Cinneadh
Mr. X and Department of Social Protection
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150814-K3N2R0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-150814-K3N2R0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to certain email communications between named members of staff and the Human Resources section in the Department
10 April 2025
In a request dated 15 March 2024, the applicant sought access to: “All email and skype communications from January 2020 to the date of his request relating to him or where his name is mentioned between the following:
• a named member of staff and the Disability Liaison Officer Service;
• a named member of staff and Human Resources in the Department;
• the Disability Liaison Officer Service and HR. In this regard, particularly any communications between named members of staff and HR Assignment and Competitions.”
The applicant subsequently amended his request and changed the date range from 1 April 2023 to the date of his request. He also confirmed that he was only interested in records concerning four named members of staff.
The Department stated that due to the scope of the requests and the number of records involved, the request was decided and issued in three parts. It issued three separate decisions on 16 May 2024, 10 June 2024 and 18 June 2024 each with a schedule of records. The Department identified 312 records, it granted access to 194 records, it part-granted 104 records and it refused access to 14 records. The Department part-granted or refused records on the basis that the information concerned is exempt under sections 29(1), 30(1)(b), 36(1)(b) or 37(1) of the FOI Act. The Department also refused access to certain records on the basis that they fall outside the scope or the date range of the request.
On 21 June 2024, the applicant applied for an internal review of the Department’s decision. On 26 July 2024, the applicant applied directly to this Office for a review of the Department’s decision on the basis that the Department had failed to issue its internal review decision within three weeks of his internal review request. On 2 August 2024, the Department issued its internal review decision to the applicant affirming its original decision. On 6 August 2024, this Office wrote to the applicant and accepted his application for a review of the Department’s decision.
On 27 August 2024, this Office issued a notice under section 23 of the FOI Act to the Secretary General of the Department requiring the Department to provide the applicant and this Office with a statement of reasons for its decision in relation to the applicant’s FOI request. The Investigator stated that while the Department’s decisions quoted the sections of the Act relied upon for refusing certain information, no reasons were given as to how those exemptions apply to the information that was refused. The Investigator stated that the Department’s decisions make no reference to the public interest tests provided for under the sections of the Act relied upon by the Department. The Investigator also stated that decisions should show a connection, supported by a chain of reasoning, between the decision maker’s findings and the decision, having regard to the information that is refused.
On 24 September 2024, the Department provided the applicant and this Office with its statement of reasons. In communications with this Office, the applicant stated that he is interested in information which was withheld concerning the filling of an Executive Officer Post. The applicant confirmed that he was agreeable to limiting the scope of this review to the Department’s decision to refuse access to ten records that are described on the schedule of records as emails regarding EO Post and emails regarding legal correspondence received. The records at issue are: 61, 78, 79, 80, 81, 83, 85, 170, 171, 178. The Department refused access to these records under sections 29(1) or 30(1)(b) of the Act. Following these communications with the applicant, this Office wrote to the Department and provided it with an opportunity to provide focused submissions in relation to its decision to refuse access to these ten records under section 29(1) or 30(1)(b) of the Act. The Department provided focused submissions in support of its decision to refuse access to these records.
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 to date. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
As outlined above, the applicant amended the date range for his request to records created between 1 April 2023 and the date of his request. Record 61 is dated 10 June 2022. As this record falls outside the date range of the applicant’s request as amended, I will exclude it from the scope of this review.
The Department has not relied on section 37 of the Act in refusing access to information contained in the records at issue, however it has outlined in red the names of certain individuals where they are contained in the records. The applicant has confirmed to this Office that he is agreeable to removing these names from the scope of this review.
In light of the above, the scope of this review is confined to the question of whether the Department was justified in refusing access to records 78, 79, 80, 81, 83, 85, 170, 171 and 178 under sections 29(1) or 30(1)(b) of the FOI Act
Before I address the substantive matters arising in this case, I wish to make a number of preliminary comments. Firstly, sections 13(1) and 21(4) of the FOI Act require FOI bodies to issue original and internal review decisions within four and three weeks, respectively, after receipt of the request or application for review. It is incumbent on me to emphasise to the Department that the requirement to issue decisions on FOI requests within the periods set out in the FOI Act is clear and unequivocal. The Department should take steps to ensure that its decisions on FOI requests issue within the relevant statutory timeframes.
Secondly, 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.
Thirdly, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records and the Department's submission in my analysis and reasoning is limited.
The Department relied on section 30(1)(b) of the FOI Act in refusing access to records 78, 79, 80, 81, 83, 85 and it relied on section 29(1) and section 30(1)(b) in refusing access to records 170, 171 and 178. As the Department has relied on section 30(1)(b) in refusing access to all of the records at issue, it seems to me that it is the appropriate to consider that exemption provision first.
