These include information relating to the employment or employment history of the individual and information relating to the individual in a personnel record.
Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual occupies or occupied that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions of the position.
The exclusion at paragraph (I) does not provide for the exclusion of all information relating to such directors, staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out their official functions. The exclusion does not deprive such individuals of the right to privacy generally.
Of the records remaining at issue, the Department cited section 37(1) in support of its position to refuse access, in whole or in part, to records 2-6, 26, 32, 48, 51, 54-60, 63, 68, 70, and 71. I must note that given the nature of the records, I am very limited in the extent to which I can describe their contents.
In its submissions, the Department said that the records contain “numerous mentions of staff other than the requester in a personal capacity”. It said that such information falls outside the exclusion to the definition of personal information. It said that certain information is of a “personal nature”. It said that certain records discuss staffing issues and a number of staff are mentioned in a personal manner. It said that certain other records contain personal information of a customer of the Department. In respect of one record, the Department said that the record is a letter to a customer and is inherently personal. It said that information in the record relating to the requester had been released but all other information was redacted. Similarly, it said that a separate record relates to a sensitive customer issue. It again said that any information relating to the requester had been released.
The Department also made limited submissions in respect of section 37(7) of the FOI Act. It noted that a request shall be refused where access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to individuals other than the requester. It directed my attention to separate submissions referring to each individual record which I have referenced above. The separate submissions did not refer specifically to section 37(7) or joint personal information.
While the applicant made submissions in his application to this Office, he did not make any specific arguments in respect of the application of section 37. He did make submissions which I will consider in the context of the public interest test below.
I have carefully considered the remaining records at issue and the information withheld. I am satisfied that the majority relates to individuals other than the requester and comprises personal information in accordance with the definition at section 2. Again, while I am limited in the extent to which I can describe the content of the records, it seems to me that the information in question can be usefully separated into two categories:
1. Information relating to customers and third parties engaging with the Department
2. Information relating to staff of the Department
I am satisfied that information falling within the first category is personal information such that section 37(1) applies. The fact that the applicant may be aware of the content of the records or may have been involved in matters detailed therein does not serve to disapply the exemption. I am satisfied that the information relates to third parties and that section 37(1) therefore applies to the information in the first category.
In respect of the second category of information, I am satisfied that a significant amount of information relates to staff members of the Department but goes beyond the exclusion to the definition of personal information at section 2. For example, certain records contain communications between colleagues which include personal information unrelated to their office, position or functions. It seems to me that colleagues will often share personal information about their lives and that this is not the type of information section 2 intended for release. As noted above, the exclusion does not deprive staff members of the right to privacy generally.
Certain other information in the records relates to the employment history of staff members other than the applicant. Again, I am satisfied that such information goes beyond the exclusion to the definition of personal information. I note that in such instances, the Department has released information from the records specifically pertaining to the applicant and I am satisfied that this was the correct approach to take.
Certain records comprise threads of communications and I am satisfied that not all of the information within the threads comes within the scope of the request. Such out of scope information includes, for example, colleagues discussing matters unrelated to the applicant or his work.
I am also satisfied that certain other records contain what is known as joint personal information. While they may contain personal information relating to the applicant, it is closely intertwined with personal information relating to another party or parties. Having carefully considered the information, I do not believe it would be feasible to separate the personal information relating to the applicant from that of the other individuals. I note that the third parties in question are staff members of the Department. However, I am satisfied that the information at issue concerning those individuals again goes beyond the exclusion to the definition of personal information at section 2. While I remain limited in the extent to which I can describe the content of the records, I am satisfied that the information comes within the definition of personal information and is not of a type referenced in paragraph (I). Even if it was feasible to separate out occasional words or sentences which might relate solely to the applicant, I would not consider it to be in keeping with the Commissioner’s approach to section 18 of the FOI Act. I am satisfied that the relevant information is exempt under section 37(1).
