Decision
Mr X and Teagasc
From Office of the Information Commissioner (OIC)
Case number: 130316
Published on
From Office of the Information Commissioner (OIC)
Case number: 130316
Published on
Whether Teagasc has justified its decision to refuse to release certain records relating to an internal enquiry conducted by Teagasc into alleged irregularities by a staff member, in accordance with the provisions of section 28(1) of the FOI Act.
9 July 2014
On 3 April 2013, the applicant made a request to Teagasc under the FOI Act for all records relating to an internal management enquiry conducted by Teagasc into alleged inappropriate accesses made to personal information, pertaining to him and members of his family, by a member of the staff of Teagasc.
In its response, Teagasc released some records, but refused access to many of the records requested by the applicant. In doing so, it relied upon sections 21, 26 and 28 of the FOI Act. No detailed reasoning for the refusal was provided in its decision, and neither was there any reference to any public interest test in the decision letter which was issued by Teagasc on 25 April 2013.
The applicant submitted a request for an internal review to Teagasc on 23 May 2013. In his submission, he commented on the inadequacy of Teagasc's response to his FOI request, and the lack of information provided by Teagasc to justify its refusal of the records.
In its internal review response dated 12 June 2013, Teagasc affirmed its original decision.
On 11 December 2013 the applicant applied to this Office for a review of Teagasc's decision. In this application, he again complained about the inadequate response of Teagasc to his FOI request, and its failure to satisfy him on the following points: that all material factors were considered in relation to the decisions to apply various exemptions; that all relevant records were considered for release; that the relevant public interest tests were conducted appropriately; and that the information being refused under section 28 of the FOI Act is personal information within the meaning of the FOI Act.
In subsequent correspondence between this Office and Teagasc, Teagasc explained the background to the case and clarified its position in relation to the records which were refused to the applicant. It outlined the allegation, received by it from the Department of Social Protection (the Department), that a Department employee had passed confidential information to a Teagasc employee. It outlined interactions between Teagasc and the Gardaí in relation to the matter, and explained the enquiry into the allegations which was undertaken by Teagasc. It then outlined the outcome of that enquiry, which was that no disciplinary sanctions were made against the employee involved, and that the matter was then regarded as closed. It also detailed correspondence between Teagasc and the applicant in relation to the matter. In addition, the letter outlined searches made to ensure that Teagasc held no further records pertaining to the applicant.
Following discussions, in relation to the FOI review, between this Office and Teagasc, the latter body decided to release certain additional records to the applicant, on 10 June 2014.
In carrying out my review, I have had regard to correspondence between Teagasc and the applicant as set out above; to details of various contacts between this Office and Teagasc; to details of various contacts between this Office and the applicant, and, in particular, the 'preliminary views letter' dated 11 June 2014 sent to him by Mr. Richie Philpott, Investigator in this Office, in which he presented a summary of the reasons why no further records should be released to the applicant. In response, the applicant submitted an email dated 30 June 2014, indicating his disagreement with the preliminary views letter, and I have therefore decided to conclude the review by way of a formal binding decision. In his email the applicant also submitted a number of comments regarding matters pertaining to the review and the 'preliminary view letter', and I have also had regard to that email in formulating this decision, along with the relevant provisions of the FOI Act. Furthermore, in considering the public interest at section 28(5)(a), I have had regard to 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 (which I will refer to below as "the Rotunda judgment").
My review is therefore concerned solely with the question of whether Teagasc was justified in its decision to refuse access to certain records sought by the applicant under sections 21, 26 and 28 of the FOI Act.
Section 28(1)
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would "involve the disclosure of personal information " about an identifiable individual. The FOI Act defines personal information as “information about an identifiable individual" and goes on to list 12 types of information which are included in the definition, including, pertinently in this case "(x) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual, ".
