Decision
Mr X and the Health Service Executive (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170357 & 170362
Published on
From Office of the Information Commissioner (OIC)
Case number: 170357 & 170362
Published on
Whether the HSE was justified, under section 37 of the FOI Act (personal information), in refusing to fully grant the applicant's requests for job specifications and terms and conditions for the previous roles of six named National Ambulance Service (NAS) personnel, and the names of all NAS ambulance officers/managers that are paid through the National Payroll Office
07 December 2017
On 16 February 2017, the applicant made an FOI request (Number 5) seeking (i) various records and information about the current and previous roles of three named National Ambulance Service (NAS) staff, and (ii) the names of all NAS ambulance officers/managers that are paid through the National Payroll Office.
The HSE's decision of 10 April 2017 provided the applicant with some information and records. In relation to (i), in pertinent part it said that it could not locate any job specifications and terms and conditions relevant to the previous roles of the three staff. It said that such records may be on the individuals' personnel files. However, in the absence of consent from the personnel concerned to access their personnel files, the HSE said it was refusing to grant this element of the request under section 37 of the FOI Act (the personal information exemption). It granted access to the numbers of managers and officers paid through the National Payroll Office but refused to grant access to their names under section 37. The applicant sought an internal review of these elements of the HSE's decision on 26 April 2017, which the HSE affirmed in its internal review decision of 18 May 2017.
Case No 170362
On 15 February 2017, the applicant made an FOI request (Number 4) seeking various records and information about the current and previous roles of three further named NAS staff. The HSE's decision of 24 March 2017 provided the applicant with some information and records. It refused to grant access to the job specifications and terms and conditions relevant to the previous roles of the three staff on the same basis as set out above. The applicant sought an internal review of this element of the HSE's decision on 26 April 2017, which the HSE affirmed in its internal review decision of 18 May 2017.
On 14 July 2017, the applicant sought a review by this Office of both HSE decisions.
I have now decided to conclude my reviews by way of a formal, binding decision. This is a composite decision covering both cases. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the HSE, and the applicant. I have had regard also to the provisions of the FOI Act.
As the applicant knows, this review is confined to whether the HSE has justified its refusal to grant access to any records it holds (i) containing the job specifications and terms and conditions applicable to the posts previously held by the six named NAS personnel, and (ii) naming the NAS ambulance officers/managers that are paid through the National Payroll Office.
The review cannot take account of any dissatisfaction the applicant may have with the HSE's handling of his request or with matters relating to the administration of the NAS generally.
Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.
Section 2 of the FOI Act defines the term "personal information", and gives 14 non-exhaustive examples of what must be considered to be personal information. It is well settled that where information can be classified as one of the 14 examples of personal information, there is no need for the requirements of the definition to also be met. One example of personal information is that at "(iii) information relating to the employment or employment history of the individual". A further example is that at "(v) information relating to the individual falling within section 11(6)(a)", in which respect section 11(6)(a) is concerned with personnel records of staff members of FOI bodies.
However, section 2 also provides that certain limited information about public servants shall not be considered to be their personal information. Consideration must also be given to the possible grant of access to a record that is exempt under section 37(1) further to the requirements of sections 37(2) and (5) of the FOI Act.
Job specifications/terms and conditions
The relevant part of both original requests asked for a copy of the job specifications and terms and conditions applicable to the six named staff members' previous posts.
One would reasonably assume that the applicant sought details of the generic specifications and terms and conditions applicable to those posts. This seems to have also been the HSE's understanding. However, amongst other comments in his email to this Office of 4 August 2017, the applicant says that he is "quite prepared to change [his] request from the job specifications of these particular individuals for the job specifications which pertained to the positions which they applied for."
Given that the original requests referred to both current and previous posts, on 4 September 2017, this Office told the applicant that it was assumed that the above comment referred to records concerning the previous posts. The applicant's reply of 13 September agreed. This Office had also put it to the applicant that he seemed to be saying he had originally requested "information about the detailed job specifications of the six individual personnel in relation to their previous posts, and the terms and conditions that these six individuals may have had personally, rather than generic job specifications and terms and conditions relevant to the previous posts." The applicant's reply did not comment on this point.
On 11 October 2017, the Investigator told the applicant that it seems he "did not intend to seek generic records about the various posts (which seems to be the HSE's understanding of [his] request), but rather records specific to the actual persons appointed." The applicant was invited to comment on this and other matters. He replied to the effect that he was happy for the Commissioner to consider the review files and the Investigator's recommendation.
I should make it clear that it is not appropriate to fundamentally change the nature of a request. My review must confine itself to the FOI body's decision on the records that were requested. However, I do not consider it appropriate to make a binding decision on the release or otherwise of records in this case, given that the HSE made its decision based on a different interpretation of the request to that apparently intended by the applicant.
The only option to me in the circumstances is to annul the HSE's decision on this aspect of the request and remit the matter for fresh consideration.
I would add that the HSE should contact the applicant to establish exactly what sort of records he is requesting. These contacts should be in writing. When they conclude, the HSE should, again in writing, make it clear to the applicant what records it understands his request to have sought. I would draw the applicant's attention to section 12(1)(b) of the FOI Act, which requires that a request shall contain "sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps". Furthermore, although I make no finding on the release or otherwise of records in this case, it may be helpful to the parties to draw attention to a recent decision of this Office in Case No 170371 (Mr X and the Department of Agriculture, Food and the Marine) which deals with personal information of public servants and related issues.
Names of Staff paid through the National Payroll Office
Amongst other matters, this Office invited the HSE to address a possible argument that records containing the information sought are of a type covered by one of the exclusions to the definition of personal information where public servants are concerned. The email also asked for certain other related details and information. However, while the HSE's submission of 21 September commented on section 37, it did not address this specific issue.
While section 22(12)(b) of the FOI Act places the onus on the HSE to justify its decision, at the same time I am not prepared to direct the release of what might be personal information of individuals other than the applicant that could be exempt under section 37. Again, the most appropriate option in the circumstances is to annul the HSE's decision on this aspect of the request and remit the matter for fresh consideration.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's refusal to grant access to records concerning the matters the subject of this review.
In the circumstances of this case, a remittal of these matters is appropriate. I direct the HSE to undertake a fresh decision making process on these matters and to inform the applicant of the outcome in accordance with section 13 of the FOI Act. The HSE's decision on both matters that have been remitted is subject to the usual rights of internal, and external, review.
Furthermore, for clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the statutory time limit for the making of the decision begins on the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision as provided for at section 24(4) of the FOI Act.
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 not later than four weeks after notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator