Decision
Ms. X and An Bord Iascaigh Mhara
From Office of the Information Commissioner (OIC)
Case number: OIC-142196-C7R0Y8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142196-C7R0Y8
Published on
Whether BIM was justified in refusing access to records relating to the applicant’s employment with that body
21 January 2025
In a request dated 10 March 2023, the applicant sought access to three categories of records relating to her employment with BIM, as follows:
1. All records held on two specified BIM systems, or on file by BIM, regarding her daily working hours, for the period 1 January 2018 to 15 March 2023
2. Her personnel file held by HR and BIM for the period 1 January 2014 to 15 March 2023
3. All overtime claim forms and records that she had submitted for the period 1 June 2020 to 15 March 2023, to include emails sent to a number of specified BIM email addresses.
In a decision dated 9 May 2023, BIM part-granted the applicant’s request. It purported to release the records sought in category 1 of the request in full, although the applicant took issue with this (a matter I address in more detail below). BIM also purported to release in full the records sought in category 2 of the request, although I note that a small amount of these records appear to have been released with redactions made (a matter I also address in more detail below). In relation to category 3 of the applicant’s request, it released certain records in full, and withheld others either in full or in part under section 37(1) of the FOI Act. In addition, BIM relied on section 31(4) of the FOI Act to refuse to confirm or deny whether certain records sought existed, and also argued that any such records were exempt from release under section 31(1)(a) of the FOI Act. On 18 May 2023, the applicant sought an internal review of BIM’s decision. In her request for an internal review, the applicant stated that she was dissatisfied with the manner in which the category 1 records had been provided to her by BIM in response to her FOI request, and indicated that she wished to receive copies of her weekly records from the relevant BIM system, which she further characterised as “snapshots of each week” from the relevant system.
On 7 June 2023, BIM issued its internal review decision, wherein it stated that it considered that all relevant records sought under categories 1 and 2 were properly granted. Specifically, in relation to the records sought in category 1 of the request, BIM stated that a print-out was provided to the applicant from the relevant system which disclosed all of the relevant information requested regarding the applicant’s daily working hours. BIM stated that it was not further obliged to provide the applicant with screenshots from the system. BIM went on to affirm its original decision. On 7 September 2023, the applicant applied to this Office for a review of BIM’s decision. In the course of her application to this Office, the applicant indicated her continuing dissatisfaction with the manner in which the category 1 records had been provided, and in addition outlined a number of other alleged deficiencies in the manner in which BIM had responded to her FOI request.
In the course of conducting this review, BIM indicated that, upon further review of the records, its position was that there were no records which might be protected by legal privilege which fell within the scope of the applicant’s request, and that it therefore no longer sought to rely on sections 31(1)(a) or 31(4) of the FOI Act.
As outlined above, the applicant took issue with BIM’s position that the records that fell within category 1 of her request had been released to her in full. In correspondence with this Office, she described the category 1 records that had been released to her as “incomplete, incorrect and misleading”, and provided details of the additional records she asserted ought to exist. I put the applicant’s argument in this regard to BIM and, in response, it indicated that certain additional relevant records had been located, and released these to the applicant. It relied on section 15(1)(a) of the FOI Act (relating to the administrative refusal of an FOI request where the records sought do not exist or cannot be found after all reasonable steps to locate them have been taken) in relation to the additional category 3 records that the applicant asserted should exist. As the applicant had not an opportunity, in the context of this case, to consider section 15(1)(a), I put same to her and invited her to make any additional submissions that she wished. The applicant subsequently made further submissions and I have considered these in full.
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 both parties. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether BIM was entitled, under section 37(1) of the FOI Act, to refuse access in whole or part to the relevant records sought at categories 2 and 3 of the applicant’s FOI request, and whether it was entitled to rely on section 15(1)(a) of the FOI Act in relation to the applicant’s argument that additional category 3 records ought to exist. Additionally, this review will address the deficiencies asserted by the applicant in relation to the manner in which BIM responded to her FOI request.
