Case 98021

Pre-commencement records on personnel file - retired army officer - definition of personal information - access to performance appraisal reports given in confidence - consideration of sections 6(5)(b) and 6(6)(b).

Case Summary

Facts

The applicant, a retired army officer, sought access to all documents on his personnel file including confidential reports from 1 January 1972. The Defence Forces refused to release any record created prior to 21 April 1995 and claimed exemption under section 6(6)(b). It offered access to all personal information on the file after that date with the exception of performance appraisal reports completed by superior officers. In refusing access to the appraisal reports, the Defence Forces claimed exemption under section 6(5)(b) and argued that the information contained in the reports did not constitute personal information as it was prepared in confidence and therefore was not known to the subject officer.

Decision

The Commissioner decided that the applicant was, subject to certain minor restrictions, entitled to full access to the records he sought. The three year restriction to access on personnel records in section 6(6)(b) applies to individuals who are currently members of staff of public bodies. As the applicant was retired, the Commissioner rejected the section 6(6)(b) claim. As the definition of personal information includes the "views or opinions of another person about the individual", the argument that the information contained in the appraisal reports did not constitute personal information was also rejected.

Date of Decision: 25.09.1998

DECISION

Background:

On 25 April 1998, Lt Col AAD made an application, under the Freedom of Information (FOI) Act, 1997, to the Defence Forces seeking to "view all documents in my personal file including confidential reports from 1 Jan 1972".

The Office of the Deputy Adjutant General replied to Lt Col AAD stating "It has been decided that your request does not come within the scope of the FOI Act, 1997, by virtue of Section 6(4) of the Act, except in relation to "personal information" as provided for in the Act. Accordingly, it has also been decided that you may have access to all "personal information" contained in your file for the period in question less any performance appraisal reports." Lt Col AAD wrote to the Office of the Adjutant General on 2 June seeking an internal review of this decision. The Office of the Adjutant General replied on 22 June stating that the matter had been reviewed and that the original decision had been upheld. The letter also stated "You may have access to all personal information in the official file for the period requested. You will not have access to the performance appraisal reports (AF 451s)." Lt Col AAD applied to this Office on 30 June for a review of that decision and, having considered the matter, I decided to grant his application for review.

In reviewing this case, I have examined all of the records on five files supplied to me by the Defence Forces. These files are marked as follows :

1. File number A from the Adjutant-General's branch, Officers' Records Section
2. File number B marked Officer's personal file
3. File number C marked Personal File, Lt Col AAD
4. File marked Lt Col AAD, OC General training depot
5. File marked Lt Col AAD, containing records relating to the Lt Col's FOI application.

An examination of the file referred to at 1 above (Adjutant General's Branch) reveals a sub folder containing a total of 198 double sided AF 451 documents together with a further 9 single sided documents relating to performance on various army courses, all referring solely to Lt Col AAD. Each of these documents, which were created at various times up to his retirement contain the comments of superior officers in relation to issues such as Lt Col AAD's military performance and suitability for promotion.

Submissions

In a submission dated 6 July, Lt Col AAD stated that much of the information on offer related solely to information of which he was already aware and that he continued to seek to examine "amongst other records confidential reports completed by my Commanding Officer." In referring to his respect for the integrity of the officers who made the FOI decision in his case, Lt Col AAD stated in a further submission dated 20 July, "...there may be an inaccurate report on file which they may be unaware of and are perhaps unwittingly covering up an injustice." He went on to state "I believe as a citizen of Ireland, that I am entitled to examine, and to copy all documents including confidential reports where necessary, as outlined in my initial request to the Defence Forces."

In a submission dated 21 July the Defence Forces explained that all officers are subject to performance evaluations and assessments of competence and ability, normally on an annual basis, throughout their period of service. The Army Form 451 (AF 451) on which such evaluations are recorded were in the past compiled on the basis that the subject officer was not intended to be made aware of the contents. An officer was however entitled to make a submission where an "Unsatisfactory" rating had been awarded or adverse comment recorded. In defence of its refusal to grant access to the AF 451s the Defence Forces cite Section 6(5)(b) of the FOI Act which refers to records created before the commencement of the Act. Also cited is Section 6(6) which places a limitation on access to personnel records created before 21 April 1995. The case is also made that as Lt Col AAD is retired there is nothing on his file which will or may adversely affect his interests. It is also argued that the granting of access has, having regard to the overall number of such files, a potential for the disruption of administration.

