Decision
Mr X and An Garda Síochána FOI Act 2014
From Office of the Information Commissioner (OIC)
Case number: 160276
Published on
From Office of the Information Commissioner (OIC)
Case number: 160276
Published on
Whether AGS was justified in refusing access to certain records concerning the applicant and other parties, including whether certain records are subject to the FOI Act in so far as it applies to AGS
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
20 December 2016
On 16 December 2015, the applicant made an FOI request to AGS. As a result of difficulties which arose in interpreting which records were covered by the applicant's request, it is necessary to set out the request in full rather than paraphrasing it.
Part A , quoting a Garda Commissioner's Office file number, read as follows:
"Letter from [Mr W] including minutes or recordings of meetings referred to. "
Part B , also quoting a Garda Commissioner's Office file number, and that of another file held elsewhere in AGS, read as follows:
"Bullying and Harassment claim against me by [Mr Y] including selection process and the public procurement associated with the selection of [Mr Z]."
Part C gave a certain reference number (which transpired to be a Public Appointments Service (PAS) reference number), and read:
"Competition for [particular post], An Garda Síochána"
Part D sought "all records of correspondence containing [a particular phrase]" and bearing a particular date.
On the next working day after receiving the request, AGS sought clarification in relation to Parts A and C. It described Part A as "very broad".
The applicant's reply of 27 December said , in relation to Part A, that "under the record number I have provided there is the necessary information". In relation to Part C, he said he sought "any records held by any member of [AGS] relating to that competition concerning me".
AGS issued a decision on 23 February 2016. It said that, as AGS is partially subject to FOI, "only administrative records that relate to human resources, finance or procurement shall be considered." It said it was releasing all records relevant to Part A of the request, but was refusing records of "minutes or recordings" under section 15(1)(a) as "there was no meeting" and therefore the requested records did not exist. It partially released the two files it said it considered relevant to Part B and relied on sections 35 (confidential information), 36 (commercially sensitive information), and 37 (personal information) in refusing to fully grant access to these files. It said it held no records concerning the applicant of relevance to Part C, and relied on section 15(1)(a) in refusing to release such records. Finally, it said that records relevant to Part D were outside the scope of the FOI Act as they are not administrative records relating to human resources, finance or procurement.
The applicant sought an internal review on 21 March 2016, simply saying that he wanted to avail of his right to seek an internal review. AGS, in its internal review decision of 15 April 2016, located and fully released one further report relevant to Part B of the request. It also released additional information from four records that had already been considered in relation to Part B. It affirmed the decision on all other aspects of the request.
The applicant sought a review by this Office of AGS' decision on 26 June 2016.
I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office, AGS, Mr Z, and the applicant; and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.
This review is confined to whether or not AGS has justified its refusal to fully grant access to all of the records it considered for release on foot of the applicant's FOI request and whether it has justified its contention that the records at Part D of the request are not subject to the FOI Act.
From the outset of this review, the applicant has described, or referred to, numerous records that he says should also have been considered for release by AGS. It is debatable whether I have remit to consider such matters. The applicant's internal review application can certainly be taken as having sought a review of AGS' application of section 15(1)(a) to certain records on the basis that they did not exist. However, it in no way suggests that AGS should have considered further records of relevance to the request.
It is open to me to not to consider this issue at all, or to remit the matter of the adequacy of AGS' searches in general for fresh consideration, in which respect AGS' ensuing decision would be subject to internal and external (OIC) review. However, I consider it to be in the applicant's interests, and that of AGS, to deal with this matter in the present review. This is because of issues that have arisen about the scope of the applicant's request, and AGS' interpretation of that request, as well as the applicant's tendency to seek access to records at review stage that were not covered by his original request. Therefore, my review will consider the adequacy of AGS' searches for records of relevance to all aspects of the applicant's request.
The review cannot consider records that were clearly not sought in the original request. The OIC application sought "all records concerning" the applicant; records concerning the appointment of "all persons connected with the process" of the selection of Mr Z, other than Z himself; and records concerning a particular AGS operation. These were not sought in the request and I would be acting ultra viresif my review was to consider whether the applicant is entitled to them.
At the outset, it is relevant to note a number of preliminary matters.
The applicant's views on how AGS appointed Mr Z to investigate Mr Y's complaints, how that investigation was carried out or whether it was appropriate for Mr Y's complaint about the applicant to have been investigated under a particular policy or how the competition referred to at Part C of his request was run, are not relevant to this review. This Office has no remit to examine, or make findings on, such matters. Neither is it appropriate for me to direct the release of exempt information on the basis of such contentions.
Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.
Section 18(1) 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 head of the public 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). While AGS has released details from certain records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
I will deal firstly with the records that have been withheld from the applicant under sections 36 and 37 of the FOI Act, and the records that were withheld on the basis that they are outside the scope of the FOI Act as it applies to AGS.