However, I am not satisfied that a small amount of information withheld from the records comprises personal information. One record contains an email sent from the applicant to colleagues concerning office attendance and I am not satisfied that it contains any personal information about parties other than the applicant. Further emails comprise correspondence between Departmental staff members. In light of the preceding and subsequent emails, I am satisfied that the records relate to the applicant. I am further satisfied that they contain no personal information about other parties. In respect of the staff members who sent or received the emails or are referenced therein, I am satisfied that the information does fall within the exclusion to the definition of personal information at section 2. I note that the Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member in an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. I am satisfied that the matters discussed in the emails relate to the official functions of the staff members referenced and do not comprise personal information by virtue of the exclusion at paragraph (I).
Accordingly, I am not satisfied that the following information is exempt from release on the basis of section 37(1) or 37(7):
• Record 5, page 15 – final email on the page dated 10 June 2021 12:43
• Record 54, page 110 – email dated 23 April 2021 17:35, with the exception of point 1 which I am satisfied contains joint personal information
• Record 54, pages 110/111 – email dated 23 April 2021 15:05
• Record 54, page 111 – email dated 23 April 2021 14:37
I note that the emails at pages 110 and 111 are duplicated multiple times in email threads across subsequent records (record 55, pages 113, 114, record 56, pages 116, 117, record 57, pages 119-121, record 58, pages 123-125, record 59, pages 127-129, record 60, pages 132-134). I am satisfied that I do not need to direct the release of the duplicate emails.
I am satisfied that the remaining information to which the Department has claimed section 37 comprises personal information and is therefore exempt on the basis of section 37(1) of the FOI Act. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case. I have already outlined the provisions of section 37(7). While certain records contain joint personal information, including information relating to the applicant, I do not consider that the personal information relating to the applicant can be separated from that of other individuals. The records also contain personal information relating entirely to individuals other than the applicant. I am also satisfied that the remaining circumstances set out in section 37(2) do not arise. That is to say, the third parties have not consented to the release of their information; the information is not of a kind available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates. I am satisfied that subsection (b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to make. Firstly, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant’s motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of the release of the records, ie insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to again note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, which are not relevant here, FOI is not about granting access to information to particular individuals only. Furthermore, as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose. I note that in his application to this Office, the applicant stated that as this was a request for personal information private to him, he would be “unlikely to place that information in the public domain”. He notes that he is precluded from doing so under “the Official Secrets Act”. However, notwithstanding assurances provided by applicants, the FOI Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
All of this means that, in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individual(s) concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that, in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the comments of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (‘the eNet judgment’). In the relevant part, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In its submissions, the Department said that the right to privacy of the individuals to whom the information relates is a significant public interest factor against release. It said that if releasing the records would unduly infringe upon their privacy, it may be against the public interest. It said that section 37 of the FOI Act stipulates that a decision maker must decline access to personal information unless it directly pertains to the requester. It outlined the public interest test at section 37(5) and said that on review, “the public interest is best served by refusing access to these records”.
While the applicant did not make any substantive submissions in respect of section 37, he made submissions in his application to this Office in respect of section 29 which I consider to be of relevance in respect of the public interest balancing test. His submissions refer to the potential that deliberative processes may have occurred based on “inaccurate or incomplete information” or in circumstances where he was “not afforded an opportunity to challenge or correct assertions, opinion or incorrect information”. He also referenced the possibility that decisions may have been taken that affected him based upon “such potentially incomplete information”. He said that in such circumstances he would have been denied due process and the right to reply and correct inaccuracies. It seems to me that the applicant is effectively arguing that release of the records will allow him to ascertain whether fair procedures have been afforded to him in respect of processes which may or may not have occurred.
The applicant also said that a fundamental tenet of FOI legislation is the right to have personal records corrected if the information is incorrect, incomplete or misleading. He said that as a number of the documents are heavily redacted or refused in their entirety, it is not possible for him to determine if the records are correct, complete or true. While the applicant has essentially expressed private interests for seeking access to the records, it seems to me that his reasons for seeking access are reflective of the public interest in ensuring that fair procedures are followed by public bodies and in individuals being able to ascertain whether records held relating to them are accurate.
