Decision
Mr X and National Transport Authority (the NTA)
From Office of the Information Commissioner (OIC)
Case number: OIC-155095-T1N5J3
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155095-T1N5J3
Published on
Whether the NTA was justified in refusing access to certain records which refer to the applicant or where the applicant was discussed under section 30(1)(b) of the FOI Act
25 September 2025
The applicant is a member of staff of the NTA. On 5 September 2024, the applicant made the following FOI request to the NTA:
“I wish to make a request for the following documents under the FOI Act 2014. This request refers >wholly to Ms. X. In accordance with the above, I would like to be provided with the following documents >held by the NTA:
1. All emails, which refer to me, by name, initials, pseudonym or otherwise implied from 1 February 2024 >until 26 August 2024, and which emanated from me or any manager within a certain Directorate.
2. Any emails, which directly refer to me, created or sent by Ms. X. to any party internal or external.
3. Any notes written in handwriting or soft copy which refer to me, implied or otherwise which were >taken at a meeting with Ms. Y and others on the 27 June 2024 and at any meetings before or after 27 >June 2024 if any such meetings took place.
4. Notes recorded in handwriting or soft copy, which refer to me in any manner, taken by Ms. X at any >National Transport Senior Management meetings.
5. Copies of minutes of any meetings held between Ms. Y. and members of a certain Directorate >including on the 27 June 2024 where I was discussed by name or otherwise.
6. Copies of any messages sent or received via the Teams application to other person(s) which refer to >me by name or otherwise.”
On 4 October 2024, the NTA wrote to the applicant and said that it was necessary to extend the period of consideration for his request by four weeks in accordance with section 14(1) of the FOI Act. In a decision dated 1 November 2024, the NTA said the individual who is the subject of the applicant’s FOI request was on a period of extended leave. It said it had not been possible to establish whether relevant records exist, and it was refusing the request in accordance with section 15(1)(a) of the FOI Act. On 1 November 2024, the applicant sought an internal review of the NTA’s decision.
On 8 November 2024, the NTA emailed the applicant to confirm that the date range for parts 2-6 of his request are the same as part 1. The applicant confirmed that this is correct. On 25 November 2024, the NTA asked the applicant whether he would be willing to wait until 3 December 2024 for the internal review decision. The applicant confirmed that this proposal was acceptable to him. On 3 December 2024, the NTA issued its internal review decision in which it part-granted the applicant’s request. The NTA located 113 records which are relevant to parts 1-4 of the request, it granted access to 2 records and refused access to the remaining records under section 30(1)(b) of the FOI Act. The NTA refused access to records relevant to parts 5 and 6 of the request under section 15(1)(a) of the FOI Act. On 7 January 2025, the applicant applied to this Office for a review of the NTA’s decision.
During the course of the review, this Office provided both parties with an opportunity to make submissions. In its submissions, the NTA said it had decided to release a further nine records to the applicant in full and a further four records in part. It said on reviewing the records afresh it had determined that section 30(1)(b) does not apply to 37 records which it identified. It said, however, that it had determined that sections 31(1)(a), 32(1)(a)(i) and (ii), and 37(1) of the Act do apply to these records. The NTA reconfirmed its decision to refuse access to the remaining records under Section 30(1)(b) of the FOI Act.
To ensure procedural fairness, the applicant was notified of the NTA’s revised position in relation to the records and invited to comment. In communications with this Office, the applicant said he was agreeable to limiting the scope of this review to the NTA’s decision to refuse access to records 3, 4, 5, 11, 16, 17, 60, 63, 83, 85, 99 and 100 under section 30(1)(b) of the FOI Act.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
The scope of this review is confined to whether the NTA was justified in its decision to refuse access to records 3, 4, 5, 11, 16, 17, 60, 63, 83, 85, 99 and 100 under section 30(1)(b) of the FOI Act.
Before I address the substantive issues arising, I would like to make a few preliminary comments.
Firstly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking the records in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
Secondly, 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. This means that the description which I can give of the records at issue, and their content, is limited.
Finally, it is also important to note that when a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the legislation places no restrictions on the use to which released records may be put.
Section 30(1)(b)
Section 30(1)(b) of the FOI Act provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the FOI Act. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.
A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations. Section 30(1) is subject to a public interest balancing test at section 30(2).
In communications with this Office, the applicant says he requested certain records which refer to him or where he was discussed. He says certain members of management have sought to undermine or discredit him because he reported on certain work-related matters. The applicant says because of these actions, he initiated the internal grievance process and these matters are now the subject of external proceedings with the WRC. The applicant says he wishes to obtain copies of these records in connection with the WRC proceedings.
