Case 98075. Pre-commencement records on personnel file - definition of personal information - access to performance appraisal reports given in confidence - consideration of sections 6(5)(b), 6(6)(b) and 6(6)(c).

Case Summary

Facts

The applicant, a serving army officer, sought access to all documents on his personnel file in advance of a forthcoming interview for promotion. The Defence Forces refused to release any record created prior to 21 April 1995, claiming exemption under section 6(6)(b), but offered access to all personal information on the file after that date. In refusing access to appraisal reports it was argued that the information contained therein did not constitute personal information as the records were prepared in confidence and the contents were not known to the subject officer. The Defence Forces confirmed that the appraisal reports were contained on a "promotion sub-file" which would be made available to the interview board.

Decision

The Commissioner decided that the applicant was entitled to full access to the "promotion sub-file". He found that personnel records are, by virtue of the definition of personal informationcontained in section 2, records which contain personal information. The three year limitation on access to personnel records in section 6(6)(b) can only apply where the records are not being, or proposed to be used, in a manner or for a purpose that will or may adversely affect the interests of the person. The Commissioner found that as the "promotion sub-file" would be made available to an interview board, its contents could adversely affect the applicant's interest in being promoted and should therefore be released. The decision to refuse access to certain other documents was upheld.

Date of Decision: 13.10.1998

DECISION

Background:

On 13 May 1998, Comdt AAG made an application, under the Freedom of Information (FOI) Act, 1997, to the Defence Forces in which he requested access to "my complete Officer's Personal File held by you." The Office of the Deputy Adjutant General replied to Comdt AAG on 3 July stating "You will be granted access to (1) All personal information regarding the entirety of your service, (2) Personnel Information created since 21 April 1995 and retained on file, (3) All information created since 21 April 1998."

Comdt AAG wrote to the Appeals Officer on 8 July stating :

"1. Final decision maker letter dated 03 July refers.

2. The access granted is inadequate; it is not what is available to the Annual Interview Boards which determine who does and who does not get promoted. This Board has already passed me over for promotion.

3. The Act, as I understand it, should enable me to access areas such as the 451s and any other documents which inform the decisions of the Board; if I have a so called "Bad File" then I am entitled to see it.

4. I am eligible to compete in the next competition and I expect that I shall as usual, do a "good interview"; what I don't need is a "bad file" With the opportunity afforded by the Act to rectify matters, this problem should now be addressed."

On 13 July Comdt AAG confirmed to the Defence Forces that his letter of 8 July was an appeal against the decision of 3 July. On 29 July 1998, the Office of the Adjutant General replied to Comdt AAG's appeal stating that the original decision was upheld. It was further stated that "your request does not come within the scope of the Freedom of Information Act 1997 by virtue of Section 6(4) of the Act, except in relation to personal information provided for in the Act. The reply further stated "You will be granted access to :

a. All personal information regarding the entirety of your service. b. Personnel Information created since 21 April 1995 and retained on file - this includes AF 451s initiated from 1995 onwards. c. All information created since April 1998."

Comdt AAG wrote to the Office of the Information Commissioner on 24 August seeking a review of this 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 six files and supplied to me by the Defence Forces. These files are marked as follows :

1. File no x from the Adjutant General's Branch, Officers' Records Section,
2. File no y from the Adjutant General's Branch , Officers' Records Section - marked "Promotion sub-file",
3. File marked "Application for redress of wrongs - Comdt AAG",
4. File marked "Application for redress of wrongs - Comdt AAG - o/c ORS 20/6/8X",
5. File marked "ADM 38 - Irregularities -."
6. File marked "Comdt AAG..." which contains the papers relating to this FOI application.

The "Promotion sub-file" contains a small number of documents relating to Comdt AAG's performance on various courses which he attended between 1969 and 1982 together with some documentation relating to the university degree which he was awarded. The bulk of the file consists of documents which comprise Comdt AAG's annual appraisal forms i.e. his AF 451s between 1974 and 1977. The balance of his AF 451s i.e. between 1967 and 1973 are contained on the main personal file numbered 1 above. I have confirmed with the Defence Forces that it is the "Promotion sub-file" only which is made available to the promotions board.

