Decision
Mr X and Department of Social Protection
From Office of the Information Commissioner (OIC)
Case number: OIC-141363-W0L3K7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-141363-W0L3K7
Published on
Whether the Department was justified in refusing access to records referencing the applicant on the basis of sections 29(1), 30(1), 31(1), 36(1), 37(1) and on the basis that further records do not exist or cannot be found
13 May 2024
The applicant in this case first made a Subject Access Request to the Department in December 2022 under data protection legislation for a copy of his personnel file. As he was not satisfied that the file he received contained all of the records that he would have expected to find on the file, he exchanged several emails with the HR Division in order to obtain all relevant records. In an email dated 5 January 2023, he clarified that he was seeking “all information … held under the responsibility or purview of [the Department’s] HR/Personnel division or within the … AMD building, that references [him] directly or indirectly between 2014 and [the date of his email]”. On 15 March 2023, the HR Division contacted the applicant and explained that certain records were held in files other than his personnel file.
On 23 March 2023, the applicant emailed the HR Division wherein he explained that the records he required were those as clarified on 5 January 2023 and he repeated that clarification. In its response of the same date, the HR Division asked if the request was for HR related records only i.e. records “under the responsibility or purview of DSP HR /Personnel division” located within AMD (or anywhere else), and not all records related to him within AMD. It also explained that the original request was dealt with as a Subject Access Request and said the wording on the request (as described in the applicant’s email of 23 March 2023) would suggest that it was also a Subject Access Request as opposed to an FOI request. It asked him to confirm if this was the case.
The applicant replied on the same date. Among other things, he said his request as clarified on 5 January 2023 was simply an attempt to get the records he was entitled to, irrespective of location. He indicated that, in light of the manner in which the matter had been handled to date, he was now requesting, under the FOI Act;
“That DSP provide any and all records, information, notes, files held in paper, electronic or any other format held under the responsibility or purview of DSP HR/Personnel division, in relation to competition, promotion, medical, press or media references, legal and quasi legal records that references me directly or indirectly, in any matter, irrespective of heading or location, between 2014 and todays date 23 Mar 2023”.
As the Department failed to issue a decision on the request, the applicant contacted the Department on 12 April 2023 seeking a review of the process and asked that he be provided with the records sought as a matter of urgency. It does not appear that any substantive response issued. On 8 May 2023, the applicant contacted this Office outlining his engagement with the Department and noting that his request had been ignored. He said that the situation remained unresolved.
On 19 May 2023, this Office wrote to the Department noting the deemed refusal of the applicant’s FOI request. We directed the Department to issue a letter to the applicant stating its effective position on the request by 2 June 2023. The Department did not issue its effective position within the relevant timeframe. This Office followed up repeatedly and on 27 June 2023 we informed the Department that if the effective position was not received, a statutory notification under section 45 of the FOI Act would issue to the Head of the Department. The Department subsequently issued its effective position on the request on 29 June 2023. It part-granted the request, relying on sections 29(1), 30(1)(a), 30(1)(b), 31(1)(a), 36(1)(b) and 37(1) of the FOI Act to withhold certain records, in whole or in part.
On 9 August 2023, the applicant applied to this Office for a review of the Department’s decision. He said he believed the release of records to be incomplete and he also sought a review of the Department’s refusals and redactions.
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 and the Department. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
I note that the effective position letter the Department issued on 29 June 2023 referenced the clarification the applicant provided of his original Subject Access Request in his email of 5 January 2023 and his first email of 23 March 2023. As should be clear from my description of the correspondence between the parties above, the applicant’s request is as set out in his second email of 23 March 2023 and as outlined in full above.
In my view, the Department reference to the initial clarification as opposed to the actual request made on 23 March 2023 is of no material difference. It seems to me that the latter wording of the request simply serves to direct the Department’s attention to particular areas and includes clearer wording but does not expand the scope of the earlier clarification of his Subject Access Request. In essence, the applicant has sought all HR type records relating to him between 2014 and 23 March 2023.