AGS appointed an external investigator, Mr Z, to review and make recommendations on Mr Y's claims. The records at issue include two invoices submitted by Mr Z for his own work and the expenses he incurred (i.e. records 204 on Schedule C, and record 210, which is on the same file, although not listed on Schedule C). Record 204 appears to have been fully withheld, and I assume record 210 was also fully withheld. AGS found a further invoice from Mr Z (from March 2015) on foot of queries by this Office. It is open to me to annul AGS' effective refusal of the March 2015 invoice and remit it for fresh consideration. However, I have decided to consider the March 2015 invoice along with records 204 and 210, given that they are all of the same type.
Mr Z also submitted logs/time sheets of his own and invoices issued to him by other parties for room hire, presumably in support of and attached to his own invoices. The logs/time sheets are records 189, 203, 209, and 239 on Schedule C. AGS partially released these records, subject to the redaction of Mr Z's daily and hourly rates, and the total cost of the activities logged on the time sheets concerned. The invoices issued to Mr Z by another party are records 211 and 212, and appear to have been fully withheld. Two further similar invoices were attached to the March 2015 invoice, which I will also consider with records 211 and 212.
The records also include a contract between AGS and Mr Z. The contract has been released subject to the redaction of Mr Z's daily and hourly rate.
AGS' decision relied on sections 36(1)(b) and (c) in refusing to fully grant access to the various details described above. However, Schedule C refers only to section 37 in relation to the above, and to a small number of other records that concern invoicing matters (i.e. records 205-208; 213-214; 225-228 and 240-241). The reference to section 37 on the schedule appears to be a mistake, therefore, and I will consider these records under section 36 of the FOI Act.
Section 36(1)(b) - General
Section 36(1)(b) is a mandatory exemption that must be applied to certain types of information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". The Commissioner takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable.
The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, the Commissioner takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position.
Section 36(1)(b) - Application
The invoices submitted by Mr Z show the amounts he charged AGS, as well as a general breakdown of how those totals were arrived at, which also sets out Mr Z's hourly rate. The invoices are clearly based on Mr Z's more detailed time sheets. Certain details have been released from the time sheets that could enable the calculation of Mr Z's hourly and daily rates if the total costs of his own services were to be released from his invoices.
It is reasonable to assume that the hourly and daily rates charged by Mr Z in 2015 are similar, if not the same as, what he charges in 2016. In such circumstances, I accept AGS' argument that disclosure to the world at large of what Mr Z charged AGS in this instance, and in particular his hourly and daily rates, would provide Mr Z's competitors with an insight into his business affairs that they would not otherwise have had, which they could use to his detriment when competing with him for other work. I accept that disclosure of the withheld details to the world at large could prejudice Mr Z's competitive position in the conduct of his business.
The invoices issued by the third party to Mr Z could similarly be of interest to that party's competitors. I accept that release of those records, again to the world at large, could prejudice the third party's competitive position versus that of its competitors.
While the remaining records are not as obviously sensitive as the above, having considered their content I consider that they also could prejudice Mr Z's competitive position versus that of his competitors..
I find the following records to be exempt from release under section 36(1)(b) of the FOI Act:
In the circumstances, there is no need for me to also consider section 36(1)(c).
Section 36(2)
Section 36(2) provides that details to which section 36(1)(b) applies may be released if (a) the party to which the information relates consent to the release of the details concerned; (b) information of the same kind as that at issue in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public; (c) the record relates only to the requester; (d) the information at issue was given to the body by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or the environment.
I do not consider any of these exceptions to apply in the case at hand; neither has the applicant argued that any of them are relevant. Mr Z appears to be of the view that, as he has not consented to the release of records concerning his interests, such records cannot be released under FOI. He is incorrect. Section 36(2) enables a third party to consent to the release of exempt information that affects their interests. However, as this Office told him when inviting his comments on the possible release of the records, no party has a right of veto over the release of records under FOI. Therefore records are potentially releasable even if a third party to which the records relate has not consented to their release.
Section 36(3)
Section 36(3) provides for release of a record to which section 36(1)(b) applies where the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.
The July 2011 Supreme Court judgment, 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 Rotunda case), has indicated that I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. " Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The applicant has not made any specific arguments as to why the public interest might warrant release of the details at issue, other than comments that reflect his dissatisfaction with various elements of the investigation into Mr Y's complaint against him.
In favour of granting a request is the public interest in ensuring the openness and accountability of FOI bodies. This has to be balanced against the public interest, recognised by section 36(3) of the Act, in protecting the release of information to which section 36(1)(b) applies. The question I must consider is whether the public interest served by granting the request, and releasing information that I have found to be exempt under section 36(1)(b), sufficiently outweighs the public interest in protecting that information.
