Decision
Ms A and Cork County Council
From Office of the Information Commissioner (OIC)
Case number: 130181
Published on
From Office of the Information Commissioner (OIC)
Case number: 130181
Published on
Whether the Council was justified in its decision to refuse access to certain records concerning a disciplinary matter relating to the applicant on the basis that the records contain information that is exempt under the provisions of sections 21(1)(b), 22(1)(a) and 26(1)(a) of the FOI Act
Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
22 December 2014
On 28 September 2012 the applicant made a request to the Council under the FOI Act for access to "any records relating to me personally".
In its decision dated 16 November 2012 the Council granted the applicant access to a number of records and refused access to other records relating to a disciplinary matter concerning the applicant under section 21 of the FOI Act. On 30 November 2012, the applicant sought an internal review of the Council's decision. On 23 January 2013 the Council released additional records to the applicant and informed her that records which contain legal advice were exempt from release under section 22 of the Act. It also refused to grant access to records containing information obtained in confidence which it considered to be exempt under section 26 of the Act.
The applicant wrote to the Council again on 18 February 2013 seeking a further review of its decision and the Council replied on 3 April 2013 upholding its decision to refuse 22 records (2 in part only), a schedule of which accompanied the Council's letter of 3 April. It should be noted that the FOI Act does not provide for a further review by the public body of its internal review decision and that the applicant should have been informed by the Council in its letter of 23 January 2013 of her right of review by this Office. The applicant subsequently wrote to this Office on 17 July 2013 seeking a review of the Council's decision.
I note that Mr Richard Crowley, Investigator, wrote to the applicant on 1 May 2014 and was in contact with her again by email dated 17 November 2014 concerning his preliminary views on the matter. While the applicant replied to Mr Crowley's letter of 1 May 2104 and queried the provision of legal advice by the County Solicitor in the circumstances of this case, no reply was received in relation to Mr Crowley's email of 17 November last. I now consider it appropriate to conclude the matter at this time by way of a formal binding decision.
In her application to this Office the applicant stated that she was concerned that the Council may possess further records relating to her which it did not disclose. Mr Crowley sought details of the searches undertaken by the Council and outlined the Council's reply in his letter of 1 May 2014 to the applicant. As the applicant has raised no further issues in regard to her initial concerns in this regard or presented any evidence concerning other records, I do not propose to consider this matter further in the course of this review.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.
In conducting my review, I have had regard to the Council's decision in this matter, to correspondence between this Office and the Council, to correspondence between the applicant and the Council and to correspondence between the applicant and this Office. I have also had regard to the records in question and the provisions of the FOI Act.
This review is concerned solely with the question of whether the Council was justified in its decision to refuse access to information contained in the 22 records it scheduled in its letter of 3 April 2013 to the applicant under sections 21(1)(b), 22(1)(a) and 26(1)(a) of the FOI Act.
Before setting out my findings, I should point out that while I am required by section 34(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. This constraint means that, in the present case, the extent of the reasons that I can give is limited.
Furthermore, section 34(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified". This means that in this case the onus is on the Council to satisfy me that its decision was justified.
Section 21(1)(b)
Section 21(1)(b) of the FOI Act provides that a request for access to a record may be refused if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by a public body of any of its functions relating to management (including industrial relations and management of its staff). A record found to be exempt under section 21(1)(b) may be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned (section 21(2) refers).
Record 1 is an email dated 22 August 2011 from a junior member of the Council's staff to her manager concerning secretarial issues. In its submissions to this Office the Council contends that release of this record would adversely affect the junior employee who sent the email in question. I note that in its original decision the Council refused access to records relating to the disciplinary process under section 21 of the FOI Act. The Council contends that the information in this record was given in confidence by the employee and that the Council considers it owes a duty of confidence to that employee. I consider that release of this record would undermine the trust between the employee and the Council. Furthermore, I consider that such a breach of trust could hamper future investigations which would require the co-operation of staff. I am satisfied that such an outcome can reasonably be expected to have a significant adverse effect on the performance of the Council's function of attending to staff disciplinary matters and that the exemption allowed for in section 21(1)(b) is therefore applicable to record 1 in this case, and I find accordingly.
Section 21(2) of the Act provides that the exemptions set out in section 21(1) shall not apply in a case in which, in the opinion of the head of the public body, the public interest would, on balance, be better served by granting than by refusing to grant the request. In my view there is a clear public interest in the Council being able to investigate disciplinary matters effectively. On the other hand, there is also a public interest in increasing transparency and accountability in how the Council manages disciplinary processes. Record 1 concerns issues about the conduct of administrative practices which were brought to the applicant's attention by the Council during the course of the disciplinary process. In my view the release of this record does not serve to increase the transparency of the Council's disciplinary processes. On balance, it is my view that the Council was justified in refusing access to the record in order to preserve its ability to effectively examine disciplinary matters in the future without adversely affecting its staff management functions. I find therefore, that the Council was justified in refusing access to record 1 under section 21(1)(b) of the FOI Act.
In its recent submission to this Office concerning its decision to refuse access to item 8 of record 21, the Council submitted that section 21 of the Act applies to the information contained at item 8. However, the Council did not elaborate upon the basis of its claim that this exemption applies or provide any detail of the harm arising from the release of the information in question. Accordingly, in line with the provisions of section 34(12) of the Act, I find that the Council has not justified its decision to refuse access to item 8 of record 21, subject to my findings below in relation to personal information.
Section 22(1)(a)
The Council relied on section 22(1) to refuse access to records numbered 2 to 13, 14 (part) and 17.
Section 22(1)(a) provides that a public body shall refuse to grant a request for a record if access to that record would be exempt from production in proceedings in a court on the ground of legal professional privilege.