The Department identified 163 records, comprising 673 pages, as coming within the scope of the request. It granted access to 58 records in full. It part-granted access to 37 records and refused access to 68 records on the basis of sections 29(1), 30(1)(a), 30(1)(b), 31(1)(a), 36(1)(b) and 37(1) of the FOI Act. It provided the applicant with a schedule of all 163 records and I have adopted the numbering system used by the Department in that schedule when referring to the records at issue.
As noted above, the applicant believes that further records exist which have not been identified by the Department. The Department’s position is that all relevant records have been identified for release. This is, in essence, a refusal to release additional records pursuant to section 15(1)(a) of the Act, which provides for the refusal of a request where the records sought do not exist or cannot be found.
During the course of the review, the Department indicated that following communications with the applicant, it had made the decision to release record 12, which it had originally refused on the basis of sections 29(1) and 30(1). In light of its release, I will give no further consideration to record 12. The Department also indicated that a number of the records listed on the schedule were duplicates or misfiled documents. Having considered same, I am satisfied that records 136, 139, 142 and 146 are duplicates of 57, the part-granting of which I will consider below. I am also satisfied that record 119 is a duplicate of records 1 and records 3 to 11, which I will also consider below. I do not believe that it is necessary to consider the duplicate copies and will therefore exclude them from the scope of this review, i.e. records 119, 136, 139, 142, and 146. I am further satisfied that record 41 is a misfiled document. It relates to an entirely separate matter and individual and I will not consider it further.
During the course of the review, and following discussions with the Investigator, the applicant confirmed that he was not seeking information in the records which related to his solicitors or legal team and fees payable to them. He said he was satisfied that such information could be removed from the scope of this review. He said that any information relating to other legal professionals engaged by the Department should be considered within scope. Accordingly, I am satisfied that records 15, 17, 18, 33, 34, 59, 61, 63, 67, 69, 71, 73, 85, and 88 fall outside the scope of this review. I am also satisfied that record 21 falls outside the scope of the review on this basis. Notwithstanding the fact that the Department relied on different exemption grounds, the record is an administrative duplicate of record 73.
I am also satisfied that the following information in record 75 falls outside the scope of the review:
• page 241,
• page 242,
• page 246 (Fees outline and total balance),
• pages 248 to 252,
• page 256 (Fees outline and total balance) and
• pages 258 to 260
During the latter stages of the review, the Department identified six additional records as falling within the scope of the applicant’s request. It indicated that it was granting full access to three of the records and partial access to the other three (records 1, 4, and 6 on schedule 2) with redactions under sections 29(1), 30(1)(a), 30(1)(b), 36(1)(b) and 37(1).
I am satisfied that the following information that was redacted from the relevant records falls outside the scope of this review:
Record 1:
• Page 1 - The first and final redactions in the email sent on 15 February 2018 at 08:22
• Page 2 - The final sentence in the email sent on 14 February 2018 at 17:03 and the redaction in the email sent 14 February 2018 at 12:54
Record 4:
• The redactions in the first of two rows in the table on page 8 that relate to the applicant’s case
Record 6:
• The redactions in the first of two rows in the table on page 12 that relate to the applicant’s case
Page 8, record 4 and page 12, record 6 contain information relating to third party individuals and claims. I am satisfied that such information is outside the scope of the applicant’s request and this review.
I also note that the schedule states that record 32 has been part-granted on the basis of section 36(1)(b). Records 32 and 33 comprise two pages of a single letter and no information has been redacted from the first page, namely record 32. Accordingly, I will give record 32 no further consideration in this review.
In summary, therefore, the records remaining at issue comprise, in full or in part, records 2 to 8, 10, 11, 19, 23 to 25, 27, 28, 30, 37 to 40, 42, 43, 45 to 48, 50, 52, 54, 56, 57, 65, 72, 75, 78 to 81, 83, 87, 90, 93, 95 to 100, 104 to 113, 116, 118, 120, 121, 123 to 134, 140, 143, 144, 150, 159 to 162, and parts of additional records 1, 4 and 6 on schedule 2.