There is a public interest in ensuring openness and accountability in respect of AGS' expenditure of public monies of foot of the examination of Mr Y's complaint. Decisions issued by this Office have made it clear that persons entering into business arrangements with FOI bodies should have a diminished expectation of privacy or confidentiality in relation to those arrangements, particularly with respect to the payment to them of public monies.
This public interest has been served to a certain extent by the material released to date. For instance, the details released from the contract disclose the nature of the arrangement entered into between Mr Z and AGS. Similarly, the details released from the time sheets give some idea of the work carried out by Mr Z on which his costs were based. However, the total cost of conducting the examination, as represented by the total amounts invoiced by Mr Z to AGS, have not been released. It must be borne in mind that these costs were paid for from public monies. Release of the withheld information would therefore further serve the public interest in ensuring openness and accountability for AGS' expenditure of public monies in this case to a considerable extent.
However, section 36(1) itself reflects the public interest in the protection of such information. This Office takes the view that the FOI Act was designed to increase openness and transparency in the way in which FOI bodies conduct their operations and, in general terms, it was not designed as a means by which the operations of private enterprises were to be opened up to scrutiny.
In the normal course, I would consider the public interest to be adequately served by release of the total amount charged to AGS by Mr Z. This would enable disclosure of how much public money was actually spent, without disclosing details that have ongoing application to Mr Z's business generally. However, if I make such a direction in this case, the fact is that the material already voluntarily released by AGS could make it easier to calculate the hourly and daily rates charged by Mr Z in this case. This could commercially impact on Mr Z, through no fault of his own.
Having carefully weighed the competing public interest factors in favour of and against release, in the circumstances of this case I find that, on balance, the public interest in releasing certain details from records 204, 210 and the March 2015 invoice outweighs the public interest that access to those details should not be granted. I direct that these records be released subject to the deletion of Mr Z's VAT number, bank details, and, having regard to the very particular circumstances of this case, the breakdown leading to the calculation of the "Total" figure on the invoices concerned. I do not consider the public interest, in this case, to warrant release of further details from the time sheets, or the release of the invoices issued to Mr Z by the third party, or the details of Mr Z's hourly and daily rates. I also consider that the public interest in release outweighs the public interest in preventing the harm, if any, that could be caused by the release in full of records 205-208; 213-214; 225-228 and 240-241. I find accordingly.
Mr Z's submission reflects concerns about how the release of the above information could be seen as setting a precedent for the release of information provided to him by parties to a similar investigation. Section 37, not section 36, however, would be relevant to such details and I examine this below.
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 seeking the record. Section 37(7), subject to other provisions of section 37, provides for the mandatory refusal of a record that contains the personal information of the person making the FOI request and that of another party or parties (joint personal information).
"Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(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 a public body on the understanding that it would be treated by it as confidential"
Section 2 goes on to list 14 examples of personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met. Two such examples are "information relating to the employment or employment history of the individual" and "the views or opinions of another person about the individual".
I am constrained in the description I can give of the details that AGS has withheld under section 37 other than to say that they contain views, opinions and claims made by Mr Y about the applicant and other persons. The records also relate to the employment or employment history of Mr Y and those about whom he has complained. I find the withheld details to be either the personal information of third parties other than the applicant, which I find to be exempt under section 37(1) of the FOI Act, or the joint personal information of the applicant and third parties, which I find to be exempt under section 37(7) of the FOI Act. The fact that AGS only relied on section 37(1) in this case does not mean that I cannot consider, and apply, section 37(7) to details I consider to amount to joint personal information.
Personal and/or joint personal information has been released from certain of the records to the applicant. This does not create any precedent by which I am bound. The details may have been released because, for instance, certain information may already known to the applicant through the investigation of Mr Y's complaint. However, it is not appropriate to release personal or joint personal information under the FOI Act for this reason, or because a person may have a obtained a record through processes other than FOI, or because a person may have created a record containing joint personal information. Section 37 is a mandatory exemption and must be applied to information that appears, on its face, to fall under section 37(1) and/or 37(7) of the Act.
Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemptions at section 37(1) and (7) do not apply.
Having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal 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.
Section 37(5)
Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.
Section 37(5)(a) - The Public Interest
The applicant has not made any specific arguments as to why the public interest might warrant release of the details at issue. He makes various comments that clearly represent his own private interests in obtaining the records, rather than "true public interest[s]".
He claims that the policy under which Mr Y's complaint was investigated sets out the records to which he is entitled and the later AG advices. He appears to suggest that, if the policy was followed, he would have been given Mr Y's statement of complaint and other documents such as records of interviews between parties other than himself, and therefore that he should be entitled to such information under FOI.
