Case 98109. Note : This decision was appealed to the High Court on a point of law. On 17 December 1999, the High Court varied the Commissioner's decision and granted Mr ABI access to all records on his personnel file and awarded costs against the Department.

Case Summary

The full text of the High Court judgment is available here.

Issues

Personnel records -whether records being used in a manner which adversely affects the interests of the requester - section 6 (6) - whether information obtained in confidence from staff - whether release would reveal the identity of individuals who supplied information related to the enforcement of the law - section 23 - legal professional privilege - section 22.

Facts

Mr ABI made a request to see his personnel file. The Department granted access to the file records from 21 April 1995 but refused to grant access to records created prior to that date on the basis that they were not being used or proposed to be used in a manner or for a purpose that affects adversely the interests of Mr ABI. After the start of the review, the Department sealed some of the pre - 1995 records on the file and endorsed the envelope to the effect that the records were not to be consulted in the future. The Department also claimed that section 23(1)(a)(i) to (iii) and (b) and section 26(1)(a) of the Act applied to some records.

Decision

The Commissioner decided that a future consultation of some records could affect the requester in an adverse way. He decided that section 6(6) did not apply in this case and that a right of access existed. He decided that neither section 23 nor section 26 applied to most of the records in this case. The records related to an incident which occurred in 1992. Release of information about that incident could not reasonably be expected to prejudice or impair any of the functions listed in section 23(1)(a) given the passage of time. The records revealed nothing concerning lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Two records revealed the identity of a person who had given information to the Department in confidence in relation to the enforcement or administration of the civil law and access was not granted to that person's identity. The Commissioner decided that, by virtue of section 26(2), access could not be refused to records created by personnel of the Department. He decided that parts of some records were exempt from disclosure on the grounds of legal professional privilege.

Date of Decision: 29.04.1999

Background:

On 16 April 1998, Mr ABI made a request to the Department of Agriculture and Food, under the Freedom of Information (FOI) Act, for "sight of my entire personnel file". The Department deemed the request to have been received on 21 April 1998, the date of the commencement of the Freedom of Information Act. On 18 May 1998 the Department decided to grant access to the file from 21 April 1995 but refused to grant access to records created prior to that date on the basis that they were not being used or proposed to be used in a manner or for a purpose that affects adversely the interests of Mr ABI.

Mr ABI sought an internal review of this decision on 20 May 1998. On 24 June 1998 the internal reviewer decided to affirm the original decision. Mr ABI applied to my Office for a review of this decision in a letter received on 8 October 1998.

Having considered the matter, I decided to review the decision of the Department and invited submissions from the relevant parties.

In reviewing the decision, I considered the records in question and the submissions made by Mr ABI and the Department. I also examined Mr ABI's personnel file in order to see whether records created prior to 21 April 1995 were being used or proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely Mr ABI. During the course of the review, Mr ABI agreed to narrow the scope of his request to papers created after 1 November 1990.

On 27 October 1998, the Department placed a total of sixteen papers relating to Mr ABI in a sealed envelope. A notice signed by the Personnel Officer was attached to the envelope which stated "Please note that the records contained in the sealed envelope attached are to be regarded as closed records and, to ensure that they are not used in any manner or form which might adversely affect Mr ABI's interests, are not to be consulted in the future".

Mr ABI was not willing to accept that this meant that the records could not be used in the future in a way that might adversely affect his interests. He argued that, with changes in staff in Personnel Section, it was possible that such an notice would be ignored. With the Department's agreement, I opened the sealed records and examined the records. Having done so, I advised the Department that my preliminary view was that the mere sealing of the records was not sufficient to allow it to refuse access in this case and I invited a further submission. My officials also met with officials of the Department.

At the meeting between my Office and the Department, the Department agreed to re-examine the records which had been sealed in order to decide whether it would be willing to release any further records. My office also raised the question as to whether there might be other records on other files. Although Mr ABI only asked for sight of his "personnel" file, it was clear that he wanted all records pertaining to an incident relating to his transfer some years earlier from a particular section within the Department. For example, Mr ABI produced a letter he received from the Department dated 2 December 1993 which was not on his personnel file as submitted to me by the Department. I have dealt with this review on the basis that Mr ABI wanted access to all papers relating to the incident and the subsequent treatment of him by the Department.