Section 30(1)(b) of the Act provides that an FOI body may refuse to grant a request if it considers that access to the record concerned 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(s). 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. Furthermore, an FOI body seeking to rely on section 30(1)(b) should explain how, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged.
When invoking section 30(1)(b), 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 Department states that section 30 was applied to 78, 79, 80, 81, 83, 85, 170, 171 and 178. It states that the records concern a series of sensitive internal discussions within the Department focusing on the management of staff and vacancies. It states that the conversations involve management, HR, and mention DSP’s Legal Unit, highlighting the delicate nature of the staffing situations being addressed. The Department says several records contain candid exchanges between managers about specific staffing issues and management challenges. It says the records also touch upon office management strategies in relation to these staffing concerns. The Department states that the recurring nature of these topics across a number of records show an ongoing, complex situation involving staff management that requires careful handling and decision.
The Department states that the release of these records would have a significant, adverse effect on its ability to perform its management functions, particularly those related to staffing and vacancy management. It says this adverse effect is likely to be significant for several reasons. It says the release of sensitive internal discussions about staffing matters would erode trust between HR/management and staff. It states that this loss of trust would significantly impair the Department’s ability to effectively manage its workforce and address staffing challenges. The Department states that managers may become reluctant to engage in open and frank discussions about staffing issues if they believe their communications could be made public. It states that this reluctance could lead to less effective decision-making processes and poorer outcomes in staff management.
The applicant says in 2022 he was advised that he was a successful in a promotion competition and that he would be placed on a panel and offered a promotion once a suitable role came up. He says in 2023 a position opened up which he was a suitable candidate for given his additional medical needs. The applicant says he was not offered this role, it was offered to another staff member and that staff members role became vacant. He says he was offered this role which was not suitable as the role requires a candidate who can drive and it is a customer facing role. The applicant says he is unable to drive. The applicant says he raised this with management who advised him that they would send him to the CMO to see what accommodations could be given, he says there were no reasonable accommodations that would aid him in fulfilling this role. He says after these events he left the Department and is working for another employer. The applicant says he has no intention of working for the Department again and he cannot see how releasing these records could reasonably be expected to have a significant adverse effect on the performance by the Department of any of its functions relating to management (including industrial relations or management of its staff).
While noting section 25(3) of the Act, I believe I can provide a high-level overview of the records at issue. Records 78, 79, 80, 81, 83, 85 contain emails between HR and management in relation to filling a vacancy that had arisen. The parties discuss how this vacancy should be filled and moving an existing staff member into this vacant post. That internal move gave rise to a vacancy and there is discussion in relation to the requirements for candidates filling both roles and whether candidates were required to have a car. The applicant wrote to the Department through his solicitor to enquire why he was not offered the role he says he was suitable for. Records 170, 171 and 178 concern the Department’s reply to this correspondence and include the factual sequence of events in relation to filling the role from the perspective of the relevant manager.
The records concern the Department’s performance of its functions in relation to managing vacancies. I accept, therefore, that the records relate to the Department’s performance of its management function for the purposes of section 30(1)(b). I also accept that if the harms identified by the Department, as described above were to materialise, this would constitute a significant adverse effect on the performance by the Department of that management function. Accordingly, the question I must consider is whether the release of the records in question could reasonably be expected to have such a significant adverse effect.
The Department’s submissions centre on concerns about decreasing trust between HR, management and staff, inhibiting candid discussions and revealing sensitive information about the Department’s plans. I am not satisfied that the harms which the Department argued could flow from the release of the records could reasonably be expected. It seems to me that the communications at issue relate to relatively standard management processes when filling vacant roles. The records reflect the fact that a vacancy arose, there was discussion about filling the vacancy, the vacancy was filled by moving an existing staff member and this in turn created another vacancy and there is discussion about whether a car was required for the roles. The applicant is aware that there was a vacancy, that the vacancy was filled by moving a staff member and the issue of whether there was a requirement for a car. While the Department states that the records relate to the handling of delicate, confidential, critical, and exceptional circumstances, it seems to me that the information in the records is not particularly delicate, critical or exceptional.