I have no remit to consider, or make findings on, the adequacy of AGS' procedures for dealing with, or investigating, complaints of the sort made by Mr Y. It would not be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that an FOI body's processes may have been inadequate or that relevant policies were not complied with. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."
In the case at hand, there is a public interest in establishing that AGS carried out its functions in dealing with Mr Y's complaints about the applicant in a way that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. This public interest has been served to some extent by the material released to date.
On the other hand, both the language of section 37 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).
When considering section 37(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. I accept that release of the details concerned would further enhance the public interest in openness and accountability in respect of the investigation of Mr Y's complaint about the applicant. However, I find that the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.
For avoidance of any doubt, I do not consider any details in the records that I have directed should be released under section 36(3) to contain personal information about Mr Z, even if AGS did indeed intend to apply section 37 to such information. They concern Mr Z's business rather than his own private and personal affairs and he had a contract with AGS to supply certain services. Even if the details somehow meet the requirements of the definition of personal information, they are far less inherently personal information about Mr Z than, say, details of his medical history. Therefore their release would cause, at most, a minimal invasion of Mr Z's privacy. I would consider the public interest in openness regarding the details concerned (that is, the details I have directed should be released in the public interest under section 36(3)) to far outweigh the public interest in protecting against such an invasion of privacy.
Part 1(n) of Schedule 1 provides that a reference to AGS as an FOI body does not include a reference to it "other than insofar as it relates to administrative matters relating to human resources, or finance or procurement matters". It is AGS' position that any records it holds relevant to Part D of the applicant's request do not concern administrative matters relating to human resources, or finance or procurement matters" and that they are not subject to FOI. Although the applicant appears to consider otherwise, there is no provision for consideration of the public interest in deciding whether a record falls within Schedule 1, Part 1.
The applicant claims that the records sought at Part D are concerned with "exclusively HRM issues and relate to [certain internal matters of an HR nature]". His submissions on this point refer to "an enquiry"/"investigation" the purpose of which was "to enquire into [his] reputation and performance". He also provided excerpts of an email that he received stating that the enquiry found "no evidence of wrongdoing" on the applicant's part.
Case No. 160054, to which the applicant was referred, also dealt with the refusal of AGS records on the basis that they were not subject to FOI. The records sought in that case concerned a complaint made by a member of the public to GSOC, which was referred to AGS for investigation under section 94 of the 2005 Act. The Commissioner's authorised official said that the term "administrative records" is commonly understood to mean records relating to the processes of running/managing a business or organisation. He went on to say that the term "human resources" refers to the staff of an organisation, "and would involve matters such as the administration of annual leave, sick leave, staff development, performance management etc. As such, it seems to me that, in the normal course, records relating to staff discipline would qualify as administrative records relating to human resources." The decision described records arising from an internal disciplinary process as those resulting from the initiation of a human resources process such as tackling underperformance in a performance management context.
The applicant sought "all records of correspondence containing [a particular phrase]". It seems to me that only one of the records identified by AGS as relevant to this element of the request does, in fact, "contain ..." the relevant text.
I have carefully examined this record. While I am prohibited from disclosing its content which includes the joint personal information of the applicant and others, I can say that it could not be described as concerning administrative matters relating to human resources. It does not relate to the bullying and harassment claim referred to in Part B of the request.
I find, therefore, that the records sought at Part D of the applicant's request are not "administrative records relating to human resources" within the meaning of Part 1(n) and that AGS was justified in its decision to refuse access to the relevant record in this case on the basis that the FOI Act does not apply to it. For the same reasons, I would, if necessary for me to do so, make the same finding in respect of any records relating to the record containing the relevant text.
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I now turn to the applicant's arguments that further records should have been considered relevant to his request, and to AGS' refusal of other records on the basis that they do not exist (section 15(1)(a) refers). Before I deal with the application this provision, however, it is necessary to determine the scope of Parts A to C of the applicant's original request and whether AGS' interpretation of those elements of the request was reasonable.
The FOI Act places certain requirements on a person making a request. Section 12(1)(b) of the FOI Act provides that anyone "who wishes to exercise the right of access shall make a request ... containing sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps". The FOI request was poorly worded, leading AGS to seek clarification in relation to Parts A and C.
Part A
The applicant's reply of 27 December in relation to Part A was not helpful. If Part A of the original request had contained "the necessary information", AGS would have not needed to ask for clarification in the first place. In any event, and particularly having regard to his senior role in AGS and his knowledge of the files concerned, AGS took it that the applicant sought the specific file number referred to in his request.