Accordingly, this review is concerned with (i) whether the Department was justified in refusing access, in whole or in part, to the records identified above under sections 29(1), 30(1)(a), 30(1)(b), 36(1)(b) and 37(1), and (ii) whether it was justified in refusing access to any further relevant records other than those located on the basis that no further relevant records exist or can be found after all reasonable steps have been taken to ascertain their whereabouts.
Before I address the substantive issues arising, I wish to make a number of preliminary comments, in particular in respect of the Department’s processing of the original request and its subsequent engagements with this Office during the review. As evidenced above, both the applicant and this Office had to contend with significant delays caused by the Department’s handling of the case.
The Department failed to issue an original decision or an internal review decision. Its effective position was not issued within the timeframe prescribed by this Office and we had to send a number of email reminders before the direction was complied with. This Office also experienced delays in its dealings with the Department during the review. Responses were not provided in a timely fashion. Extensions were requested and then were not met.
It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. That said, the applicant’s position is that “the actions and standards of the processing of this request are not at the level one would expect from an organisation of [the Department’s] supposed calibre and importance, an organisation with vast experience in data management”. I agree.
In short, the Department’s processing of the applicant’s request and its subsequent engagements with this Office during the review fell well short of the required standards and were wholly unsatisfactory. 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. Delays of the nature experienced in this case serve to undermine the entire FOI process and are unacceptable. 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.
More generally, 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 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.
It is also important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I deem it appropriate to consider the applicability of mandatory exemptions the FOI body may not have initially relied upon as a ground for refusing access to the records in its decisions on the request.
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.
Section 15(1)(a)
Section 15(1)(a) of the Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case such as this is to review the decision of the FOI body and decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision. I must also assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in “search” cases generally consists of the steps actually taken to search for records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
As noted above, in his application for review, the applicant said that he believed the release of records to be incomplete. In support of this position, he said that the Department identified and released further records when he provided examples of omissions. In the circumstances, this Office asked the Department to provide submissions detailing the steps taken to search for relevant records.
Submissions
The Department’s position is that no further records relevant to the FOI request exist. It said that the wording of the request was sent to all staff and areas of HR for their action. It provided details in respect of its filing systems and referenced specific areas in which files were stored. It said that other records were held electronically and were “easy to search thoroughly”. It noted that as there were many areas to search and the searches undertaken were very thorough, “the request has taken longer to process than had been anticipated”. It provided details in respect of record retention and deletion policies and said that emails are archived but readily searchable and retrievable. It also outlined the areas and records searched.
The Department said that all HR areas and teams were contacted. It said that where staff have moved on, and where there was a possibility that relevant records could be held in their personal email, they are contacted and/or their relevant mailbox is accessed and searched by HR staff. The Department said that in the interest of thoroughness, further searches were undertaken and that any unreleased records would be processed in line with FOI legislation and released as necessary.
The Department also responded to the applicant’s statement that documents were released when omissions were identified. It referenced a particular record on the schedule provided (record 12) and said that the applicant queried the record after the effective position issued. It said that it subsequently decided to release the record. It disputed the applicant’s assertion that the record was located following queries raised and said that the record was detailed in the schedule and refused but subsequently released.
This Office notified the applicant of the search details provided by the Department and invited any further submissions which were duly provided. The applicant made a number of points in response to the Department’s submissions. He referenced his initial engagement with this Office and said that he did not believe that all relevant documentation was released. He also noted that when he pointed out specific documents, these became available. He outlined his belief that the Department is either seeking to “obfuscate the release of the data by categorising the data in a way to avoid it coming under the release guidelines as prescribed” or is “possibly unaware of its responsibilities in the entire process”.
He noted references in the Department’s submissions to “personal” files. He said that he initially applied to the Department for his “personnel” file based on the assumption that there would or should be one such file. He said the expression “personal file” only arose as the Department asked which file he needed: personal or personnel. He queried why the two should differ. He said that the Department then requested him to differentiate between different file types or identify storage locations. He said these were things that he could not possibly know as they were internal processes and taxonomies. He said that he clarified his position by saying that he wanted all records.
