Case 98179. Record held by Department - acquired by official as member of a board of another body - whether information given in confidence - section 26(1)(a)

Case Summary

Facts

Mr Grange sought access to a copy of the Annual Report of the FÁS Client Services Commissioner to the Board of FÁS which was held by the Department as a result of one of its officials being a member of the Board of FÁS. The Department refused access to the record under section 26(1)(a).

Decision

The Commissioner pointed to three requirements which must be met before section 26(1)(a) can apply. The first is that the information must have the necessary quality of confidence. Secondly, the communication of the information must be for a restricted or limited purpose. Thirdly, there must be a mutual understanding that the information is being communicated for a limited purpose. The Commissioner found that while the record in question had the necessary quality of confidence to qualify under section 26(1)(a), there was no mutual understanding that the information would be used solely for the purpose of the official discharging his functions as Board member. He also found that the record did not contain information of such sensitivity as might allow it to be inferred that it was communicated to the Department for a limited purpose. In relation to the Department's argument that if the record were disclosed then the supply of this type of material would be prejudiced, the Commissioner found that the section must be applied on an individual basis and is not a class exemption. The Commissioner noted that the fact that he found that section 26 did not apply to the record in question in this case did not preclude the application of this or any other exemption to any other Board record sought under the Act.

The decision of the Department was annulled and the Commissioner directed the release of the record in full.

Date of Decision: 30.04.1999

DECISION

Background:

Mr Michael Grange applied to the Department of Enterprise, Trade and Employment on 6 October 1998 for a copy of the FÁS Client Services Commissioner's Annual Report under the Freedom of Information Act 1997. The function of the FÁS Client Services Commissioner is to investigate certain complaints made by individuals to FÁS about its services, to facilitate settlement of the complaints and to make recommendations to the complainant and to FÁS. The Commissioner's duties derive from a scheme established by FÁS. Under the terms of the scheme the Commissioner is required to report annually to the Board of FÁS. The Department's decision was to refuse access to the requested record under section 26(1)(a) of the Act. Mr Grange appealed this decision to internal review on the basis that the Department has a right to receive such information from FÁS, that marking the record confidential does not make it so and in his view the balance of the public interest favours release.

The Department upheld the original decision on internal review on the basis that the record was made available to an official of the Department as a member of the Board of FÁS and that explicit confidentiality attached to any records received in this capacity.

Mr Grange applied for a review of this decision by me. His application was granted and submissions were sought from the Department, the requester, FÁS and the FÁS Client Services Commissioner as relevant parties to the case.

Submissions

Mr Grange

Mr Grange indicated in his submission that most of the key points had been raised in his application. He argues in his application that the supply of this record to the Department was not required by law. He points out that the Labour Services Act, 1987 provides for the operation of FÁS and section 13 of that Act prohibits disclosure without the consent of FÁS. He argues that a clear presumption in favour of disclosure is the fact that section 13 is specifically included in the Third Schedule to the FOI Act. Therefore, the clear intention of the Oireachtas was to include FÁS documents within the FOI Act. He points out that the official is on the Board in an official capacity and he is of the view that if the Minister requested a copy of the record, it would be provided. He suggests that no confidentiality attaches to the record and that the public interest favours disclosure.

In a further submission he argues that the FÁS Client Services Commissioner is a private sector watchdog and his recommendations do not have to be accepted by FÁS. He argues that the public interest would be served by disclosure because publication would act as a powerful tool to ensure compliance by FÁS with his recommendations. He says that he does not accept that the Department owes a duty of confidence to FÁS, an agency under its control.

The Department

The Department in its submission has raised a number of points. The Department states that "FÁS (including the Board of FÁS) was established under the Labour Services Act 1987. The Act stipulates that the Board is to be comprised of a number of representatives of different interests and provides that "two shall be representatives of the Minister" (of Enterprise, Trade and Employment) one of whom shall be "...such officer of the Minister as the Minister may determine... An Assistant Secretary of the Department...was appointed to the Board of FÁS". The Department points out that the record in question was provided to this official in his capacity as a member of the Board. Any records received in this capacity are filed separately from other Departmental files and are not listed in the Departments filing system. This official does not circulate any written reports of board meetings to the Department.