Neither the request nor the applicant's reply of 27 December make it clear whether he simply sought the contents of the file bearing the "record number" he had provided, or just the complaint made by Mr W and any minutes or recordings of "meetings referred to" by Mr W in his letter, or all records relating to that complaint generally. However, having regard to the particular wording of Part A, I consider it to have sought just the complaint made by Mr W and any minutes or recordings of "meetings referred to" by Mr W in his letter.
That said, I do not consider it reasonable to expect any person seeking records, however familiar they might be with relevant filing systems, to list all files on which records they are seeking might be held, particularly having regard to section 12(1)(b).
Part B
AGS took this to be a request confined to records held on the file numbers referred to by the applicant. Again, the wording was poor, but a reasonable interpretation of Part B can only be that it seeks records concerning the investigation of Mr Y's complaint etc. In light of the requirements of section 12(1)(b), though, I consider AGS to have taken an overly restrictive view of what records had been sought. In my view, AGS should have taken the request to seek records on any files physically held by it that relate to the investigation of Mr Y's complaint, including records relating to the selection and appointment of Mr Z.
However, I do not consider the request to have covered any relevant records that might be physically held by Mr Z. If the applicant had intended to seek such records, his request should have made it clear that this was the case, as is required by section 12(1)(b) of the FOI Act. Whether any relevant records that might be held by Mr Z are, further to the FOI Act, deemed to be held by AGS is therefore not a matter I need address in this case.
Part C
As originally worded ("Competition for [particular post], An Garda Síochána"), Part C of the applicant's request could reasonably have sought all records concerning the administration of the job competition for which he applied. However, his clarification of 27 December in relation to Part C made it clear that he sought "any records held by any member of [AGS] relating to that competition concerning me". A reasonable interpretation of this clarification is that the applicant only sought records regarding his own candidature, and not records relating to the wider administration of the competition.
Section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or that the requested records do not exist. I should explain that in any case involving section 15(1)(a) of the FOI Act, a decision from this Office may find that a public body has conducted reasonable searches, even where records that are known to exist cannot be found. In such circumstances this Office is unlikely to require a public body to continue searching indefinitely for those records. It is not normally this Office's function to search for records (a position that was upheld by the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)).
AGS provided this Office with details of the general searches it says it carried out for records relevant to the applicant's request. The Investigator gave the applicant details of the searches. I will not repeat those details in this decision other than where necessary to address the various records the applicant says should also have been considered relevant to his request.
"Follow-On" Records
It is apparent that the file referred to in the applicant's request does not appear to come to a natural conclusion. AGS has confirmed that further, follow-on, records exist on another file. I understand that those records relate to more than the subject matter of the file specified in the applicant's request, and therefore were stored separately.
AGS has effectively refused to release the records on the other file. In the circumstances, it is open to me to annul that effective refusal, and remit the matter to AGS with a direction that it consider the records on the additional file for release. I do not intend to do so, though, because I do not consider Part A of the applicant's request to have extended to such records. It is open to the applicant to make a fresh request for these records. However, he should consider the following comments.
The records already considered, and released in full, concern a complaint made about the applicant by Mr W and therefore contain the joint personal information of the applicant and Mr W. The fact that the applicant received the complaint, whether in the course of his work or directly from Mr W himself, or that he may have been aware of the complaint even in general terms, does not create an entitlement to such records under FOI.
Accordingly, and although AGS released the records in good faith, it should have refused them under section 37(7) of the FOI Act - a mandatory exemption. Furthermore, this is not a case where any of the exceptions to section 37(7), that is sections 37(2) and (5), would have applied. I have already outlined the Commissioner's views on the public interest in promoting procedural fairness through FOI. Furthermore, it is not appropriate to direct release of a record on the basis of a contention that its contents were malicious. In my view, the weight of the public interest in ensuring openness and accountability for AGS' treatment of complaints made to it about the applicant would not have been sufficient to require the invasion of the Constitutional right to privacy of Mr W that would result from release of the records under FOI, effectively to the world at large.
The above comments are academic, in that they concern records that have already been released. However, the fact that AGS released those records does not create any precedent by which it should be bound when dealing with any further FOI request for relevant details in the "follow on" records. Such details must also, by their nature, concern the complaint made about the applicant by Mr W and seem likely to contain joint personal information that must be withheld under section 37(7) of the FOI Act.
Other Records Relevant to Part A That The Applicant Contends Should Exist
Amongst the records released to the applicant is Mr W's letter of complaint about him. In that letter, Mr W says that he "met with the Commissioner (acting)" and spoke to her about the applicant's "behaviour" and other matters. There is no note of this alleged meeting on the file whose contents were considered for release, which has been refused under section 15(1)(a) of the FOI Act.
