Decision
Ms X and An Bord Iascaigh Mhara
From Office of the Information Commissioner (OIC)
Case number: OIC-142194-R9L1B7
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-142194-R9L1B7
Published on
Whether BIM was justified in refusing access to a number of work-related records sought by the applicant
8 November 2024
In an FOI request dated 15 March 2023 the applicant, a former BIM employee, sought access to nine categories of records. The records sought relate to a number of work-related concerns that the applicant stated she had brought to BIM’s attention, as well as various statements and allegations that she said a number of named third parties had made to or about her in the work-place. The applicant also sought access to correspondence exchanged between named BIM personnel between 1 January 2021 and 10 March 2023.
In a decision dated 16 May 2023, BIM part-granted the request, releasing certain records to the applicant and withholding others fully or in part, and citing sections 15(1)(a), 29(1), 30(1)(b) and 37(1) of the FOI Act as grounds for its decision. Furthermore, BIM stated that it did not hold the records sought in the fifth category of the request for the purposes of the FOI Act, as they belonged to the Services Industrial Professional and Technical Union (SIPTU). On 17 May 2023, the applicant sought an internal review of BIM’s decision. In its internal review decision dated 7 June 2023, BIM affirmed its initial decision. On 7 September 2023, the applicant applied to this Office for a review of BIM’s decision. In the course of this review, BIM indicated that it had located one additional relevant record, in the form of a list of calls made to the applicant’s work mobile phone on relevant dates specified in the request. BIM released this record to the applicant, with non-relevant material redacted.
BIM also sought to rely on section 31(4) of the FOI Act to refuse to confirm or deny the existence of certain records, which it also argued were exempt from release under section 31(1)(a) of the FOI Act. In a decision on this specific point that I issued previously to BIM, I found that it was not justified in relying on section 31(4) to refuse to confirm or deny the existence of the records, and I am now in a position to confirm the existence of these records. Subsequently, BIM provided the applicant (and this Office) with schedules of the records in respect of which it had previously sought to rely on section 31(4), and maintained its reliance on section 31(1)(a) in respect of same. I contacted the applicant to offer her the opportunity to make any further submissions that she wished in relation to section 31(1)(a). No further submissions were received on this point.
In addition, in the course of carrying out this review, I put BIM’s arguments under section 15(1)(a) of the FOI Act to the applicant, as she had not had an opportunity to consider same in the context of this review, and to invite her to make any further submissions that she wished in relation to the matter. No further submissions on section 15(1)(a) were received.
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 by the BIM and by the applicant, as well as the correspondence exchanged between the parties in the course of the FOI request. I have also considered the contents of the records in question. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether BIM was entitled, under sections 15(1)(a), 29(1), 30(1)(b), 31(1)(a) and 37(1) of the FOI Act, to refuse access wholly or part to the records sought by the applicant, and with whether it was correct to assert that it does not hold the records that fall within category 5 of the applicant’s FOI request.
Before I set out my analysis and findings, there are a number of preliminary points I wish to make. Firstly, I wish to note that section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the FOI Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an FOI request for access to records.
I also note that it is apparent that the applicant believes she has been wrongfully treated by BIM, her former employer. In this regard, I should point out that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism regarding the actions of FOI bodies.
Furthermore, in her request the applicant asked BIM to “verify” certain information. I wish to note that I did not consider it appropriate to follow up with BIM in relation to these specific aspects of the FOI request. The FOI Act enables access to information contained in records that are held by an FOI body. Generally speaking, it does not entitle a requester to have specific questions answered and does not require an FOI body to create new records.
Finally, I wish to note that, in the analysis below, I identify certain email records by the date and time of their sending. Some emails in the records use the 12-hour clock format and others the 24-hour format. For the ease of reference of all parties, I have retained the formatting used in each particular record, so the following analysis contains references to both 12-hour and 24-hour time formats, as applicable.
