Decision
Mr K and the Brothers of Charity Services
From Office of the Information Commissioner (OIC)
Case number: 130022
Published on
From Office of the Information Commissioner (OIC)
Case number: 130022
Published on
Whether the Public Body has justified its decision to refuse to release, in line with the provisions of sections 10(1)(a) and 28(1) of the FOI Act, certain records relating to the applicant's employment with the Public Body
9 July 2014
The applicant made a request under the FOI Act on 22 October 2012 for his personal information, held by the Public Body, his employer, for the period from 14 December 2010 until 18 October 2012. In its original decision on his request, dated 21 November 2012, the Public Body released a significant numbers of records. Some records were withheld under section 28(1) of the FOI Act [see below] because they contained the personal information of third parties. The applicant submitted a request for an Internal Review of the decision on 13 December 2012. In his request, he highlighted concerns regarding the documents which were withheld, and he also submitted that significantly more records should have been released to him, which is a matter pertinent to section 10(1)(a) of the FOI Act [see below].
In its decision on Internal Review, dated 20 December 2012, the Public Body released substantial additional documentation, but affirmed the decision to withhold the remaining records. It also undertook to conduct some further searches for relevant records.
On 23 January 2013, the applicant submitted an application to the Office for a review of the Public Body's decision. In that application he submitted that the withheld records should be released with all personally identifiable information redacted from them. He also raised issues regarding possible further records which he contended should be released to him In addition, he raised issues pertaining to a previous review carried out on foot of an application by him to the Information Commissioner, which is outside the scope of this review. In subsequent correspondence it emerged that additional records were later released to the applicant by the Public Body on foot of the internal review.
In carrying out my review, I have had regard to correspondence between the Public Body and the applicant as set out above; to details of various contacts between this Office and the Public Body; to details of various contacts between this Office and the applicant, and, in particular, the 'preliminary views email' sent to him, dated 9 June 2014, by Mr. Richie Philpott, Investigator in this Office. I have also had regard to subsequent correspondence from the applicant to this Office, including emails dated 12 June 2014, 13 June 2014, 17 June 2014 and 22 June 2014. As this correspondence makes it clear that he does not accept the contents of the 'preliminary views email', I have decided to complete this review by issuing a formal binding decision. In doing so, I have also had regard to the provisions of the FOI Act, and, in considering the public interest test at section 28(5)(a), 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").
The material which has been withheld in this case consists of 106 records pertaining to the investigation of bullying allegations made by the applicant against other employees of the Public Body. The Public Body has already released a substantial number of other records, either in full or subject to redaction of third party personal information, in accordance with section 28(1) of the FOI Act. Outside of the records which have been released and those which have been withheld, it contends that no further relevant records exist, in line with section 10(1)(a) of the FOI Act.
The scope of the review is confined to the questions of whether the Public Body was justified in refusing access to certain records under section 28(1) of the FOI Act, and whether is was justified in deciding that no other relevant records exist or can be found.
Section 10(1)(a) of the FOI Act states as follows: "10.—(1) A head to whom a request under section 7 is made may refuse to grant the request if— (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken...”. In his application to this Office the applicant specified that he believed that more records should have been available to him, and, in the following few weeks, the Public Body did in fact release more records to him. However, on 27 March 2013 the Public Body made a submission to this Office in which it stated its confidence that all records pertaining to the FOI application had been identified at that point, and in which it provided extensive details of the searches it had carried out, in relation to the records sought.
The Commissioner's role, in cases such as this, is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, alongside evidence about the record management practices of the public body which formed the basis for the public body's conclusion that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).
The applicant has contended that there are a number of other records which have not been released, and which are not included among the 106 records that have been withheld. However, the Public Body has made it clear that it considers that all relevant records have been identified, and considered by it, in the context of this FOI review. I have considered the explanations provided by the Public Body concerning the categories of records sought by the requester, the likely record-holders within the Public Body from whom records were sought, and the various searches carried out to locate relevant records. The Public Body has detailed how all of the relevant offices, in which records might have been held, were systematically identified, and how specific named staff members were made responsible for carrying out the relevant searches in each area, before reporting back to the Public Body's FOI Liaison Officer on the searches undertaken. In addition, based on the dates covered by the request, the Public Body identified a potential additional source of records, and this was then included in the overall search. The Public Body also explained the searches conducted by it for records held on the Body's electronic document management system, and explained the operation and management of its records systems. Having considered this information carefully, I am satisfied that the Public Body was justified in refusing access to any records other than those already considered by it for release, in accordance with the provisions of section 10(1)(a) of the FOI Act, and I find accordingly.
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, ".
This section states that notwithstanding section 28(2)(a), which allows for the release of information relating to the requester, a record shall not be released if it would disclose personal information of a third party in addition to personal information of the requester.
The material which has been withheld in this case consists of records pertaining to an enquiry into allegations made against employees of the Public Body, and these records include both (i) records containing personal information of the employees in question, and the personal information of other third parties, and (ii) records containing the joint personal information of the applicant and 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 the Public Body are records to which section 28(1) or section 28(5B) of the FOI Act applies, and I find accordingly.
Section 28(2) provides that Section 28(1) does not apply in certain circumstances. Leaving aside section 28(2)(a), which I will consider in the context of section 28(5B) below, having examined the records in question I am satisfied that Section 28(2) is not relevant because the third parties to whom the information refers have 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; it does not 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) 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) or section 28(5B), in accordance with section 28(5) of the FOI Act. The Public Body has already released a number of relevant records, including a redacted copy of the final investigation report. 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 the Public Body dealt with the allegations in question. While I accept that the release of further records may serve to increase the level of the Public Body'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 employees concerned. I therefore consider that the Public Body has justified its decision to refuse to release any further records in response to the applicant's FOI application, in accordance with sections 28(1) and 28(5B) of the FOI Act. I find accordingly.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby uphold the Public Body's refusal to release 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.
Sean Garvey
Senior Investigator