Case 98169. Records given by board of management of a school to Department - whether access to pre-commencement record is necessary or expedient - consideration of section 6(5)(a) - whether access should be granted so as to enable the right to amend personal information to be exercised - section 17 - whether release could reasonably be expected to prejudice the effectiveness of procedures or methods employed for the conduct of investigations - consideration of section 21(1)(a) - whether release would have a significant, adverse effect on functions relating to management - consideration of section 21(1)(b) - whether information provided to Department in confidence - consideration of section 26(1)(a) - whether disclosure would constitute breach of an equitable duty of confidence - consideration of section 26(1)(b) - personal information - section 28 - consideration of the public interest.

Case Summary

Facts

Ms ABY applied for access to the Department's file concerning a complaint she had made about a national school teacher. The Department refused access to certain records given to it by the Board of Management of the school concerned including the teacher's response to the complaint. It argued that release would have an adverse impact on the receipt of similar information from teachers and boards of management in similar cases. It contended that it is necessary for a board to be able to carry out an enquiry in relation to one of its employees in a confidential manner. It also argued that where the Department becomes involved in carrying out inquiries in relation to a case already considered by a board it must respect that confidentiality.

Decision

The Commissioner found that access to one of the pre-commencement records was neither necessary nor expedient to understand a record created after the commencement date. He found that an individual may not be enabled to exercise his/her rights of amendment under section 17 because the record containing the information is exempt and there is no right of access to it.

The Commissioner accepted that the information given to the Department by the Board was given in confidence and that it was reasonable for the Board to expect that it would treat that information with the same degree of confidence expected of the Board. He found that release of the teacher's response to the Board could reasonably be expected to prejudice the procedures adopted by the Department for the investigation by it of complaints against teachers. He was not satisfied that the release of the teacher's response would have a significant, adverse effect on the functions relating to management of the Department. He found that the Department was justified in refusing access to this record in accordance with the provisions of sections 26(1)(a) and 26(1)(b) and that the provisions of section 26(2) did not apply to it.

In considering the public interest the Commissioner commented that the present system of dealing with complaints against teachers is not wholly satisfactory. Notwithstanding this, he decided that the public interest would not be better served by the release of the teacher's response to the Board.

Date of Decision: 06.07.2000

Background:

Ms ABY had been in correspondence with the Department of Education and Science in relation to a complaint she made concerning a primary school teacher. On 27 May 1998, she made an application, under the Freedom of Information (FOI) Act, 1997 to the Department for "a copy of the file in this case so I can see what is going on and what steps I next need to take with this issue."

The Department replied to Ms ABY on 16 June 1998 enclosing a number of documents from the file but also advising her that her request for a complete copy of the file had been refused in accordance with the provisions of sections 26(1)(a) and 26(1)(b) of the FOI Act. The Department went on to state that the records which it was unable to release were those which related to information provided to it by the Board of Management and the teacher concerned and that they were supplied on the understanding that they would be treated by the Department in a confidential manner. The Department also stated its view that the disclosure of this information would impact adversely on similar cases because if such information were to be released, it would have an adverse impact on the receipt of similar information from teachers and boards of management in other similar cases.

Ms ABY made an application for an internal review of this decision on 27 October 1998. In her letter of application Ms ABY asked why, if the teacher is allowed access to her letters, should she not be allowed to see the teacher's replies. She also argued that having access to the full file would empower her and parents like her to see how complaints against teachers are processed and what is tolerated by the Department. The Department replied to Ms ABY on 10 November 1998 advising her of its decision to uphold the original decision as notified to her on 16 June 1998. In addition to claiming exemption under sections 26(1)(a) and 26(1)(b) of the Act, the Department also went on to claim exemptions under sections 21(1)(a), 21(1)(b) and 28 of the Act. The Department stated that, in its view, in order for a board of management to carry out an inquiry involving one of its employees, it is necessary for it to be able to discuss such matters, and documentation relating to such matters, in a confidential manner. It went on to state that this is expressly provided for in the Rules of Procedure of Boards of Management which was updated and issued to schools in 1997. Referring to its claim under section 28, the Department stated that the information supplied by the teacher to the Board was personal information relating to the teacher.

Ms ABY wrote to this Office on 14 November 1998 seeking a review of the Department's decision and, having considered the matter, I decided to grant her application for a review.

In reviewing this case, I examined copies of all of the records to which Ms ABY has been granted access together with those to which she was refused access. I have also examined Department of Education and Science file number 375729 which relates to the complaint made by Ms ABY against the teacher concerned. I have also had regard to the provisions of the Department of Education and Science publication entitled "Rules for National Schools under the Department of Education" together with the document entitled "Boards of Management of National Schools - Constitution of Boards and Rules of Procedure" published by the Department's Primary Administration Section in November 1997. Members of my staff also held meetings with representatives of the National Parents' Council - Primary and the Irish National Teachers Organisation.