Submissions

Mr ABI

Mr ABI's application to my Office for a review outlined the background to his request. He explained that in 1990 he was assigned to a particular section, within the Department to deal with a specific problem. In 1992, an incident occurred which promted the Department to offer him a temporary transfer to a meat factory. He accepted on the understanding that he would return to his previous section after Christmas 1992. In 1993, he was informed that he was being returned to his original pre-1990 duties due to the incident in 1992.

Mr ABI claims that he subsequently discovered that a Departmental official had warned a work colleague that Mr ABI was "not to be trusted". He claims that he asked the Personnel Officer in the Department to investigate the allegations but without response.

Mr ABI added that this problem has caused him and his family severe stress and that it would be of some consolation to him if he could access his file and find his character and working reputation unblemished, as he expects it to be.

In a further submission, Mr ABI referred to the alleged failure of the Personnel Officer to investigate the allegations made by officials of the Department. He also claimed that a mediation agreement on this matter was not honoured by the Department. He also referred to a letter to him signed by the Personnel Officer which referred to the allegations and asked if the allegations were ever investigated.

The Department

The Department drew my attention to the fact that the sixteen records were sealed and endorsed by the Personnel Officer to ensure that they would not be used in any manner or form which might adversely affect Mr ABI's interests, and that there was an explicit instruction that the records were not to be consulted in the future.

The Department also enclosed a copy of the terms of the conciliated settlement agreed at mediation in 1994. This stated that the parties (Mr ABI's Union and the Department) agreed that there is no foundation whatever to accusations concerning the good character and status of Mr ABI and that Mr ABI would occasionally be requested to carry out future work with the section.

The Department denied Mr ABI's claim that the terms of the mediation agreement had been breached and said that the papers on file showed that any failure to have Mr ABI carry out work with the section was due to matters such as Mr ABI's inability to be released from his duties at short notice as required, budgetary constraints and a reduction in field work carried out by the section. It also confirmed that a further mediation hearing is expected. The Department re-examined the previously sealed records and was still of the view that Mr ABI was not entitled to access in accordance with section 6(6) of the FOI Act. It also stated that "several of the pre-21 April 1995 records on Mr ABI's personnel file would be exempt under the provisions of section 23(1)(a)(i) to (iii) and (b) and section 26(1)(a) of the Act as they contain information obtained in confidence and their release would materially prejudice or impair the Department's ability to carry out investigations in the work area in question".

The Department also located some records on a file dealing with meetings with Mr ABI's trade union and has indicated that it is willing to grant access to these records. Mr ABI's trade union confirmed that it had no objection to Mr ABI being allowed sight of union documents on his personnel file. The Department also accepted that the investigation promised into allegations that a Departmental official made about Mr ABI had not taken place and agreed to pursue this separately with Mr ABI, if this was what he wanted.

Findings

Section 6 of the FOI Act provides that a right of access to records exists where records are created after 21 April 1998, the date of the commencement of the Act. Section 6(5) provides that

"Notwithstanding subsections (1) and (4) but subject to subsection (6), where

(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or

(b) records created before such commencement relate to personal information about the person seeking access to them,

subsection (1) shall be construed as conferring the right of access in respect of those records".

Section 6(6) provides that

"Subsection (5) 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 ABI 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 ABI's, case the Department took the view that the sealing of the records (albeit that the sealing took place after the request for access was made) was evidence that they were not being used or proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely Mr ABI's interests. However, for the reasons explained below I did not find it possible to accept this assurance.

In the light of section 43 of the Act, which requires me in the course of a review to take all reasonable precautions not to disclose the information contained in an exempt record, I need to exercise a degree of circumspection in describing the records in this case and in explaining my decision lest I prejudice the Department's ability to appeal my decision should it wish to do so. However, the following details should be sufficient to enable the parties to understand the basis for my decision.