The applicant also referenced record 12 and said he could not have known that the record he was querying was the relevant record listed on the schedule. He expressed dissatisfaction with the fact that the Department subsequently released the record and said that if its initial decision was “correct within the guidelines” the record should have remained refused otherwise the initial decision was incorrect.
In concluding, he said that the entire explanation and processing of the request must be called into question. He said that the Department’s response is not in keeping with data processing policy, guidelines or legislation. He said that an ineffective or complex method of data control should not be permitted as an excuse for failure to adhere to responsibilities. He indicated that it was not possible or credible for the Department to guarantee that it has completed its searches. He said he remains wholly unconvinced by the credibility of the Department’s response.
As the review was nearing completion, the Department contacted this Office and said that “final searches” had been carried out and that a further 6 records had been identified. It said that the records were “very similar” to records released to the applicant previously but said that it “could not locate these exact records in the previous document releases”. This Office queried whether the records had been released to the applicant, how the additional records were located, what searches were conducted to locate them, and why they were not located in the first instance. No response has been received from the Department to date.
Analysis
It is important to note that the test in section 15(1)(a) is whether all reasonable steps to ascertain the whereabouts of records sought have been taken. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records.
I would also note that the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We do not generally expect FOI bodies to carry out extensive or indefinite searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body’s explanation as to why certain records do not exist or cannot be found
It is fair to say that the applicant is generally dissatisfied with the manner in which his request for records was processed by the Department, a dissatisfaction that is entirely understandable in my view. I have commented on relevant shortcomings above. I note that 169 records were identified and I am conscious that only partial access has been granted to many records and that the applicant has not seen any part of 68 of the records. I would also note that some of the descriptions provided in the schedule are somewhat limited (ie. draft notes). I understand that it can be difficult for an applicant to be assured that all records have been identified in such circumstances.
I am satisfied with the explanation provided by the Department in respect of record 12 which was released to the applicant on foot of his queries. Nothing in the FOI Act precludes an FOI body from altering its position or choosing to release further records after a decision has issued. While I note the applicant’s assertion that this means the original decision was incorrect, a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances and the law as they pertain at the time of our decision and is not confined to the basis upon which the FOI body reached its decision initially. Furthermore, the exemptions which were initially relied on in respect of record 12 are discretionary. FOI bodies are entitled to choose to release records which meet the requirements of the relevant provisions.
Having initially considered the submissions received from the Department, this Office’s Investigator formed the preliminary view that the Department had taken all reasonable steps to identify records relevant to the applicant’s request. In correspondence issued to the applicant, she asked that he explain why he believes further records exist, with reference to any evidence in support of his position. In response he said that he believes that the Department may have created documents the existence of which he has no direct knowledge of. He said that the legislation places the responsibility on the Department to provide and not on the requester to identify.
I would note that in general, we consider that while the FOI Act demands that FOI bodies meet very high standards in dealing with requests, the corollary is that the legislation assumes reasonable behaviour on the part of requesters. In consulting with an applicant, we consider that it is not unreasonable for us to expect to receive the applicant's cooperation in securing a thorough and efficient review. Indeed, section 12(1) of the Act provides that a request for records must contain sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps.
I have carefully considered the submissions made by the parties and the records identified. I would note that the Department has provided substantive submissions in respect of searches undertaken and that it has identified a considerable number of records to date. However, the Department’s assurances are, in my view, undermined by the fact that it located further records at a late stage. It has provided no response to queries arising in respect of the additional records identified. The lack of response from the Department means that I am not aware of how the additional records came to be located, nor has it explained why the original searches, which it detailed in its submissions, failed to identify the records.
Accordingly, in light of the additional records located and the failure of the Department to provide requested information and explanations, I am simply not in a position to find that it has, at this stage, taken all reasonable steps to locate all relevant records. For this reason, I find that the Department was not justified in refusing, under section 15(1)(a) of the FOI Act, access to any further records on the basis that they do not exist or cannot be found after all reasonable steps have been taken. In the circumstances, I consider that the most appropriate course of action to take is to annul the Department’s effective reliance on section 15(1)(a) to refuse access to any further relevant records and to direct it to make a fresh decision on the matter in accordance with the provisions of the FOI Act.