The records which the Department refused to release to Ms ABY were numbered 3, 11, 12 13, 15, 18, 19, 23 and 24. During the course of discussions with my officials, the Department agreed to release a number of these records. The outstanding records in respect of which the Department continues to claim exemption, and to which my review in this case relates, are as follows:

Record number 3

This record, dated 29 January 1998, sets out the background relating to two separate complaints received by the Department, one of which came from Ms ABY. The Department agreed to release that part of the record relating to Ms ABY's complaint but continues to refuse access to the remainder of the record on the grounds that the information contained therein relates to the personal circumstances of another complainant.

Record number 13

This record, dated 30 March 1998, is a note of a telephone conversation between an official of the Department and the Chairman of the Board of Management in relation to a meeting of the Board and the issue of the teacher's response to the complaint. The Department continues to refuse access to this record on the grounds that it was created prior to 21 April 1998 and that it does not relate to personal information about Ms ABY.

Record number 18

This record, dated 29 April 1998, is a note of a telephone conversation between an official of the Department and the Chairman of the Board of Management in relation to a meeting of the Board and the issue of the teacher's response to the complaint. The Department has agreed to the release of this record with the exception of a comment which it claims contains information which does not relate to Ms ABY.

Record number 19 consisting of records 19/1, 19/2, 19/3 and 19/4

Record number 19 consists of four separate records the first of which (record 19/1) is a hand-written cover note to the Department enclosing the other three. The last of these (record 19/4) is a copy of Ms ABY's original complaint to the Board of Management in relation to the teacher. The Department has agreed to release 19/1 and 19/4 in their entirety to Ms ABY.

Record 19/2 is a copy of the report of the Board of Management to the Department. It is dated "April '98". The Department has agreed to release this document with the exception of the last two paragraphs which it claims contains information which is not information about Ms ABY.

Record 19/3 is a copy of the teacher's response to the Board of Management, dated 7 April 1998, in relation to Ms ABY's complaint. The Department has refused to release this document.

Submissions

Ms ABY

In a submission to me dated 28 November 1998, Ms ABY stated that she felt there had been a lack of transparency about her complaint by the Board of Management, the School Principal and the Department of Education and Science. She stated that she felt the Department was saying to her indirectly that, if the Department was to release this information, it would not get the co-operation of teachers or boards of management in the future. Ms ABY went on to state her understanding that, when a decision on her complaint is made, she would not be entitled to know either the nature of that decision or whether the teacher had been disciplined.She said that she wanted to be made aware of any comments which the teacher might have made to the Board of Management in relation to her family circumstances in order that she might "be able to challenge any mistruth about me, my daughters or my family that are on the file".

My Office wrote to Ms ABY on 17 April 2000 setting out, in broad terms, its observations in relation to the Department's remaining claims for exemption. Ms ABY replied on 19 April indicating that the teacher's response to her complaint is one of the most important documents she would like to view. She pointed out that under the Act a person is allowed to correct errors on files on issues that relate to them. She stated "If I am not allowed to view the document this does not protect my rights under the Act." She went on to ask "How am I supposed to challenge something I am not allowed to view?"

The Department of Education and Science

In a submission to me dated 23 December 1998, the Department stated that while it considered that the FOI Act allowed for the refusal to release the type of information requested by Ms ABY, in formulating its response it was acutely aware that it must also take account of the views of the partners in education on such issues. The Department stated that it is generally accepted by the partners that a parent should be informed as to whether or not his/her complaint had been substantiated. It went on to state, however, that the generally held view is that in order for a board of management to be able to carry out its functions in an effective manner, it is necessary for the deliberations of a board to be conducted in a confidential manner and to remain confidential to the board members once those deliberations have been concluded. The Department stated that the management authorities and the Irish National Teacher's Organisation (INTO) strongly held the view that if as a result of a complaint, a board finds it necessary to take some form of action against a teacher, then any such disciplinary action by the board is a personnel matter between the board as employer and the teacher as employee.

Referring to its claims for exemption under section 21 of the Act, the Department stated that it was important to note that boards of management are the employers of teachers within schools and that it is necessary for a board to be able to carry out an inquiry, which may result in disciplinary actions against one of its employees, in a confidential manner. It stated that, where the Department becomes involved in carrying out further inquiries in relation to a case which a board has already considered, it is of the view that it is incumbent on the Department to respect that confidentiality. It went on to argue that the disclosure of the records would impact on the ability of a board to carry out its duties in relation to its role as the employer of teachers and the necessity to observe confidentiality in dealing with issues that are, in effect, personnel issues between an employer and employee. It also argued that release in this case would affect the ability of the Department to obtain reports from boards who would consider that such reports could then be released under the FOI Act. It stated that the Department does not have a statutory basis for compelling a board of management to submit reports on such matters and went on to argue that, if information submitted to a board in confidence by a teacher was made available to a complainant, such information could be used by the complainant to the detriment of the teacher. It stated that this could happen regardless of whether a teacher denies or admits the incident complained of and that such a use by the complainant could have a serious adverse impact on the standing of the teacher in a local community.