Submissions

Comdt AAG states that every Officer has a file which is, in whole or in part, put before the annual interview board to consider his promotion. He states that the access offered to him to date is in areas which are not critical to his prospects for promotion and "What I really need to see, and, where appropriate, have amended, are the critical areas of file to which interview boards have access and on the basis of which they pass me over for promotion."

In a submission dated 17 September 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 Forms 451 (AF 451s) 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. The format and manner in which these forms were processed has however evolved over time with a 1990 revision permitting the subject officer to read the reports of the reporting officer. A 1994 revision permits the subject officer to read the report/remarks of the superior reporting officer and to append comments if he/she so wishes. The Defence Forces also confirmed that for every promotion competition for which an officer is eligible a "Promotion sub-file" is created from the main personal file. This sub file contains the performance evaluations relevant to the particular competition and in Comdt AAG's case these evaluations date back to the 1960s.

It is argued that Comdt AAG has been offered full access to records created before the commencement of the FOI Act in so far as they relate to personal information about him. It is further argued that as Comdt AAG is a serving member of the Defence Forces, any documents relating to evaluation of performance created before 21 April 1995 are considered to be exempt in accordance with Section 6(6)(b) of the FOI Act. In defence of its refusal to grant access to the AF 451s created prior to 1990 the Defence Forces argue that documents created on the basis of confidentiality were written on the clear understanding on the part of the authors that their content would be treated as confidential between them and the officers to whom they reported and that there would be no disclosure of detailed comment to the subject officer. No defence is offered in respect of the refusal to release those forms created between 1990 and 1995. It is also argued that the release of AF 451 information has the potential for causing harm to the mental health of applicants.

The submission also states that having regard to the volume of information held on Comdt AGG's file and the overall volume of such files, "The granting of access to such records has a potential for the disruption of the administration at Defence Forces Headquarters and consequential knock on effects for administration in the Defence Forces."

Findings

Comdt AAG is seeking access to his personnel records. Personnel records are, by virtue of the definition of the term personal informationin Section 2 of the FOI Act, records which contain personal information. It follows that in the absence of any other provision, Comdt AAG would be entitled to access to all his personnel records, regardless of when they were created. However, 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 Defence Forces have relied on this provision to deny access to certain records created prior to 21 April 1995. However, 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.

The Defence Forces have specified a number of pre-21 April 1995 documents which they do not propose to release to Comdt AAG. Among these documents are records contained on Comdt AAG's "Promotion sub-file". The Defence Forces have made it clear that in the event of his interview for promotion, the records contained on this file would be made available to the interview board. It is clear that Comdt AAG has an interest in being promoted. I am satisfied that the contents of the "Promotion sub-file " may adversely affect that interest. There is at least the possibility that the file could influence the interview board against the applicant and that is sufficient to bring the "Promotion sub-file" within Section 6(6)(c). In the circumstances, I find that Comdt AAG's request for access to the contents of this sub-file should be granted.

There is a number of other pre-21 April 1995 documents, apart from the "Promotion sub-file" which the Defence Forces have refused to release. From a perusal of the contents of these documents, and from the fact that they are not included in the "Promotion sub-file", I can accept that they are not being used and are not proposed to be used for a purpose which may affect adversely the interests of Comdt AAG. I therefore uphold the decision to refuse to release these documents.

The above are my findings in relation to my review of this case. However, the Defence Forces made a number of other arguments in their submission and I deal with these below.

Arguments that the information contained in Comdt AAG's performance appraisal reports does not constitute personal information must be rejected. The definition of personal information in the FOI Act includes "the views or opinions of another person about the individual".

The Defence Forces have argued that the granting of access to appraisal reports 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 Comdt AAG 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 Comdt AAG, I consider that in addition to those records created after 21 April 1995, Comdt AAG is also entitled to full access to all records contained on his "Promotion sub-file". Therefore, I uphold the decision of the Adjutant General of 29 July 1998 on internal review insofar as it ordered release of records and I vary it to the extent that, in addition to the access to his personal files which Comdt AAG has already been granted, he now also be granted full access to all records, including his AF 451s, contained on his "Promotion sub-file".

Information Commissioner

13 October 1998