AGS said that, using Mr W's name, it carried out electronic and manual searches of the Garda Commissioner's diary for any entry relating to a meeting between her and Mr W. It appears to be its position that, as no details of any meeting were located, the Garda Commissioner did not meet with the particular complainant. The applicant does not accept that there exists no records of the meeting described by Mr W, and reiterates that Mr W said he met with the Garda Commissioner.
It is not for this Office to determine as a matter of fact if there was such a meeting. Mr W's letter did not say when or where he met the Garda Commissioner. It seems to me that a reasonable starting point when searching for records of a meeting in such circumstances is to determine when the meeting was held, or might have been held, by having regard to relevant diaries. According to AGS, this step was carried out but no details of any meeting were found. I do not consider it reasonable to direct AGS to carry out general searches of its files on the off chance that it might locate a record of the meeting that Mr W says he had at some unspecified time. Furthermore, and while the applicant has not suggested that I do so, I would not consider it reasonable to direct AGS to contact Mr W to seek details of the alleged meeting. In the circumstances, I consider AGS to have justified its position that it has taken reasonable searches to look for any records of the meeting that Mr W said he had with the Garda Commissioner. I find section 15(1)(a) to apply in the circumstances.
When told of AGS' searches, the applicant replied that he understood another senior member of AGS had met with Mr W and that he "believe[s] there is (sic) other records." Part A of the applicant's request only seeks records of any meeting referred to in Mr W's letter. The only member of AGS that Mr W's letter says he met with was the "Commissioner (acting)". The applicant is clearly seeking records not covered by his original request, and I am not dealing further with them.
Records That Are Evidently Not Included on the Files
The records refused under section 36 do not appear to include all invoices submitted by Mr Z. For instance, record 241 on Schedule C, which dates from June 2015, refers to a "[f]inal invoice and log". While the log referred to appears to be record 239, which also dates from June 2015, the records do not include an invoice for June 2015 on the lines of, say, record 204. Furthermore, while to date AGS has located three invoices, Mr Z's submission referred to five. I am not satisfied that AGS has conducted proper searches for all invoices issued to it by Mr Z. I annul its effective refusal of such records and I remit this aspect of the review to it for fresh consideration. In short, AGS should now search for the missing invoices and any material attached to them (such as time sheets/logs or invoices issued to Mr Z for which he is seeking reimbursement) and consider them for release. If records cannot be found, its decision should describe the searches carried out for the records. AGS' fresh decision is subject to internal and external review.
Other Records Contended by Applicant To Exist
The applicant's submissions contend that many additional records, or classes of records, should have been considered by AGS. He said that these include including records concerning the Garda Commissioner's rationale for the investigation to proceed under the "Working Together ..." policy; records concerning the selection and appointment of Mr Z; records showing that he consented to the selection of Mr Z; notes of his conversations with Mr Z, and with AGS' then Chief Administrative Officer (CAO), regarding the complaint/investigation, as well as "records of all the outcomes and where those records were sent to .... records in email etc"; records concerning a particular issue referred to in the released records 225/226; and records "in the absence of public procurement guidelines being followed, of any reports to internal audit, protected disclosure or under the ante fraud policy".
AGS said that it does not consider the request to extend to records concerning the Garda Commissioner's rationale for the investigation to proceed under the "Working Together ..." policy. I agree, in that it appears to me that the applicant's request simply sought the substantive records of the investigation (that is, the records relevant to Part B, physically held by AGS, that have been either released or withheld). The request does not contain any particulars to suggest that the applicant, as he appears to now contend, sought any records concerning any administrative arrangements behind the investigation proper, such as records concerning any consideration given by the Garda Commissioner as to whether Mr Y's complaint against the applicant should have been investigated other than under the "Working Together ..."policy.
In any event, AGS' submission referred to records 140-142 on Schedule B of the records relevant to part B of the applicant's request, which have been released to him. These detail the formalities of the process under which the investigation was carried out. AGS has also explained why the investigation proceeded under the "Working Together ..." policy, details of which have already been given to the applicant and which I see no need to repeat here. It referred to the released record 31 on Schedule B, which shows that responsibility for the investigation was devolved to the CAO on a particular date.
The applicant has already been given details of AGS' explanation of the circumstances leading to Mr Z's appointment. In short, according to AGS, there was a limited number of investigators suitable to investigate the complaint, and it was considered necessary not to delay starting the investigation. AGS said that the CAO selected Mr Z following discussion with the Executive Director of Human Resources and People Development (HR& PD). According to AGS, the latter said he did not follow up his conversation with the CAO in writing. The fact that the applicant "do[es not] accept that there is a shortage of experts in the field" is irrelevant.
AGS' submission also referred to records 93 and 103 (letters issued to the applicant during the process that were, according to AGS' schedule of records, partially released on foot of his request), which inform the applicant of Mr Z's appointment. A reasonable interpretation of the conclusion of the letters concerned is that the applicant should respond if not happy with their contents.