Referring to its claim for exemption under section 26, the Department raised a number of issues the first of which related to section 26(2) and whether a board of management is providing a service for the Department under a contract for services. It stated that a board carries out various functions many of which are carried out on behalf of the Minister for Education and Science with a view to ensuring that good quality educational services are provided to pupils. It accepted that the Chairpersons of boards have a responsibility to ensure that schools are operating properly and are also involved in certifying various returns to the Department. It stated, however, that Chairpersons or other members of boards are not remunerated by the Department for their roles. It submitted that, under these circumstances, a contract for services does not exist between a board and the Department.

Referring to the basis on which the information in the records was considered to be given in confidence, the Department cited its current complaints procedure in cases where a complaint against a teacher is made directly to the Department. That procedure states, inter alia, that the Department replies to the complainant indicating that the complaint should, in the first instance, be made to the Chairperson of the Board of Management. The procedure goes on to state that the complainant will be advised that the Department's system of investigating complaints involves the Department in sending a copy of the signed complaint to the teacher through the Board, requesting the written comments of the teacher and the views of the Board on the teacher's statement and on the complaint in general. The Department stated that it had always operated on the understanding that the information referred to in its complaints procedure should be treated as confidential and as such not available for disclosure to any other party.

Explaining the basis for its understanding that the information would be treated as confidential, the Department stated that this was based on the premise that, in order for a board to carry out an inquiry which might result in disciplinary action against one of its employees, it is necessary for a board to be able to discuss such matters and documentation relating to such matters in a confidential manner. It went on to state that this was expressly provided for at sections 8 and 9 of the Department's Board of Management handbook - "Boards of Management of National Schools - Constitution of Boards and Rules of Procedure". Referring to the possibility that disclosure of the information contained in the withheld records would prejudice the giving of similar information in the future, the Department repeated the arguments it made in support of its claim under section 21. It went on to state that the Department operates its complaints procedure in co-operation with the various management bodies and the INTO and that any attempt by the Department to alter the status quo would result in those bodies withdrawing their co-operation from the procedure. It argued that the continued receipt of information from boards in relation to complaint cases is vital, so that the Department can continue to discharge its overseeing function in relation to the operations of boards in an effective manner. It argued that the release of the information requested by Ms ABY would have a serious adverse impact on the Department's ability to perform that function.

The Department stated that in arriving at its decision in this case, it considered the following public interest factors:

• the public interest in the requester exercising rights of access under the FOI Act,
• the public interest in the accountability of officials and scrutiny of decision making processes,
• the public interest in maintaining the ability of a body to effectively discharge its functions, and
• the public interest in the need to preserve confidentiality having regard to the subject matter and the nature of the communication.

The Department also stated that, in its view, disclosure of the documents from the Board of Management and the teacher would be contrary to the public interest in that

a) the deliberations of a board of management on a dispute within a school should remain confidential to the board and

b) that the board, as employer of the teacher, would have an employer/employee relationship with the teacher and correspondence, discussions, statements between the board and the teacher are within the remit of that relationship and should remain confidential to the people in that relationship.

In response to a number of points raised by my staff, the Department, in a further submission dated 28 January, 1999 confirmed that its claims for exemption from release of part of record numbers 3, 13, 18, and 19/2 were made on the grounds that those sections of the records which it withheld contained personal information relating to persons other than Ms ABY. It also confirmed that it is the potential release of the documents associated with record number 19 that were of most serious concern and that its claim for exemption from the release of those documents was made under sections 21(1)(a), 21(1)(b), 26(1)(a), 26(1)(b) and 28 of the FOI Act.

The National Parents Council - Primary

In an oral submission made to a member of my staff on 15 January, 1999 the National Parents Council - Primary (NPC) made a number of points.

The NPC considers the parent/child/teacher relationship to be a special kind of relationship. Distinguishing it from the one to one relationship between a doctor and a patient, the NPC says that it is a one to many relationship. The NPC stated that, unlike a doctor/patient relationship where the patient can break the relationship if not satisfied, the same choice is not available to a parent. In addition, the relationship between a teacher and one pupil or set of parents could also have an impact on the relationship between the teacher and all other parents and pupils in the class.