In making its decision, I would direct the Department to the decision maker’s manual published by the Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform. The manual outlines matters which an FOI body seeking to rely on section 15(1)(a) should be able to refer to or demonstrate. Among other things, the manual notes that requesters may be unfamiliar with the particular record keeping practices of the FOI body and states that, insofar as is possible, all steps taken to locate the relevant records should be explained to the requester.
Section 31(1)(a)
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.
Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
Provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Moreover, the Commissioner takes the view that advice privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
The concept of "once privileged always privileged" applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.
The Department has relied on section 31(1)(a) to refuse access to records 24, 28, 38, 42, 43, 45 to 47, 78 to 81, 90, 97, 99, 107 to 112, 116, 121, 124, and 127. Its position is that the records contain legal advice and that the concept of “once privileged always privileged” therefore applies. It said that the client in question is the Department and that the legal advisers are the Department’s resident legal adviser and the Chief State Solicitors Office (CSSO). It provided more detailed submissions in respect of each of the records in question. It said that the records comprise correspondence between the Department and its legal adviser regarding legal advice or between the Department and the CSSO whereby the former was seeking legal advice from the latter. It said that one record comprises a note referencing legal advice and the legal advisor. This record appears to be a meeting note which contains legal advice received.
Having carefully considered the contents of the 25 records in question, I am satisfied that they contain legal advice from an internal legal adviser or requests for legal advice sent to that adviser or the CSSO. I therefore accept that records 24, 28, 38, 42, 43, 45 to 47, 78 to 81, 90, 97, 99, 107 to 112, 116, 121, 124, and 127 are subject to legal advice privilege and are exempt from release under section 31(1)(a) of the FOI Act.
In addition, I am satisfied that a small number of additional records comprise requests for legal advice or form part of a continuum of correspondence relating to such advice. The Department has not expressly claimed section 31(1)(a) in respect of these records but has refused access on the basis of other exemption provisions. However, in light of the de novo nature of reviews by this Office, I have considered the content of records identified. I am satisfied that the following records also qualify for exemption on the grounds that they are legally privileged.
• Record 39 in full, which comprises a draft letter attached to a request for legal advice,
• Record 87 in full, which comprises a draft letter attached to a request for legal advice,
• Record 95, the first two sentences of the second paragraph on page 318,
• Record 113 in full, which relays advice received from the CSSO
• Record 131 in full, which refers and relates to a request for legal advice and advice received, and
• Record 134 in full, which refers and relates to a request for legal advice
In sum, I am satisfied that the above referenced records are subject to legal advice privilege and are therefore exempt from release under section 31(1)(a) of the FOI Act.
Section 36(1)(b)
Section 36(1)(b) of the Act provides for the mandatory refusal of a request if the record sought contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation.
As per its submissions, the Department’s reliance on section 36(1)(b) to withhold certain information was in connection with legal/solicitors’ fees. It said that in the context of professional rates and billing information, it is crucial to withhold such information from public release. It argued that disclosing “such proprietary details” could put a company at a competitive disadvantage by revealing its pricing strategies, negotiating tactics, and overall
financial structure. It said companies often rely on confidentiality in their fee structures to
remain competitive and viable in the market.
The records remaining at issue and to which the Department sought to apply section 36(1)(b), in whole or in part, are record 75 and additional records 1, 4, and 6. It is worth noting at this stage that the Department’s submissions were received before the applicant agreed to remove information in the records which related to his solicitors or legal team and fees payable to them from the scope of the review.
The information in record 75 remaining within the scope of the review contains no information relating to fees payable to the applicant’s legal team. Instead, it concerns whether the Department would cover or contribute to the costs of the applicant’s defence of then pending legal proceedings. The relevant information remaining within scope in additional records 1, 4, and 6 concerns the applicant’s expenses, as opposed to those of his legal team. I do not accept that the release of any of the information at issue could possibly cause any of the harms outlined in section 36(1)(b). I find that section 36(1)(b) does not apply.
