Case 98079 and 98080. Access to pre - 21 April 1995 personnel records - application of section 6(6)(c) - whether personnel records were passed to interview board -section 10(1)(a) - whether information given in confidence - section 26 - legal professional privilege - section 22(1)(a) - refusal of third party consent to release personal information - section 28(2)(b) - record of Attorney General - section 46(1)(b).

Case Summary

Facts

The requester applied to the Department of Agriculture and Food seeking access to advice received by the personnel division of the Department from the Attorney General concerning matters related to him. He also sought access to his personnel records. The Department refused to release any record from the personnel file created prior to 21 April 1995. It refused to release a post - 21 April 1995 document on the grounds that a third party had not consented to its disclosure. The third party, who at the time of the document's creation was a public representative, claimed in a submission to the Commissioner that any communications he had with the Department in that capacity were privileged. The Department also refused to release the advice of the Attorney General. In a subsequent application to the Department, the requester sought access to all personnel records made available to an interview board which he had attended and also sought access to other information which might have been supplied to the board. The Department released an assessment form which had been provided to the board and claimed that no other information from the personnel file had been passed to it. The Department claimed exemptions under sections 6(6)(c), 28(2)(b) and 46(1)(b) in relation to the request for access to the personnel file and under 10(1)(a) in relation to the matters associated with the interview board.

Decision

The Commissioner decided that it was not possible to say that certain of the pre - 21 April 1995 personnel records would not be consulted in the future and he directed their release. In the case of other pre - 21 April 1995 personnel records he found that the Department would have been entitled to claim an exemption under section 22(1)(a). He also found that the Department's claim for exemption in relation to the letter from the Attorney General was justified. The Commissioner decided that the letter from the public representative should be released to the requester. In case number 9880 (matters related to the interview board) the Commissioner affirmed the decision of the Department, without variation.

Date of Decision: 18.03.1999

DECISION

Background:

Background to case number 9879

On 21 April 1998, Mr ABF applied, under the Freedom of Information (FOI) Act, 1997, to the Department of Agriculture and Food seeking access to "the unabridged advice received by Personnel D.A.F. from the Office of the A.G. (Attorney General) as per letter of 19-11-1997 from Personnel to me. In fact, I wish to apply under the FOI Act '97, for photocopies of all personnel records relating to me". The Department replied to Mr ABF on 11 May, enclosing copies of a number of records from his personnel file. A further reply issued to Mr ABF on 26 May enclosing further records from his personnel file. However this reply indicated that Mr ABF's request for access to advice from the Attorney General was refused on the grounds of a claim for exemption under section 46(1)(b) of the FOI Act. Further records were released to Mr ABF in the Department's letter to him of 10 June. However that letter claimed exemption from release of a further document under section 28(2)(b) of the FOI Act on the grounds that a third party had not consented to its disclosure. In his letter to the Department of 30 June, Mr ABF sought an internal review of the matter and pointed out that no record older than three years had been released to him. The Department replied to Mr ABF on 23 July upholding the original decision. The reply indicated that it appeared from a perusal of the papers that the Department had made its original decision to withhold records created prior to 21 April 1995 on the basis of section 6(6) of the FOI Act. The final decision maker also indicated that, in his view, the Department would be bound to accept the consequences of invoking section 6(6)(c) i.e. "it cannot now or in the future use personnel records created prior to 21 April 1995 in a manner or for a purpose that may adversely affect you now or in the future". The Department subsequently noticed that this decision was taken by a member of staff at a grade similar to that of a signatory of one of the three replies to Mr ABF's original request. With a view to ensuring compliance with the proper procedures set out in section 14(3) of the FOI Act, it was decided that the Department would have ".....the situation revisited by a more senior member of staff than the original decider in compliance with the terms of the Act....".

A further reply from a more senior member of staff than that of the person who had originally replied to Mr ABF's request for internal review issued to Mr ABF from the Department on 6 August. This letter again upheld the original decision. Mr ABF wrote to this Office on 2 September seeking a review of this decision and having considered the matter, I decided to accept his application for review.

Background to case number 9880

Mr ABF attended at a post-21 April, 1998 interview for the position within the Department. On 29 May 1998 he wrote to the Department and applied, under the FOI Act, for the following :

"1. I request copies of all my personnel records made available to the interview board.