In response to the Department's claim that an employer/employee relationship exists between a board of management and a teacher, the NPC accepted that teachers are employed by boards of management but argued that there is a grey area when it comes to determining where responsibility lies in relation to the taking of action against an errant teacher. The NPC claims that the Department is charged with matters relating to professional competence but that the lack of clear definition as to what constitutes matters of professional competence can be exploited by teachers when complaints are made and can be used to frustrate those complaints.

The NPC said that, as far as it is concerned, there should be some form of procedure in existence which would allow the parent to be advised of the outcome of any complaint and that there should, in the interests of equity, also be some form of appeals procedure. It stated that the current practice appears to be that once a parent makes a complaint that is the last they hear of it. The parent is generally not advised in any manner in relation to the outcome and it is only where a parent persists that they will get an answer from the Department. It stated that the outcome of complaints does sometimes become common knowledge but only through the medium of speculation, rumour and innuendo, most of which cannot be substantiated because of the emphasis on confidentiality contained in the rules and guidelines for boards of management. The NPC agreed that the deliberations of boards of management should remain private but indicated that it is concerned with the outcome of those deliberations and the right of parents to be made aware of the outcome of those deliberations.

In response to the argument that disclosure of the nature of any disciplinary action could cause a teacher difficulties in the local community, the NPC accepted that the wording of the notification of the outcome would be most important. It felt that the substance and rationale behind decisions should be set out. It also felt that the confidentiality aspect has been over emphasised to the detriment of parents, who in its opinion, have a right to be assured that certain actions will be taken to ensure the future well-being of the child. The NPC argued that this is a clear issue of openness, transparency and accountability, a matter of civil rights, the well being of the child and the nature of the relationship between teachers, school authorities and parents. It further argued that the notification of decisions to parents on foot of complaints could be as useful to teachers as it is to parents. It argued that, in many instances, teachers can be the focus of unsubstantiated rumour and complaint and that clear decisions by boards of management which do not uphold complaints would serve to vindicate teachers publicly.

In a written submission dated 3 February 1999 the NPC set out some of its priorities for a complaints procedure for National Schools. As these are matters more appropriate for detailed discussion with the Department, I do not propose to set them out here.

The Irish National Teachers Organisation

In an oral submission to a member of my staff on 27 January 1999, representatives of the INTO made a number of points in relation to this matter, most of which were repeated in a subsequent written submission to me dated 23 March 1999.

The INTO stated that, while it fully supports the promotion of positive, open and transparent channels of communication among the school community, it would, nonetheless, be particularly concerned if the application of FOI legislation had, in certain circumstances, a contrary effect resulting in less communication or a breakdown in communication at school level and interference in the contractual relationship between the teacher, the board of management and the Department. It expressed its concern that, in responding to complaints made against them, teachers may not be as open in their replies to boards of management if they feel that their reports may be released under the FOI Act when they reach the Department of Education and Science. The INTO went on to explain that, while the procedure for dealing with complaints against teachers provides that the board of management is the final arbiter, the Department provides an appeal mechanism by way of review and acknowledges that it is through this review mechanism that documents relating to the complaint come into the possession of the Department and, therefore, may become accessible under FOI.

The INTO went on to indicate that the complaints procedure is currently the subject of review by the partners in education. It stated that the INTO supports effective procedures and is of the view that, where a parent/guardian wishes to make a complaint against a teacher that he/she is entitled to be furnished by the board with of copy of the complaints procedure, to have the complaint fully and properly considered in accordance with the procedure and to be informed of the outcome/decision of any such consideration or investigation.

The INTO contended that, in the majority of complaint cases, certain matters will arise during the course of the investigation which must properly be treated confidentially. It stated that these matters generally fall within the parameters of the contractual relationship between the employer and the employee and include the rationale for any decision of a board, any information supplied by a teacher to the board or any mention of a sanction which might be issued to a teacher. It indicated that, in its view, such information should not be disclosed under FOI, should be treated with strict confidentiality and must not be disseminated to third parties. It argued that there is no privity of contract with third parties and stated that it is not acceptable that information provided by a teacher to a board pursuant to contractual obligations should be accessible by third parties and used to the teacher's detriment or disadvantage in any subsequent litigation. It drew my attention to section 21 of the FOI Act which provides for exemption where disclosure would prejudice the effectiveness of investigations conducted by or on behalf of a public body or have a significant adverse effect on the performance by the body of any of its management functions, including industrial relations.

