Decision
Mr X and the Public Appointments Service (FOI Act 2014)
From Office of the Information Commissioner (OIC)
Case number: 170326
Published on
From Office of the Information Commissioner (OIC)
Case number: 170326
Published on
Whether the PAS was justified in refusing to fully grant access to records relating to the applicant, including further records the applicant contended it should hold
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
09 November 2017
On 25 November 2016, the applicant made an FOI request to the PAS for all records relating to him, dating from 1 January 2013 to 25 November 2016. He described various records that he said his request covered. On 18 January 2017, the PAS granted full or partial access to some records and refused to grant access to the rest under sections 15(1)(a) (records do not exist); 15(1)(d) (information in the public domain); 31(1)(a) (information subject to legal professional privilege); 37 (personal information) and 42(f) (records held or created by the Attorney General or the Office of the Attorney General).
On 4 February 2017, the applicant sought an internal review of the PAS decision. He raised various issues including the absence of records relating to record 1 to which he had been granted partial access. The PAS internal review decision of 28 February 2017 refused to grant access to further records relating to record 1 under section 15(1)(a) on the basis that they did not exist, refused access to other records under section 15(1)(i) (records already released to the requester), and otherwise affirmed the original decision.
The applicant sought a review by this Office of the PAS "entire" decision on 26 June 2017. His email dated 22 July 2017 also said that further records should exist in relation to his request.
During the review, the PAS granted access to eight further records. When he received the records, the applicant emailed this Office, citing four "[e]xamples of what is new today", and saying why he felt further records should exist relating to those examples. There have been substantial contacts between this Office and the applicant and he has been kept informed of developments concerning the review.
I have now decided to conclude my review by way of binding decision. This decision is longer and more complex than I would have wished owing mainly to the "search " issues involved. In carrying out my review, I have had regard to correspondence between this Office and the PAS and the applicant, and to copies of the records which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.
This review is confined to whether or not the PAS has justified its refusal to grant access to the remainder of the records, as well as whether it has justified its contention that it has taken reasonable steps to look for further records within the scope of the applicant's request. As the applicant knows, it will not consider the refusal under section 15(1)(i) of records that the PAS released to the applicant further to previous FOI requests that would also be covered by this request.
The applicant's complaints about how the PAS dealt with his FOI request or handled such matters as "off the record briefings", are not within the scope of this review.
The PAS granted access to some records in the course of the review. The applicant says that it should have released these details to him on foot of his request. What happened in this case is not uncommon in FOI reviews. The PAS is clearly willing to take account of guidance referred to in this Office's request to it for submissions, and its reconsideration of records initially withheld is in keeping with the spirit of the FOI Act. In any case, the applicant now has access to certain records which had previously been withheld and these are no longer the subject of my review.
The applicant is not satisfied with the extent of records found and/or to which he has been granted access. He also refers to record 1, which the PAS says it found following a search of its email archive system. The applicant says that it was relevant to his previous request to the PAS that was the subject of my decision in Case No 150442. In that decision, I found that the PAS had carried out reasonable searches for records relating to two job applications made by the applicant and that section 15(1)(a) of the FOI Act applied.
Further search steps may be required in cases where an applicant provides substantive evidence as to why they consider that further records exist. However, this Office does not generally require FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that more records should or might exist, or rejects a body's explanation of why a record does not exist. The test in section 15(1)(a) is whether searches have been reasonable. The finding made in Case No 150442 does not rule out the possibility that further records may come to light at a later stage. Neither does the subsequent discovery of an additional record undermine the earlier findings on section 15(1)(a).
