Case 98017

Pre-commencement records on personnel file - consideration of section 6(6)(c) - whether the granting of access in one case would impose an excessive administrative burden having regard to other similar cases - section 10(1)(c).

Case Summary

Facts

The requester, a prison officer, sought access to his personnel file. The Department of Justice, Equality and Law Reform refused access to all records created prior to 21 April 1995. It claimed that none of these records was being used or was proposed to be used in a manner or for a purpose that affected, or would or might affect, adversely the interests of the requester and that by virtue of section 6(6)(c) there was no right of access. The Department also claimed that, having regard to the fact that there are some 2,500 prison officers, the granting of access in this case would lead to other requests thereby imposing an administrative burden above that which it was obliged to carry under the Act.

Decision

The Commissioner decided that, subject to certain restrictions, the applicant was entitled to full access to his personnel file. Having regard to the purposes for which the records had already been used and their potential use in the future, the Commissioner held that the section 6(6)(c) restriction did not apply in this case. The Commissioner did not accept the argument that the granting of access would impose an excessive administrative burden on the Department and held that section 10(1)(c) did not apply.

Date of Decision: 25.09.1998

Background:

On 25 April 1998 Mr AAC, a prison officer, made an application to the Governor of a prison to "examine my file (take a look through it) some time in the near future." On 7 May 1998 the Governor replied, referring to Mr AAC's application "under the Freedom of Information Act 1997", granting his request. The reply noted that no specific request for particular documentation or for a specific year had been requested and that "In accordance with the Act you may therefore have access to records on file dating from 21 April 1995."

Mr AAC wrote to the Governor on 15 May appealing the decision of 7 May, clarifying that his request was "to examine my file in its entirety from 1976 to the present day." The appeal was passed on to the Department of Justice, Equity and Law Reform. The Department wrote to Mr AAC on 25 May, citing Sections 2 and 6(6) of the Freedom of Information (FOI) Act and stating that his request ".....clearly relates to the granting of access to Personnel Records and under the terms of the Act such access may be granted to records created after 21 April 1995, unless a record created prior to that date adversely affects the interests of the requester." Clarification was also sought from Mr AAC as to whether he wished to inspect all records from 21 April 1995 or as to whether he wished to pursue the matter through the appeals procedure. He was also requested to advise the Department of his wishes in the matter.

On 23 June 1998, Mr AAC wrote to the Office of the Information Commissioner seeking a review of the "decisions" of both the Governor and the Department. Having considered the fact that no decision had been made on Mr AAC's appeal, I granted his application for a review on the basis that the failure to make such a decision did, in effect, represent an affirmation of the Governor's original decision in accordance with the provisions of Section 41(2) of the Act. Both Mr AAC and the Department made submissions in relation to my proposed review.

In his submission Mr AAC states "In my opinion I have the right to obtain access to personal information held on file regardless as to when the file was created." He also questioned "...what possibly can be on my file from 1976 to April 1995 (present day) that I cannot see?"

In its submission, the Department relies on two main arguments. The first of these is based on Section 6(6) of the FOI Act in relation to which the Department states "...no records are being used or are proposed to be used in a manner that affects, or will or may affect, adversely his interests." The second argument used relates to the administrative practicalities of granting the request in full. The presumption of access to records contained in Section 6(8) of the Act is acknowledged, but the Department also states that its policy in this regard is governed by "administrative practicalities". There are approximately 2,500 members of the Prison Service and the Department has stated that personnel files on each member are maintained in both his or her respective prison and in Prisons Personnel section in the Department. It is further stated that "FOI requests have to be co-ordinated between the prison and the Department - an exercise which consumes scarce staff resources". It is argued that the granting of access to Mr AAC's complete file will create a precedent and that "all other FOI requests will have to be treated in the same (manner?) thereby imposing an administrative burden far above what we are obliged to carry under the 1997 Act."

In reviewing this case, I have examined all of the records contained on the following files,

a) Department of Justice, Equality and Law Reform file relating to the requester (part 1 and 2) b) Prison's personnel file on Mr AAC from the prison, c) Department of Justice, Equality and Law Reform file relating to this FOI request.