In the initial schedule of records provided by BIM, which I will refer to as Schedule 1, it identified nine categories of records, corresponding to each of the nine points of the applicant’s FOI request. Schedule 1 lists 10 records within category 1, two records within category 2, eight records within category 3, seven records within category 4, one record within category 8, and three records within category 9 (BIM’s position is that no records exist or could be located that correspond to categories 6 and 7 of the applicant’s request, a point I address in more detail below. Category 5 of the request relates to records that BIM states are held by SIPTU, a point also addressed below). Broadly speaking, the records at issue comprise internal and external BIM email correspondence sent to and received by the applicant, as well as reports on a number of matters relating to the work of BIM and an investigation report carried out by BIM arising from certain complaints made by the applicant. For the ease of reference of all parties, in this decision I will refer to the records identified in Schedule 1 by category number and record number, eg. “category 1, record 5”, etc.
In its decision on the applicant’s request, BIM released a number records in full to the applicant, and these records therefore do not fall to be examined as part of this review. The records released in full are category 1, records 5-10; category 3, records 1-4 and records 6 and 7; and category 4, records 1, 4 and 6.
In relation to the records in respect of which BIM initially cited section 31(4), and regarding which it also relied on section 31(1)(a), it provided two additional schedules of records, which I will refer to as Schedules 2 and 3. Schedule 2 comprises email correspondence between BIM’s Chief Executive and its legal advisors, and Schedule 3 emails between BIM’s HR Manager and its legal advisors, plus attachments, as well as one record in Schedule 3 comprising a legal memorandum. Schedule 2 lists 13 records and Schedule 3 109 records (in the case of Schedule 3, the first 92 records, which each comprise an initial email and a connected email thread, are numbered records 1-92, while the remaining 17 email records, which are standalone emails, are numbered records 2.1 – 2.17).
I consider it appropriate to examine section 31(1)(a) first of all, as this section of the FOI Act provides for the mandatory refusal of access to records to which it applies, and has been cited by BIM in respect of a significant number of the records at issue. Section 31(1)(a) provides that an FOI body shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP).
There are two types of LPP. The first is legal advice privilege, which relates to confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice. The second is litigation privilege, which relates to confidential communications made between the client and a professional legal
adviser or the professional legal adviser and a third party or between the client and
a third party, the dominant purpose of which is the preparation for contemplated/pending litigation. In its submissions on section 31, BIM stated that the records to which it considered section 31(1)(a) applied comprised confidential communications made between it and its external solicitors seeking legal advice or comprising legal advice. On this basis, I am satisfied that legal advice privilege is the relevant form of LPP to be considered.
In order for legal advice privilege to apply, the relevant communications must be made between a client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. Furthermore, legal advice privilege may also attach to records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of communications which was for the purpose of giving or receiving legal advice. This Office takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.
I have examined the records in respect of which BIM sought to assert LPP and, first of all, would note that certain of the emails at issue do not appear to me to demonstrate BIM seeking or receiving legal advice, but rather relate to arrangements for setting up video or telephone meetings with its legal adviser. While it seems clear that any such meetings would in all likelihood have involved the giving and receiving of legal advice, the relevant parts of the records do not give any indication as to the content of such advice. In circumstances where the purpose of the correspondence is not the giving or receiving of legal advice, I do not accept that it is subject to legal advice privilege. Accordingly, it is not exempt from release under section 31(1)(a) of the FOI Act. I make this finding in respect of the following records, or parts of records:
• Schedule 2:
o record 1 in full
o Record 2 – the emails of 8 July 2022 sent at 09:59 and 10:00
o record 4 – the emails of 11 July 2022 sent at 09:38 and 09:40
o record 7 – the two emails of 25 July 2022 both sent at 13:59
o record 11 – the emails of 22 September 2022 sent at 14:16 and 14:36 and the emails of 28 September 2022 sent at 14:41 and 14:45
• Schedule 3:
o record 39 – the email of 1 February 2023 sent at 18:56
o record 48 – the emails of 1 February 2023 sent at 10:17 and 10:18
o record 49 – the email of 8 July 2022 sent at 10:29
o record 55 – the emails of 19 December 2022 sent at 16:02 and 16:24
o record 57 – the emails of 13 January 2023 sent at 10:34 and 10:36
o record 69 – the emails of 3 February 2023 sent at 17:15 and 17:41
o record 72 – the emails of 14 November 2022 sent at 15:02 and 15:17
o record 2.7 – the emails of 15 March 2023 sent at 18:37 and 20:13
o record 2.8 – the email of 25 November 2022 sent at 18:13
o record 2.12 – the emails of 11 July 2022 sent at 09:38, 09:40 and 09:45.