Finally, the PAS released details from certain records while redacting other parts. It is also willing to release more parts of some records but wants to see if this Office directs it to release any additional details before doing so. I do not propose to revisit the PAS proposal to release further parts of the records except in so far as they might contain third party personal information, or be records to which FOI does not apply under section 42(f). In so far as any details that the PAS is prepared to release might have attracted litigation privilege (see below under section 31(1)(a)), I am taking it that the PAS has waived any such privilege.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I also wish to make it clear that, in so far as the remaining excerpts of the records are concerned, this Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Section 15(1)(a) provides that an FOI body may refuse to grant a request where "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or that the requested records do not exist. A decision from this Office may find that a public body has conducted reasonable searches, where records that are known to exist cannot be found at a particular point in time. It is not normally this Office's function to search for records. This position was upheld by the High Court in Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)).
In addition to being dissatisfied with the amount of records considered to fall within the scope of his FOI request, the applicant specifically sought records concerning requests for sanction of two positions. The PAS refused to grant access to these on the basis that they do not exist. The applicant's email to this Office of 22 July 2017 refers to other records that he felt should have been released (described earlier). He later describes four further "[e]xamples" of missing records: the apparent absence of records surrounding (i) communications with PAS board members and a selection board member, (ii) records 20 and 74 and (iii) an "un-referenced minute" from a PAS employee dated 30 September 2013.
Even where an applicant believes that the records already released point to "gaps" in those records, I do not accept that the FOI Act puts an onus on the decision maker to account for every possible gap. As already explained above, what is required is the taking of reasonable steps to ascertain the whereabouts of a record.
Requests for Sanction of the positions
This Office gave the applicant details of how the PAS says it stores hard copy and electronic campaign requests and its description of the searches it says it carried out of relevant files. I also note the PAS explanation that it is not unusual for campaigns like those referred to in the applicant's request to be held following a telephone call to the CEO of the PAS. It says that this is what the CEO understands happened in both cases, and thus maintains that no records of the sort requested exist. I have no reason to dispute the PAS explanations as to why the requested records do not exist. I find that section 15(1)(a) applies.
Further Records Relating to Record 1
Record 1 is an anonymous email, dated 28 September 2013, containing allegations about the applicant and others. It was sent to the PAS general internet contact mailbox. The PAS granted partial access to the email and fully released an internal PAS email forwarding the anonymous email to a particular recruitment mailbox.
Part of my review in Case No 150442 considered an anonymous letter, also containing allegations about persons including the applicant. The PAS forwarded this letter to a number of bodies with responsibility for the matters alleged. The applicant contends that the same steps should have been taken on receipt of the anonymous email, and that relevant records should exist.
I do not intend to repeat the PAS account of the different circumstances in which the anonymous letter and anonymous email were received, or why it decided to forward the anonymous letter to the other bodies. It said that it took no such steps in relation to the anonymous email. The applicant's assertion that the PAS may or should have done so does not give me any basis on which to question this clear statement. Accordingly, I accept the PAS position that no further records relating to record 1 exist. I find that section 15(1)(a) applies.
Records Concerning the "Off the Record" Briefing
In Case No 150442, the PAS refused to grant access to records that it considered to be legally privileged and exempt under section 31(1)(a). However, because it had not considered the content of the individual records, I annulled its decision on them and directed it to consider them afresh. One of the records to which the PAS granted access as a result (record 12) included an email from a journalist and related documents.
The applicant argues that the PAS should hold further records relating to the journalist's email. This Office has already given the applicant details of the PAS position that no further such records exist.
It is clear from the face of the records that I have examined that a hand-written note covers responses given by a PAS staff member (both on and off the record) in a telephone conversation with the journalist. The applicant says that "the record should exist as there were responses provided to the journalist". I am taking it that he contends that at least a written reply to the journalist's email ought to exist. However, as he also knows, the PAS says that there was no further response. I have no reason to doubt the PAS position. I accept that no further records exist in relation to the journalist's email. I find that section 15(1)(a) applies.
Searches for Further Records of General Relevance to FOI Request of 25 November 2016
Records the subject of Case No 150442 are also covered by the present request. In that case, I found that searches for the records concerned were reasonable. As I have already explained, there is no reason for me to reconsider that finding in the present case.