2. I want to be informed in writing of all oral information supplied to the interview board concerning me.

3. My placing in the total list of applicants.

4. Had the interview board a total independent say in the placings or was there an input from personnel in this regard and if so to what extent.

5. As far as I am aware some of the information relating to me is incorrect and misleading and could be easily used to adversely affect my interests so I want independent confirmation from the chairman of the interview board that this did not happen and I also want the chairman to verify the correctness of your replies to points 1 to 4 above".

The Department replied to Mr ABF on 11 June, enclosing copies of "all your personal records made available to the interview Board". Mr ABF was advised of his placing among the candidates interviewed. In relation to items 2, 4 and 5 of his request (see above) the Department indicated that no such records of that type existed and, therefore, his request was refused under section "10(a)" of the FOI Act. The reply also stated that the interview board had a total independent say in the placing of candidates.

Mr ABF wrote to the Department on 29 June 1988 seeking an internal review of the decision on his request. In the course of his letter, Mr ABF made reference to his FOI application of 21 April (see case number 9879 above) and stated that an assessment form which had been provided to him on foot of his current application had not been included in the papers provided to him following his application for access to his personnel file. He went on to state "It is unbelievable to think that I was interviewed without reference to my entire personnel file. It is my firm conviction that personal information concerning me was given to the interview board without my knowledge of its contents. This was done by way of:

1. By making available whole or part of my personnel file/personal information.
2. By way of summary of my personnel file/personal information.
3. Oral information".

Mr ABF went on to make the case that as he had not been granted full access to his personnel file, he had not been given a chance to "....put my house in order as regards my personal records" and that as a consequence his chance of success in his interview had been undermined.

The Department replied to Mr ABF on 22 July 1998 upholding the original decision of 11 June. The Department also indicated that "I can find no records of any misleading or incorrect information being supplied to the board which would be used to adversely affect your interests". Mr ABF wrote to this Office on 1 September seeking a review of that decision and having considered the matter, I decided to grant his application for review.

In view of the relationship which exists between the issues raised by Mr ABF in case numbers 9879 and 9880, I decided to review both cases concurrently. In reviewing these cases, I have examined Mr ABF's personnel file as supplied to me by the Department together with the correspondence which passed between it and Mr ABF in relation to his FOI applications. Mr ABF's personnel file consists of two volumes both marked [file number] - Mr ABF and can be described as follows :

Volume I : This volume contains records dated from September 1969 and is closed off with a note which states "This volume is closed see volume II for all matters arising after 1/1/93". The records are numbered 1 to 253(a) inclusive.

Volume II : This volume contains records dated between 1993 and May 1998. The records are numbered 254 to 639 inclusive.

Submissions

In his letter of appeal to the Department of 30 June (case number 9879), Mr ABF stated "I require my entire personnel records for interview purposes as I would need to account for my entire working career. Sect. 6 of the FOI Act provides a legal right as regards personal records of staff in public bodies - access will be available to current records or any earlier records liable to be used in a way that might adversely affect the interests of the member of the staff involved". Mr ABF went on to state "Sect. 17 of the FOI Act confers a legal right to have personal information relating to oneself and held by a public body amended, where it is incomplete incorrect or misleading and as far as I am aware there is incorrect and misleading information on my personnel file". In his letter of application to this Office of 2 September 1998 (case number 9879), Mr ABF stated "I attended for an interview for promotion on 13th May 98 and I was asked questions on my working career prior to 21st April 95 and I was adversely affected by not having these documents prior to my interview and the same will apply in the case of any further interviews I may attend". In referring to the Department's claim for exemption under section 46 of the FOI Act in respect of the advice of the Attorney General which he had sought, Mr ABF stated "Sect. 46 of the FOI Act has to do with criminal law and it should not be used in my case as a basis for refusing me documents". In relation to the claim for exemption under section 28 concerning the third party document Mr ABF stated "It has to be decided in the case of such information whether it is accurate, correct and fair and so who decides this?". Referring generally to the Department's decision he stated "The main reason that the Dept. are refusing to release all my personal records is that they are endeavouring to hide the fact that they have used incorrect and misleading information against me on a number of occasions".