Additionally, a number of records in Schedule 3 contain emails (with attachments) which appear to have been sent from BIM to the applicant, and/or to her representative. I cannot see how it might be argued that this material comprises confidential communications between a client and his/her legal adviser. Accordingly, any such emails and attachments that appear in the records (in other words, emails – with attachments where applicable – that were in fact sent from BIM to the applicant and/or her representative) referenced in Schedule 3 are not legally privileged and are not exempt from release under section 31(1)(a).
However, I accept that, aside from the material listed above, the remainder of the information in the records referenced in Schedules 2 and 3 either demonstrate BIM to be engaged in seeking legal advice, on a confidential basis, from its legal advisor, or form part of a continuum of correspondence which was for the purpose of seeking or giving legal advice. I find that this material is subject to legal advice privilege and, accordingly, is exempt from release under section 31(1)(a) of the FOI Act.
I consider it appropriate to next examine the applicability of section 37(1) of the FOI Act as, like section 31(1)(a), it is a mandatory exemption and a provision relied upon by BIM to refuse access to a significant number of the records at issue. The records in respect of which BIM cited section 37(1) are category 1, records 1-4; category 2, record 2; category 3, records 5 and 8; category 4, records 2, 3, 5 and 7; and category 9, records 1-3.
Section 37(1) provides that that, subject to the other provisions of the section, an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to third parties. The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester, unless one of the other relevant provisions of section 37 applies.
Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would ordinarily be known only to the individual or to members of his/her family or to his/her friends, or (b) is held by an FOI body on the understanding that it would be treated by the FOI body as confidential. Furthermore, the FOI Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition including, at paragraph (i) of section 2, information relating to the educational, medical, psychiatric or psychological history of the individual and, at paragraph (iii), information relating to the employment or employment history of the individual.
In addition, Paragraph (I) of section 2 of the FOI Act excludes certain information from the definition of personal information, including "... in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid ...". Similar information is excluded in the case of service providers under Paragraph (II) of section 2.
In its submissions, BIM stated that it relied on section 37(1) to withhold the relevant records in whole or part on the basis that they contained personal information relating to BIM employees other than the applicant. BIM flagged a number of specific records as examples of its reasoning in this regard. For example, in relation to category 1, record 4, and the three records in category 9, BIM argued that these records contained sensitive information relating to the health of a named BIM employee. In addition, in relation specifically to the records which were part-granted, BIM advised that these records contained personal information relating to both the requester and other BIM employees or third parties, and outlined with references to examples in the relevant records that the personal information not relating to the applicant had been redacted.
I have considered these arguments of BIM and have examined the relevant material in the records. I accept that, in the case of certain of the records, the redactions relate to information that is personal, for the purposes of section 2 of the FOI Act, to individuals other than the applicant. I note that certain redactions appear to relate to third parties who, it seems likely, are service providers to BIM. For the avoidance of doubt, it should be noted that, while (as outlined above) information relating to staff of FOI bodies, or service providers to FOI bodies, in the performance of their official functions is excluded from the definition of personal information, this exclusion does not deprive public servants, or individual contractors, of the right to privacy generally. Taking into account the nature of the information in the records that relates to individuals who appear to be service providers to BIM, I am satisfied that it is of a nature that brings it within the scope of the definition of personal information. In particular, it seems to me to relate to such matters as the medical and employment histories of the individuals.