As for other relevant records, the applicant is aware that the PAS says that it carried out further searches for records when he sought various information outside of the FOI process, and on foot of other FOI requests he has made. It also says it carried out additional searches following this Office's decision in Case No 150442 on the records withheld under section 31(1)(a). I should stress that my decision did not direct the PAS to carry out any further searches. I also note the details given to the applicant regarding the searches the PAS says it carried out further to the current request and its position that these searches would have found all records that may previously have been misfiled. It is the PAS position that its searches were adequate to identify any records relating to the applicant.
The applicant responded by referring this Office to four examples of apparently missing records, referred to earlier. When this Office asked the PAS to comment on these examples, it maintained its position that no further records within the scope of the request exist other than those considered to date.
The PAS correctly says that there are further records with references to board members that it has withheld under sections 31(1)(a)/42(f). I will consider these later in this decision. It says that the "un-referenced minute" dated 30 September 2013 is the record described above and referred to in this Office's email to the applicant of 5 October 2017 i.e. the message forwarding the anonymous email in Record 1 to a particular recruitment mailbox. I have already found section 15(1)(a) to apply to the additional records the applicant contends should exist about the anonymous email; I see no need to deal with this further.
In relation to records 20 and 74, the applicant says that record 20 talks about letters referencing off the record briefings and he cites in particular record 74. He questions where "the rest of the records" are.
The PAS maintains that its earlier submission addresses all matters to do with "off the record" briefings. Record 20 refers to letters received from the applicant, all of which I understand were released. I note that one of the applicant's letters queries whether a particular email from a journalist was received on a stated date. However, I also note, from material supplied by the PAS as part of its submission, that it has released the records (35 and 36) i.e. the email from the journalist and the PAS reply. These were released further to its fresh consideration of the material it had generally withheld under section 31(1)(a) in Case No 150442. I can see no suggestion in the PAS reply that further records concerning the journalist's comment exist.
Record 74 also concerns the "off the record" briefing. It comprises letters sent to and from the applicant further to his queries about the contents of Record 12, as opposed to, say, a record of further contacts between the PAS and the journalist. In short, I have no reason to consider the applicant's reference to records 20 and 74 to provide me with any basis to further question the PAS on the matters concerned.
Having considered the above, the applicant's various arguments, the details of the searches the PAS says it carried out and its responses to this Office's queries, I am satisfied that the PAS has taken reasonable steps to look for all records it holds relating to the applicant. I find that section 15(1)(a) applies.
The PAS initially withheld a court judgment and various internal communications under section 15(1)(d). The judgment is in record 11 on the schedule provided to the applicant at internal review stage (Schedule 2). The PAS released the internal documents during this review (other than those elements of record 11 that are dealt with below under the heading "Sections 31(1)(a) and 42(f)"). I am satisfied that the judgment is in the public domain and I find that section 15(1)(d) applies.
Section 28(1)(a) - Government Records
During the review, the PAS sought to rely on section 28(1)(a) of the Act in relation to records 17(a) to (c) on Schedule 2 and part of record 54 on Schedule 3 (this schedule was not provided to the applicant). The PAS maintains that these contain information relating to a submission to the Government containing an update on a number of legal cases.
Section 28(1)(a) provides for the discretionary refusal of a request if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose. For the purposes of section 28, a record is defined as including a preliminary or other draft of the whole or part of the material contained in the record. There is no public interest test in section 28. However, a record to which section 28(1) applies is releasable in certain circumstances set out in section 28(3) of the FOI Act.
I am satisfied, from the details in the records, that they comprise a preliminary or other draft of material contained in a draft Memorandum for Government. I find that section 28(1)(a) applies to records 17(a) to (c) and record 54 in full and that the circumstances set out in section 28(3) do not apply in this case.
Section 31(1)(a)
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
confidential communications made between the client and a professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
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 (litigation privilege).