I have already found that records held by Mr Z do not fall within the scope of the applicant's request and therefore I need not make any direction in this case regarding the release or otherwise of any records Mr Z may hold that are relevant to the request, such as interview notes or records relating to the jurisdictional matter in records 225/226. That said, it is likely that the majority of the records, if not all of them, would be exempt under sections 37(1) and 37(7) for the reasons set out already in this decision regarding such records as held by AGS. The records held by Mr Z must, of their nature, contain the personal information of Mr Y and others, or the joint personal information of Mr Y and the applicant. The applicant has also been told that AGS has said it holds no records relating to the jurisdictional matter in records 225/226.
I have not determined whether there exists "any reports to internal audit, protected disclosure or under the ante fraud policy". I do not consider the applicant's request to have extended to such matters, which would be entirely separate to the examination of Mr Y's complaint.
AGS has told this Office that the then CAO said he only recalls one meeting with the applicant, which took place after the outcome of the investigation, and that he does not recall any conversation with the applicant in June 2015. In any event, it is the then CAO's position that he does not hold any records of any meetings or conversations in his possession. I see no reason to dispute this. It is not my role to determine whether or not such a meeting took place, but rather whether AGS has taken reasonable steps to establish if any records of meetings might exist. It seems to me that a reasonable step is to make enquiries of the former CAO. I am also satisfied, having regard to details of its general searches for records relevant to Part B of the request, that AGS has taken reasonable steps to look for "records of all the outcomes and where those records were sent to".
Having considered the above, including the details of general searches carried out for records of relevance to Part B of the applicant's request, I consider, subject to one caveat, that AGS has justified its position that it has taken reasonable steps to look for records relevant to part B of the request, and that further records do not exist.
The records at issue do not contain many "records in email etc". As the applicant is aware, AGS says that searches carried out in the offices of the Executive Director of HR&PD included electronic searches of emails. It is not clear if emails in the CAO's office were searched, however. It is open to me to remit this specific matter back to AGS. However, for reasons mentioned above, any such records must by their nature relate to Mr Y and others, or to Mr Y as well as the applicant. This is the case even if they do not refer to Mr Y. It is not necessary that a person's name appears in a record for information to come within the definition of personal information. The detail, or even context, of a record may cause the information in it to be "about an identifiable individual". Accordingly, even though it is open to me to direct AGS to carry out additional searches for relevant emails that might be held in the CAO's former office, I see no purpose in so doing given that any records would be exempt under sections 37(1) and (7) of the FOI Act, with the exceptions at sections 37(2) and (5) not applying in the circumstances of this case.
AGS, as the applicant appears to think is the case, does not consider the records sought at Part C of his request to be outside the scope of the FOI Act. Rather, it says it does not hold any relevant records.
AGS holds certain records concerning the general competition process. It also located three diary entries that it says concern meetings with PAS representatives about the competition in general. In responding to details of searches carried out by AGS in relation to this aspect of his request, the applicant says "records of the meetings, any agenda items and any emails" are relevant to the scope of his request. I do not agree. Such records, which AGS have said concern the competition generally, cannot be said in my view to concern the applicant's candidature for the post.
In short, I do not consider any records held by AGS regarding the competition in general, including the diary entries, to be relevant to Part C of the request.
The relevant competition was run by the PAS, a separate FOI body in its own right. Records of the PAS are in no way under the control of the Garda Commissioner such that she could seek copies for the purposes of dealing with this FOI request.
The applicant may believe that the senior member of AGS, who interviewed him in the course of the competition, could have retained notes and other documents of that interview, and that such records should have been considered for release. I see no reason to dispute AGS' position that all records given by PAS to that member for interview purposes (which I would accept would include any documents on which notes were to be written by the interviewers) were returned to the PAS. The applicant was given details of the searches carried out for any records that still might be held by this member, or by certain other members who might have held records. I understand that no additional records were found.
The applicant also maintains that there should exist records concerning enquiries made regarding any conflicts of interest any member of AGS may have had regarding his application for the post, in which regard he refers to the PAS and Commission for Public Service Appointments (CPSA).
I am inclined to agree with AGS' position that the applicant's request did not extend to any records of contacts it may have had with the CPSA about him. The applicant's request does not contain any particulars to suggest that it seeks such records. When this Office put a view to this effect to the applicant, he replied that the CPSA "carried out a review of promotions in [AGS] and it published the report on the CPSA website". However, the report published by the CPSA concerns an audit of promotions to the ranks of sergeant and inspector. The post sought by the applicant, and about which he seeks records as per Part C of his request, was not at this level. In the circumstances, it is in no way apparent to me why records concerning the CPSA audit are in any way relevant to Part C of the request.