On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes it clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
I have accepted that certain records at issue contain information pertaining to the applicant but that this information is closely intertwined with the personal information of other individuals. While I accept that the release of such records would serve to somewhat enhance transparency around the matters referenced therein, any enhancement must be balanced against the breach of privacy rights that would entail. Similarly, while noting that release would allow the applicant to scrutinise the content of the records and information held by the Department relating to him, the records also contain information relating to third parties. Certain information at issue is of an inherently sensitive and private nature. I must regard its release as being effectively, or at least potentially, to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the individuals referenced therein. I find, therefore, that section 37(5)(a) does not apply.
In sum, I find that the Department was justified in refusing access to the relevant withheld information in records 2-6, 26, 32, 48, 51, 54-60, 63, 68, 70, and 71 (with the exception of the information at the bullet points above) on the basis of section 37(1) of the FOI Act.
Section 30(1)(a) provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a), it should identify the potential harm in relation to the relevant function specified in the paragraph that might arise from disclosure. Having identified that harm, it should consider the reasonableness of any expectation that the harm will occur. The FOI body should explain how and why, in its opinion, release of the records could reasonably be expected to give rise to the harm envisaged. A claim for exemption under section 30(1)(a) must be made on its merits and in light of the contents of each particular record and the relevant facts and circumstances of the case. Section 30(1) is also subject to a public interest test under section 30(2).
The Department has applied section 30 to the majority of the refused records. I have already found that a number of the records are exempt by virtue of section 37(1). The remaining records which I must consider in the context of section 30 are record 53, the parts of records 54-60 to which I have not found section 37 to apply, record 61 and record 78.
In its submissions, the Department said that the specific function that could be adversely affected by the release of the records is the efficient and effective management of the Department, including its staff and associated management processes. It said that the records withheld or redacted under section 30 pertain to the management of the Department and its staff. It said that management correspondence often requires confidentiality to facilitate candid communication between managers and that this confidentiality allows for informed discussions on sensitive matters and effective decision-making.
It said that given its scope of work, staff size and the sensitive nature of the data it handles, developments within the Department often attract public attention. It said it is not uncommon for decisions to receive media coverage and it noted that when a record is released, it is released to the world at large. It said that if it is widely known that these records were publically disclosed by the Department, and if such releases set a precedent, it could erode trust internally and externally. It said that public perception of the Department would suffer, impacting its reputation and diminishing staff trust. It said that the absence of confidentiality might discourage staff from raising critical issues, posing challenges to maintaining a transparent and productive work environment. It also referenced the potential for negative consequences such as recruitment and retention difficulties.
The Department said that it holds a significant role as a data controller in Ireland and ranks among the largest government departments. It provided statistics to support this position. It said that given its substantial data management responsibilities, the Department’s treatment of data remains under constant scrutiny. It said that the handling of data is of paramount importance and safeguarding sensitive records in any format is essential. The Department also made limited additional submissions in respect of the specific records withheld or redacted.
In his application to this Office, the applicant cited the text of section 30 and said that he was/is not knowingly involved in any dispute with the Department, nor the subject of any disciplinary or legal actions, nor knowingly involved in any processes listed in section 30. He said that he therefore “cannot possible ascertain” how the subject matter in the records can fall within the scope of the exemption. He contended that the attempted use of the exemption is inappropriate in the circumstances and an “over-reach” by the Department.
The first question I must consider is whether the matters at issue in the records can be described as relating to one of the relevant functions; namely tests, examinations, investigations or audits. As noted, the FOI body is expected to identify the relevant function concerned and the prejudice or harm envisaged. In that regard, the Department has referenced the management of the Department and its staff. Section 30(1)(b) specifically concerns functions relating to management and I will consider that exemption provision below. Having carefully considered the submissions made and the content of the records in question, I am not convinced that the harms outlined could be said to relate to one of the relevant functions envisaged by the exemption at section 30(1)(a).
While I am limited in the extent to which I can describe the records, the Department has described them as referring to staffing and office management matters. I do not accept that the functions reflected in the records fall within the scope of section 30(1)(a). It does not seem to me that release of the relevant records and information at issue could reasonably be expected to prejudice tests, examinations, investigations, inquiries or audits, or the procedures or methods employed for their conduct. I should note that the Department has not attempted to explain why the information falls within the scope of the exemption. I have considered whether a broad interpretation of the matters could result in them falling within the scope of section 30(1)(a). However, I note that the Department itself has specifically referred to the management of the Department and its staff, and other management processes. I do not accept that the Department’s management function comes within the scope of subsection (a).