Advice Privilege
Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. With some limited exceptions, disclosure of a record to a third party generally amounts to a waiver of privilege.
Litigation Privilege
In considering litigation privilege, the judgment of 21 March 2014 of Finlay Geoghegan J., in the case of University College Cork - National University of Ireland v the Electricity Supply Board [2014] IEHC 135 (the ESB case) is relevant. Ms Justice Finlay Geoghegan said that the relevant document must have been created when litigation is apprehended or threatened. She said that the document must have been created for the dominant purpose of the apprehended or threatened litigation. It is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation, and that the onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or to enable his solicitor prosecute or defend an action. Arising from the judgment in the ESB case, it also appears that, unlike legal advice privilege, litigation privilege does not automatically continue beyond the final determination of the litigation in which it originally applied or closely related litigation.
Section 42(f)
Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General (AG) or the Office of the Attorney General, other than a record relating to general administration. It is generally accepted that the Chief State Solicitor's Office (CSSO) is part of the AG's Office.
Schedule 1A
The PAS withheld record 39 on this schedule under section 31(1)(a), comprising an affidavit sworn by the CEO of PAS that it says was lodged but not opened to the Court. This Office informed the applicant of its understanding that this review need not consider any records already in his possession further to court proceedings, except in so far as the copies held by the PAS bear substantive annotations. The applicant did not disagree. I see no annotations on the affidavit that would not be on the original, which I take it the applicant has. Therefore, I am not considering the affidavit further. Neither have I considered any records in Schedules 2 or 3 that are documents in the applicant's possession.
Schedules 2 and 3
Schedule 2 lists 20 records. Other than the court judgment in record 11 and related documents referred to above, the PAS initially withheld these records on the basis that they attract legal professional privilege and are exempt under section 31(1)(a).
In the course of the review, the PAS granted full access to records 2(a), 2(b) and 20. It subsequently claimed section 28 over record 17 (dealt with above). It is prepared to grant partial access to records 1, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 18 and 19. It continues to fully withhold records 8, 14, 15, and 16. It maintains that the withheld information is exempt under section 31(1)(a) or is outside the scope of the FOI Act under section 42(f).
The PAS initially withheld the 91 records on Schedule 3 on the basis that they were either exempt under section 31(1)(a) or were records to which section 42(f) applies. During the review, it granted full access to records 61, 74 and 84. I have already decided on record 54 (see section 28(1)(a) above). It is prepared to grant partial access to records 2, 4, 5, 6, 9, 12, 13, 15(b), 17, 18, 19, 28, 32, 37, 38, 39, 40, 48, 53, 55, 59, 60, 62, 68, 70, 72, 73, 77, 87, 89 and 91. It maintains that sections 31(1)(a) and/or 42(f) apply to the remaining records or parts of records on Schedule 3.
Having examined the records, I am satisfied that the information that the PAS continues to withhold includes correspondence from the CSSO and/or the AG's office to the PAS containing legal advice regarding the applicant's litigation and other matters. The records do not relate to general administration. I find that such records are not subject to FOI under section 42(f). I also note that parts of record 1 on Schedule 2 and records 5 and 39 on Schedule 3, which the PAS proposes to release, are emails from the CSSO. These are not subject to FOI further to section 42(f) and I direct that they be withheld.
The remaining withheld records comprise correspondence between the PAS and the CSSO/AG's office and Counsel for the PAS seeking legal advice, including in relation to the litigation taken by the applicant. The PAS says it understands that the legal proceedings have not concluded. To refer here to the reasons for this view could lead to disclosure of the applicant's identity; however, this Office put the details to the applicant who did not comment. I have no reason to dispute the PAS position that the litigation concerned has not concluded. I accept that litigation privilege can still attach to records that were created with the dominant purpose of preparation for the litigation concerned.