The Department has reiterated that access to the record was refused under section 26(1)(a) and it claims that all aspects of the exemption provision are satisfied. It argues that the record was created by a party which is not a public body for the purposes of the Act. The official in question received the record in confidence and only in his capacity as Board member. The Report was marked "confidential" and it was prepared by the FÁS Client Services Commissioner exclusively for the Board of FÁS. In relation to the circumstances relating to the receipt of the record by the official in question, all Board members are bound by a confidentiality clause within their "Working Instructions" which states:-

"4. CONDUCT OF BOARD MEETINGS

4.1 Board meetings shall be conducted in accordance with Part I of the Schedule to theLabour Services Act, 1987 and in particular with paragraphs 14,16, 17,18, 19, 20 and 21.

4.2 (a) Section 13(1) of the Labour Services Act, 1987 prohibits the disclosure of informationwithout consent.(b) The proceedings of board meetings are confidential. This confidentiality will berespected by all Board Members and by FÁS staff who attend any Board meeting".

The Department contends that disclosure of the record would require FÁS to seriously reconsider the giving of such records to this official in the future and thus prejudice the giving of further similar information to the Department.

The Department contends that this similar information encompasses FÁS Board papers as a whole and not just records provided by the FÁS Client Service Commissioner. It argues that it is important to the Department to receive further reports of the FÁS Client Service Commissioner so that it is apprised of any difficulties identified by the Commissioner. However, it is also of great importance that the official with responsibility for FÁS and who is also a Board member of FÁS continues to receive this information. Such information increases his ability to perform his management functions in relation to his area of responsibility within the Department. Likewise it is important for FÁS to continue to have the valuable contribution of an experienced Department official to the management decisions and discussions of FÁS.

The Department also claims that it is important that the FÁS Client Services Commissioner is able to fully express all details of his role in his report. It argues that there is a public interest in his doing so.

The Department has also considered the public interest factors relating to this request. It argues that there is a public interest in complainants to FÁS having access to information on the wider workings of the FÁS Client Services Commissioner, in accessing information about the operations of a semi-state body and in transparency and openness of discussions of semi-state bodies. However they consider that on balance the public interest would be better served by non-disclosure on the basis of the public interest in the official concerned continuing to receive such reports and informative Board papers, in the Department being able to reach informed decisions and develop policy based on information provided to the FÁS Board, in allowing FÁS to discuss management issues at board level unhindered, in senior officials of the Department receiving relevant information from FÁS and the FÁS Client Services Commissioner being free to discuss and report on all aspects of his role unhindered.

FÁS

A submission was also received from FÁS as a relevant party to the review. FÁS argue that "the Annual Report of the FÁS Client Services Commissioner for 1997 was furnished by the Commissioner to the Secretary of the Board of FÁS for the confidential information of the Board of FÁS. The Commissioner is an independent person who is not employed by FÁS and his Annual Report contains, inter alia, a synopsis of many of his investigations of complaints made to him in his capacity as FÁS Client Services Commissioner. The Report was clearly marked confidential and is not to be circulated to or furnished to any parties other than the Board of FÁS.........(The Department official) only received the Report in his capacity as a member of the Board of FÁS and it is the submission of FÁS that the Department of Enterprise, Trade and Employment is not formally in possession". FÁS further argue that if this official or any other official of the Department requested a copy of this Report in their capacity as an official of the Department then the request would be refused. Accordingly, this Report is not a record held by a public body within the meaning of section 6(1) of the Freedom of Information Act 1997. FÁS also contend without prejudice to the foregoing submissions that access to the Report should be refused by the Department under section 26(1) of the Act.

FÁS Client Services Commissioner

The FÁS Client Services Commissioner provided me with a copy of the Terms of Reference for his position as Client Services Commissioner. He advised me that he had provided the Annual Report in accordance with paragraph 7.2 of the Terms of Reference to the Secretary of FÁS for submission to the FÁS Board. As it is stated in the Terms of Reference that the Report is for consideration by the Board of FÁS, he indicated that he had assumed in writing it that it was intended for the confidential information of the Board of FÁS. He states that under his Terms of Reference he has no role in what happens to the Report after it is submitted.

Findings

Section 26(1)(a) requires that a head refuse a request where 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 and,
• 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.

