Decision
Ms. X & The Legal Aid Board (‘the Board’)
From Office of the Information Commissioner (OIC)
Case number: OIC-146206-Z0Q3T0
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-146206-Z0Q3T0
Published on
Whether the Board was justified in refusing access, under section 35(1) of the FOI Act, to two records relating to a dignity at work complaint
2 September 2025
The applicant in this case is an employee of the Board and the request that gave rise to this review has its background in a complaint the applicant made under the Civil Service Dignity at Work Policy against a manager (‘staff member A’). On 18 November 2023, she sought access to all records sent by staff member A to a second named staff member (‘staff member B’) on two specified dates in 2022.
On 12 December 2023, the Board refused access to two records, comprising two email threads relating to the dignity at work complaint and two attachments, under section 35(1)(a) of the FOI Act. On 14 December 2023, the applicant sought an internal review of that decision. The Board failed to issue an internal review decision within the statutory timeframe. On 6 February 2024, following correspondence with this Office, the Board issued its effective position on the request, wherein it affirmed its refusal of the request under section 35(1)(a). On 7 February 2024, the applicant applied to this Office for a review of Board’s decision.
I have now completed my review in accordance with section 22(2) of the FOI Act. In doing so, I have had regard to the correspondence between this Office and both the applicant and the Board on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
Record 1 comprises an email sent by staff member A to staff member B and includes staff member A’s response to the complaint and copies of two emails the applicant exchanged with a third staff member. Record 2 comprises a second email staff member A sent to staff member B the following day and includes an amended response. Following correspondence with this Office, the applicant agreed that the two emails she exchanged with the third staff member that are part of record 1 could be removed from the scope of the review.
Accordingly, this review is concerned solely with whether the Board was justified in refusing access, under section 35(1)(a) of the Act, to the two emails sent by staff member A and the two responses attached to those emails.
Before I consider the substantive issues arising, I would like to make a number of preliminary comments. Firstly, in her correspondence with this Office, the applicant explained why she had made a complaint against staff member A. She said none of the procedures in the Dignity at Work Policy were followed. She said the Designated Person appointed pursuant to the Policy found that the behaviour complained of did not constitute bullying or harassment based on the records at issue. She said she also filed complaints with the Workplace Relations Commission and is appealing two of the decisions to the Labour Court. She said she believes the information is required for the appeal to the Labour Court. 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. Thus, while certain provisions of the 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 access request under the FOI Act. I also note that the remit of this Office does not extend to examining the manner in which a public body performs its functions generally, to investigating complaints against a public body, or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
I would also note that section 18(1) of the Act provides that if it is practicable to do so, access to an otherwise exempt record shall be granted by preparing a copy, in such form as the body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading, section 18(2) refers. This Office takes the view that neither the definition of a record under section 2 of the Act, nor the provisions of section 18, envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or “dissecting” of records to such an extent.
Finally, it is important to note that the release of a record under the FOI Act is generally considered as ‘release to the world at large’, given that the Act places no constraints on the potential uses to which released records may be put.
Section 35(1) of the Act provides that, subject to the section, an FOI body shall refuse to grant an FOI request if the record concerned contains information given to an FOI body, in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.
Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a member of the staff of an FOI body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or a member of the staff of an FOI body.
As section 35(2) serves to disapply section 35(1)(a) and as the records at issue were prepared by a staff member of the Board, I will first consider its applicability to the records at issue in this case.
Section 35(2)
Section 35(2) of the FOI Act provides that subsection (1) shall not apply to a record which is prepared by a head or any other person, being a director, or member of the staff of, an FOI body or a service provider, in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider.
In its submissions to this Office, the Board said it would not view the records at issue as having been prepared by staff member A in the course of the performance of her duties, as they relate to a Dignity at Work complaint made. It said the records were given to the Designated Person in confidence as part of the Dignity at Work complaint.
Among other things, the Dignity at Work Policy provides for the following:
“Every member of staff should be aware that all forms of bullying, harassment, and sexual harassment are unacceptable and every member of staff has a duty to behave in an acceptable and respectful manner…
It is the duty of management to be open with staff about performance, attendance or general conduct. Bullying and harassment do not arise where critical comments are made in an honest and constructive manner, are backed up by clear facts and are imparted in a reasonable way. The following behaviour does not constitute bullying or harassment:
• The proper exercise of authority by management;
• Constructive and fair criticism of a staff member’s conduct or work performance…
The respondent should make a reasonable and genuine attempt to fully participate in attempts to resolve the dispute, to participate in mediation, and to attend meetings and interviews as required.”
In The Health Service Executive v The Information Commissioner [2009] 1 I.R. 700, the High Court stated that the purpose of section 35(2) is “to make available to the requestor internal records prepared by staff in public bodies in the course of the performance of their functions”. The section does not apply to all records prepared by staff members. It seems to me that the use of the phrase “in the course of the performance of his or her functions” distinguishes records prepared in the course of the performance of functions from records prepared in a private or personal capacity.
