Case 98026

Access to personnel records - whether the interests of the requester adversely affected - application of section 6(6)(c).

Case Summary

Facts

The requester sought access to his personnel file. The Office of the Revenue Commissioners granted access to all records created after 21 April 1995 in accordance with section 6(6)(a) and 6(6)(b) but refused access to certain earlier records on the basis that they were not being used in a manner or for a purpose that affected, or would or might, affect adversely the requester's interests. The records concerned included annual assessments of the requester's suitability for promotion prepared by his superiors.

Decision

The Commissioner decided that in order to establish whether the records sought were being used or proposed to be used in a manner or for a purpose which adversely affected the interests of the individual, it was necessary to establish what those interests might be. The Commissioner found that some of the assessment records could be taken into account in considering the requester's suitability for promotion in the future. He found that there was no evidence to indicate that the earlier assessments were not being taken into account. He decided that the relevant records should be released.

Date of Decision: 25.09.1998

DECISION

Background:

Mr AAE applied to the Office of the Revenue Commissioners (ORC) on 27 April 1998 seeking access under the Freedom of Information Act, 1997 to all papers relating to his employment with them from 198X. The ORC decided to release all personnel records from the period from 21 April 1995 to date on 26 May 1998 but refused access to earlier records as "The Freedom of Information Act does not give the right of access to a record created prior to 21 April 1995, where it is not being used, or proposed to be used in a manner or for a purpose that affects, or will, or may affect, adversely the interests of the person, Sections 6(6)(a) & (b)". Mr AAE appealed this decision on 28 May, 1998 and sought a review on the grounds that "there is a great deal of material, which adversely affects my interests, in the pre-21 April 1995 era".

In considering the internal review, the ORC contacted Mr AAE and advised him that they would not have the decision made within the timescale under the Act. It was apparently agreed that the ORC would have a further two weeks to make a decision in this matter. In the meantime Mr AAE, having waited the additional two weeks, had not heard from the ORC, and sought a review by the Information Commissioner on the grounds that he had received a refusal by default as the ORC had not made a decision within the statutory time limits under the Act.

The ORC, by letter of 3 July 1998 advised Mr AAE of the decision of the internal reviewer to vary the original decision. The ORC decided that "in order to ensure that you are fully aware of any material on your personnel file which is being used in a manner which adversely affects your interests" to release all relevant documentation from 5 February 1990 in addition to that which had been released by the original decision-maker. Mr AAE was advised that the records would be sent to him within two weeks. Having established that an internal review decision had been made, my Office contacted Mr AAE to advise him of this and to ascertain his position with regard to his appeal to the Information Commissioner. Mr AAE said that he wished my Office to proceed with the review on the basis that the delay by the ORC was deemed to be a refusal of his request.

Having granted Mr AAE's application for review, I sought submissions from the relevant parties.

Mr AAE argued in his submission that there were a number of incidents prior to 1995, the records of which he considered were adversely affecting his career. He detailed a number of incidents and identified specific records to which he required access.

The ORC submitted that an incident occurred in 199X which gave rise to the position that satisfactory performance needed to be sustained for a much longer period before Mr AAE could be considered for promotion. In order to give the context for this decision, all relevant records from 5 February 1990 were released to Mr AAE.

Mr AAE returned to the ORC the photocopies of the records released on internal review.

Mr AAE is seeking access to his personnel records from 198X. Section 6(6) of the Freedom of Information Act restricts the right of access to personnel records and provides as follows:-

6) Subsection (5) [concerning retrospective access] shall not be construed as applying, in relation to an individual who is a member of the staff of a public body, the right of access to a record held by a public body that

(a) is a personnel record, that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member,

(b) was created more than 3 years before the commencement of this Act, and

(c) is not being used or proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely the interests of the person.

The records in question relate to the period prior to the commencement date of 21 April 1998 and were created more than three years before this. These records are records relating to Mr AAE in his employment by the ORC. Thus these records meet the requirements of Section 6(6)(a) & (b). However, access to these records can only be refused if they are not being used or proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely the interests of the person.