Section 26(1)(b) requires that a head refuse a request where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. Neither the Department nor FÁS has claimed that disclosure would constitute a breach of confidence as provided by section 26(1)(b). The issue which I have to consider, therefore, is whether the exemption in section 26(1)(a) applies.

Before dealing with the individual requirements of section 26(1)(a) I would like to make the following general comments on the application of the section.

The section deals with information given in confidence. In interpreting this term I have had regard to the following quotation from the decision of the Queensland Information Commissioner in the case of "B" Vs Brisbane North Regional Health Authority (Decision no 94001) at paragraph 45: "In the context of s.46(1)(a) 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.)".While the definition is concerned with the technical meaning of confidence in the context of the law relating to breach of duty of confidence, it does provide some valuable guidance to how the first two requirements of section 26(1)(a) should be interpreted. In the first place, information given in confidence is concerned with private or secret matters. It is not possible for parties to exchange information which is trite or which is already in the public domain and to establish that such information is given in confidence. Put another way, it is necessary to establish that the information has the necessary quality of confidence. This is something that can only be judged by reference to the content of the information. The second point which the definition brings out is that the communication must be for a restricted or limited purpose. Normally I would expect parties relying on the exemption in section 26(1)(a) to be able to explain what this purpose was and why, for example, because of the sensitive nature of the record, it did not include disclosure whether under the FOI Act or otherwise.

The third point which the definition deals with is the need for an understanding that the information is being communicated for a restricted purpose. As I have already explained in decision numbers 9849, 9856 and 9857, I interpret understanding in the context of section 26(1)(a) as meaning a mutual understanding between the confider and the confidant.

Turning now to the four requirements of section 26(1)(a) mentioned earlier, I propose to deal with the first two together.

I note that report was submitted to the Board of FÁS along with two other documents as an attachment to the FÁS Board Paper No: 137.13 (a), (b), (c) which is marked confidential. The (a) in this reference relates to the attachment which is the Annual Report of the FÁS Client Services Commissioner. Prima facie this supports the view that the communication was intended by FÁS to be treated as confidential by its Board members.

The FÁS Client Services Commissioner indicated in his submission that his report was forwarded to the Secretary of FÁS for submission to the Board under paragraph 7.2 of his Terms of Reference. Paragraph 7.2 provides as follows "The Commissioner shall submit to FÁS for consideration by the Board an annual report for each calendar year not later than the month of May in the following year, containing a general review of his activities during that year and such other information as the Board of FÁS may reasonably direct". There is nothing within the Terms of Reference to indicate that the report would be treated as confidential. I note that the Commissioner indicates in his submission that he assumed in writing it that it was for the confidential information of the Board. However, he did not claim that he had furnished the report in confidence nor did he point to any specific aspect of the report which contained confidential information.

I also note from the FÁS submission that it is argued that the Report was given to the FÁS Board in confidence. As I noted above, the document was attached to a covering report created by FÁS which is marked confidential although the report itself is not, in fact, marked confidential.

The Department has claimed that all matters before the Board must be treated as confidential by virtue of section 13 of the Labour Services Act 1987 and also having regard to the Working Instruction upon which the Board operates. As section 13 of the Labour Services Act is contained in the Third Schedule of the FOI Act, it follows that the requirements of the FOI Act supersede any confidentiality provisions in the earlier Act. The Working Instructions provided by the Department refer to section 13 of the Labour Services Act but also provide that "the proceedings of board meetings are confidential. This confidentiality will be respected by all Board Members and by FÁS staff who attend any Board meeting".

In its submission the Department has indicated that the official who is a member of the FÁS Board is also the Assistant Secretary with responsibility for the section of the Department which deals with FÁS. The Department has indicated that this official does not circulate written reports of Board meetings to the Department. It has also pointed to the separate record management system relating to these records.

However the Department also stated that "The material and information he receives as Board member provides additional information and a greater overview of the issues that must be dealt with in his role as a Departmental official dealing with employment policy.....Put simply, it is vitally important that an Assistant Secretary with responsibility for employment policy is able to freely receive information on the management operations of the semi state organisation charged with the training, recruitment, guidance and assistance in the employment area". It also points out that there is a public interest in officials of the Department being able to reach informed decisions and develop policy based on information provided to the FÁS Board.

