Decision
Mr S and National Museum of Ireland
From Office of the Information Commissioner (OIC)
Case number: 130034
Published on
From Office of the Information Commissioner (OIC)
Case number: 130034
Published on
Whether the Museum was justified in refusing to release four records to the applicant, further to his request for "all correspondence" between the Museum's former Employee Assistance Provider, Stephanie Regan and Associates ("the Provider") and the former Director of the Museum, from September 2010 to the date of his request (28 September 2012)
15 September 2014
On 28 September 2012, the applicant requested "all correspondence" between the Provider and the former Director of the Museum, dating from September 2010 to "the present". The Museum's decision of 16 November 2012 (dated in error as 16 November 2011 ), which was made by its Acting Director, identified four records as relevant to the request.
Prior to making its decision, the Museum consulted informally with the Provider about the release of records that might affect her interests. The Provider consented to the release of two of the records (i.e. those I have designated as records 2 and 3 in this decision, along with the attachment to record 3) but gave only what can be described as "qualified" consent to the release of record 1 (and its attachments) and record 4.
Release of records under FOI has been found by the Courts to be akin to release of the records to the world at large. This means that records cannot be released under FOI subject to any restriction on their use or subject to any other requirement sought to be imposed by a third party. Thus, the Museum - appropriately in my view- considered that it had not received valid consent from the Provider to release records 1 and 4. In any event, the Museum considered all four records to potentially affect not alone the Provider's interests, but also to contain confidential personal information about Museum staff, and/or information that, if released, could impact on its ability to perform its functions relating to management. Thus, it withheld the four records in full, notwithstanding that the Provider appeared to have no concerns about the impact of release of records 2 and 3 at least, on her own commercial or personal interests.
The applicant made his application for review to this Office on 5 February 2013 (the Museum's original decision was not capable of internal review because it had been issued by the de facto head of the body).
In the course of this Office's review, the Museum indicated that records 1 and 3 could be released in full along with certain details, contained in the attachments to records 1 and 3 and in record 4, which it did not consider to comprise personal information of its staff. The Investigator to whom this case was assigned, Ms Anne Lyons, wrote to the Provider on 26 June 2014. Ms Lyons informing her of the Museum's position. She explained the implications of release of records under FOI, asked the Provider to confirm if she could consent to the release of records 1 and 4 without qualification (that is to say, in respect of information that might affect the Provider's interests, as opposed to any information that might affect other parties, etc.). The Investigator told the Provider that, if she could not so consent, then the Museum would partially release record 3 and the Commissioner's review would consider the remainder of that record and the other three records in full. The Provider was invited to make submissions to this Office as to why those records should be found to be exempt under any of the three provisions of the FOI Act that protect third party interests, and was told that any submissions she chose to make would be taken into account in arriving at this decision.
A representative of the Provider contacted Ms Lyons by telephone on 17 July 2014. He indicated that the Provider considered the records should only be released if other records, not covered by the scope of the request, were to be released by either the Museum or by the Provider. Otherwise, the Provider would be likely to object to the release of the records at issue. While he undertook to send a letter explaining the Provider's position within the following week, no such letter has been received.
Under such circumstances, I do not consider the Provider to have consented to the release of record 1 (including the attachments) or record 4. Accordingly, I consider it necessary for me to make a binding decision on those records in their entirety, notwithstanding that the Museum is willing to release record 1 in full, and the attachments to record 1 in part, as well as most of record 4.
However, I have no reason to consider the Provider to have revoked the consent she previously gave to the Museum concerning the release of record 3 and its attachment. Accordingly, I consider it appropriate for the Museum to release record 3 in full, and that I need not consider this record further. However, the fact that the Provider has consented to the release of record 3 does not remove the obligation on the Museum and this Office to apply the mandatory section 28 to any personal information of third parties that is contained therein. While the Museum is willing to release the attachment (which I will call 3a) to record 3 subject to the deletion of what it considers to be personal information of its staff members, I consider that certain additional details should also be withheld on this basis. Therefore, I intend to make a binding decision in respect of record 3a.
In carrying out my review, I have had regard to correspondence between the Museum and the applicant as set out above; to contacts between this Office and the Museum; to contacts between this Office and the Provider referred to above; and to contacts between this Office and the applicant, particularly an email sent to him by Ms Anne Lyons, Investigator, on 11 July 2014, and the applicant's reply of 17 July 2014. I have had regard also to the provisions of the FOI Act.