In defence of the argument that the information contained in the performance appraisal reports does not constitute personal information as defined in the FOI Act the following points were made by the Defence Forces in a further submission dated 11 August:

a) by virtue of Defence Forces regulations the information was not and could not have been known to him,

b) the information was held on the basis that Lt Col AAD was not privy to how it was held, nor to any understanding on which it was held, nor to its confidentiality since that confidentiality embraced only the person who compiled the report and the superior officers to whom the report was submitted,

c) the following statement is shown below the title of the Annual Confidential Reports "This is a privileged and classified document. It will NOT be made available to any person whose appointment or duty does NOT require that he/she have access to it. An officer whose appointment or duty requires him/her to peruse or compile portion(s) of the report, shall treat the contents as confidential and for his/her sole information."

The Defence Forces advised that over the period of Lt Col AAD's service, AF 451s were revised in 1959, 1973, 1981, 1982, 1986 and 1988. It is stated - "The 1981 revision provided for the subject officer signing the report of the reporting officer to the effect that he had been advised with regard to the areas in which he could improve upon his present standards. The 1988 revision provided for the subject officer signing the report of the reporting officer to the effect that he had been advised of any adverse comment in an otherwise satisfactory report. It should be noted that there were no provisions for the subject officer being informed of any adverse comments by a reviewing officer or superior reporting officer."

In response to a query as to what harm would arise from the disclosure of the information requested, the Defence Forces argue that disclosure without the consent of the author would "essentially amount to a breach of trust and confidence." It is also argued that the release of AF 451 information has the potential for causing harm to the mental health of applicants.

Findings

The decision of the Adjutant General's office on internal review indicates that the Defence Forces are willing to grant Lt Col AAD access to every record contained on the files which I have examined, dating from 1 January 1972 to the date of his retirement, with the exception of the AF 451s. In refusing to grant access to the AF 451s the Defence Forces have claimed the three year exemption on personnel files outlined in Section 6(6)(b) of the Act. This limitation may only apply, however, to an individual who is a member the staff of a public body. As Lt Col AAD is retired from the Defence Forces and has confirmed that he is not currently a member of staff of a public body, I must reject this argument.

The definition of personal information in the FOI Act includes "the views or opinions of another person about the individual". The argument that the information contained in Lt Col AAD's performance appraisal reports does not constitute personal information is therefore also rejected.

The Defence Forces have argued that the granting of access to Lt Col AAD's AF 451s will breach a duty of trust and confidence owed to their authors. The FOI Act affords no protection to appraisal comments made in the past and its protections in relation to information given in confidence (see Section 26 of the Act) are qualified in that the duty of confidence must be owed to a person who is not an employee of a public body. As the comments were at all times made by serving officers, I find that that I must also reject the argument that AF 451s are protected on the basis that disclosure would amount to a breach of trust and confidence.

It was argued in general terms that releasing records of this kind could be harmful to the requester. No evidence was offered in support of this proposition and, in particular, it was not shown that Lt Col AAD would be affected in this way. In making this argument, the Defence Forces may have had in mind the exemption in Section 28(3) of the Act. However, that exemption relates to records of a medical or psychiatric nature or social work records and is of no relevance to the present request.

Arguments in relation to disruption in administration likely to be caused by the granting of access, although understandable, are unsustainable. It is not acceptable to refuse the request of one individual on the grounds that acceding to a particular type of request in one case will create a potential for further requests. This argument is therefore rejected.

Decision

Having carried out a full review of the decision of the Defence Forces, and having considered the arguments put forward both by the Defence Forces and Lt Col AAD, I consider that Lt Col AAD is, subject to certain minor restrictions, entitled to full access to the records he has sought. Therefore, I direct that Lt Col AAD be offered full access, subject only to the restrictions set out in the attached schedule, to all records contained on the files which I have examined, including his AF 451s, between 1 January 1972 and the date of his retirement, in accordance with his original request.

Information Commissioner

25 September 1998