Referring to its difficulties with the potential release of information relating to the rationale for a board's decision, the INTO argued that it would counterproductive to the deliberation process if all or some of the matters considered by the board or the Department and which would generally be contained in the rationale for the decision were to be released under FOI. The INTO stated its belief that this would most likely lead to an unnecessary prolonging of matters by either the teacher or the parent who might seek to second guess the decision and that this would undermine the decision making process. It went on to argue that, save for the requirements of the appeals process and in the interests of the harmony and effectiveness of the system, the balance of relations in the local school community and the public interest, boards must be allowed to operate on the basis that they have the trust and confidence of parents and teachers. It stated that, in its view, FOI must not undermine the authority of boards of management and that boards are, in accordance with sections 8 and 9 of the Department's Rules of Procedure, under an obligation of confidence which cannot be breached.

In the light of its views as to the confidential nature of the information supplied by a teacher to a board, the INTO stated its view that sections 21(1)(a), 21(1)(b), 26(1)(a) and 26(1)(b) of the FOI Act must apply. It also stated its view that the contractual relationship which exists between a board and a teacher brings with it certain entitlements to confidentiality and privacy. It argued that personal information relating to the employment history and personal records of a teacher are exempt under section 28.

Other submissions

In a submission to me dated 21 January 1999, the Catholic Primary Schools Managers Association (CPSMA) pointed out that schools are not subject to the terms of the FOI Act. It stated that , while it accepted that parents who make a complaint in relation to teachers have a right to be informed of the decision of the board, it could not accept that parents would have a right to have copies of the precise terms of any sanctions imposed on a teacher. It went on to state that such matters can be influenced by employment legislation, industrial relations agreements between management and trades unions and by other instruments which govern the actions of school management. The CPSMA also expressed its serious reservations about the use which might be made by third parties of confidential correspondence between an employee of a school and his/her employers.

During the course of a meeting with Board of Management representative groups held in my offices on 4 February 1999 a number of points were made. These included the potential for released information to be put to a teacher in an inappropriate fashion outside of the school context within the local community. It was argued that parents should be made aware of the outcome of board of management investigations but that procedures need to be put in place which would protect the rights of all the interested parties. It was also argued that, while it is desirable that a parent should be made aware of the outcome of an investigation, it was not desirable that the nature of a sanction to be imposed be made available because of the employer/employee relationship which exists between a board and a teacher.

Findings

The request for access to the Department's file in this case has raised broader issues relating to procedures following the receipt of a complaint against a national school teacher. My decision, however, is confined to the question of whether or not Ms ABY is entitled to access those documents which the Department has refused to release to her, having regard to the provisions of the FOI Act. I propose to set out in turn my findings in relation to each of the records to which Ms ABY has been refused access.

Record number 3

This record, dated 29 January 1998 is headed "Note for Information of Minister's Office" and is signed by an Assistant Principal in the Department's Primary Administration division. The note consists of three separate sections, the first of which sets out the background to a complaint made by another person about a primary school teacher, the second of which sets out the background to Ms ABY's complaint with the third being a summary, expressed in general terms about the sensitivity of handling complaint cases. The Department has agreed to release the second and third sections of this record to Ms ABY but has refuse to release the first section on the grounds that it contains personal information relating to another person.

The relevant exemption in the case of the Department's refusal to release the first section of the note is set out in section 28(1) of the FOI Act which states:

"28.-(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual)."

Notwithstanding the requirements of section 28(1), section 28(5) allows a head to release such information if:

"(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid,"

Having examined record number 3 and having considered the nature of the information contained in the first section of that note, I am satisfied that the release of that section of the record would involve the disclosure of personal information. Having considered the provisions of section 28(5) and taking into account the nature of the information contained in the first section of the record, I am not satisfied that the public interest that the request be granted outweighs the public interest that the right to privacy of the individual to whom it relates should be upheld. I am also unable to identify any manner in which the release of the information contained in that section would be to the benefit of the individual to whom the information relates. I am satisfied, therefore, that the Department was entitled to refuse to release the first section of record number 3.

Record number 13

This record, dated 30 March 1998, is a note of a telephone conversation between an official of the Department and the Chairman of the Board of Management in relation to a meeting of the Board and the issue of the teacher's response to the complaint. The Department continues to refuse access to this record on the grounds that it was created prior to 21 April 1998 and that it does not contain personal information relating to Ms ABY.

The Department's refusal to release this record is founded on section 6(5) of the FOI Act which states as follows:

"(5) Notwithstanding subsections (1) [the general right of access to records] and (4) [which relates to the time at which records were created] but subject to subsection 6) [which relates specifically to staff records], where-

(a) access to records created before the commencement of this Act [21 April 1998] 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."

The effect of section 6(5) is that the Department may only be required to grant access to records created before the commencement date of the Act either if access to such records is necessary or expedient in order to understand records created after the commencement date or if the records relate to personal information about the requester. It is clear that record number 13 was created prior to the commencement of the FOI Act on 21 April 1998.