Section 37(1)
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 (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 an 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.
Certain information is excluded from the definition of personal information. Paragraph (I) 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 his or her 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 decision to refuse access to parts of records 2 to 8, 10, 11, 25, 27, 30, 50, 52, 54, 57, 65, 72, 83, 96, 98, 100, 118, 120, 129, 130, 133, 140, 143, 144, 150, and 159 to 162. In its submissions, the Department said that almost all of the redactions made relate to one customer of the Department. It said that the name and address of this customer appear quite frequently throughout the documents due to the nature of their contents. It said that a number of other members of the public are mentioned in the documents and their names have also been redacted. It also said that a small number of records contain the names of staff members of private companies. It said that some personal details of Department staff have been redacted, as have the names and dates of birth of the applicant’s children. It said that these individuals are adults and therefore their information has been withheld.
The Department noted that release of the records is considered to be release to the world at large. It said that the information in question relates to individuals other than the requester and must therefore be protected.
The Department also made specific submissions in respect of the staff information contained in the records. It said that it had redacted “very personal” information relating to staff such as Personal Public Service (PPS) numbers. It said that other information withheld relates to “internal moves and processes within the Department”. It said that such information is personal to staff members “regarding their employment and career”.
I have carefully considered the content of the records and the information withheld on the basis of section 37. I am satisfied that the information at issue comprises personal information relating to individuals other than the applicant. While the information is included in records which relate to the applicant, the information itself relates to other individuals. As evidenced by the Department’s redactions, the majority of the information at issue can be sufficiently separated from other information in the records, which the Department has released. In respect of the limited information relating to staff of the Department which has been withheld, I am satisfied that such information relates to what could be termed personnel type matters. The information is not, in my view, of a type that is captured by the exclusion to the definition of personal information. It seems to me that staff members of an FOI body are entitled to expect that such information is held by the body on the understanding that it will be treated as confidential and that it will not be disseminated widely, potentially to the world at large. I am satisfied that the disclosure of the information would involve the disclosure of personal information relating to the staff members in question.
Finally, having carefully considered the records in full, I note that certain limited personal information is also contained in records which the Department refused on the basis of other exemption provisions, which I will consider below. This information includes the names and details of third parties and the mobile phone numbers of staff members. I am satisfied that any such information is also covered by the exemption at section 37(1) and I will direct attention to such information as relevant.
Accordingly, I find that section 37(1) of the Act applies to the records and information withheld by the Department on that basis. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37.
Section 37(2) provides that section 37(1) does not apply in certain circumstances. In particular, subsection (a) provides that section 37(1) does not apply if the information concerned relates to the requester concerned. I am satisfied that the information at issue, while contained in records relating to the requester, relates to other individuals. I am therefore satisfied that section 37(2)(a) does not disapply section 37(1). I am further satisfied that no circumstances arise such that any of the other subsections of section 37(2) apply.
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 information would be to the benefit of the person to whom the information relates. There is no evidence to suggest that the individuals to whom the information relates would benefit from its release and I find that section 37(5)(b) does not apply in this case.
Before I consider the applicability of section 37(5)(a), I wish to note a number of points. 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 what might be regarded as true public interest factors in favour of release of the records, for example where matters raised in relation to the request may also be regarded as matters of general concern to the wider public.
Secondly, as noted previously, 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 do not apply in this case, records are not released under FOI for any limited or restricted purpose. 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 individuals concerned.
On the matter of whether the public interest in granting access to the information at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in 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) (“the Rotunda case”). In this regard, I note that a public interest should be distinguished from a private interest.
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 judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, 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.
The applicant has not made specific submissions to this Office in respect of the public interest test at section 37. His application to this Office and subsequent submissions centred on the quality of the Department’s processes and decision-making in respect of his request. I cannot identify any public interest argument inherent in those submissions which relates to the release of personal information about other individuals. I accept that the applicant has an interest in being able to access information relating to him which is held by the FOI body. However, it seems to me that such an interest is a private one rather than a public one.