Before I set out my analysis and findings, there are a number of preliminary points I wish to make. Firstly, section 25(3) of the FOI Act requires me to take all reasonable precautions to prevent the disclosure of information in records that is exempt from release. Therefore, the extent to which I can discuss certain information relevant to this review is limited.
In addition, I wish to note that section 13(4) provides that, subject to the FOI 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. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an FOI request for access to records.
I also wish 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. As such, while it is clear that the applicant is dissatisfied by certain alleged actions on the part of BIM, this Office has no role in examining the appropriateness of those alleged actions or any alleged decisions taken on foot of same.
I also wish to note that, in her submissions to this Office, the applicant raised numerous issues which did not form part of her original FOI request. As such these matters are outside the scope of her request and of this review. I address this matter in more detail below.
As outlined above, BIM relied on section 37(1) of the FOI Act to refuse access in part to the records sought in category 3 of the applicant’s FOI request. In particular, of the 144 records that it identified as falling within the scope of the applicant’s request, it scheduled records 51 to 144 as falling within category 3 of the request. As outlined above, BIM granted access in full to certain category 3 records, and withheld others either fully, or partly with certain material redacted under section 37(1). BIM released in full to the applicant records 51, 54-56, 58, 61-85, 90, 92, 95-96, 101-102, 108-110, 112, 114-118, 120-122, 124-128, 130-132, 134-136 and 144. Accordingly, these records require no further examination as part of this review.
The details of the category 3 records that were withheld in full or in part under section 37(1), are as follows.
1. Withheld in part: records 53, 59-60, 86, 89, 91, 104, 111, 123, 129, 137-143
2. Withheld in full: records 52, 57, 87-88, 94, 97-100, 103, 105-107, 113, 119, 133.
In addition, as referenced above, despite purporting to release in full all of the records sought in category 2 of the request, a number of these appear to have been partly withheld (released with some information redacted). These are records 5, 45, 47, 48 and 50.
Section 37(1) provides that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including at point (iii) of section 2, information relating to the employment or employment history of the individual.
In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or 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 aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions regarding section 37(1), BIM stated that, in relation to the category 3 records that it had withheld in full, although the records were contained in the applicant’s HR file, they dealt in substance with personal information relating to other BIM employees. BIM pointed to examples of such records which, it stated, had been withheld under section 37(1) because they related to the employment with BIM of individuals other than the applicant, including timesheets relating to those individuals, as well as their holiday, annual leave and overtime entitlements, and details of special leave which they were given in the context of COVID-19. BIM stated that the redacted material also included agendas for certain work-place discussions between the applicant and her BIM colleagues.
In relation to the category records that it withheld in part under section 37(1), BIM stated that the redactions that it had made to the records related to personal information of individuals other than the applicant. According to BIM, this information included the name of a former colleague of the applicant, against whom BIM stated the applicant had made unsubstantiated claims. BIM stated that the claims made by the applicant against the relevant individual were matters in respect of which the individual had the right to appropriate and confidential internal HR processes and procedures. BIM further stated that redactions had been made to emails in which the applicant had named colleagues in the context of concerns regarding the alleged tracking or monitoring of employees by BIM through company mobile phones. Finally, BIM stated that the name of an individual, who the applicant had alleged had been working at a BIM facility in breach of certain Covid-19 policies, had also been redacted.
I note that in the applicant’s submissions, she did not address section 37(1) directly, beyond noting that BIM had redacted the identities of employees. The applicant did refer to her extensive submissions regarding the records sought in category 1 of her FOI request. However, I note that section 37(1) was not cited by BIM as a basis on which to withhold the records sought at category 1. I address BIM’s response to category 1 of the FOI request elsewhere in this decision.