In any event, AGS says that "no records are held by the relevant offices [those of the Garda Commissioner and HR &PD] that could have been expected to receive correspondence from CPSA or PAS with regard to the competition". I have no reason to dispute this unequivocal statement.
Having considered the foregoing, including the details of general searches carried out for records of relevance to Part C of the applicant's request, I consider AGS to have justified its position, as appropriate, that it has taken reasonable steps to look for all relevant records and that further relevant records do not exist. I find that section 15(1)(a) applies.
I will take this opportunity to make some suggestions that might be of use to AGS, FOI bodies generally, and indeed to the applicant.
Vague Requests
When proper clarification of a request has been requested and not provided, the FOI body should tell the requester, in writing, what it considers the request to have sought and make it clear that it will proceed on that basis unless the requester indicates otherwise. Not only does this give the requester a further chance to clarify the matter and possibly correct careless wording, but it provides a stronger basis for an FOI body to stand over the reasonableness of its understanding of a request should it not get the requested clarification.
Furthermore, section 15(1)(b) of the FOI Act enables a public body to refuse a request that does not comply with section 12(1)(b). Such refusal is, however, subject to section 15(4). Section 15(1)(c) also allows FOI bodies, subject to section 15(4), to refuse a request where the nature or number of records sought would cause a substantial and unreasonable interference with or disruption to their work. Section 22(9)(a)(vii) gives the Commissioner a similar power. I am not suggesting that AGS should have considered applying section 15(1)(b) or (c). Rather, I am simply bring this to the attention of AGS and FOI bodies generally, and indeed to the applicant should he intend making further FOI requests. I consider that the section 15 provisions generally are indications that, given the administrative burden that FOI places on public bodies, it was not the intention of the Oireachtas that requesters could behave unreasonably in exercising their rights to access records.
Frivolous or Vexatious
In response to a query as to how many FOI requests one can make, this Office told the applicant that while, technically, anyone can look for any record, he should also be aware of section 15 of the FOI Act, especially section 15(1)(g) that provides for refusal of what are generally referred to as "frivolous or vexatious" requests.
While section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request, one's motive for making an FOI request is relevant when considering the application of section 15(1)(g). Factors relevant when considering if a request is frivolous or vexatious include whether it is intended to accomplish some objective unrelated to the access process, and whether the request was made in bad faith.
It should also be noted that section 22(9)(a)(i) enables this Office to discontinue a review where, generally speaking, the application for review is frivolous or vexatious.
The Commissioner has, in other cases, examined whether there was a pattern of behaviour, including using FOI to revisit long running grievances or applications deliberately intended to increase the administrative burden on a public body, to see if a request might have been made in bad faith. In this case, despite having been informed on several occasions by the Investigator that only the records sought in the original request can be the subject of this review, the applicant persisted in attempts to broaden his request to cover additional records. As is clear from this decision, consideration of the scope of the request and of this review took up considerable time and resources.
I must make it clear that the above comments are not to be seen as pre-judging any further applications for review that the applicant may make to this Office. Each one will be treated on their own merits.
Neither should my comments be seen as suggesting to AGS that it should refuse further requests from the applicant under section 15 or otherwise. Again, each request must be treated on its own merits, and any decision to refuse a request on such grounds would have to be justified in accordance with section 22(12)(b).
Having carried out a review under section 22(2) of the FOI Act, I hereby vary AGS' decision. I partially uphold its application of section 36(1)(b) to certain records but direct the release of total amounts charged to AGS, in the public interest (i.e. the relevant details as contained in records 204; 210 and the March 2015 invoice refer) and records 205-208; 213-214; 225-228 and 240-241. I affirm its application of sections 37 to other records on the basis that they contain third party personal information about persons other than the applicant, or joint personal information about the applicant and others. I find that the public interest that the rights of privacy of the third parties concerned should be upheld outweighs the public interest that the request be granted. I find other records to be outside the scope of the FOI Act having regard to the provisions of Schedule 1, Part 1(n) of the FOI Act.
In the main, I affirm AGS' reliance on section 15(1)(a) in refusing to release further records. I find further searches to be warranted in respect of AGS' apparent failure to consider certain invoices, and I remit this matter to AGS for fresh consideration. That decision is subject to the usual rights of internal and external review.
I find that additional searches could be warranted regarding certain other aspects of the request. However, I conclude that the nature of records sought is such that they would be exempt under section 37 in any event, with the public interest that the rights of privacy of the third parties concerned should be upheld outweighing the public interest that access to those records be granted. I find accordingly that there is no need for me to remit this matter to AGS for it to carry out additional searches.
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.
Elizabeth Dolan
Senior Investigator