Accordingly, the Department has not satisfied me that harm to a function within the scope of section 30(1)(a) could reasonably be expected to flow from the release of the records; nor is this evident from an examination of the information therein. I find that section 30(1)(a) does not serve to exempt the records though I will consider the Department’s arguments in respect of its management functions in my analysis of section 30(1)(b).
Section 30(1)(b) of the Act provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.
A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
The Department has applied section 30(1)(b) to the same records it sought to withhold under section 30(1)(a). In its submissions in respect of the subsection, it said that the function relating to management it expects to be affected is the effective and efficient management of the Department and its staff and related management functions. It said that the adverse effect will manifest in how management functions, processes, correspondence and confidentiality are viewed by Department staff and the public. It again referenced the Department’s role as a data controller. It said that if correspondence relating to sensitive matters and the management functions around dealing with those matters is released to the world at large, then the adverse effects would be significant. It reiterated risks and harms referenced above and said that release would erode trust internally and externally. It said that the public perception of the Department would suffer, impacting its reputation and leading to decreased trust from staff. It said staff would be deterred from raising critical issues, creating challenges in maintaining a transparent work environment. It again referenced potential difficulties recruiting and retaining staff. The Department also made limited additional submissions in respect of the specific records withheld or redacted. It said that the records contain information relating to staffing and management matters. It said that management need to be able to openly discuss staffing issues in order to manage more effectively. In its submissions in respect of subsection (a), it said that confidentiality is often required to facilitate candid communications among managers and that this allows for informal discussions on sensitive matters and effective decision-making.
The applicant’s submissions, outlined above, were made in the context of section 30 generally. I will not restate them but I have considered them in full.
I have carefully considered the submissions received and the content of the records at issue. While noting section 25(3) of the Act, I believe I can say that the records at issue largely relate to management matters relating to the applicant. While the Department has referenced harms which it said will occur upon release of the records, it has not explained how exactly those harms could be expected to arise. The fact that records may relate to management functions is not sufficient to meet the harm test associated with subsection (b). The Department’s submissions centre on concerns about the perception of the FOI body and decreased staff trust. However, it has not explained how such harms could reasonably be expected to flow from the release of the information at issue, nor is this apparent to me from a consideration of the records.
Limited records remain at issue and, as noted above, they relate to management matters concerning the applicant. I accept that they disclose internal communications. However, in light of the specific content of the records, I do not accept that related harms could be expected. Nor do I accept that release of the records would necessarily result in a negative perception of the Department or that, if such negative perceptions were formed, they could reasonably be expected to have a significant, adverse effect on its performance of management functions. It seems to me that the communications at issue relate to relatively standard management processes.
The Department also said that release would deter staff from raising critical issues. The Commissioner has commented in a number of decisions that there is a general onus on public servants to co-operate in regard to matters relating to their employment. It seems to me that a similar onus exists in respect of the raising of issues relevant to their employment. I do not accept that the release of the remaining communications at issue in this case could reasonably be expected to undermine staff co-operation, compliance with the requirements of their role, or engagement with colleagues about matters arising.
In sum, I am not satisfied that release of the relevant records could reasonably be expected to have a significant, adverse effect on the performance by the Department of any of its functions relating to management. I find that the Department was not justified in relying on section 30(1)(b) to refuse access to the information in question.
Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest.
These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest.
In order for section 29(1) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to those processes.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
The Department sought to apply section 29(1) to a number of records. The remaining records which I must consider in the context of section 29 are record 53, the parts of records 54-60 to which I have not found section 37 to apply, record 61 and record 78. In its submissions, the Department said that the deliberative process central to the request is a staff issue involving the requester and the handling of associated issues by the Department. It said that section 29 allows for the protection of records relating to sensitive staff matters. It said that dealing with such matters inherently requires careful consideration, evaluation and decision-making by the Department’s management and often necessitates a thoughtful and deliberate approach to ensure fair and just resolutions. The Department also made limited additional submissions in respect of the specific records at issue. It said that certain records contain advice in respect of a staffing and management issue. It said that certain records contain managerial discussions about how to proceed in respect of a staffing and management issue. It said that the records contain information relating to a deliberative process and were refused on that basis.