The records at issue in this case were prepared by a staff member in response to a complaint made against the staff member under the Dignity at Work Policy. I fully accept that there is an expectation that staff members against whom complaints are made under the Dignity at Work Policy would engage with the examination and investigation of such complaints. Nevertheless, this does not, in my view, mean that records they might prepare pursuant to the procedures set out in the Policy are records prepared in the course of the performance of their functions. In essence, the complaint in this case concerned allegations of behaviour that is described as unacceptable in the Dignity at Work Policy. The alleged behaviour goes beyond the proper exercise of authority by management and/or constructive and fair criticism of a staff member’s conduct or work performance. Having regard to the nature of the matters that fall for examination under the Dignity at Work Policy, I am satisfied that a staff member’s response to such allegations are prepared in a personal capacity and not in the course of the performance of his or her functions as a staff member. Accordingly, I find that section 35(2) cannot apply in this case.
Section 35(1)(a)
For section 35(1)(a) to apply, it is necessary to show that; :
• the information was given to an FOI body in confidence and,
• the information was given on the understanding that it would be treated by the FOI body as confidential and,
• disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and,
• it is of importance to the body that such further similar information should continue to be given to the body.
All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act.
Board Submissions
In its submissions to this Office, the Board noted that the section 35(1)(a) exemption is mandatory. It said the records were those given to the Designated Person as part of a Dignity at Work complaint in confidence and on the understanding that the Designated Person would treat the records as confidential. It said that the Dignity at Work Policy is underpinned by confidentiality – a theme which runs throughout that Policy. It referenced section 2.2 of the Policy which provides that:
“All complaints or queries raised in relation to bullying, harassment and sexual harassment will be treated seriously, fairly, and in the strictest of confidence .”
It further referenced the Designated Person (DP) Stage of the procedures for dealing with complaints which provides that:
“The DP will remind both parties of the importance of confidentiality and that any breaches of confidentiality may be subject to proceedings under the Disciplinary Code. The DP will also ensure that both parties have copies of relevant HR policies and information, including a copy of this Policy and the Disciplinary Code .”
The Board said the Policy provides in absolute terms that the record was created on the understanding of confidentiality when the DP noted explicitly that confidentiality applied at that stage of the process.
The Board further noted that the Dignity at Work Policy highlights that the role of the Designated Person is drawn from the Health and Safety Authority Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work. It said that Code (updated to 2021) again provides that the DP stage is underpinned by confidentiality – Section 4.1.1 provides inter alia “Confidentiality to be respected by all” and at Section 4.1.2 “Confidentiality is crucial for this stage to be effective and breaches of confidentiality where exposed, should be met with sanctions highlighted in advance .”
The Board also argued that there was an explicit understanding of the creator of the records that the information conveyed to the DP was done so on the understanding it was to be treated as confidential. It said it has been shown that the information was given under the Civil Service Dignity at Work Policy which explicitly provides for confidentiality at all stages and which is something the DP informed both parties. It said it is further noted that such is the ingraining of confidentiality in the Policy that disciplinary action under the civil service disciplinary code may arise if that provision of confidentiality is broken. It argued, therefore, that the first two requirements for section 35(1)(a) to apply are therefore satisfied in circumstances whereby the Policy is explicit that confidentiality applies to the process.
On the matter of whether disclosure of the information would be likely to prejudice the giving to the Board of further similar information from the same person or other persons, the Board referenced the Guidance published by this Office on section 35 wherein it is noted that the requirement is to show that the giving of information is likely to be prejudiced, rather than definitely prejudiced. It said it is the view of the Board that it is reasonable to believe that should a staff member feel the need to make a complaint under the Dignity at Work Policy, if confidentiality is not upheld as provided for in the Policy, then there is a likelihood of prejudice of further information of this nature being given in the future. It said this is also true of any respondent to a complaint (as is where the records in this case arose) whereby they must be confident that the confidentiality that have been explicitly told applies under the Policy will be upheld.
On the matter of whether it is of importance to the Board that such further similar information should continue to be given to it, the Board again noted the duty of care it had to all employees who may feel the need to make a complaint pursuant to the Civil Service Dignity at Work Policy. It said that in order to maintain that duty of care, it must protect the flow of such information when a staff member feels the need to make a complaint. It added that with due regard to the records that were refused in this case, it must maintain the position that confidentiality applies and will be respected for all parties to a complaint, as provided for in the Dignity at Work Policy, when staff members are engaged in various stages under the Dignity at Work stage – in this case the Designated Person stage which provides for confidentiality.