In deciding whether the records which Mr AAE seeks are being used or are proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely his interests, it is first necessary to establish what those interests might be. It is clear from the facts of the case that the main, if not the only such interest, is his promotion prospects. It is noted that no argument has been made that promotion is not possible for other reasons, for example, lack of suitable vacancies. Indeed, the January 1997 performance report referred to below, in referring to the desirability of sustaining performance in the future, suggests by inference that but for the existence of adverse reports, Mr AAE would be promoted. The question to be decided therefore is whether any of the records sought are currently being used or may be used in the future in assessing Mr AAE's suitability for promotion.

The records can be broadly categorised as follows:

1. Those records which relate to recorded absences on annual, sick or special leave and, while personnel records within the definition of Section 6(6)(a), are recorded as a matter of routine administration. I consider that none of these records adversely affects the interests of Mr AAE.
2. Those records which relate to allegations made against Mr AAE in 198X and the investigations carried out by senior officials of the ORC pursuant to the allegations. These allegations arose out of his position as an officer with the ORC and could not have been made against him unless he held this position. The investigations were carried out at the behest of senior management of the ORC. Therefore these are records relating wholly or mainly to his employment and are personnel records as defined by Section 6(6)(a). The outcome of these investigations was that the allegations were found to be entirely unsubstantiated and without foundation and the incident was regarded as closed without reflection on Mr AAE. This was conveyed to Mr AAE by the Chief Inspector of Taxes. In view of the explicit assurances given to Mr AAE on this point and the absence of any evidence to the contrary, I consider that this matter and the records pertaining thereto cannot be considered to be adversely affecting Mr AAE's interests.
3. Those records, created in 1991, which originated in correspondence on behalf of Mr AAE by his solicitor seeking access to the letters in which the allegations were made against Mr AAE. This correspondence relates solely to that between the ORC and the solicitor regarding access to these documents and cannot be considered to be adversely affecting Mr AAE's interests in his employment.
4. Those records which relate wholly or mainly to the competence or ability of Mr AAE in his capacity as a member of staff of the ORC. These comprise annual assessments on form C/C1, reviews for promotional purposes and memos in this connection by Mr AAE's supervisors. The ORC has agreed to release these records insofar as they were created post 5 February 1990. They assert that the records created prior to that date are not being or proposed to be used in a manner or for a purpose which affects, or will or may affect, adversely the interests of Mr AAE. There is, however, no record on Mr AAE's personnel file confirming that these records are no longer to be taken into account in relation to Mr AAE's suitability for promotion.

Having examined the records created before 5 February 1990, I am of the view that some of these records may be taken into account in the future in considering Mr AAE's suitability for promotion. In coming to this view I have taken the following matters into account. At one stage in his career (1982), Mr AAE was considered suitable for promotion, subject only to his being willing to move location. In fact, he was not willing to do so and opted to await a vacancy in his existing location. However, this promotion did not occur. Between 198X and 199X a number of adverse assessments of his suitability for promotion were made. This resulted in his being "passed over" for promotion i.e. not being promoted in line with his seniority. Later, an incident occurred which resulted in a further adverse assessment of Mr AAE's suitability for promotion. The ORC accept that this incident and the assessments which resulted from it, do, and may in the future, adversely affect Mr AAE's promotion prospects. There is no evidence on the file to show that the earlier assessments are no longer being taken into account in assessing Mr AAE's suitability for promotion. While I accept the sincerity of the ORC's assertion that they are not using and do not propose to use these records to Mr AAE's detriment, it must be borne in mind that senior management and personnel officers change over time and anyone coming fresh to Mr AAE's file would be likely to look at all the records. In the context of Section 34(12)(b) of the FOI Act, the ORC have not shown to my satisfaction that the decision to refuse access to the records referred to in the attached schedule was justified.

Submissions

Findings

Decision

Having examined the decisions of the ORC initially and on internal review and having regard to the submissions made by both parties on matters relevant to the review, I have decided to vary the decision of the ORC as follows:-

• I concur with the decision to release all personnel records created between 21 April 1995 and 26 May 1998 as well as certain documents created in the period 5 February 1990 to 21 April 1995.
• In addition, I have decided that the records listed in the attached schedule, and created between 198X and 5 February 1990 should also be released.

Information Commissioner

25 September 1998