Having considered the submissions made by the applicant in respect of section 29(1), I note that they relate largely to the public interest test at subsection (b). He did refer to being the “unknowing and unaware subject” of a deliberative process. However, he has not made submissions disputing that the records relate to such a process.
Having considered the above submissions and the content of the records in question, I am willing to accept that the matters referenced therein relate to a deliberative process. I therefore find that the records meet the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the records meet the requirements of section 29(1)(b) of the FOI Act.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The Department outlined the public interest factors considered. In respect of the factors against release, it said that releasing staff records could harm the individuals involved. It said that publicising deliberations could hinder effective decision-making and it noted that the public trust that government departments will handle staff matters professionally and protect and secure personal and sensitive data. It said that the protection of the records is essential to maintaining the integrity of management and decision-making processes within the Department. It again said that release could potentially deter open and frank discussions on sensitive matters, inhibiting its ability to address and resolve issues effectively. It said that the public interest lies in refusing access to the records, safeguarding individuals and the integrity of government processes.
In his submissions, the applicant said that if he was the subject of a deliberative process based on inaccurate or incomplete information and was not afforded an opportunity to challenge or correct matters and if decisions were taken based upon such information, he would have been denied “fundamental due process”. He also said that as the information relates to him, he would be unlikely to place such information in the public domain. He referenced the Official Secrets Act in this regard. He said that this infers that the second condition of the exemption provision (section 29(1)(b)) cannot be met.
I have carefully considered the records in question and the Department’s submissions. As noted above, I remain limited in the extent to which I can describe the contents of the records. However, it seems to me that the records relate to deliberations in respect of a particular staffing matter and comprise internal communications about the Department’s approach to same. I note that I have already accepted that information in a number of the records is exempt from release by virtue of section 37(1) of the Act. Limited information remains at issue and it seems to me that the information relates solely to the applicant and his employment.
The Department’s submissions in respect of the public interest centre on the anticipated impact that release would have on staff’s willingness to engage in “open and frank discussions”. It said that release may result in manager and staff reluctance to express candid opinions.
The Commissioner has previously indicated that, in exceptional cases, an argument regarding frankness and candour might be sustainable in the context of the public interest test at section 29(1)(b). Having carefully considered the remaining information and records at issue, it is not clear to me that they contain staff contributions which would have been withheld if the relevant staff had known from the outset that such communications would be the subject of an FOI request. It seems to me that the relevant records comprise relatively routine managerial correspondence or certainly concern matters which managers would be expected to deal with as part of their functions and responsibilities. I cannot see how release could reasonably be expected to result in the harms outlined by the Department, nor has the Department satisfied me that release would be contrary to the public interest. While I accept that public bodies and their staff are often required to evaluate and assess options, and that robust internal dialogue facilitates this work, I do not believe that the release of the specific remaining records at issue would undermine these functions.
In sum, while the Department has outlined harms which it believes may occur, it has not shown to my satisfaction how granting access to the information in question could lead to such harms and thus be contrary to the public interest, nor is this apparent to me following consideration of the records. Accordingly, I find that the Department was not justified in refusing access to the records on the basis of section 29(1) of the FOI Act.
I find that the majority of the information withheld from the records within scope is exempt from release under section 37(1) of the FOI Act. However, I am not satisfied that the following records qualify for exemption and I direct the release of same:
• Record 5, page 15 – final email on the page dated 10 June 2021 12:43
• Record 53
• Record 54, page 110 – email dated 23 April 2021 17:35, with the exception of point 1 which I am satisfied contains joint personal information
• Record 54, pages 110/111 – email dated 23 April 2021 15:05
• Record 54, page 111 – email dated 23 April 2021 14:37
• Record 61
• Record 78
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department’s decision. I find that it was justified in refusing access to the majority of information and records on the basis of section 37(1) of the FOI Act. I find that it was not justified in refusing access to certain information and records on the basis of sections 29(1), 30(1) or 37(1) of the FOI Act and I direct the release of same.
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.
Alison Connolly
Investigator