Applicant Submissions
The applicant did not directly address the applicability of section 35(1)(a) in her submissions. Rather, she set out the background to her reasons for making a complaint and she argued that none of the procedures in the Dignity at Work Policy were followed. She said the findings of the Designated Person were based on the contents of the records sought and that she requires access to the records for a Labour Court appeal. She said the information in the records relates to her and contain the opinion of another person about her. She said that staff member A subsequently made a complaint against her under the Dignity at Work Policy and that she needs access to the records to defend the allegations made against her.
Having carefully considered the relevant Dignity at Work Policy, the contents of the records at issue, and the Board’s submissions, I am satisfied that all four requirements for section 35(1)(a) to apply are met in this case. It is clear from the Policy that information provided to the Designated Person pursuant to the examination of a compliant under the Policy is given in confidence and on the understanding that it would be treated by the Board as confidential. I also accept the Board’s contention that the release of records that staff members consider to have been given in confidence would be likely to prejudice the giving of further similar information in the future. While I note that the Policy provides that individuals involved in a complaint should fully co-operate with and participate in the process, I am satisfied that the release of information staff members assumed they had given in confidence in relation to a complaint under the Policy would be likely to result in staff being more circumspect and less frank in the level and type of information they might provide in the future.
Moreover, I accept that it is of importance to the Board that staff members would continue to avail of the processes outlined in the Dignity at Work Policy, which would include the provision of information necessary for the proper examination of complaints. Among other things, the Policy emphasises the importance of an informal resolution of a problem where possible, and highlights the use of mediation as a valuable tool when dealing with workplace conflict. It is very much in the Board’s interests that staff members would fully engage with the procedures outlined in the Policy. I fully accept the applicant’s contention that the information in the records relates to her. However, this does not mean that the records should not be treated as confidential. In the circumstances, I find that section 35(1)(a) applies to the records. However, that is not the end of the matter as section 35(1)(a) is also subject to section 35(3), which I will consider below.
Section 35(3)
Section 35(3) provides that section 35(1)(a) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting the FOI request. In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI 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 ”.
While the applicant did not identify any specific public interest factors in favour of the release of the records, she did allege that the Board had not followed the procedures set out in the Dignity at Work Policy. It seems to me that the applicant’s arguments are reflective of a public interest in complainants knowing how the Board has dealt with their complaints and in ensuring that they are dealt with in accordance with the agreed procedures as set out in the Policy. There is also a public interest in the applicant knowing what information the Board holds about her.
It is worth noting that the applicant did not identify any particular instances in support of her claim that the Board did not follow the relevant procedures. The Board, on the other hand, argued that all relevant procedures were followed as per the Policy. It said the applicant was given the opportunity to be heard and did so by invoking the applicable policy. It said the person against whom the applicant made a complaint was given an opportunity to give her observations on the complaint made against her. It said that when the applicant raised concerns regarding appointment of the independent mediator and the Designated Person, it sought clarification from the relevant Government Department and otherwise sought to alleviate her concerns. It said the applicant confirmed that she wished to proceed with the complaint. It said the Designated Person, a staff member independent of the applicant and respondent to the complaint, made an objective determination that the alleged behaviour of the respondent as claimed by the applicant did not constitute bullying or harassment as defined in section 3 of the Dignity at Work Policy. It said the HR Manager reviewed the report provided by the Designated Person and the complaint made. It said the HR manager was satisfied that the alleged behaviour did not constitute bullying or harassment as defined in section 3 of the Policy. It said the decision was made by the HR Manager that a formal investigation was not required in accordance with the Dignity at Work Policy and that both parties were advised of that decision.
The Board said it must ensure that the giving of similar information in the future is not prejudiced. It said it must ensure that staff feel confident in coming forward under the Dignity at Work Policy and an opportunity to respond to that complaint should they be respondent, and that confidentiality is respected as is provided under the Policy.
It is worth noting again, that it is not a matter for this Office to examine whether the Board followed the procedures set out in the Dignity at Work Policy, although it is not apparent why the applicant considers it failed to do so in her case. In any event, it is not apparent to me how the release of the records at issue would throw any light on whether it did so or not. The records simply reflect staff member A’s response to the complaint made. In my view, there is a strong public interest in ensuring that the integrity of the Dignity at Work Policy is not compromised by the disclosure of information that would be contrary to the confidentiality afforded by the Policy procedures. It is again important to note that the disclosure of records under FOI must be essentially regarded as release to the world at large. I am satisfied that the integrity of the Policy would be seriously undermined if parties to a confidential HR process were to understand that any information they provide during that confidential process might potentially be made available to the world at large. It seems to me that the Policy is designed to ensure that all parties to a dispute are given a fair hearing and that it would not be in the public interest to undermine that process. In the circumstances, I find that section 35(3) does not apply.
In conclusion, therefore, I find that the Board was justified in refusing access to the records at issue under section 35(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Board’s decision. I find that the Board was justified in refusing access, under section 35(1)(a) of the FOI Act, to two records relating to a dignity at work complaint involving the applicant.
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.
Stephen Rafferty
Senior Investigator