The applicant was unhappy with how the vacancy was filled and he wrote to the Department through his solicitor about how the vacancy was filled. At this point the Department’s legal unit were informed about the issue. Records 171, 172 and 178 concern the Department’s reply to this correspondence. The Department has not contended that any of these records contain any legally privileged information. I note that Record 170 was released to the applicant as record 104 (page 248/249). Record 171 contains the factual sequence of events in relation to filling the role from the perspective of the relevant manager. This record contains many of the details from records 79 to 85. Record 178 was attached to record 171 and it contains copies of emails which are contained in records 79-85. The Department has said release of the records could deter managers from engaging in candid discussions about vacancy management issues. The Commissioner has commented in a number of decisions that there is a general onus on public servants to co-operate in regard to matters relating to their employment. I do not accept that release of the communications at issue could reasonably be expected to undermine staff co-operation, compliance with the requirements of their role, or engagement with colleagues about matters arising.
In sum, I am not satisfied that release of these records could reasonably be expected to have a significant, adverse effect on the performance by the Department of any of its functions relating to management. I find that the Department was not justified in relying on section 30(1)(b) to refuse access to these records.
The Department relied on section 29(1) in refusing access to records 170, 171 and 178. Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest.
These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest.
In order for section 29(1) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to those processes.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
In its submissions, the Department says the deliberative processes to which the information in the records relates includes internal decision-making processes regarding staff movements and role assignments within the Department, including how to manage vacancies and reassignments without disrupting business operations. It says these processes involve considerations and consultations between managers about potential staff transfers and organisational changes, particularly balancing staff development opportunities with the Department's operational needs. It says the records also reflect the process of weighing options for staff reassignments to ensure continuity in critical teams, including discussions about which roles could be left vacant and how to prioritise resources. It said there is a deliberative process in determining how to respond to correspondence received from a solicitor.
Having considered the above submissions and the content of the records in question, I am willing to accept that the matters referenced therein relate to a deliberative process. I therefore find that the records meet the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the records meet the requirements of section 29(1)(b) of the FOI Act.
The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, that is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The Department says although the deliberative process that these records relate to has concluded, releasing the records could have a detrimental effect on future deliberations. It says staff may become reluctant to engage in frank discussions or document their thought processes if they believe their deliberations might be made public, even after decisions are made. It says this could lead to less effective decision making in the long term. It says these records contain information about individual staff members’ situations. It says even after the conclusion of the processes, releasing this information could potentially harm working relationships within the Department. The Department says the public interest is better served by allowing public bodies to conduct their internal deliberations and respond to legal correspondence without the expectation of future disclosure. It said this ensures that decisions are made based on merit and in the best interests of the organisation and the public it serves, rather than being influenced by concerns about potential scrutiny.
The applicant says he wrote to a senior manager in the Department in relation to how this vacancy was filled. He says he was advised by an Assistant Secretary in the Department that she was satisfied that HR staff acted at all times in a fair and reasonable manner. The applicant says, that being the case, the release of these documents, with other staff member’s names redacted as appropriate, will only provide confirmation that the HR staff acted reasonably. He says such transparency will only confirm how well the Department conducted itself in this matter. He states that this will strengthen public confidence in public body decision making processes, particularly around the sensitive issues of decisions related to promotions for staff members with disabilities.
I have carefully considered the records in question and the Department’s submissions. As noted above, record 170 has already been released to the applicant as record 104 (page 248/249). I am not satisfied therefore that release of this record would be contrary to the public interest. Record 171 contain the factual sequence of events in relation to filling the role from the perspective of the relevant manager and record 178 contains an attachment to this record which contains earlier emails which relate to this sequence of events.
The Department’s submissions in respect of the public interest centre on the anticipated detrimental effect that release would have on staff’s willingness to engage in frank discussions and harm to working relationships.
The Commissioner has previously indicated that, in exceptional cases, an argument regarding frankness and candour might be sustainable in the context of the public interest test at section 29(1)(b). In this particular case, the records contain deliberations on how to facilitate staff development while maintaining efficiency across different functional areas, they include the evaluation of various staffing arrangements to meet organisational needs, including discussions about job descriptions, operational constraints, and location-specific requirements. It seems to me, that the records comprise relatively routine managerial correspondence or concern matters which managers would be expected to deal with as part of their functions and responsibilities. I accept that public bodies and their staff are often required to evaluate and assess options, and that robust internal dialogue facilitates this work, however I do not believe that the release of these particular records would undermine these functions or would harm working relationships between staff members.
In sum, while the Department has outlined harms which it believes may occur, it has not shown to my satisfaction how granting access to the information in question could lead to such harms and thus be contrary to the public interest, nor is this apparent to me following consideration of the records. Accordingly, I find that the Department was not justified in refusing access to the records on the basis of section 29(1) of the FOI Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Department’s decision. I find that the Department was not justified in refusing access to records 78, 79, 80, 81, 83, 85, 170, 171 and 178 on the basis of sections 29(1) or 30(1)(b) of the FOI Act and I direct the release of these records to the applicant.
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.
Jim Stokes
Investigator