I have examined the records withheld in full and in part by BIM under section 37(1), and find as follows. First of all, I accept that BIM was justified in withholding certain of the records to which it refused access in full on the basis that they contain personal information, for the purposes of section 2 of the FOI Act, relating to individuals other than the applicant. However, I do not accept that all of the records that BIM withheld in full entirely comprise such personal information. It seems to me that certain records (or, in the case of some of the records, certain portions of the records) contain no personal information and, as such, do not fall within the scope of section 37(1). I make this finding in relation to the following category 3 records:
• record 57 (email of 15 July 2021, sent at 12:09) – the material in this email from the fifth paragraph down (beginning “The ice plant is not…”)
• record 87 (email of 1 July 2021, sent at 17:31) – points 5-8 in the body of the email
• record 88 (email of 5 July 2021, sent at 09:15) – entire email
• record 94 (email of 14 July 2021, sent at 20:55) – entire email apart from the sentence beginning “If you want…”)
• record 98 (email of 29 June 2021, sent at 15:16) – entire email
• record 99 (email of 6 November 2020, sent at 13:33) – entire email
• record 100 (email of 21 February 2022, sent at 10:32) – entire email apart from the paragraph beginning “They are not sending…”)
• record 113 (email of 11 October 2022, sent at 08:17) – entire email.
In relation to the records that BIM withheld in part, with redactions made under section 37(1), again I accept that some of the redacted information is personal for the purposes of section 2 of the FOI Act, and therefore falls within the scope of section 37(1). However, again I do not accept that this is the case in respect of all the redactions. Some of the redacted material does not, in my view, comprise personal information and therefore does not come within the scope of section 37(1). Specifically, I find that certain information relates to employees of BIM in the context of the performance of their official functions, and accordingly it falls within the scope of the exclusion from the definition of personal information contained in Paragraph (I) of the FOI Act and referred to above. In particular, I find that the names and email addresses of BIM employees in the “To” or “Cc” fields of the emails comprising records 53, 59, 104, 111, 123, 129 and 144 is excluded from the definition of personal information for this reason. Furthermore, I consider that the substantial documentation comprising record 5 contains numerous redactions of the email addresses and names of BIM staff in the context of those staff performing their official functions. Any such material in record 5 also falls within the scope of the exclusion from the definition of personal information. In addition, I find that the following information in the category 2 and 3 records is similarly excluded:
• record 50 (email dated 2 November 2022, sent at 11:43) – the first name of a BIM employee in the third paragraph of the body of the email
• record 53 (email dated 8 October 2020) –the first name of a BIM employee in the first line of the body of the email, as well as the first names of two BIM employees which appear in the paragraph beginning “The ice plant operators…”
• record 59 (email dated 5 July 2021) – the first name of a BIM employee in the first line of the body of the email
• record 111 (email dated 11 January 2021, sent at 12:11) – the first name of a BIM employee in the first line of the body of the email of 11 January 2021, sent at 12:11; the name of two BIM employees in the body of the email of 11 January, sent at 11:55; the first names of three BIM employees in the body of the email of 121 January 2021, sent at 11:46, in the paragraph beginning “I have a meeting…”
• record 129 (email dated 15 July 2021) – the name of a BIM employee that appears in the first line of the body of the email
• record 144 (email dated 4 March 2022) – the first name of a BIM employee that appears twice in the body of the email, in the paragraph beginning “We chatted about it…”. Furthermore, a group BIM email address has been redacted from the “Cc” field, and this is not personal information relating to an individual.
In the course of this review, in correspondence from BIM it advised that certain information relating to employees had been redacted on the basis that the relevant individuals were “junior”, and/or had left the employment of BIM. However, seniority in an organisation is not relevant to the issue of whether or not information falls within the exclusion from the definition of personal information in section 2. Similarly, the exclusion from the definition of personal information relates to current and former employees in the context of the performance of their official functions, and accordingly the fact of staff no longer being employed by BIM is not relevant.
