Decision
Mr Y and Cope Foundation
From Office of the Information Commissioner (OIC)
Case number: OIC-150074-C6Q5Q8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-150074-C6Q5Q8
Published on
Whether the Foundation was justified in redacting, under section 37(1) of the FOI Act, certain information from a record pertaining to the applicant’s role in the Foundation and in refusing parts of his request under section 15(1)(a)
4 April 2025
In a request dated 23 November 2023, the applicant submitted a nine-part request to the Foundation, seeking access to records from during his employment in a specified role as follows:
1. All his written correspondence with a named CEO,
2. All his written correspondence with a second named CEO,
3. All his written correspondence with a named Head of Department,
4. All his written correspondence with a named Head of Personnel,
5. All written correspondence from the second named CEO to the staff of a specified Vocational Training Centre,
6. All written correspondence between a named staff member and the visiting "Works Committee" to the Vocational Training Centre,
7. All written correspondence between a second named member and the Personnel Department, in respect of vocational training issues,
8. Minutes of the meeting held between the second named CEO, the Head of Department and the applicant prior to the applicant finishing in his role, and
9. All records/correspondence in relation to Cope Foundation formal hearings with the Labour Court/Labour Relations Commission in respect of The Vocational Training Centre staff relations, subsequent to the applicant finishing in his role, including submissions, conclusions, findings and recommendations of the Court.
In a decision dated 16 January 2024, the Foundation part-granted the request. Among other things, it refused access to a record coming within the scope of part 4 of the request (referred to by the Foundation as record 4(14)) under section 37 of the FOI Act. It refused access to any records coming within parts 8 and 9 under section 15(1)(a) of the Act on the ground that no relevant records exist or could be found.
On 30 January 2024, the applicant applied for an internal review of the decision. On 21 February 2024, the Foundation varied the original decision and granted partial access to record 4(14) with redactions under section 37 of the Act.
On 9 July 2024, the applicant applied to this Office for a review of the Foundation’s decision to redact certain information from record 4(14) and to refuse parts 8 and 9 of his request under section 15(1)(a) of the Act.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the applicant’s comments in his application for review and to the submissions made by both parties during the review. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Foundation was justified in withholding certain information from record 4(14) under section 37(1) of the Act, and in refusing parts 8 and 9 of the applicant’s request under section 15(1)(a).
Under section 25(3) of the Act, I am required to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record at issue is limited. It also means that I cannot provide full details of the submissions made by the Foundation outlining why it considers the information at issue to be exempt.
I also wish to note 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 with respect to actions taken by FOI bodies. As such, while it is clear that the applicant is dissatisfied with the manner in which the Foundation dealt with the substantive issues underlying his request, this Office has no role in examining the appropriateness of those actions or any decisions taken on foot of same.
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).
Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that either (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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 details 14 specific categories of information that is personal without prejudice to the generality of the definitions provided for in (a) and (b) above, and includes the views or opinions of another person about the individual.
Record 4(14) is headed “Statement in reference to staff meetings in vocational training services for submission to staff meeting minutes – [date]”. The applicant is recorded in the record as its author. In its submissions to this Office, the Foundation said the record is a statement that was read out by the applicant at a specified meeting. In essence, the redacted parts of the record contain details of the applicant’s perception of the attitudes and behaviour of other attendees at such meetings and what he considers to be examples of such attitudes and behaviours. The Foundation said that while the applicant does not specifically refer to members of staff by name, he gives his views/opinions on the behaviour and competence of certain former staff members who were present at the meeting. It said that while it is accepted that the applicant does not name individuals, it was clear to those present to whom he was referring, including by reference to the statements made by those staff members at a previous meeting. In his correspondence with the Foundation, the applicant said it was his recollection that no specific names in relation to other parties were stated or mentioned in the document and that consequently, refusal under section 37(1) should not apply.
It is important to note that personal information is information about an identifiable individual. Thus, where information may not on the face of it be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record yet may still be identifiable. I am satisfied that the redacted information comprises the applicant’s views and opinions about other identifiable individuals. I also accept that the information relates to the applicant, in so far as it contains his opinions and also details of his perception of the attitudes of other meeting attendees to him. I am satisfied that such information can reasonably be described as joint personal information relating to the applicant and other identifiable individuals. I find, therefore, that section 37(1) applies to all of the redacted information. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37, which I will consider below.
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) arise in this case. That is to say, (a) that the information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I find that section 37(2) does not apply to the withheld information.
Section 37(5) provides that a request which would otherwise be refused under section 37(1) may be granted where, on balance, (a) 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 person to whom the information relates. I am satisfied that section 37(5)(b) does not apply in this case.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) provides that in deciding whether to grant or refuse an FOI request, any reason that the applicant 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 when records are released under the FOI Act they are considered, in effect, to be released to the world at large, as the Act places no constraints on the uses to which a released record under the Act can be put. With certain limited exceptions provided for under the Act, 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 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 Act which provides that in performing any functions under the 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 a case involving commercial sensitivity and confidentiality, I consider them to be relevant to the consideration of public interest tests generally.
The applicant has not identified any public interest in favour of release of the record that might outweigh the privacy rights of the third parties concerned. Indeed, his argument is simply that the release of the record would not involve the disclosure of third party personal information, an argument that I do not accept.
In its submissions to this Office, the Foundation said the public interest factors it considered in favour of release include the public interest in the applicant exercising rights of access under the FOI Act and the public interest in the applicant being given access to documents which contain personal information about him. It said it was unable to identify any strong public interest in releasing the personal information of its former staff members. On the other hand, it argued that there is a risk of significant harm to the public interest that exists in maintaining the privacy of individuals should the information be released. It said it considers that, given the statements made by the applicant at the relevant meeting, it has a duty of confidence to those former staff members to keep the details of the statements made at the meeting private.