However, I do not accept that all of redactions made to the records relate to personal information. In particular, certain redactions relate to current or former BIM employees or service providers in the course of what seems to me to be the performance of their official functions. As outlined above, such information is specifically excluded from the definition of personal information in section 2 of the FOI Act. It follows that section 37(1) cannot apply to this information. I note that, in correspondence from BIM, it pointed out that some redactions related to “Lower graded” staff members. However, the level of seniority in an FOI body is not relevant to the question of whether information is personal for the purposes of the FOI Act. The material in the records that falls outside the definition of personal information, because it relates to current or former BIM employees/service providers in the performance of their official functions, comprises the names and email addresses of individuals that have been redacted from the “To” and/or “Cc” fields, and/or from the text in the body of, the following emails:
• category 1, record 1: emails sent on 26 November 2020 at 11:02AM and 24 November 2020 at 20:27; 13 January 2021 at 13:56; 21 October 2020 at 10:34; and 12 November 2020 at 09:51.
• category 1, record 3: emails sent on 17 February 2022 at 15:52 and 7:13PM; and 17 January 2022 at 17:25, 13:54 and 12:29.
• category 1, record 5: emails sent on 22 June 2022 at 19:01 and 17:59; and 21 June 2022 at 16:04, 13:25, 12:51 and 12:44.
• category 1, record 6: emails sent on 10 February 2022 at 10:18AM, 09:05 and 08:48; 9 February 2022 at 19:09); 2 February 2022 at 10:58; and 10 February 2022 at 08:48.
• category 2, record 2: the first, second and third redactions to page 1 of the record; the ninth and tenth redactions to page 5 of the record; the fourth redaction to page 12 of the record; and the second and fourth redactions at page 22 of the record.
• category 4, record 3: emails sent on 27 April 2022 at 17:49, 17:46 and 17:09; and 19 April 2022 at 17:19.
• category 4, record 4: email sent on 30 September 2022 at 12:43.
• category 4, record 5: emails sent on 22 December 2022 at 12:55 and 11:52AM; and 21 December 2022 at 14:32.
• category 4, record 6: email sent on 11 April 2022 at 10:59.
• category 9, record 1: emails sent on 4 April 2022 at 13:00; 17 February 2022 at 16:31 and 15:52; and 9 February 2022 at 7:13PM.
• category 9, record 2: email sent on 17 January 2022 at 17:25.
• Category 9, record 3: emails sent on 29 March 2022 at 17:28, 17:18 and 16:41).
In addition, I wish to note that I make the same finding in relation to identifying information relating to BIM’s legal advisor which appears in the records that I have found not to be exempt under section 31(1)(a) of the FOI Act. In other words, as a legal advisor to an FOI body is a service provider, information relating to the advisor that appears in the records that relates to the advisor’s performance of his functions is excluded from the definition of personal information. This finding applies to instances of BIM’s legal advisor’s name, job title, and postal and email address that appear in the records. However, for the avoidance of doubt, where BIM’s legal advisor’s mobile phone number appears in the records, I find that this is personal information for the purposes of section 2 and within the scope of section 37(1).
In relation to the material in the records that I have found to fall within the scope of section 37(1), the matter does not end there as 37(1) is subject to the other provisions of section 37. Section 37(2) provides that section 37(1) does not apply in certain circumstances, one of which is, under section 37(2)(a), where the information relates to the requester. I am satisfied that no such circumstances arise in this case and that section 37(2) does not, therefore, apply.
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (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 request would benefit the person to whom the information relates. I am satisfied that section 37(5)(b) of the FOI Act does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, as outlined above, section 13(4) provides that, subject to the FOI Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public. Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that no constraints are placed on the uses to which a record released under FOI can be put. With certain limited exceptions provided for under the FOI Act, such as under sections 37(2)(a) (which I have addressed above) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the FOI Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the FOI Act which provides that in performing any functions under the FOI Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In her submissions, the applicant argued that a public interest exists in the release of the material withheld by BIM under section 37(1) because, as BIM is publicly funded, there is a public interest in ensuring its compliance with employment laws, health and safety regulations, and relevant EU directives. In addition, she argued that FOI bodies such as BIM must comply with corporate governance and best practice standards. As outlined above, section 13(4) means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records. It seems to me that, in her submissions, the applicant has identified a valid public interest that would be furthered by the release of the records.