In considering whether a record would be exempt from production in a court on the grounds of legal professional privilege, I must ignore the likelihood or otherwise of court proceedings taking place and bear in mind that legal professional privilege resides with the client. The question comes down simply to whether the client would succeed in withholding the document on the grounds of legal professional privilege in court proceedings. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
It is clear that a number of records refused by the Council on the basis of section 22(1)(a) of the Act contain legal advice obtained from external legal advisors. A number of other records refused by the Council on the ground of legal professional privilege relate to internal correspondence between the County Solicitor, who is also the manager of the applicant, and officials within the Council's personnel section who were dealing with the disciplinary matter that was the subject of the legal advice. The Commissioner accepts that communications between in-house professional legal advisers and their client are privileged if conducted confidentially and for the purpose of giving or receiving legal advice.
In her application and submissions to this Office, the applicant questions the legitimacy of the County Solicitor providing legal advice in this matter given her direct involvement in the subject matter of the advice. This Office wrote to the Council about the role of the County Solicitor in providing legal advice in the circumstances of this case and queried the basis upon which the Council claimed legal privilege in relation to a small number of records involving correspondence between the personnel section and the County Solicitor. In its submissions to this Office the Council stated that the County Solicitor provides an advisory service to all Council Departments. The Council contended that in this instance the County Solicitor was providing legal advice to Council and claimed the records are exempt under section 22(1) of the FOI Act. It is not a matter for this Office to consider the appropriateness, or otherwise, of the Council's in-house legal advisor providing legal advice in the circumstances of this case, given her dual role as the applicant's manager. Regardless, I am not aware of any legal principle that prohibits the advice given being afforded the protection of advice privilege. Having carefully considered the matter and the records in question, I am satisfied that the Council was justified in its decision to refuse access to the records numbered above under the provisions of section 22(1)(a) and I find accordingly.
For the avoidance of doubt, I find the following parts of record 14 to be exempt from release under section 22(1)(a).
Section 26(1)(a)
Records 1, 14, 15, 16, 18, 19, 20, 21 (in part) and 22 (in part) were refused by the Council under section 26(1) of the FOI Act on the basis that they contain information given to it in confidence.
Section 26(1)(a) provides for the mandatory refusal of a record containing information:
However, section 26(2) provides that subsection (1) shall not apply to a record which is prepared by a head, directors or staff members of a public body, or a person who is providing a service for a public body under a contract for services 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 a public body, or a head, director, or member of staff of a public body, or someone who is providing or provided a service for a public body under a contract for services."
The records at issues in this case were prepared by Council staff and the Council has provided no argument to this Office that release of the records constitute a breach of a duty of confidence that is owed to a person other than a member of staff. Therefore, I find that the Council was not justified in refusing access to this information under the provisions of section 26(1)(a) of the Act.
Section 28
In my view, a number of the records refused by the Council under section 26 of the Act contain personal information of third parties. Section 28(1) of the FOI Act provides that a public body shall refuse to grant access to a record where access would involve the disclosure of personal information relating to a person other than the requester. Section 28(5B) provides that a public body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information.
While personal information relating to a third party can be released if the person to whom it relates consents to its disclosure, as a general rule, the release of joint personal information requires the consent of all of the individuals to whom it relates unless, under section 28(5) of the FOI Act, (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would be to the benefit of the person to whom the information relates.
In this case, having reviewed the records in question, I consider that the release of certain parts of a number of records, details of which I have set out below, would involve the disclosure of personal information relating to another person or persons. Therefore, I find that section 28(1) and/or 28(5B) applies to the relevant parts of those records.
Having found section 28(1) and/or section 28(5B) applies, I must proceed to consider a number of other relevant provisions of section 28. Under section 28(2) there are some circumstances in which the exemption for personal information under section 28 does not apply. I am satisfied that none of those circumstances arise in this case. Section 28(5)(a) provides that a record, which is otherwise exempt under section 28, may be released where 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".
The judgment of the Supreme Court issued 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 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 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 unenumerated personal rights under the Constitution). 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.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. This public interest has been served to a certain extent by the material released to the applicant to date. However, having reviewed the content of the information to which I have found section 28(1) and/or 28(5B) to apply, I do not consider that the release of that information would further serve the public interest to such an extent that a breach of the third parties' Constitutional rights to privacy is justified. I find, therefore, that section 28(5)(a) of the FOI Act does not apply.
Section 28(5)(b) provides that a record which has been found to be exempt under section 28 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. Having reviewed the records, I do not consider the release of the personal information of the third parties would "benefit the individual[s]" to whom it relates. Therefore, I find that section 28(5)(b) of the FOI Act does not apply.
Accordingly, I find that the Council was justified in refusing to release the following personal information of third parties to the applicant under the provisions of section 28 of the FOI Act:-
Record 14:
Record 18:
Record 20:
Record 21:
Record 22:
Summary
In summary, I find that the Council was justified in its decision to refuse access to record 1 under section 21(1)(b), records numbered 2 to 13, 14 (in part) and 17 under section 22(1)(a) of the FOI Act, and the relevant parts of records 14, 18, 20, 21 and 22 as detailed above under section 28 of the FOI Act. I find that the Council was not justified in its decision to refuse access to the remaining information.
Having carried out a review under Section 34(2) of the FOI Act, I hereby vary the decision of the Council in this case. I direct the release of records 15, 16 and 19 in full and I direct the release of records 14, 18, 20, 21 and 22 subject to the redaction of the exempt information as outlined above.
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 after notice of the decision was given to the person bringing the appeal.
Stephen Rafferty
Senior Investigator