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 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). The Department has not made specific submissions in respect of the public interest as it relates to section 37, but I note its reference to the personal nature of the information at issue and the fact that release under FOI is considered to be release to the world at large.
I have carefully considered the records at issue and the submissions received. I would note that in respect of the majority of the records, the Department has redacted certain personal information therein but has released the remainder of the record. It seems to me that by doing so the FOI body sought to release as much information as possible to the applicant. Given the strong public interest in protecting the right to privacy, I am not aware of any public interest in release of the information at issue which would serve to outweigh the right to privacy of the individuals to whom it relates. I find, therefore, that section 37(5)(a) does not apply. Accordingly, I find that the Department was justified in refusing access to the information at issue on the basis of section 37(1) of the FOI Act.
Section 29(1)
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.
Section 29(1)(a) – the deliberative process
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. In its submissions, the Department said that the deliberative process at issue is a staff matter regarding the applicant and the Department’s handling of same. It said that dealing with such matters inherently involves careful consideration, evaluation and decision-making by the Department’s management. It said that the handling of “sensitive staff issues” often requires a thoughtful and deliberate approach to ensure fair and just resolutions. It noted that a deliberative process involves the weighing of various options, discussions on potential courses of action, and the formulation of strategies to address matters effectively. It said that, in this way, the management of the issues referenced in the records is a deliberative process under the FOI Act.
Having considered the above submissions and the content of the records in question, I am satisfied that the matters contained 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.
Section 29(1)(b) – the public interest test
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, this 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’s position is that “releasing deliberative records relating to any sensitive staff issues such as these would be contrary to the public interest”. It said that the protection of such records is essential to maintaining the integrity of the management and decision-making process within the Department. It said that if the records were made public, it could potentially deter open and frank discussions on sensitive matters, inhibiting the Department’s ability to address and resolve internal issues effectively. It said that without confidentiality, managers and staff may be reluctant to express their candid opinions, hindering the examination of potential courses of action in related cases going forward. It said that the public interest lies in refusing access to the records.
I have carefully considered the records in question and the Department’s submissions. As noted above, I am limited in the extent to which I can describe the content of the records in question. However, it seems to me the records relate to deliberations in respect of a particular matter and comprise discussions in respect of what actions the Department could or should take in respect of same. I note the historical nature of the records and the deliberations referenced. The majority of the records at issue date from 2015. In addition, I note that detail in respect of the outcome of deliberations has been provided to the applicant in released records. The applicant has been provided with copies of correspondence which refer and relate to the deliberations. Given the nature of the deliberations, he would have also have been aware of relevant outcomes at the time.
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 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 records, it is not clear to me that they contain staff contributions which would have been omitted if the relevant staff had known from the outset that such contributions would be the subject of an FOI request. It seems to me that the records demonstrate the level of staff engagement with the subject matter at issue. 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 engagement facilitates this work, I do not believe that release of the records at issue in this case would undermine these functions. The records date from nine years ago and the outcome of relevant deliberations appears to be well known to the applicant.
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 would 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.
Section 30(1)(a)
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(1)(a) to a number of the records at issue. In its submissions, the Department said that the particular function the effectiveness of which it expected to be prejudiced is the “effective and efficient management of the Department and its staff, and related management processes”. It said that the records refused or redacted under the subsection all relate to the management of the Department and its staff. It said that management correspondence often necessitates confidentiality to promote open and frank communication among managers. It said that this enables managers to discuss matters with a degree of informality, allowing them to address sensitive issues and make decisions effectively. It said that release of the records would erode trust internally and externally. It said that public perception of the Department would suffer, impacting its reputation. It said that release would deter staff from raising critical issues, creating challenges in maintaining a transparent and productive work environment. It also referenced resultant potential difficulty in recruiting staff.
The Department said that the records all relate to one central matter and the same risks and harms are present in respect of all management records identified as falling within the scope of the request. It also made submissions in respect of the Department’s role as a data controller and said that it must be seen to protect sensitive records in any form. The Department also made limited additional submissions in respect of the specific records withheld or redacted.