Therefore, I must conclude that the information contained in FÁS Board papers has, at least in some instances, been used in the course of the deliberations of the Department in reaching policy recommendations and decisions. It appears that the Department considers that it is wholly legitimate for any of its officials who are members of the Board of FÁS to make use of information gathered as a result of Board membership, for the purposes of their other duties in the Department.

Taking above matters into consideration I accept that the information in this case has the necessary quality of confidence to enable it to qualify under section 26(1)(a). The information is contained in a report prepared by the FÁS Client Services Commissioner. It has a confined circulation and its contents are not generally known.

However I am not convinced that the information was given to the Department for a limited purpose or that if it was, the nature of the information in the record was such that that purpose did not include disclosure under the FOI Act. In particular I do not accept that there was a mutual understanding that the information would be used by the Department official solelyfor the purposes of discharging his functions as a Board member. In fact, the Department clearly assumes that the information can be used for its own purposes. It seems to me that this conflicts with the assertion by FÁS that if the Department official concerned or any other official from the Department had requested a copy of the report in the capacity as an official of the Department then that request would have been refused.

It seems to me that the best way to resolve any doubts about the confidential nature of the record is to examine its contents.

The record consists of seven paragraphs, the first of which refers to the FÁS Client Services Commissioner's Terms of Reference, the second notes his appointment, the third deals with the nature of the complaints received in general terms, the fourth relates to the procedures which were adopted in dealing with the complaints, the fifth details the outcome of each of the complaints, the sixth contains a commentary on the level of complaint which arose and the seventh recorded his appreciation of the co-operation received. In detailing the nature of the complaints received there is no information given regarding the circumstances of the complainant, nor is any detail of individual complaints described in paragraph 3.

As I have already explained, the record in question, given its narrow circulation is invested with a sufficient degree of secrecy to enable it to merit the tag 'confidential'. However, as will be appreciated from the description of the record given above it does not contain sensitive information which it could reasonably be inferred was intended to have a restricted circulation.

In the circumstances I do not accept that the Department has proved that the first two requirements of section 26(1)(a) have been met.

The Department has argued that it is necessary that future similar information continue to be received by the Department and that disclosure could prejudice the supply of this material. In making this argument the Department has indicated that it considers future similar material to relate not only to records submitted to FÁS by the FÁS Client Services Commissioner but all FÁS Board papers. I do not consider that this is the correct application of section 26. The section must be applied to records on an individual basis. It does not exempt a class of records.

I do not accept the Department's contention that if this record were disclosed, the FÁS Client Services Commissioner would refuse to provide further information of this kind to the Board of FÁS. The Queensland Information Commissioner dealt with a similar argument, in "B" v Brisbane North Regional Health Authority (Decision No 94001) at paragraph 161 in the following terms "Where persons are under an obligation to continue to supply such confidential information (e.g. for government employees, as an incident of their employment; or where there is a statutory power to compel the disclosure of the information) or persons must disclose information if they wish to obtain some benefit from the government (or they would otherwise be disadvantaged) by withholding information then ordinarily, disclosure could not reasonably be expected to prejudice the future supply of such information". The Terms of Reference of the FÁS Client Services Commissioner requires the provision of an Annual Report and it is doubtful that he would fail in that requirement.

The Department has also indicated that if this record was disclosed, FÁS would refuse to provide information to the Department official who is a member of the Board in light of the possibility of it being released under FOI. Once again the quotation from the Queensland Information Commissioner deals with the point. Indeed, I would find it impossible to accept that some of the FÁS Board members would refuse to make available to one member material to which he is legally entitled as a result of Board membership.

The Department has not chosen to argue that the record is not held by the Department. It has accepted that FÁS Board records held by the Department representative on the Board are under the control of the Department and have sought to apply the exemption provisions of section 26. This position is supported by the arguments made by the Department in relation to the use to which this kind of information is put. It is therefore open to the Department in any situation where an application is made under FOI for a FÁS Board record held by the Department to apply the provisions of the Act. The fact that section 26 is found by me not to apply to the requested Report does not preclude the application of this or any other exemption to any other Board record sought under the Act.

Decision

Having carried out a review of the decisions of the Department both initially and on internal review, I annul the decision of the Department in relation to this record and direct the release of the record in full.

Information Commissioner

30 April 1999