The material which has been withheld in this case consists of records pertaining to an enquiry into allegations made against an employee of Teagasc, and includes personal information of the employee in question, and the personal information of other third parties. While the definition of personal information in the Act excludes information pertaining to the name, terms of employment or the work performance of employees of public bodies, the Information Commissioner has previously found that records relating to investigations of allegations of misconduct by such employees do not fall within this exclusion, and they therefore constitute personal information. A relevant case is case no. 080050 Philip Boucher-Hayes, RTÉ and County Council X (decision date 19 August 2008; available on this Office's website,www.oic.ie ) and a pertinent extract from the decision is as follows:
"..... the records sought by the requester (if they exist) pre-suppose mis-conduct or a breach of discipline at work; they suggest the likelihood of complaints having been made, of an investigative process and of action within the terms of the Council's Grievance and Disciplinary Procedures. If it were the case that the employee had been involved in mis-conduct, and that this mis-conduct arose in the course of the employee's work, I do not accept that any such mis-conduct could be characterised as being for the purpose of the performance of the employee's functions. While mis-conduct may sometimes occur while at work, and indeed may be facilitated by virtue of the work position held by an individual, it cannot be said to be something done for the purposes of performing one's work functions. Accordingly, the qualification on the definition of "personal information" cited above does not apply to the type of information sought by the requester.
Having considered the matter carefully, I am satisfied that records of the type sought by the requester would, if they exist, constitute information held by the Council on the understanding that it would be treated as confidential. I believe this would be the case even if it were the situation that there was some public knowledge of allegations having been made or of a disciplinary process having been initiated. It would be unconscionable for a public body, engaged in a process of dealing with allegations of mis-conduct, not to treat information relating to the process as confidential. I am satisfied that this would be the case both while such a process is underway as well as following the conclusion of the process. This does not necessarily create an absolute prohibition on the release, under the FOI Act, of records of such a process. Confidential material may in certain instances be released in the public interest; but this does not change the fact that the material is held in confidence."
In this case, it is clear to me that all of the records which have been withheld by Teagasc are records to which section 28(1) applies, and I find accordingly.
Section 28(2)
Section 28(2) provides that Section 28(1) does not apply in certain circumstances. Having examined the records in question I am satisfied that Section 28(2) is not relevant because the information withheld does not relate to the applicant; the third party to whom the information refers has not given prior consent to the release of the records to the applicant; the information is not of a kind that is available to the general public; nor does it belong to a class of information that might be made publicly available; and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
Section 28(5)
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) 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, or (b) the grant of the request would benefit the individual. I do not consider section 28(5)(b) to be of relevance in this case as I do not consider that release of the information at issue would benefit the individuals to whom it relates as envisaged by section 28(5)(b) of the FOI Act.
In relation to section 28(5)(a) , in the Rotunda judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law ") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and of the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.
Accordingly, what remains to be determined is the question of the public interest in releasing the records, which are otherwise not releasable under section 28(1), in accordance with section 28(5) of the FOI Act. Following discussions between this Office and Teagasc in relation to the matter, Teagasc decided to release a copy of the final report of the enquiry which it undertook, and a copy of the letter detailing the outcome of the enquiry, which was sent to the employee involved. In both cases personal information was redacted from the records released. In my view, the public interest in this matter (as opposed to any private interest of the applicant) is served to some extent by the release of records which show how Teagasc dealt with the allegations in question. While I accept that the release of further records may serve to increase the level of Teagasc's accountability in this matter, I am satisfied that the public interest in doing so is not sufficient to outweigh, on balance, the significant privacy rights of the individual concerned. I therefore consider that Teagasc has justified its decision to refuse to release any further records in response to the applicant's FOI application, in accordance with section 28(1) of the FOI Act. I find accordingly.
As I have found the decision to exempt the relevant information in line with the provisions of section 28 is justified, I do not consider it necessary to consider the application of sections 21 and 26 to that information
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby uphold Teagasc's refusal of the records concerned.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.
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Sean Garvey
Senior Investigator