The four records the subject of the Museum's decision are:
• Record 1: Email from the Provider to the former Director, dated 21 March 2011, with attachments comprising three reports for the years 2008-2010 (records 1a, 1b, and 1c);
• Record 2: Email from the former Director (via his Personal Assistant) to the Provider, dated 9 September 2011;
• Record 3: Email from the Provider to the former Director, dated 5 December 2011, with an attached letter (record 3a); and
• Record 4: Email from the Provider to the former Director, dated 7 December 2011.
As explained above, I have excluded record 3 from my review. The scope of this review is concerned with whether the Museum has justified its position that the remainder of the records, as listed at the bullet points above, should be fully, or partially, withheld (as appropriate).
Section 8(4) does not allow this review to have regard to any reasons as to why the applicant is seeking the withheld records (although such reasons may be relevant to the consideration of the public interest, where required). Furthermore, and importantly, while the FOI Act requires me to provide reasons for decisions, section 43(3) of the FOI Act also requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Thus, I cannot outline in any detail the reasons for certain aspects of my decision in the circumstances of this case. However, I have had regard to section 34(12)(b) of the Act, which places the onus on the Museum to justify, to this Office's satisfaction, its refusal to fully grant the request.
Section 28- Personal Information
Section 28(1) of the FOI Act provides, subject to other provisions of section 28, that a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual.
I am satisfied that, while no individual staff member is named in records 1a, 1b, or 1c, certain details in those records give sufficient context to enable the identification of staff who had availed of the Employee Assistance Service. The second paragraph of record 4 names such a person.
Section 2 of the FOI Act lists certain classes of information pertaining to civil and public servants that cannot be considered to comprise the personal information of such individuals. However, the relevant exclusions do not include details concerning the extent to which such individuals may have availed of such supports as the Employee Assistance Service. Accordingly, I am satisfied that the name of the staff member proposed by the Museum to be withheld from record 4, and the details in records 1a to 1c as listed at the three bullet points below, comprise the personal information of Museum staff:
• Record 1a: two words in parentheses after the number of clinical sessions on page 1; the third (final) sentence of the details under the heading "Clinical Sessions" also on page 1; details of the types of issues for which staff sought support, as contained on page 2 and as also referred to in the fifth sentence, in full, under the heading of "Comment" on this page; and the third sentence under the heading of "Comment" on page 2.
• Record 1b: all details pertaining to Training/Awareness sessions (six words) on page 1; all except the first sentence under the heading "Clinical Sessions" also on page 1; details of the types of issues for which staff sought support, as contained on page 2; and the second and third paragraphs under the heading "Comment", also on page 2.
• Record 1c: All details under the headings "The Issues presenting - " and "Locations" on page 1; and the fourth, fifth, sixth and seventh sentences under the heading "Observations" on page 2.
I find the above details to be exempt under section 28(1) of the FOI Act.
The details in record 3a that are considered by the Museum to comprise personal information are:
Eight words in the final paragraph of the first page; five words in the first line of the second page; and certain details in the penultimate paragraph on the second page. The relevant details are allegations or negative comment by the Provider about certain Museum staff in respect of their dealings with other staff and with the Provider.
Previous decisions of the Commissioner have accepted that references to public servants, alleging that the public servant behaved badly or inappropriately, constitute the personal information of those public servants. I agree that the details identified by the Museum, as referred to in the previous paragraph, comprise personal information of the relevant Museum staff. Indeed, I will go further and consider the penultimate paragraph of record 3a, in its entirety, to comprise the personal information of the Museum staff concerned. Thus, I find the relevant details to be exempt under section 28(1) of the FOI Act. Insofar as issues raised with the Employee Assistance Service by Museum staff in other records in this review, could be taken as reflecting on the appropriateness of the behaviour of other staff and/or management, I also accept that such details compromise the personal information of the latter persons as well as of those who availed of the support service.
Section 28(2) - exceptions
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply.
I have considered if I am required to consider section 28(2), or section 28(5) (see further section below) in respect of details pertaining to those staff who availed of the Employee Assistance Service. This is because the applicant has said that he has no interest in identifying such staff and has "no difficulty with such information being withheld".
He has, however, made it clear that he wishes to "bring to light the truth" about how the Provider's contract was ended. He contends that this happened because the Provider put "uncomfortable home truths" to the Museum about the behaviour of its management and how this had contributed to the problems being presented to the Provider by Museum staff. I am taking it, therefore, that wishes to obtain details that comprise allegations or negative comment made by the Provider about certain Museum staff, as contained in record 3a in particular.
For the sake of completeness, therefore, I will consider the provisions of section 28(2), and also section 28(5), in respect of all the details I have found to be exempt under section 28(1) of the FOI Act.
Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arises in the case of the personal information at issue. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the details at issue.
Section 28(5)
Section 28(5) provides that a record, which is otherwise exempt under section 28(1), may be released in certain limited circumstances.