On the other hand, the FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the FOI Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
While I accept that the release of the records at issue would serve to somewhat enhance transparency in relation to the public interest factors identified by the applicant, this must be balanced against the fact that the information in the records at issue is personal to individuals and, while perhaps not inherently sensitive, is nonetheless of a private nature relating to, among other things, their employment and medical history. I cannot see how this specific information would serve to further the public interest identified above in any meaningful way. Furthermore, I must regard the release of the records as being effectively, or at least potentially, release to the world at large. In the circumstances, I do not accept that the public interest in releasing the records outweighs, on balance, the privacy rights of the relevant individuals. I find that section 37(5)(a) does not operate to preclude the application of section 37(1) to the personal information in the records.
Accordingly, I find that, with the exception of the information I have identified above as being excluded from the definition of personal information in section 2, the information in the records that BIM sought to withhold under section 37(1), as well as the mobile phone number of BIM’s legal advisor that appears in records that it sought to withhold under section 31(1)(a), is exempt from release under section 37(1) of the FOI Act.
BIM relied on section 15(1)(a) to refuse access to the records sought in categories 6 and 7, as well as part of the records sought in category 2, of the applicant’s request. The relevant records in categories 2 and 6 are mobile phone records of calls and text messages exchanged between the applicant and a named BIM official on 19 September 2021 (in the case of category 2) and 11 April 2022 (in the case of category 6). The relevant records in category 7 relate to video footage that the applicant stated she circulated to two BIM officials to highlight alleged issues at a named BIM facility, as well as an email that the applicant states was sent by the facility operator.
Section 15(1)(a) provides for the refusal of a request on an administrative basis where the record sought does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in such cases is to decide whether the decision maker has had regard to all of the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken. The evidence in such cases includes the steps actually taken to search for records. It also comprises miscellaneous other evidence about the record management practices of the FOI Body, on the basis of which the decision maker concluded that the steps taken to search for records were reasonable.
In its submissions, BIM stated that section 15(1)(a) applied to the category 2 and 6 records on the basis that the relevant mobile phone records are no longer available to the relevant BIM official (its CEO), either on their current or previous phone. According to BIM, this is because the CEO had changed their device and is no longer in possession of the device used to send and receive the relevant communications, and as such cannot retrieve the records directly from the device. Furthermore, BIM stated that texts and calls are not retained beyond a 12-month period, and a maximum of 100 calls are retained in the call history. BIM stated that it had searched for any notes (including emails) or memos of the relevant calls and/or recording the information allegedly disclosed in the calls on its system as against the applicant’s name and from the date of the calls, but that its searches had not disclosed any relevant records. It also stated that separately, at the time it was preparing its original decision on the FOI request, it had checked with its mobile phone provider, Vodafone, for copies of the relevant records of phone calls, but had been advised that they were not available, as such records were only retained by Vodafone for 12 months from the making of calls. While it stated that it had still not found any record of calls from the applicant to the relevant BIM official on the date referenced, it noted that Vodafone had, subsequently to BIM’s decision on the FOI request, provided some additional information in the form of a call list made to the applicant on the dates in question. BIM confirmed that it had released this record to the applicant.
In relation to the category 7 records, BIM stated that carried out searches of its systems for that footage and that these searches had not disclosed any relevant records. BIM stated that the relevant video footage had been sent by the applicant to its CEO. BIM stated that the CEO’s mobile device, to which the video footage was sent, had since been replaced and the footage was not carried across to the replacement device. BIM stated the old phone was returned to IT and a new phone provided to the CEO. BIM stated that, in line with its security requirements, once the BIM applications supported on the phone were checked to ensure any relevant material had been backed up, the phone was wiped and disposed of. In addition, BIM stated that it had been unable to conduct a search of the applicant’s work mobile (from which the footage was sent), as this device had not been returned to it by the applicant upon her departure from the organisation. BIM stated that no other searches had been carried out for the relevant footage, as it had been sent to the CEO via Whatsapp and had not been saved in any other locations. It noted that Whatsapp was not part of BIM’s official software package, and that therefore material transmitted via Whatsapp was not backed up or filed to any BIM systems. It said that staff with work mobiles were able to use WhatsApp, and that in this instance the applicant had used Whatsapp to transmit a video recording to the CEO. BIM stated that the record was subsequently stored on the CEO’s device until such time as it was replaced, at which point it became unavailable. BIM stated that its record retention policy, a copy of which it provided to this Office, did not cover records held by BIM staff on Whatsapp accounts. As noted above, I put BIM’s account above of its storage and retention practices, and its arguments as to why the category 7 records were not available, to the applicant and invited her to make any further submissions that she wished. The applicant did not make any further submissions.