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 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 have had regard to the fact that the record at issue was authored by the applicant, the fact remains that (i) its release would, in my view, disclose third party personal information and (ii) its release must be regarded as being effectively or at least potentially to the world at large. As such, I must be in a position to identify a specific public interest in favour of the release of the record that would, on balance, outweigh the privacy rights of the individuals concerned. I cannot see how the release of the record, potentially to the world at large, would serve the public interest. I find therefore that section 37(5)(a) does not apply.
In conclusion, therefore, I find that the Foundation was justified in redacting, under section 37(1) of the Act, the information at issue from record 4(14).
The Foundation refused parts 8 and 9 of the applicant’s request under section 15(1)(a) of the FOI Act. That section provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the FOI 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 their decision. I must also assess the adequacy of the searches conducted by the FOI body in looking for records pertaining to the applicant’s request. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
Part 8 of the request was for minutes of a meeting held between then CEO, the Head of Department, and the applicant prior to the applicant finishing in his role. The Foundation said the applicant did not specify a date for the record sought. It said it found correspondence indicating that the applicant finished the specified role and took up a secondment in September 2004. It said it was unable to locate a copy of the Records Management Policy in place in 2004 and that neither its current Records Management Policy (2025), nor the oldest Records Management Policy (2007) on file, requires it to make or retain minutes of all meetings. It said that where minutes are kept, they are retained for 10 years. It added, however, that it was custom and practice to keep minutes/notes of important meetings with employees and on this basis searches were conducted.
The Foundation outlined details of searches that took place of the applicant’s historical employee file. It said it is customary to hold minutes of meetings relating to employees on the relevant employee’s file. It said that while some meeting notes were found and released to the applicant in relation to part 4 of his request, no meeting notes were located specific to part 8. It said it also conducted searches of other HR files which contained records relating to processes such as industrial relations, complaints and investigations. These searches involved physical searches of box files and were conducted by staff members from the HR Department. That search resulted in two files being located that were named “Labour Court Hearing” and “Work Place Relations Commission” but those files relate to individuals other than the applicant. It said searches were also conducted of CEO files and no records relevant to part 8 were located.
The Foundation further said that the applicant relayed to them that in 2004 an FOI request was made by another individual and he queried if that FOI request would include records relevant to him. It said physical searches were conducted of historical files and that no records relevant to part 8 were found. It added that the applicant communicated that a record provided to him at internal review stage refers to the meeting referenced in part 8 of his request. According to the Foundation, that record is a confirmation of the applicant’s secondment to another position within the organisation and while that record does refer to “recent meetings” the head of HR who signed that record has confirmed that she has no recollection of the meeting referred to in part 8.
Part 9 of the request was a request for records concerning formal hearings with the Labour Court/Labour Relations Commission in respect of The Vocational Training Centre staff relations, subsequent to the applicant finishing in his role. In its submissions, the Foundation said that records relating to the Labour Court or the Labour Relations Commission would be retained for a period of 10 years from the date of the completion of the action. It submitted that the only date reference point from the applicant was some date subsequent to 2004. It said that, given that such cases would have significant implications for the organisation, they would expect that such records may be retained for longer and that HR staff would have knowledge of any such action. It said neither current or former HR staff have any knowledge of such an action. It said physical searches were conducted of historical files and no relevant records were located.
The Foundation added that it contacted the Work Place Relations Commission (WRC) who advised that the applicant should make direct contact with that organisation and that it informed the applicant of this in January 2024. It said searches were also conducted on the WRC online search facility using the key words “Cope Foundation” for the time period 2004 +/- 5 years. It said two cases were found which were not relevant to part 9 of the request. It said it concluded that no hearing took place in the Labour Court/Labour Relation Commission and therefore the records sought do not exist.
This Office’s Investigator informed the applicant of the details of the Foundation’s submissions during the review. In response, he expressed concern at the Foundation’s failure to locate the minutes of the meeting sought at part 8 of his request, given that one of the records released referenced the meeting. In relation to part 9, he said a member of the Vocational Training Centre staff who was instrumental along with five other members of that particular group of staff in taking an action against the Foundation previously made a document available to him, in which the Foundation was “clearly stated and identified in their submission to the hearing”. He also queried whether this action by staff at the time was processed informally within the Foundation.
It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. It is clearly envisaged by the Act that records may exist but still may not be found after all reasonable steps have been taken to ascertain their whereabouts. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records. This Office does not expect 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 an FOI body's explanation of why a record does not exist. The test in section 15(1)(a) is whether searches have been reasonable. While the applicant is clearly unhappy that the Foundation has not been able to locate the records he believes should exist, he has provided no evidence to this Office to persuade me that the Foundation has not taken all reasonable steps to locate the records sought or to suggest that further specific searches might be warranted. Having regard to the details provided by the Foundation of the searches undertaken in an effort to locate the records sought, I am satisfied that it has taken all reasonable steps to ascertain their whereabouts. Accordingly, I find that the Foundation was justified in refusing, under section 15(1)(a) of the Act, parts 8 and 9 of the applicant’s request.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Foundation’s decision to withhold certain parts of record 4(14) under section 37(1) of the FOI Act and to refuse, under 15(1)(a), parts 8 and 9 of the request.
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.
Stephen Rafferty
Senior Investigator