The incident which occurred in 1992 had a direct effect on Mr ABI in the sense that it led to his transfer to other duties. At the time, he was working in the section which had a high profile within the Department. He was subsequently transferred to other work at some inconvenience to him.

Mr ABI's desire to return to the section was based on the view that this return would prove both to himself and to the world at large that he was not under suspicion. In fact, the return to the section did not take place or at least did not occur in a way which was satisfactory to Mr ABI.

There are 41 records on Mr ABI's personnel file created in the period from 1 November 1990 to 21 April 1995. I have numbered these records consecutively, starting with the most recent.

With the exception of record number 38 considered separately below, all of the records deal with the incident of 1992 and its aftermath. While the case was under review, the Department sealed sixteen of the records relating to the incident. I am satisfied that the Department did this with the best of intentions. However, Mr ABI has indicated that the sealing of these records would not meet his concerns and I am satisfied that having regard to the seriousness of the matters contained in these records, the selective sealing of some records would not, in any event, be appropriate. It may be that, at present, none of the records are being used in a manner which adversely affects Mr ABI's interests, although I do not express any view on this point. However, personnel practices may change and, in my view, it is not possible to say for certain that these records, including the sealed records, will not be consulted in the future and that any such consultation will not adversely affect Mr ABI. I should make it clear that many of the records contain nothing which is in any way critical of Mr ABI. However, their retention on the file serves to draw attention to the difficulties which Mr ABI experienced in the past. At the heart of the issue is the fact that serious allegations were made about the requester which were never fully resolved. In the circumstances, a future consultation of these records could easily affect Mr ABI in an adverse way. I have decided that the requirements of section 6(6)(c) have not been met in this case in relation to the 41 records in question with the exception of records number 11 and 38 which are considered separately below.

Records to which access is no longer required

Mr ABI has been offered access to record number 1 as part of a record created after 21 April 1995. Mr ABI has indicated to my officials that he no longer requires access to records which were issued to him or were sent to him, if they have not been annotated by others, except for such non-judgemental annotations as instructions to file papers etc. Record numbers 1, 2, 7, 8, 9, 10, 13, 14, 17, 18, 19, 20, 23, 24, 27, 28, 29, 35, 37, 39, 40 and 41 are thus no longer at issue. Some of these records were sealed records.

Records which do not adversely affect Mr ABI's interests

Record number 38 is an application form for a position within the Department, completed by Mr ABI with ratings entered by his immediate supervisor and second superior. Record number 11 is an internal memo about Mr ABI's performance of particular duties. While this record was created in the context of the dispute about Mr ABI's reassignment to the section, the contents of this record could not be used in a way which may adversely affect Mr ABI's interests in the future. I also do not consider that record number 38 has the potential to be used in a way which may adversely affect Mr ABI's interests in the future. The Department is entitled to refuse access to these records on the basis of section 6(6).

Records still at issue

The remaining records comprise record numbers 3, 4, 5, 6, 12, 15, 16, 21, 22, 25, 26, 30, 31, 32, 33, 34 and 36.

The Department's submission claimed that some of these records were exempt under the provisions of section 23(1)(a)(i) to (iii) and (b) and section 26(1)(a) of the Act as they contain information obtained in confidence and that their release would materially prejudice or impair the Department's ability to carry out investigations in the work area in question. It did not specifically identify the records which it thought were exempt under either or both of these sections. The Department did not offer to explain in detail why these exemptions might apply and I did not invite any further submission on the matter because, having examined the records, it seems to me that neither section 26 nor section 23 applies to the majority of the records in this case. For convenience, I will explain my general reasoning at this point, dealing with any additional points of detail as I discuss individual records.

Section 23

The relevant parts of section 23 provides that

"(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to

(a) prejudice or impair

(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,

(ii) the enforcement of, compliance with or administration of any law,

(iii) lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property, ....(b) reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".