I have considered whether, in accordance with the provisions of section 6(5)(a) access to record number 13 could be necessary or expedient in order to understand any of the records created after 21 April, 1998. I have already explained in an earlier decision, Case Number 98117 - Mr ABE and the Department of Marine and Natural Resources (OIC Decisions Vol. 2 pages 76 and 77) how I interpret the word "understand" in section 6(5)(a) of the Act and I repeat this below, so that the basis for my findings in relation to this record are clear :

"In one sense to "understand" a document means simply to comprehend what is written in the document, or, in other words, to have a literal understanding of what it says. On this interpretation, a record is likely to be capable of being understood unless it is ambiguous or incomplete in some way or contains symbols or codes which are not explained in the record.

However, it seems to me that the word "understand" in section 6(5)(a) is not used in this narrow sense. In my view, the section is directed not at the question of whether a record can be understood in a literal sense without reference to earlier records but at whether its substance(or gist or subject matter) can be understood. Having said that I must make it clear that, in my view, the fact that a document does not contain all the information which a reader might wish to have does not mean that the substance of the document cannot be understood. The fact that an earlier record may throw fresh light on the subject discussed in a later record or that it may enable a requester to extend or analyse information contained in a later record, does not of itself mean that access to the earlier records is necessary or expedient in order to understand the later record.

I have also considered the significance of the use of the word "expedient" in section 6(5)(a). "Expedient" I take to mean "fit, proper or suitable to the circumstances of the case" [Oxford English Dictionary]. It is clear that the word "expedient" is less restrictive than the word "necessary". It might be argued that the use of the word "expedient" is designed to enable a requester to gain access to pre-commencement records where that access enhances his/her understanding of a post-commencement record. I do not accept that argument. It seems to me that the release of a pre-commencement record is justified only to the extent that such access is a suitable means to achieving the end of understanding the substance of a post-commencement record. I consider that I would not be justified in holding that any pre-commencement record which deals with the subject matter of a post-commencement record or which might shed new light on that subject matter is, per se, within the ambit of section 6(5)(a)."

Having considered the information contained in record number 13, I have arrived at the conclusion that access to that record is neither necessary nor expedient in order to understand later records and that the provisions of section 6(5)(a) of the Act do not, therefore, apply.

The record is a progress report to the Department in relation to the Board of Management's ongoing investigation into Ms ABY's complaint. While the record makes reference to Ms ABY, I am satisfied that it does not relate to personal information about Ms ABY. Rather, it relates to the progress of the Board's investigations. Under these circumstances, I am satisfied that the provisions of section 6(5)(b) of the FOI Act do not apply.

I find that the Department was entitled to refuse access to this record.

Record number 18

This record, dated 29 April 1998, is a hand written note of a telephone conversation between an official of the Department and the Chairman of the Board of Management concerning, inter alia, a meeting of the Board. The Department has agreed to the release of this record with the exception the last three lines which it claims contain information which does not relate to Ms ABY.

Having examined record number 18, I am satisfied that the part of the record which the Department has withheld contains personal information about a person other than Ms ABY and that the information is not connected with her complaint. Under these circumstances, I am satisfied that the release of that part of the record would involve the disclosure of personal information about that third party. Having considered the provisions of section 28(5) and taking into account the nature of the withheld information, I am not satisfied that the public interest that the request be granted outweighs the public interest that the privacy of the individual to whom the information relates should be upheld. I am also unable to identify any manner in which the release of the information would be to the benefit of the individual to whom the information relates. I am satisfied that the Department's decision to refuse to release the information contained in the last three lines of record number 18 was correct.

Record number 19/2

This record is a copy of the report of the Board of Management to the Department. It is dated "April '98". Notwithstanding its argument that correspondence between the Department and a board of management was confidential, the Department has agreed to release this document to Ms ABY with the exception of the last two paragraphs which it claims contains information which is not personal information about Ms ABY. While it is not possible to say whether this record was created prior to or after the commencement of the FOI Act on 21 April 1998, I am satisfied, having regard to the fact that it was received by the Department on 30 April 1998, that it was, more likely than not, created after the commencement date.

Having examined record number 19/2, I am satisfied that the first of the two paragraphs which the Department has withheld contains information relating to a person other than Ms ABY and that the release of that part of the record would involve the disclosure of personal information about that person. Having considered the provisions of section 28(5) and taking into account the nature of the withheld information, I am not satisfied that the public interest that the request be granted outweighs the public interest that the privacy of the individual to whom the information relates should be upheld. I am also unable to identify any manner in which the release of the information would be to the benefit of the individual to whom the information relates. I am satisfied, therefore, that the Department's decision to refuse to release the information contained in the first of the two withheld paragraphs in record number 19/2 was correct.