With the exception of some small but discrete elements of records 11(a), 11(b), 12(a), 12(b), 12(c), 13(a), 13(b), 15(b), 16(a), and 16(b) on Schedule 2, which I will consider below under section 37 (personal information), I am satisfied that the dominant purpose for the creation of most of the remaining withheld records was preparation for the litigation. I find litigation privilege to apply and that these records are exempt under section 31(1)(a). I also consider the other records not concerned with the litigation to attract legal advice privilege, in that they seek or contain legal advice or form part of a continuum of correspondence that results from an original request for advice. Given the limited nature of the details released by the PAS from the records, I have no reason to consider that it has waived privilege over the rest of the contents.
Section 37(1)
The PAS initially refused to grant full access to four records on Schedule 1A on the basis that parts contained personal information about individuals other than the applicant that was exempt under section 37 of the Act. It granted full access to records 2 and 3 in the course of the review but maintains its position regarding the other two (records 1 and 125).
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record. While section 37(2)(a) provides for the release of information relating to the applicant, section 37(7) provides for refusal of a request where access to the record sought would, in addition to disclosing personal information relating to the requester, disclose personal information relating to individuals other than the requester, commonly known as joint personal information.
"Personal information" is defined at section 2 of the FOI Act as "information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential"
Section 2 also lists 14 examples of what must be considered to be personal information. They include (i) "information relating to the ... medical ... history of the individual", (iii) "information relating to the employment or employment history of the individual" and (xiv) "the views or opinions of another person about the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.
I am constrained in the description I can give of the details concerned. As already outlined, record 1 is an anonymous email that contains allegations about the applicant and others. The PAS granted access to the details about the applicant but withheld details of the other allegations, as well as the addresses to which the email was also sent. The details withheld from record 125 relate to persons other than the applicant scheduled to meet with the CEO of the PAS.
In addition, during the review both the PAS and I identified personal information in records 11(a), 11(b), 12(a), 12(b), 12(c), 13(a), 13(b), 15(b), 16(a), and 16(b) in Schedule 2 and record 62 in Schedule 3. Some of the records are copies of each other. The details comprise personal email addresses, a mobile phone number, and information about individuals' family members, health, and job.
Having examined the records, I am satisfied that all references to the applicant have been released and that the remainder contain personal information of other individuals or joint personal information. I find the redactions to be exempt under section 37(1) of the FOI Act.
Section 37(5) - The Public Interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner ,[2011] 1 I.R. 729, [2011] IESC 26) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
I cannot take into account any private interests that the applicant may have in the release of the withheld information. I am aware that he is dissatisfied with recruitment processes in which he took part. My decision in Case No 150442 dealt with whether there was any basis for arguing that the withheld third party information should be released to him and I see no need to repeat my comments, which are equally applicable in this case.
Furthermore, I have no remit to judge whether the email in record 1 is, as the applicant believes, malicious. Release of information under FOI must be seen as publication of that information to the world at large.
In the case at hand, there is a public interest in establishing that the PAS carried out its functions in dealing with the applicant, both generally and in relation to his job applications, in a way that was consistent with the principles of natural and constitutional justice. This public interest has been served to some extent by the material released to date. I am not persuaded, however, that this public interest would be served to any significant extent by the release of the withheld personal information of other individuals. In particular, in so far as record 1 was concerned, I note the PAS position that it was only forwarded to a particular recruitment mailbox and no further action taken on foot of it.
On the other hand, both the language of section 37 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 un-enumerated personal rights under the Constitution).
When considering section 37(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. Even if I accepted that release of the personal information concerned would significantly further the public interest in openness and accountability regarding the PAS recruitment processes, and/or its dealings with the applicant, I would find that this does not outweigh the public interest that the right to privacy of the third parties should be upheld.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the PAS' decision. I affirm its decision to refuse to grant access to the remaining or further records under sections 15(1)(a), 15(1)(d), 28(1)(a), 31(1)(a), 37 and 42(f) 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.
Elizabeth Dolan
Senior Investigator