I have carefully considered the arguments of BIM and, on balance, I take the view that I have no reason to doubt its account as to why the relevant records cannot be found. Taking all of the information available to me into account, and in the absence of any evidence or information to the contrary, I find that BIM was entitled to refuse part 6 and 7, and the relevant portion of part 2, of the applicant’s request under section 15(1)(a) of the FOI Act.
BIM cited section 30(1)(b) of the FOI Act as a basis to refuse a single record, namely the record that fell within the scope of category 8 of the applicant’s FOI request. The record is an email dated 28 January 2022, from a named individual to BIM.
Section 30(1)(b) provides that access to a record may be refused where to grant the request 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)”. Section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the record. In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the FOI Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature
The wording of section 30(1)(b) makes it clear that the words "industrial relations and management of its staff" are, in the context of that section, a subset of "functions relating to management". This Office has held that management is a word of wide import which is apt to cover a variety of activities of an FOI body apart from management of staff and industrial relations.
In its submissions on section 30(1)(b), BIM outlined that the author of the email was expressing their opinions, advice and recommendations on a number of matters relating to the day-to-day operations of the relevant BIM facility, including health and safety and financial issues, in relation to what they considered were priority matters for expenditure at the facility. BIM noted that the author of the email was not a manager, but an operative, and argued that such detailed and honest communications from staff “on the ground” were essential to its oversight and management of facilities, which are at a geographic distance from its head office. BIM argued that, if the record was released, the result would be that it would no longer receive such honest and detailed communications in writing from operatives and other “on the ground” personnel. BIM stated that it was concerned about the chilling effect that release of the email would have on such essential and valuable communications.
In her submissions, while the applicant did not directly refer to section 30(1)(b), she did address part 8 of her FOI request, noting that the relevant email was one of numerous such communications during her employment with BIM in relation to issues at the relevant BIM facilities. The applicant did not make a direct argument as to why section 30(1)(b) should not apply to exempt the relevant record from release.
I have examined the record at issue and, firstly, would accept that the information in the email relates to BIM’s performance of its functions related to management, and in particular to the management of staff and of its remote facilities. I also accept that the record contains the opinions, advice and recommendations of the relevant operative in relation to issues at the relevant facility. On the matter of the harms that might flow from the record’s release, I consider that the majority of the information in the email might reasonably be characterised as being of relatively minor significance. I am not entirely convinced that the harms that BIM argued would flow from the record’s release would definitely come to pass. However, the test in section 30(1)(b) is not whether the harms identified by the FOI body will definitely occur, but rather whether the body’s belief is reasonable. In other words, in examining a claim for exemption under section 30(1)(b), I need not be satisfied that the outcome identified by the FOI body will undoubtedly occur, and 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. I consider that, in this instance, BIM has outlined reasonable grounds for its belief that the harms it has identified would follow from the record’s release. In particular, in my view it is not unreasonable to suggest that, should the record be released, it would be less likely that BIM would receive similar communications from operatives in the future, due to the potential “chilling effect” that would such release may have. Moreover, I am satisfied that the harms identified by BIM, should they come to pass, would constitute a “significant, adverse effect” on the functions specified in section 30(1)(b). In those circumstances, I am satisfied that the record in category 8 of the applicant’s request comes within the scope of section 30(1)(b) of the FOI Act.