In my view the second withheld paragraph, which consists of a single sentence, is a comment made by the signatory, on behalf of the Board, in relation to the overall situation concerning the complaint made by Ms ABY and does not contain information of a personal nature. On the basis that this record is deemed to have been created after the commencement of the Act, it follows that Ms ABY has a right of access to this part of the record unless it is exempt in accordance with some other provision of the Act. I shall consider the question of exemption of this part of the record when dealing with the Department's claims for exemption in relation to record number 19/3.

Record number 19/3

This document is a copy of a letter dated 7 April 1998 which the teacher sent to the Board of Management in response to Ms ABY's complaint. It is clear that this record was created prior to the commencement of the FOI Act on 21 April 1998 and that the provisions of section 6(5) of the Act, to which I have already referred in connection with record number 13 above, are relevant.

Having considered the content of record number 19/3, I have arrived at the conclusion that access to this record is neither necessary nor expedient in order to understand records, which are the subject of this review, created after the commencement of the Act. Part of the record consists of personal information about the teacher. The Department is entitled to refuse access to this part of the record simply because it was created before the commencement of the Act, it does not relate to personal information about Ms ABY and access to it is neither necessary nor expedient in order to understand a record created after the commencement of the Act. The remainder of the record contains information which is personal information about Ms ABY and/or her child. It follows that Ms ABY has a right of access to that part of the record which relates to personal information about her (and her daughter has a similar right in relation to her personal information) unless those parts of the record are exempt in accordance with some other provision of the Act.

The Department has claimed exemption from the release of this record under sections 21(1)(a), 21(1)(b), 26(1)(a), 26(1)(b), 26(2) and 28 of the Act.

Before considering the Department's claims, however, I would like to comment on two preliminary matters. The first is the suggestion made by Ms ABY in her letter of 19 April 2000 to my Office that she should be given access to documents so as to enable her to exercise the right conferred on persons under the Act to have errors or incorrect statements contained on files about them corrected. The second matter which I will deal with is the question of whether or not the letter from the Board of Management to the Department (Record number 19/2) and the teacher's response to the Board of Management (Record number 19/3) contain information given in confidence.

Consideration of section 17

Ms ABY is correct in pointing out that the Act provides a mechanism for the amendment of records, held by public bodies, which contain personal information about a requester. Section 17 of the Act confers on individuals the right to apply to a public body for the amendment of such information on the grounds that it is incomplete, incorrect or misleading. The question which arises, however, is whether it is necessary, in the first instance, that access to the information be sought and/or granted in order that such an amendment be carried out.

Having considered this question, I have arrived at the conclusion that circumstances could arise where a person who had not sought access to personal information under the Act, could become aware of the contents of records or the nature of information held about him/her by a public body. It seems to me that, under such circumstances and regardless of how the individual concerned became aware of the contents of the information, the right to apply to a public body for amendment of the information under section 17 would still apply.

Ms ABY has, however, posed the question - "How am I supposed to challenge something I am not allowed to view?". Notwithstanding the comments I have made above, it is reasonable to assume that the more usual route to an application under section 17 would follow a grant of access to the information under the FOI Act. Ms ABY's question highlights the fact that records containing personal information are subject to certain exemptions and exclusions. The effect of this is that, in certain circumstances, an individual may not be enabled to exercise the right to have personal information amended in accordance with the provisions of section 17 simply because the record containing the information is exempt and, as a consequence, the individual is unable to establish whether the information is incomplete, incorrect or misleading. Section 6 of the Act which confers a right of access on every person to records held by public bodies provides at subsection (7) that -

"(7) Nothing in this section shall be construed as applying the right of access to an exempt record."

Information given in confidence

As I indicated above, a second issue which needs to be determined is whether or not the teacher's response to the Board of Management and the letter from the Board to the Department contain information given in confidence. While no express undertaking of confidentiality was given by the Board of Management to the teacher in this case, the Department has argued that the information provided by the teacher to the Board was supplied in confidence.

The Department also stated that it had always operated on the understanding that the information referred to in its complaints procedure should be treated as confidential and, as such, not available for disclosure to any other party.

I accept that, in this instance, the teacher furnished her comments to the Board in confidence and that the Board understood that the comments were furnished on this basis. In coming to this conclusion, I have taken into account both the content of the teacher's statement, the nature of the relationship (i.e. employee/employer) between the teacher and the Board, and the circumstances in which the statement was furnished viz. in reply to a complaint. I am satisfied that neither the teacher nor the Board intended that the contents of the statement should be revealed either to the world at large, as a result of a request under the FOI Act, or to Ms ABY, as the complainant.