In his letter of application to this Office of 1 September 1998 (case number 9880), Mr ABF contended that the assessment form which had been provided to him contained incorrect and misleading information in that he had not been awarded any rating under one of the assessment categories shown on the form. He further contended that "I had a legal right to this document prior to my interview and a legal right to have it amended because it contains incorrect and misleading information". He went on to state that "The procedure with other staff in the Dept. of Agr. is that rating forms are made available to them prior to interview". He contended that "I was not informed of having any faults..." until the assessment had been made available to him on foot of his FOI request made subsequent to his interview.

In the case of Mr ABF's application for access to his personnel file (case number 9879), the Department claimed exemption from the release of a document under section 28(2)(b) of the FOI Act on the grounds that a third party had not consented to its disclosure. That third party, who had in the past been a member of Dáil Éireann, had indicated to the Department that any correspondence, memos or attendances he may have had with the Department "...are privileged as between the Minister for Agriculture and Food, any members of his Department and myself...". He went on to state "As I am no longer a member of Dáil Éireann the disclosure of the records could effect me in my capacity as a private citizen". As part of my review the third party was requested to make a submission outlining which section of the FOI Act he was relying on in support of his objection to the release of the record concerned. On 10 February 1999 the third party made a submission in which he repeated his claim that any correspondence he had with the Department is privileged. During the course of a subsequent discussion he confirmed that he had always considered that his dealings with the Department were in confidence and under these circumstances he is relying on the provisions of section 26 of the FOI Act.

The Department did not make a detailed written submission in relation to my review of either case. However, officials from my Office met the Department twice to discuss the possible release of particular records. The views which the Department expressed on these occasions are dealt with below in the context of discussing the records concerned. Mr ABF made a number of telephone submissions which essentially repeated the same points he had already made in writing both to the Department and to me.

Findings

Mr ABF raised several matters in the course of his FOI requests to the Department and in his subsequent applications for review of the decisions on those requests. At this stage I consider it useful, for the sake of clarity, to outline those matters which fall for consideration under the FOI Act and which I propose to deal with in the course of this decision. These can be summarised as follows :

1. The refusal to grant Mr ABF access to any record on his personnel file created before 21 April 1995 and the claim for exemption under section 6(6) of the FOI Act.
2. The refusal to grant Mr ABF access to a record containing advice from the Attorney General and the claim for exemption under section 46(1)(b) of the FOI Act.
3. The refusal to grant Mr ABF access to a document created by a third party, the claim for exemption under section 28(2)(b) of the FOI Act and the third party's reliance on section 26 of the Act.
4. The Department's response in relation to Mr ABF's questions regarding the availability of his personnel file to the interview board and its claim for exemption under section 10(1)(a) of the FOI Act.
5. Mr ABF's contention that the assessment form available to the interview board should have been included with the documents he received from his personnel file.

The refusal to grant Mr ABF access to any record on his personnel file created before 21 April 1995 and the claim for exemption under section 6(6) of the FOI Act.

Mr ABF requested "photocopies of all personnel records relating to me". The Department granted him access to most of the records on his file created after 21 April 1995 but refused to grant him access to any record created prior to that date on the basis of a claim for exemption under section 6(6) of the FOI Act.

Section 6(6) of the FOI Act restricts the right of access to personnel records and provides -

(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.

Mr ABF is a serving member of staff and having regard to the provisions of section 6(6)(b), the refusal to grant access to those records created prior to 21 April 1995 would be justified unless the records are "...being used or proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely" his interests. In case number 98017 I ruled that Mr AAC was entitled to access records created prior to 21 April 1995 on the basis of evidence which showed that records created in the past had already been used in a manner which adversely affected his interests and that his employers had not shown that they would not be so used in the future. In Mr ABF's case the Department took the view that it was bound to accept the consequences of invoking section 6(6)(c) i.e. that the Department "... cannot now or in the future use personnel records created prior to 21 April 1995 in a manner or for a purpose that may adversely affect you now or in the future". In adopting this stance the Department, although not explicitly so stating, indicated, and has subsequently confirmed to me in the course of my review, that the pre-21 April 1995 records will not be used for a purpose which will or may adversely affect the interests of Mr ABF in the future.