The Public Interest
The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1), may be released if it can be demonstrated that "on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". In July 2011, in the case of 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 Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.
Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will 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.
Under section 8(4) as already explained, the applicant's reasons for seeking the records cannot be taken into account in this review. However, the reasons he has cited reflect the public interest, also recognised by the FOI Act itself, in ensuring the openness and accountability of public bodies. The FOI Act also recognises a public interest in ensuring that persons can exercise their rights under that Act.
I do not consider that the public interest in openness and accountability would be served in this case to a sufficient extent to require the disclosure of the inherently private details of which staff availed of the Employee Assistance Service and their reasons for so doing. In so far as any of the details at issue contain specific, or indirect, allegations about the Museum staff or management, it is relevant to distinguish between allegations and actual findings that have been arrived at having regard to due process. It seems to me that in cases such as this there is a greater public interest in protecting the former than the latter. Having regard to the relevant details at issue in this case, I consider the public interest in openness and accountability to be outweighed by the public interest in upholding the privacy interests of the third parties concerned. I find accordingly.
Section 28(5)(b)
Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information would be released. The applicant has not made any case that the release to him of the personal information of the third parties would "benefit the individual" to whom it relates. Nor am I aware of any reason why such release would be to the benefit of the third parties concerned. I find that no right of access arises under section 28(5)(b) of the FOI Act.
Information Affecting the Provider's Interests
As is clear, the Museum is prepared to release record 1 in full, as well as the remainder of records 1a, 1b, 1c, 3a and 4.
The Provider had already consented to the release of those details in record 3a that might otherwise have been considered to affect her interests. I have no reason to consider that consent to have been revoked and thus, I have no basis to consider the remainder of record 3a further.
While the Provider has not fully consented to the release of records 1 (and its attachments) and 4, this does not mean that she has a right of veto over the release of these records. As explained to the Provider, the details in the records concerned can only be withheld if I am satisfied that they are exempt under the FOI Act. It is evident that the Museum does not consider any provision of the FOI Act to apply to the details it is willing to release. Therefore, the only way that such details can be withheld is if I am satisfied that they are exempt under one of the three provisions of the FOI Act that are intended to protect the interests of third parties such as the Provider i.e. that they contain confidential information owed to a party other than the Provider (section 26(2) of the FOI Act refers), or the Provider's commercially sensitive information (section 27 refers), or the Provider's personal information (section 28 refers).
The Provider was invited to make submissions to this Office on the matters above; she has not done so. Therefore, I have no reason to accept that release of the details in record 1, or in the remainder of records 1a, 1b, 1c, or 4, would result in any breach of a duty of confidence owed to a third party other than the Provider, and therefore I have no basis to consider section 26 to be relevant. Neither have I any argued basis on which to accept that the details at issue might have a commercial impact on the Provider today, such that section 27 is relevant. Furthermore, I do not have any basis to consider that the details comprise the personal information of the Provider (having regard to the exclusions to the definition of personal information at section 2 of the FOI Act, insofar as they pertain to a person providing a service to a public body under a contract for service) such that they should be found to be exempt under section 28 of the FOI Act.
Accordingly, I find that record 1 and the remainder of records 1a, 1b, 1c, 3a and 4, should be released.
Record 2
Section 43(3) requires me to be very circumspect in my description of this record. I do not consider myself to be breaching section 43(3) by saying that it does not contain any information about the circumstances in which the Provider's contract was ended, nor does it contain the views of the Provider on any actions of the Museum or its staff or management. While the record does refer to staff of the Museum, I am satisfied that the relevant details could be redacted to protect the identities of the parties concerned. However, having regard to other details in this record and to the Museum's submissions on the matter, I accept that release of any element of record 2 could reasonably be expected to have a significant, adverse effect on the performance by the Museum of its functions relating to management, particularly the management of its staff. Accordingly, I consider it to be exempt under section 21(1)(b) of the FOI Act, which provides for the refusal of a record on such grounds.
While there is a public interest in openness and accountability in respect of the Museum's actions in general, including those in relation to the performance of its functions relating to staff management, there is also a public interest in protecting the Museum's ability to continue to perform those functions. The requirements of section 43(3) means that I can give no further reasons as to my decision in respect of this record other than to say that, in the circumstances of this case, I do not consider that the public interest weighs in favour of release of record 2. I find that it should be withheld, accordingly.
Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Museum's decision. I direct that record 2 should be withheld, I direct that the Museum release record 1 in full; and records 1a, 1b, 1c, 3a, and 4 in part (subject to the redaction of the personal information therein, as specified earlier in this decision).
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Elizabeth Dolan
Senior Investigator