The records at issue relate to an incident which occurred in 1992. I do not accept that the release of the information about that incident held on the records concerned could reasonably be expected to prejudice or impair any of the functions listed in section 23(1)(a). It is clear that, given the passage of time since the incident, disclosure of the matters contained in the records could not prejudice or impair the investigation or prosecution of any offences which are mentioned in the records. I am also satisfied that disclosure would not prejudice the enforcement of, compliance with or administration of any law relating to such offences. The records reveal nothing concerning lawful methods, systems, plans or procedures for ensuring the safety of the public or the safety or security of persons and property. Therefore, I do not accept that the Department is entitled to rely upon section 23(1)(a) to refuse access to the records at issue.

With the exception of the specific records identified below, (records number 32 and 34) none of the records reveal the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence. Therefore, the Department is not entitled to rely upon section 23(1)(b) to refuse access to the other records at issue.

Section 26

This section provides that

"(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

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services.

(3) Subject to section 29, subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned".

With the exception of a single record, record number 36, all of the records at issue were created within the Deparment, by personnel of that Department, for transmission within the Department. By virtue of section 26(2), the provisions of section 26(1) do not apply where the record in question is prepared by any person who is a member of the staff of a public body in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is owed to a third party.

Two of the records (record number 32 and record number 34 which is a copy) contain information which was provided by a number of third parties and I deal with the possible application of section 26 to these records below. By virtue of section 26(2), the Department is not entitled to rely on section 26 to refuse access to the remaining records.

For the reasons explained above, I have decided that Mr ABI is entitled to access to record numbers 3, 4, 5, 6, 12, 15, 16, 22, 25, 26, 31 and 33 in their entirety, by virtue of section 6(6)(c) and I do not accept that the Department is entitled to rely upon section 23 or section 26 to refuse access. I will now consider record numbers 21, 30, 32, 34 and 36 individually.

Record number 21

This is a memo from a senior Department official to the Personnel Officer which refers to a draft letter about Mr ABI. The draft letter is not attached and the memo appears to refer to the letter which was issued in its final form to Mr ABI. There are a number of hand written notes on the memo.

I note that the second last sentence of paragraph 4 of the memo summarises advice given by the Office of the Attorney-General in this case. For the reasons given below in relation to record number 30, this part of the record should not be disclosed.

For the reasons outlined above, the Department is not entitled to refuse access to the remainder of the record.

Record numbers 30 and 36

Record number 36 is a fax seeking legal advice. Record number 30 is a note placed on the file by a senior Department official. The first paragraph of record number 30 records the legal advice received from the Office of the Attorney General. I am satisfied that this paragraph and the whole of record number 36 would be exempt from disclosure in a court of law on the grounds of legal professional privilege.

Section 22 of the FOI Act provides that

"(1) A head shall refuse to grant a request under section 7 if the record concerned (a) would be exempt from production in proceedings in a court on the ground of legal professional privilege".

For the reasons outlined above, the Department is not entitled to refuse access to the remainder of record number 30.

Record numbers 32 and 34

These are two copies of a report by a member of staff of the Department which is headed "Confidential". The report contains a summary of the allegations and suspicions about Mr ABI. Since it was prepared by an official of the Department, it could only come within section 26 if it could be shown that disclosure of its contents would result in a breach of a duty of confidence provided for by an agreement or statute or otherwise by law and owed to some party outside the Department.

Some of the information in the report was provided to the Department by third parties. No case has been made to me that the information is subject to a duty of confidence provided for by statute or in an agreement and I am not aware of any statute or agreement which might be in point. I have considered whether an equitable duty of confidence (which would be a duty provided for "otherwise by law") exists in this case. I considered the possible existence of an equitable duty of confidence in my composite decision on case numbers 9849/9856/9857 and I adopted the test proposed in the leading case of Coco v A.N. Clark (Engineers) Limited F.S.R. 415 by Megarry J. when he said:

"Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."

The first three paragraphs of the report contain information supplied by third parties. I am satisfied that the information detailed in paragraph 1 was given in confidence, in the sense that the individual concerned would not want his identity revealed. However, there is nothing in the contents of the information which suggests that the supplier of the information would want the contents kept secret. I have decided that the name, address and occupation of the supplier of the information should not be disclosed, having regard to the provisions of section 23(1)(b). I am satisfied that having deleted the details concerning the supplier of the information, that person can suffer no detriment from disclosure of the contents of the paragraph which may, therefore, be disclosed without breaching any equitable duty of confidence.