I accept, on the basis of discussions with the Department, that the pre-21 April 1995 records are not nowbeing used in a manner or for a purpose which will or may affect adversely Mr ABF's interests. I must also accept that the Department's undertaking regarding future use has been given in good faith. However the question arises as to whether such an undertaking can be sustained over the remaining ten years of Mr ABF's career having regard to possible changes in Departmental personnel over that time. For example, Mr ABF has indicated to my officials that the interview which he attended covered matters which extended back beyond 21 April 1995. He concluded from this that his pre-21 April file might be of interest to the interview board and he indicated that if there was any doubt on the matter he should be given the benefit of that doubt. As long as the pre-21 April 1995 records remain open on the file they are available for whatever use the Department might choose to make of them. In this sense there is a proposed use of the records in that they are available to be consulted by the Department whenever it considers this to be appropriate. I have decided, therefore, that the correct way to apply the test in section 6(6)(c), in this case, is to consider the contents of the records in question and to decide whether any future consultation of the records might adversely affect Mr ABF.

Before doing so, I should remark that my Office suggested to Mr ABF that one way of dealing with this matter would be to seal the pre-21 April 1995 records on the file. However he indicated that such an approach would not meet his concerns.

For the purposes of my review I have considered the records on the file as falling into three separate categories. It is not necessary for me to give details of all the individual records for the purposes of this review. The first category consists of records of a routine nature. The second category consists of records which arose out of a dispute between Mr ABF and the Department on a grading issue. The final category consists of records which relate to a dispute between Mr ABF and the Department about a transfer.

I am satisfied that none of the routine records are being used or are proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely Mr ABF's interests.

The records in the second category show that Mr ABF, together with colleagues, had been in dispute with the Department over a number of years in relation to a promotion dispute. The matter was eventually resolved when the High Court found in favour of the Department. In the course of its judgement the High Court had referred to the "frustrated expectations" of the parties concerned and all appellants, including Mr ABF, subsequently accepted compensation in relation to this aspect of the matter. Notwithstanding the High Court judgement and his acceptance of compensation, Mr ABF has continued, to the present day, a voluminous and protracted correspondence with the Department in relation to the reversion of his acting promotion. A number of replies from the Department to Mr ABF over the years demonstrate that the Department clearly considered the issue to have been finalised at the conclusion of the High Court case and the payment of the compensation.

I have been advised by the Department that a number of those persons who, along with Mr ABF, pursued the High Court action have since been promoted and that at least one of those individuals has been promoted on two occasions. As the fact of the High Court challenge has not detrimentally affected the career of those individuals, it seems to me reasonable to conclude that any records associated with the challenge will not be used to the detriment of Mr ABF.

The third category of records concerns Mr ABF's transfer dispute. Mr ABF has expressed concern that the file contains pre-21 April 1995 correspondence which misrepresents him in various ways. In particular, he drew my attention to a letter dated March 1995 from the Department to his union. The letter mentioned that following an instruction to him in 1990 to take up duty at a new location, Mr ABF had not taken up his assignment at that location and had absented himself from his previous station for a period of time. This matter was investigated some years earlier by the Department and, following a meeting with Mr ABF the Department wrote to him in 1992. It acknowledged that earlier correspondence from the Department could have misled him but indicated that this could not and should not have been used as an excuse for not obeying the transfer instruction. It instructed Mr ABF to proceed to his new station immediately which he did, and the matter was then apparently treated by the Department as closed. It would seem from the records that the only reason the matter arose again was that Mr ABF continued to press a claim for expenses in relation to his transfer.

My examination of the records associated with the transfer incident reveals that when the Department discovered that Mr ABF had not taken up duty at the new location it requested his local supervisor to "furnish a factual account of communications and actions related to Mr ABF's transfer". The reports created on foot of this request led the Department to the view that Mr ABF had absented himself and it was this view that was articulated in the letter to Mr ABF's union some years later. The Department also consulted with the Office of the Attorney General with a view to seeking advice as to how to proceed in the matter and this eventually led to the letter dated 1992 to which I have already referred. I am satisfied that the Department would succeed in withholding the correspondence between itself and the Office of the Attorney General on the grounds of a claim for exemption under section 22(1)(a) of the FOI Act, that is to say, that it would be exempt from production in proceedings in a court on the ground of legal professional privilege. However, having considered the content of the reports which were prepared in response to the request for factual information associated with this particular incident, my officials put it to the Department that any future consultation of Mr ABF's file could not but influence a reader against Mr ABF, that this might adversely affect his interests and that the claim for exemption under section 6(6)(c) of the Act in respect of these records cannot succeed.