The records concerned can be described broadly as follows :

1. Documents which Mr AAC himself signed,
2. Medical certificates submitted by Mr AAC,
3. Copies of documents which were sent to Mr AAC,
4. Internal prison or Departmental documents of a routine nature and which refer solely to the items listed at 1, 2 and 3 above,
5. Internal prison or Departmental documents of a routine nature, which in addition to referring to Mr AAC also refer to other named prison officers,
6. Internal Departmental documents of a non-routine nature relating to Mr AAC,
7. Internal prison or Departmental documents of a non-routine nature which not only refer to Mr AAC but also to other named prison officers,
8. Correspondence with bodies external to either the prison service or the Department which refer to Mr AAC.

Documents of the kind listed at 1, 2, 3, 4 and portions of those listed at 5 relate to matters of which Mr AAC is already aware. Documents of the kind listed at 6 and 8 contain comments which contributed to decisions of which Mr AAC was subsequently advised. Portions of the documents listed at 7 contain comments which contributed to those decisions and also to decisions concerning other named officers.

Submissions

Findings

For the limitation on access to personnel files contained in Section 6(6) to apply it is essential that the records are not currently being used or proposed to be used in the future in a manner or for a purpose that affects, or will or may affect adversely the interests of the individual. In accordance with Section 34(12), the burden of proof in this matter rests with the public body. Therefore, it is for the public body to satisfy me that the records are not being used in a manner or for a purpose that adversely affects the interests of the requester or that they do not propose to use the records in a manner or for a purpose that will or may have such effect.

In Mr AAC's case, the Department has stated simply that no records are being used or are proposed to be used in a manner that affects, or will or may affect, adversely the interests of Mr AAC. However, no evidence was offered in support of this contention.

An examination of the records on file reveals the purposes for which the records have been used in the past. These include the use of sick leave records in support of a decision to reduce sick leave entitlements. As this decision still affects Mr AAC it is difficult to see how it can be argued that the records associated with sick leave are not being used in a manner or for a purpose which adversely affects the interests of Mr AAC.

The records also contain material related to disciplinary matters. It is apparent from the file that in disciplinary matters it is the practice to take the individual's previous history into account. There is no reason to believe that if disciplinary matters were ever to arise in the future in Mr AAC's case, earlier records would not be taken into account. In other words these records are not "dead" records but are still considered relevant and may adversely affect Mr AAC's interests.

I have also considered the possible use to which these records might be put in considering Mr AAC for promotion in the future. No evidence has been offered that the records will not be looked at in considering his promotion prospects nor has any evidence been offered that promotion would be ruled out on other grounds such as age or lack of vacancies.

In the circumstances, I find that some of the records viz. those relating to sick leave are being used in a manner that adversely affects Mr AAC's interests. I find that as regards the rest of the records, and bearing in mind their possible uses in disciplinary matters or in assessing suitability for promotion, the Department has not shown that the records will not be used in a manner that affects, or will or may affect, adversely his interests.

The Department also objected to disclosure on the grounds of administrative burden. Although a public body may legitimately refuse a request for access on administrative grounds having regard to the voluminous or disruptive nature of a request, such an argument cannot be sustained in the case of a request for access to personnel records which, in the case of the Prison Service, are held in readily identifiable locations. Prison officers may already seek access to personnel records created after 21 April 1995. In addition, it is still open to the Department to rely on Section 6(6)(c) in appropriate cases. In the circumstances, I do not accept that the administrative burden will necessarily be as great as the Department fears. In any event, I do not accept that it is correct to refuse the request of one individual on the grounds that acceding to a particular request in one case will create a potential for requests in other cases. The argument that the granting of access to Mr AAC's complete file will impose an administrative burden above what the Department is obliged to carry under the FOI Act is therefore rejected.

Decision

Having carried out a full review of the decisions of the Department of Justice, Equality and Law Reform, and having considered the arguments put forward both by Mr AAC and the Department, I consider that Mr AAC is, subject to certain restrictions, entitled to full access to his personnel records. Therefore, I direct that Mr AAC be offered full access to the records contained in the four files listed above, subject only to those restrictions set out in the attached Schedule.

The phrase "References to prison officers other than Mr AAC to be deleted" is not intended to embrace the signatories of documents.

Information Commissioner

25 September 1998