Paragraph 2 does not identify the source of the information and I am satisfied that neither section 23(1)(b) nor section 26(1) is in point.

Paragraph number 3 names a member of the Garda Síochána who informed the Department of allegations made by an unnamed person. The release of this information would reveal the identity of this member of the Garda Síochána who has given information to a public body in confidence in relation to the administration of the civil law. In accordance with section 23(1)(b), the Department need not release this individual's name, rank or assignment.

The final sentence of paragraph number 3 contains an allegation from an unnamed source that Mr ABI had leaked information to a named individual. I am satisfied that this sentence contains personal information about that named individual in addition to personal information about Mr ABI. Section 28(5)(a) provides that personal information about an individual may be disclosed to a third party where the public interest in disclosure outweighs the public interest in upholding the right to privacy of the individual. In this case, the allegation contained in the final sentence concerns the named individual as much as it concerns Mr ABI. While the release of the individual's name to Mr ABI may impact on the individual's right to privacy, this is outweighed by the public interest in Mr ABI being made aware of allegations made against him and being afforded an opportunity to vindicate his good name. In the circumstances, I have decided that section 28(5)(a) applies.

While there is no explicit duty on me to consult third parties where the public body concerned has not already done so or had occasion to do so in accordance with section 29, it would be my normal practice to do so where practical. I considered it impractical to follow the consultation process of section 29 in the circumstances of this particular case. The only meaningful way that I could consult with the third party concerned would involve the disclosure of a record which the Department considers to be exempt and section 43 requires that I take all reasonable precautions to prevent the disclosure of such information. As noted above, my decision must not prejudice the Department's ability to appeal my decision should it wish to do so. Furthermore, I am satisfied that the release of the individual's name to Mr ABI will have no adverse implications for or effects on that individual.

Having deleted the details concerning the supplier of the information, I am satisfied that the remainder of the paragraph can be disclosed without breaching any equitable duty of confidence.

Paragraph number 4 contains the name of an individual from whom items were seized and the names of other individuals which were mentioned in an interview by Mr ABI. In other circumstances, these names and allegations might be considered to be personal information about the individuals concerned. However, Mr ABI is already aware of the identity of the individuals concerned and it was Mr ABI who raised the names and allegations during the course of the interview. In the circumstances, I do not consider that the release of these individuals' names to Mr ABI is the release of personal information about the individuals. Alternatively, and for the reasons given in relation to paragraph 3, I have decided that section 28(5)(a) applies and that the whole paragraph can be released without deletion of the names mentioned therein.

The first two sentences of paragraph 6 contain personal information about a named individual. I do not consider that there is any public interest requiring the disclosure of this information. The rest of the paragraph contains comments by the named individual about Mr ABI and his role in the Department. In my view, the rest of this paragraph does not contain personal information about that individual, having regard to subparagraph III of the definition of "personal information" and the name of the individual should be inserted to replace the pronoun at the start of the third sentence in order to allow Mr ABI identify the source of the comments. It is clear from the contents of paragraph 6 that neither section 23 nor section 26 applies. In summary, I have decided that, subject to the deletions mentioned above, this record should be released to Mr ABI.

Decision

I have decided to vary the decision of the Department as follows:

Grant access in full to record numbers 3, 4, 5, 6, 12, 15 and 16.

Grant access to record number 21 with the exception of the second last sentence of paragraph 4.

Grant access in full to record numbers 22, 25 and 26

Grant access to record number 30 with the exception of the first paragraph.

Grant access in full to record numbers 31 and 33

Grant access to record numbers 32 and 34 subject to the deletion of an individual's name, address and occupation in paragraph number 1, another individual's name, rank and assignment in paragraph number 3, and the first two sentences of paragraph number 6, and with the insertion of the relevant individual's name instead of the pronoun in the third sentence of paragraph number 6.

Information Commissioner

29 April 1999