In reply, the Department made two separate arguments. The first of these was that are no scenarios of which it can conceive where any of the records in relation to this incident would be used against Mr ABF. In support of this it indicated that its personnel files are not made available to interview boards, are not used for the purposes of determining payments of annual wage or salary increments and are not normally made available to supervisors in the event of proposed staff transfers. The second relates to its undertaking, which I have already accepted as having been given in good faith, that the records will not be used for a purpose which will or may adversely affect the interests of Mr ABF in the future. The Department has argued that that any personnel officer giving such an undertaking would have a "legitimate expectation" that the undertaking would be upheld by his or her successors in that position and that it has always been the case in the public sector that decisions taken by personnel officers in relation to individual members of staff bind succeeding personnel officers.

I have considered the arguments put to me by the Department in relation to the reports associated with this incident very carefully. I have already indicated that as long as the records remain open on file they are available to the Department for whatever use it might choose to make of them and that they are available for consultation whenever it considers this to be appropriate. Mr ABF has indicated that the sealing of the records would not meet his concerns and I am satisfied that having regard to the seriousness of this particular incident such a course of action would not, in any event, be appropriate. I accept that the Department's undertaking in relation to the future use of these records is made in good faith and I accept that at present the records are not being used in a manner which adversely affects Mr ABF's interests. However, the incident to which the records relate was not a minor matter which could be lightly dismissed by the Department. Personnel practices may change and in my view it is not possible to say for certain that these records will not be consulted in the future and that any such consultation will not adversely affect Mr ABF. I have decided that the requirements of section 6(6)(c) have not been met in this case and that the records concerned (numbered 135 to 143 inclusive and 146 to 152 inclusive) should be released to Mr ABF.

The refusal to grant Mr ABF access to a record containing advice from the Attorney General and the claim for exemption under section 46(1)(b) of the FOI Act

In his 21 April 1998 request to the Department Mr ABF sought access to "the unabridged advice received by Personnel D.A.F. from the Office of the A.G. (Attorney General) as per letter of 19-11-1997 from Personnel to me". The reference to advice from the Attorney General arises from a letter dated November 1997 from the Department to Mr ABF in which it was indicated that the Department had received advice from that Office in relation to issues which Mr ABF had raised. The Department had not included this document with those which it had released to Mr ABF on foot of his request for access to his personnel file and claimed exemption from its release under section 46(1)(b) of the FOI Act. Section 46(1)(b) provides that the Act does not apply to :

"a record held or created by the Attorney General or the Director of Public Prosecutions or the Office of the Attorney General or the Director of Public Prosecutions (other than a record concerning the general administration of either of those Offices)".

Having examined the record concerned, I am satisfied that it is a record created by the Office of the Attorney General and that it was created in response to a request for advice from the Department. I am further satisfied that it is not a record relating to the general administration of the Office of the Attorney General. Under these circumstances I must find that the Department's claim for exemption in relation to this document was justified.

The refusal to grant Mr ABF access to a document created by a third party, the claim for exemption under section 28(2)(b) of the FOI Act and the third party's reliance on section 26 of the Act

In its letter of 10 June 1998 the Department notified Mr ABF that "Under section 28(2)(b), the release of the remaining document is hereby refused as the third party has not consented to its disclosure....". Section 28(1) of the FOI Act provides that, subject to other provisions contained in that section, personal information relating to parties other than the requester shall not be released. Section 28(2)(b) allows for the release of such information where :

"(b) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester".

As I have already indicated, the document concerned was sent to the Department by a then member of Dáil Éireann. That document represents one of a series in which the TD concerned made representations on behalf of Mr ABF. In this case the Department took the view that the contents of the letter disclose personal information about its author on the basis that it represents information held by the Department on the understanding that it would be treated by it as confidential, in accordance with the definition of "personal information" contained in section 2 of the FOI Act. In my view the Department's reliance on section 28 is not correct. The only information which the record in question discloses about its author is that he was a TD at the time, that he made representations on behalf of Mr ABF and that he held certain views in relation to the subject matter of the representations. I think that it is clear without further explanation that the first two matters are not personal information about the TD. In relation to the third, I note that the definition of personal information expressly provides that "the views or opinions of the individual in relation to a public body, the staff of a public body or the business or the performance of the functions of a public body" is not personal information. Having examined the record I am satisfied that its contents come within that description. I find that the record does not contain personal information about the third party.