In relation to the records, or the material redacted from the records, that I have found to constitute personal information, the matter does not end there, as section 37(1) is subject to the other provisions of section 37. 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 section 37(5)(b) of the FOI Act does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, 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 release of the records, i.e. 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 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, such as under sections 37(2)(a) and 37(8) (which I consider below), FOI is not about granting access to information to particular individuals only and 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.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the FOI 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.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) which provides that, in performing any functions under the FOI 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.
In its submissions regarding section 37(5)(a), BIM stated its view that that the relevant individuals’ rights to protection of their personal information and rights to privacy outweighed the general purpose of transparency under the FOI Act. It stated the withheld information was personal to other BIM employees besides the applicant. BIM stated that there were specific reasons why the personal information of other individuals was to be found on records in the applicant’s HR file, and that these reasons were not sufficient to deny the relevant individuals the protection of personal information and rights to privacy, given that the release under FOI would effectively be releasing the information publicly. BIM stated that employment-related information (which falls within the definition of protected personal information under section 2 of the FOI Act) should be treated more sensitively and should not be released unless there is strong justification for doing so. It stated that the personal information of other BIM employees would not be relevant in assisting the applicant to understand her HR history in BIM. BIM noted that the applicant had been provided with a very full HR file, containing all of the key records which one would expect on a HR file, in unredacted form, and that in its opinion neither the refused records nor the redacted information in the part-refused records would add to her understanding of her HR file and/or her HR history in BIM.
In the applicant’s submissions, she did not explicitly address the public interest in section 37(5)(a) of the FOI Act. However, in her correspondence with this Office on this case and on associated reviews, she has made very clear her belief she has been treated inequitably by BIM. While the applicant has essentially expressed a private interest for seeking access to the records, it seems to me that her reasons for seeking access to the records are reflective of a public interest in ensuring that public bodies such as BIM can demonstrate that their employment practices are sound.
While I accept that the release of the records at issue would serve to somewhat enhance
transparency in relation to the public interest factor I have identified above, this must be balanced against the fact that the information in the records at issue is personal to third party individuals and, while perhaps not inherently sensitive, is nonetheless of private nature relating to, among other things, the employment and medical history of the relevant individuals. Furthermore, I must regard the release of the records as being effectively, or at least potentially, release to the world at large. In the circumstances, I do not accept that the public interest in releasing the relevant records, or information in the records, outweighs, on balance, the privacy rights of the relevant individuals. I find, therefore, that section 37(5)(a) does not apply to preclude the operation of section 37(1) to the information in the records that I have identified as personal.
Accordingly, I find that, with the exception of the information I have identified above which does not comprise personal information for the purposes of section 2 of the FOI Act, BIM was justified pursuant to section 37(1) in exempting from release the records that it withheld entirely, and the information that it redacted from other records, under the latter provision of the FOI Act.
As outlined above, section 15(1)(a) provides for the administrative refusal of an FOI request where the records sought do not exist or cannot be found after all reasonable steps have been taken to locate them. Section 15(1)(a) may apply where the records sought never existed, or where the records may have existed in the past, but do not currently exist or cannot now be found.
The role of this Office in cases involving section 15(1)(a) is to review the basis on which the FOI body has taken the position that the relevant record(s) do not exist, or cannot be found after all reasonable steps to ascertain the location of the record(s) have been taken, and make a finding on whether the FOI body’s position is reasonable.
As referred to above, in correspondence with the applicant she outlined her view that additional category 1 records ought to exist and which should have been considered for release by BIM. In particular, the applicant argued that weekly time sheets from BIM’s Strandum and Visiontime (flexitime) clocking systems, showing daily clock in and out details and overtime hours, should have been provided. She also states that she required copies of her weekly time sheets showing daily clock in and out times, days of the week worked, weekend and bank holiday work, and details of time off in lieu.
In response to these arguments, BIM issued to the applicant additional records that come within the scope of part 1 of her FOI request (specifically, screen shots of all time sheet records held on Strandum for the period 2018-2023). In relation to the remaining additional records that she asserted ought to exist, BIM indicated that additional records relevant to part 1 of the request do not exist. In particular, BIM stated that, in relation to records that would have been held on Visiontime (flexitime), these records no long exist. BIM stated that this system was replaced by Strandum from 2018, and BIM no longer had access to the Visiontime system. It stated that any relevant records associated with the Visiontime system would have been deleted in accordance with its BIM document retention policy (three years for such records).