The matter does not end there, however, because section 30(1)(b) of the FOI Act is subject to a public interest test in section 30(2), which provides that section 30(1)(b) shall not apply where, in the FOI body’s opinion, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned. In its submissions on the public interest in the context of section 30, BIM identified, as a public interest factor in favour of release, the general public interest in transparency and in ensuring that the management of publicly-funded operations should be open to scrutiny. As public interest factors that favoured withholding the record, BIM again noted that the types of communication contained in the record were essential to its oversight and management of remote facilities. In addition, it argued that some parts of the record contained information that could adversely impact upon health and safety at the facility in question. It also argued that the issues raised in the record were ongoing, as part of BIM’s day-to-day management of its remote facilities. BIM concluded that, on balance, the public interest weighed against release of the record.
In her submissions, the applicant did not specifically address the public interest test in section 30(2). However, I consider the public interest that she identified in the context of section 37(1) applies equally to the record withheld by BIM under section 30(1)(b), ie. that, as BIM is publicly funded, it is in the public interest to ensure that it complies with employment laws, health and safety regulations, and relevant EU directives, as well as corporate governance and best practice standards. This being said, I also consider that such public interest would be furthered only slightly by the record in question, the contents of which relate to very specific issues within a specific BIM facility and which, in my view, do not speak in any significant degree to issues such as the extent to which BIM complies with employment laws, health and safety guidelines, etc. Accordingly, I find that the public interest, on balance, favours the withholding of the record at issue. I find that the category 8 record is exempt from release under section 30(1)(b) of the FOI Act.
BIM also cited section 29(1) of the FOI Act as a basis to withhold the category 8 record. In circumstances where I have found the record to be exempt under section 30(1)(b), I need not examine the potential applicability of section 29(1).
In relation to the records sought in the fifth category of the FOI request, BIM stated that, as the records sought (comprising email correspondence between the applicant and a named individual) had been created in the context of the individual’s role as a SIPTU representative, it did not have access to the records and did not hold them for the purposes of the FOI Act. I have considered BIM’s argument carefully and am informed in this regard by section 2(5) of the FOI Act, which states that, for FOI purposes, a record is “held” by a body where the record is “…under the control of that body”. I am also cognisant of the remarks of the Supreme Court in the case of The Minister for Health v The Information Commissioner [2019] IESC 40 (“the Drogheda Review case”) in relation to section 6(1) of the FOI Act 1997 (the precursor to 2014 Act), which grants a right of access to records “held by a public body”. In that case, Finlay Geoghegan J delivered a three-part definition of “held”, to the effect that the record must be in the lawful possession of the body; the body must hold the record in connection with or for the purpose of its business or functions; and the body must be entitled to access to the information in the record. In this case, my view is that, although the relevant records were created by a BIM employee, such creation occurred in the context of that individual’s role as a SIPTU official, and the records are therefore not held by BIM for the purpose of its business or functions. On this basis, I find that BIM was entitled to refuse access to the records sought in category 5 of the request, on the basis that it does not hold them for the purposes of the FOI Act.
I wish to note that in the course of this review I put to the applicant my preliminary view in this regard, and invited her to make any further submissions that she wished. In response, the applicant stated that she had worded this part of her request incorrectly and requested that we examine same based on revised terms that she provided to us. It is not open to this Office to expand the scope of the review in this manner, as BIM has not had an opportunity to consider any revised FOI request. It is open to the applicant to make a fresh FOI request for access to records to BIM using any revised terms that she wishes.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary BIM’s decision. I find that BIM was entitled to refuse the aspects of the FOI request in respect of which it cited sections 15(1)(a) and 30(1)(b) of the FOI Act. In addition, I find that it was justified under section 37(1) in refusing access to the information in the records that I have found is personal for the purposes of section 2. Furthermore, I find that BIM was entitled to withhold the information in the records to which I have found section 31(1)(a) applies. I also find that BIM was entitled to refuse access to the records sought in category 5 of the request, on the basis that it does not hold them for the purposes of the FOI Act. However, I find that BIM was not justified in withholding, under section 37(1), the material identified above which does not constitute personal information, and nor was it entitled to withhold, under section 31(1)(a), the information outlined above which is not legally privileged, and I direct the release of this information.
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.
Neill Dougan
Investigator