The third party has since confirmed to my officials that he had always considered his dealings with the Department to be in confidence and is therefore relying on section 26 of the FOI Act, which refers to information given in confidence, as the basis for his refusal to give his consent to the release of the document.

The relevant section of the FOI Act in this instance is section 26(1)(a) which states :

"26.-(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if -

(a) The record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, or......."

For section 26 (1)(a) to apply it is necessary that four things be demonstrated, viz.

1. that the information was given in confidence, and
2. that the information was given on the understanding that it would be treated as confidential, and
3. that the disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons in the future, and
4. that it is of importance to the body that such further similar information should continue to be given to the body.

I can deal with the first two requirements together. In my view the contents of the first three of the four paragraphs of the record contain secret or private matters only to the extent that they are matters which concern Mr ABF's affairs and which he would not want disclosed to anyone else. However, there is nothing in the contents which suggest that the author expected them to be withheld from Mr ABF. In deciding whether information is given in confidence I am guided by the following definition of "confidence" quoted by the Queensland Information Commissioner in the case of "B" v Brisbane North Regional Health Authority (decision number 94001) at paragraph 45 :

".....the word "confidence" must be taken to be used in its technical, legal sense, thus :

A confidence is formed whenever one party ('the confider') imparts to another ('the confidant') private or secret matters on the express or implied understanding that the communication is for a restricted purpose. (F Gurry "Breach of Confidence" in P Finn (Ed.) Essays in Equity: Law Book Company, 1985, p.111)".

In the light of this two questions arise. The first is whether the contents of the first three paragraphs of the letter are private or secret matters. The second is whether there is an express or implied understanding that the communication was for a restricted purpose. I think I should make it clear that in some cases it may be expected that representations made by public representatives will be made in confidence because they will deal with the personal affairs of constituents and it will be clear that there is an expectation that the public body will not reveal the details of the representation to any one else. In this case, unusually, I am asked to accept that the representations were made in such circumstances that it was understood that their contents would not be disclosed even to Mr ABF. Again, I accept that it is possible that a public representative, in the course of making representations, might disclose information about his constituent which might be of significant use to the public body but which the public representative might not want revealed to his constituent. However, there is nothing in the contents of these paragraphs which suggests that the author expected them to be withheld from Mr ABF.

The fourth paragraph of the letter could justify the view that it is 'private' in the sense that it is the author's view of a comment made by Mr ABF about staff of the Department. I would accept that the information in this paragraph was communicated to the Department for a limited purpose, and one that did not include revealing the comment to Mr ABF. I find therefore that the first two requirements of section 26(1)(a) do not apply to the first three paragraphs of the letter but do apply to the fourth.

The next question which arises is whether or not the disclosure of the information would be likely to prejudice the giving of similar information from the same person or other persons in the future. It is in the nature of representations made by public representatives to seek to elicit information from a public body on behalf of a client. In some cases this information will be passed directly to the client and copied to the public representative while in others it will be transmitted to the representative who will then pass it on to the client. It seems to me that the disclosure of the content of a representation made by a public representative on behalf of a client is not likely to prejudice the making of further representations in the future. In relation to the fourth paragraph of the letter, in particular, I find that it is not likely that public representatives will refrain from commenting on the work of Government departments or otherwise proffering comments of the kind contained in that paragraph. In the circumstances, I have decided that no part of the record may be treated as exempt under section 26(1)(a).

The Department's response in relation to Mr ABF's questions regarding the availability of his personnel file to the interview board and its claim for exemption under section 10(1)(a) of the FOI Act

In his letter to the Department of 13 May 1998 (Case number 9880), Mr ABF sought, among other things, access to all oral information supplied to the interview board, asked if there was an input from the personnel division in relation to the placings made by the board and sought certain confirmations from the Chairman of the board. The Department replied that as no such records existed these requests were refused under section 10(1)(a) of the FOI Act. Section 10 of the FOI Act allows a head to refuse a request for access on a number of grounds and in particular under section 10(1)(a) if -

"(a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken,"

In his letter to the Department of 29 June 1998 Mr ABF contended that personal information had been made available to the board either by way of his personnel file, a summary of that file or orally. The Department upheld the original claim for exemption on internal review.