The NTA says the release of the records at issue would result in serious, significant, and adverse effects on it’s functions relating to management including management of its staff. It says the records contain deliberations about sensitive matters relating to the management of a particular unit including supports that may be required by managers in their roles. It says it is of paramount importance that channels of communication are protected so that all staff and their managers can be assured of confidentiality when corresponding with their superiors or with other team members on sensitive subjects which are open to differing views and opinions. It says these communication channels create a better, safer, and more efficient environment for staff and managers to work so that the unit can operate effectively and efficiently in its work. The NTA says it also provides a space where staff, managers, and HR can discuss sensitive matters in an open way without undue interference. It says the absence of this space would severely and adversely affect the ability internally within the NTA for staff and managers to raise critical issues. It says staff may be deterred from raising these matters which would create significant challenges to maintaining a productive and transparent work environment. It says this would lead to decreased trust levels, to difficulties in recruiting and retaining staff, and impinge on the NTA’s duty to preserve the confidentiality of management and personnel records.
In this case, there are workplace issues between the applicant and line management and the applicant has initiated the NTA’s grievance process. The records which were refused include emails between the applicant’s line management and senior management and HR which refer to these issues and which seek support and they include the provision of guidance. There is information on how to deal with the matters and references to the requirement for legal advice. I accept that managers should be free to discuss matters with their superiors and with HR that relate to the management of staff and resolving workplace issues without these sensitive communications being released to the world at large under FOI. I accept that release of these records could reasonably be expected to have a significant adverse effect on the ability of managers to manage their units and issues which they encounter in managing their team and their ability to make considered and appropriate decisions. I find, therefore, that section 30(1)(b) applies to records 3, 4, 5, 11, 16, 17, 60, 63, 83, 85, 99 and 100.
Section 30(2) The Public Interest
As I have found section 30(1)(b) applies to the records 3, 4, 5, 11, 16, 17, 60, 63, 83, 85, 99, and 100, I am required to consider section 30(2) in respect of these record. Section 30(2) provides that section 30(1)(b) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
The applicant says he has been provided with records following separate FOI requests to the NTA in which management have discussed him and made statements which he says are defamatory. He says he would like access to the records at issue to see if they also contain similar statements which he can use to support his position in the WRC proceedings.
The NTA says the following public interest factors favour release of the records:
• the right of the public to access information under the FOI Act and to ensure that activities and >operations are open and transparent; and
• the ability of the public to hold NTA to account.
The NTA says the following public interest factors favour withholding the records:
• Protecting the confidentiality of the relationship between staff members and their line management >and allowing a space for conversations to take place on sensitive and confidential matters.
• Ensuring public bodies can carry out their duties in the public interest without undue intrusion.
• Protecting the right to privacy of individuals, and in particular, their views and opinions held in good >faith.
The NTA states that having reviewed the records and the circumstances in this particular case, it finds that the public interest is best served by refusing the records.
There is a public interest in facilitating openness and accountability in how public bodies carry out their functions. There is also a public interest in public bodies exercising fair procedures in the management of internal matters, including staff management and HR matters. In this case, I accept that release of the withheld information would promote transparency in relation to the management functions at issue here. However, in my view the public interest in openness and transparency in relation to the staff management and HR functions has been served to a certain extent by the fact that the applicant has been provided with a copy of a handwritten note made at the meeting of 27 June 2024 which is referenced in parts 3 and 5 of his request. This note contains a brief description of the issues from the perspective of senior management and the proposed approach of senior management in dealing with these issues. The applicant was also provided with a further 9 records in full and 4 records in part during the course of this review.
In this case, I must balance the public interest considerations in ensuring openness, transparency and accountability in how public bodies perform their functions against the public interest in public bodies being able to discuss matters of significance and consider opinions or legal advice in the context of staff management and dispute resolution without adversely affecting the public body's ability to mange and resolve disputes involving staff. This is particularly so when disputes are ongoing. In my view, if these records were made public, this could reasonably be expected to deter staff and managers from raising critical issues, which would create challenges in maintaining a productive work environment. Having carefully considered the content of the records and the context in which they were created, I find that, on balance, the public interest would be better served by refusing access to records 3, 4, 5, 11, 16, 17, 60, 63, 83, 85, 99, 100.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the NTA’s decision to refuse access to the records at issue under section 30(1)(b) of the FOI Act.
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.
Jim Stokes
Investigator