As noted above, I put this argument of BIM’s to the applicant and invited her to make any further submissions that she wished. In response, although the applicant made a number of further arguments unrelated to the specific matter of BIM’s reliance on section 15(1)(a), she did not make any further submissions to the effect that the relevant Visiontime records should still exist.
I have considered the matter carefully and consider that, on balance, and with no information before me to suggest the contrary, it was reasonable for BIM to refuse the aspect of the FOI request related to Visiontime records, on the basis that these records no longer exist. I find that BIM was entitled to rely on section 15(1)(a) of the FOI Act in respect of this aspect of the request.
As outlined above, in the course of this review the applicant argued that the manner in which BIM had responded to Parts 1 and 2 of her FOI request (which, with a small number of exceptions addressed above, had been granted in full by BIM) was deficient. In particular, the applicant argued that the records provided by BIM included several blank pages, as well as pages that had text in a font size too small to read. She also suggested that BIM may have omitted pages from the Schedule of Records. Furthermore, the applicant stated that the records she had received from BIM were not sorted in any sequence (eg. in order, by topic or by date). She stated that several years’ worth of records had been provided but in no particular order, and alleged that the records had been mixed up to “frustrate matters”. More significantly, the applicant alleged that BIM had tampered with original records and stated that she had evidence to prove this assertion.
In relation to the above assertions of the applicant, I would note as follows. Firstly, in relation to the alleged provision of blank pages, the small font of records provided, and issues with the Schedule of Records provided by BIM, there is no specific provision in the FOI Act that requires an FOI body to provide records in a particular form or format. The FOI Act is silent on such matters as blank pages being provided, records not being provided in sequence or a Schedule of Records not being provided. It goes without saying that, as a matter of best practice, an FOI body’s response to an FOI request should include records in their correct sequence, provided in a manner that enables the requester to understand their contents. However, the applicant’s complaints about the manner in which BIM responded to her request generally are not matters in respect of which this Office can take any further steps, beyond urging BIM to ensure that, as a matter of course, it provides records released on foot of FOI requests correctly sequenced and in an easily understood font and format, with a full Schedule of Records.
In relation to the applicant’s allegation that BIM had tampered with original records, I note that the records in respect of which the applicant made this assertion, and in respect of which she claimed to have supporting evidence, are not records that appear to fall within the scope of this review (while the applicant stated that she had “reason to believe” that certain email records provided to her by BIM in response to this request had been edited, she did not substantiate this position). Accordingly, I am unable to address such issues in this review, as it is not open to me to expand the scope of the review to include information which BIM has not had an opportunity to consider in the course of responding to an FOI request. In any case, section 52 of the FOI Act provides that, where a request has been made in respect of a record, a person who, without lawful excuse and with intention to deceive, destroys or materially alters a record shall be guilty of an offence and be liable on summary conviction to a class B fine. The legislation contains no further details on how such matters should be pursued. The question of whether an offence has taken place is a matter for investigation by An Garda Síochána and ultimately it is a matter for the DPP as to whether or not to prosecute an alleged breach. This Office has no role in deciding whether an offence has, in fact, occurred.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary BIM’s decision. I find that BIM was entitled, under section 37(1) of the FOI Act, to withhold the records, or the information in the records, that I have found above to comprise personal information. However, I find that BIM was not entitled to withhold the information I have outlined above that does not fall within the scope of section 37(1), and I direct the release of this information. I find that BIM was entitled to rely on section 15(1)(a) of the FOI Act to refuse, on an administrative basis, the aspect of the applicant’s request relating to additional category 1 records that she asserted should exist, on the basis that no such records in fact exist.
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 requester 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.
Neill Dougan
Investigator