In accordance with section 34(12)(b) of the FOI Act, a decision to refuse to grant a request for access to records is presumed not to have been justified unless the head satisfies me that the decision was justified. The onus of proof in the section 10(1)(a) claim for exemption rests with the Department. Claims for exemption under section 10(1)(a) can arise where the records sought never existed, where the records may have existed in the past but do not currently exist or where records did exist but cannot now be found.

In addition to claiming that the interview board was not provided with access to Mr ABF's personnel file prior to his interview, the Department has also claimed that with the exception of those records released to Mr ABF no other records were created for the purposes of his interview. However, in the light of Mr ABF's "firm conviction" that personal information relating to him had been passed to the board prior to his interview, this Office in the course of its investigations, took particular care to thoroughly examine this aspect of the matter. The Department has claimed that its interview boards are not provided with access to the personnel files of applicants prior to interview and that the only information made available to boards consists of the application form submitted by the applicant together with an assessment from the candidate's reviewing/superior officer. It has also stated that its personnel division does not as a matter of course make any input into the selection of candidates and that the placings of candidates in competitions are entirely a matter for the interviewing board. Having considered all of the circumstances surrounding Mr ABF's interview and having considered the Department's practices in relation to interview boards generally and this board in particular, I find that no evidence has come to light which would suggest that Mr ABF's personnel file was made available to the board or that any other records were created for the purposes of the interview. I am therefore satisfied that the Department's claim for exemption under section 10 of the FOI Act was justified.

Mr ABF's contention that the assessment form available to the interview board should have been included with the documents he received from his personnel file

In response to Mr ABF's request for access to those records provided to the interview board for the purposes of his interview (case number 9890), the Department provided him with a copy of an assessment form which had been completed by his supervisor. An examination of the form reveals that ratings were awarded to Mr ABF in all but one of the categories listed. Mr ABF has claimed that the fact that he was awarded no rating in one of the assessment categories meant that the form contained incorrect and misleading information about him and that had he been given access to the form prior to the interview, he would have had an opportunity to have that information corrected.

Mr ABF's original application for access to his personnel file was made on 21 April 1998, his supervisor signed the assessment form post-21 April 1998 and he attended for interview. Having regard to the provisions of the FOI Act, a public body is required to respond to a request for information "....as soon as may be, but not later than 4 weeks, after the receipt of the request...". In the case of his application for access to his personnel file, the latest date at which Mr ABF would have expected to be notified by the Department of a decision was 20 May 1998. However, the Department released an initial batch of documents, not including the assessment form, to him two days before he was due to be interviewed. I have been advised that at that point in time the assessment forms of all candidates for interview were held on a separate file which had been created for the use of the interview board. Notwithstanding this, Mr ABF has claimed that "The procedure with other staff in the Dept. of Agr. is that rating forms are made available to them prior to interview". In response, the Department has indicated that its standard practice in cases where an assessment form states that a candidate is unsuitable for promotion, is that the personnel division would normally insist on the line supervisor informing the subject officer of that assessment. Mr ABF's assessment contained no such statement.

Having considered the matter, I am satisfied that, as a matter of fact, the Department acted in good faith at all times in the release of documents to Mr ABF and that there was no intention on the part of the Department, in the context of his FOI application, to withhold the assessment form from him. It is of course now open to Mr ABF to make a further application to the Department under section 17 of the FOI Act to seek to have amended any personal information relating to him contained on his files which he considers to be incorrect or misleading.

Decision

Having carried out a full review of the decisions of the Department and having considered the arguments put forward both by Mr ABF and the Department, I am satisfied that in case number 9879 the Department's claim for exemption in relation to those records contained on Mr ABF's personnel file which were created prior to 21 April 1995 was, with the exception of reports relating to the transfer incident, justified. I am further satisfied that its claim for exemption in relation to a document created by the Attorney General was also justified. I find that neither section 26(1)(a) nor section 28 applies to the letter from the public representative. In case number 9880 in relation to Mr ABF's interview, I am satisfied that the Department's claim for exemption under section 10 of the FOI Act was justified.

Accordingly, I uphold the decision of the Department of 6 August 1998 (case number 9879) and vary it to the extent that I now direct that the letter from the public representative which had originally been refused, together with document numbers 135 to 143 inclusive and 146 to 152 inclusive, now be released to Mr ABF. I also affirm the decision of the Department of 22 July (case number 9880), without variation.

Information Commissioner

18 March 1999