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, inquiries or audits. As noted, the FOI body is expected to identify the relevant function concerned as 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, I believe that I can say that they relate to a particular matter concerning the applicant and the Department’s position, approach, and actions in respect of same. 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 particular records at issue could reasonably be expected to prejudice tests, examinations, investigations, inquiries or audits, or the procedures or methods employed for their conduct. I have considered whether a broad interpretation of the matters could result in them falling within the scope. However, I note that the Department has specifically referred to the management of the Department and its staff, and related 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 records at issue. 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 function in my analysis of section 30(1)(b).
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, the Department said that the relevant function at issue 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 said that the Department is a substantial and important controller of data that deals with a large number of customers and has a sizeable staff body. It said that if correspondence relating to sensitive matters and management functions is released to the world at large, then adverse effects would be significant. It said that release would erode trust internally and externally. It said that public perception of the Department would suffer, impacting its reputation and leading to decreased staff trust. It said that staff would be deterred from raising critical issues, creating challenges in maintaining a transparent and productive work environment. It again referenced resultant potential difficulty in recruiting staff.
In line with its submissions in respect of subsection (a), the Department said that the records all relate to one central matter and therefore the risks and harms are present across all management records identified. The Department also made limited additional submissions in respect of the specific records withheld or redacted.
I have carefully considered the records and their evident context. As noted above, they relate to a particular matter concerning the applicant and the Department’s position, approach, and actions in respect of same. While the Department has referenced harms that 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). Its submissions centre on concerns about the perception of the Department and decreased staff trust. However, it has not explained how such harms could reasonably be expected to flow from the release of the records at issue, nor is this apparent to me from a consideration of the documents.
The Department has released copies of certain internal management correspondence to the applicant. It is not apparent to me that release of the further records at issue would result in the relevant harms. I accept that the records disclose internal communications in respect of actions considered and proposed by the Department. However, in light of the information already released, and the fact that the applicant is aware of the ultimate decisions made by the Department, 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 would result in a significant, adverse effect on its performance of management functions.
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 critical issues relevant to their employment. I do not accept that the release of the 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 Council was not justified in relying on section 30(1)(b) to refuse access to the records in question.
Summary of Findings
I find that the majority of the information withheld from the records is exempt from release under sections 31(1)(a) or 37(1). However, I am not satisfied that the following records qualify for exemption and I direct the release of same:
• Record 19 (apart from the mobile phone number of a staff member)
• Record 23
• Record 25 (apart from third party personal information)
• Record 37
• Record 40
• Record 48 (apart from third party personal information)
• Record 56 (apart from the name of a third party on page 139)
• Record 75 (apart from the information I have found to fall outside the scope of the review and the mobile phone number of a staff member)
• Record 93 (apart from the name of a third party)
• Record 95 (apart from the first two sentences of the second paragraph on page 318)
• Record 98 (apart from third party personal information)
• Record 100 (apart from third party personal information)
• Record 104
• Record 105
• Record 106
• Record 123 (apart from third party personal information)
• Record 125 (apart from third party personal information and the mobile phone number of a staff member)
• Record 126 (apart from third party personal information)
• Record 128 (apart from third party personal information)
• Record 132 (apart from the name of a third party)
• Record 159 (apart from third party personal information)
• Additional Records 1, 4 and 6 (apart from the information I have found to fall outside the scope of the review)
I also direct that the Department issues a fresh decision in respect of any further records coming within the scope of the applicant’s request which might exist.
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 certain information and records on the basis of sections 31(1)(a) and 37(1) of the FOI Act. I find that it was not justified in refusing access to other information and records on the basis of sections 29(1), 30(1)(a), 30(1)(b), or 36(1)(b) of the FOI Act and I direct the release of same. I find that it was not justified in its reliance on section 15(1)(a) in respect of any further records which may exist. I annul the decision of the Department to refuse access to any further relevant records under section 15(1)(a) and direct it to consider this aspect afresh.
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.
Stephen Rafferty
Senior Investigator