The second question is whether the information given by the Board to the Department was given in confidence. I should point out straight away that I do not accept that every communication between a board of management and the Department is made in confidence. Where, as in this case, there is no express understanding of confidentiality between the parties but it is alleged that confidentiality is implicit, then it is legitimate to look at the nature of the relationship between the parties, the content of the information and the practice of the public body in relation to such communications.

It seems to me that there is nothing in the nature of the relationship between the Department and a board of management which would suggest that all communications between them are or are intended to be confidential. Nor do I accept that it is the invariable practice of the Department to treat all such communications as confidential. However, I do accept that the Department's practice has been, and is, to treat a teacher's response to a complaint as confidential. Having regard to this practice, and having regard to the nature of the information conveyed, I find that the Board furnished the teacher's response to the Department in confidence and on the understanding that it was to be treated as confidential.

Apart from the teacher's response, the only part of any other record which contains information which the Department says was furnished to it in confidence, is the final paragraph of record number 19/2. It is not clear to me whether the Department is arguing that its practice is never to release any information received from boards of management where the information relates to a complaint against a teacher. If this is its position, then I have to say that I do not accept it as conclusive evidence that such information is always given in confidence. It is easy to imagine all kinds of information in relation to a complaint which a board might give to the Department with no expectation of confidentiality. In the absence of any express agreement between the Board and the Department as to the confidentiality of the information in record number 19/2, I have looked at its contents to see if it could reasonably have been understood by both the Board and the Department that the particular matter in the final paragraph of the record was confidential. Having done so, I am satisfied that the parties could not reasonably have understood this to be the case. I find that the information in this paragraph was not given to the Department in confidence.

The claim for exemption under section 21(1)(a)

Section 21(1)(a) of the FOI Act allows a head of a public body, subject to consideration of the public interest, to refuse to grant a request for information made under the Act if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof,"

In the case of The Sunday Times Newspaper & Others and the Department of Education and Science (Case Number 98104, OIC Decisions Volume 3 pp. 84 - 137) I explained the approach which I adopted to applying this exemption in the following way:

"It seems to me that in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.

Section 21(1)(a) envisages two potential types of 'prejudice' which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the 'effectiveness' of the examinations or that release will prejudice the 'procedures or methods employed for the conduct thereof'.

I will deal with the issue of 'effectiveness' first. The Oxford English Dictionary defines the word 'effectiveness' as 'the quality of being effective' with the word 'effective' being defined as 'concerned with, or having the function of, carrying into effect, executing, or accomplishing'. Perhaps a more useful definition of the word 'effective' is that found in the Collins English Dictionary which defines it as 'productive of or capable of producing a result'. It seems to me that the use of the word 'effectiveness' in the context of tests and examinations as referred to in section 21(1)(a) of the FOI Act must be interpreted as the ability of the test, examination or audit to produce or lead to a result of some kind........

However, a claim for exemption under section 21(1)(a) could also succeed if there is a reasonable expectation of harm to the "procedures or methods employed for the conduct thereof......"

The approach I adopted in case number 98104 is relevant to this case also.

In its submissions to me in this case, the Department stated that the release of the teacher's statement made to the Board of Management would impact on the ability of the Board to carry out its duties in relation to its role as the employer of teachers. It stated that, in order for a board to be able to carry out its functions in an effective manner, it is necessary for its deliberations to be conducted in a confidential manner. The Department forwarded a copy of an agreed complaints procedure between the INTO and the CPSMA and confirmed that the procedure is also used by the management representative bodies of the Church of Ireland, Educate Together and the Gaelscoileanna.

That procedure begins with the initial raising of a complaint directly with the teacher in the first instance and provides, if the parent remains dissatisfied, for the making of a written complaint to the Chairperson of the Board of Management. The Chairperson is then required to bring the precise nature of the written complaint to the notice of the teacher and to seek to resolve the matter informally. If the matter remains unresolved, the Chairperson is obliged to supply the teacher with a copy of the written complaint and to arrange a meeting with the teacher with a view to resolving the complaint. If the matter still remains unresolved, the Chairperson must make a formal report to the Board of Management which then decides whether the complaint is substantiated or warrants further investigation. If the Board considers that the complaint warrants further investigation, the teacher is to be supplied with a copy of any written evidence in relation to the complaint and requested to supply a written statement to the Board in response to the complaint. Both the teacher and the complainant are to be afforded an opportunity to address the Board. When the Board has completed its investigation, the procedure requires that both the teacher and the complainant be advised of the decision of the Board. The decision of the Board is stated to be final. No mention is made in the procedure of the role of the Department of Education and Science.

The INTO is concerned that teachers may not be as open in their replies to boards of management on foot of complaints if they feel that their responses may be potentially released under the FOI Act after they reach the Department. The Department, for its part has argued that release of the teacher's response made to the Board of Management in this case would prejudice the ability of the Department to obtain reports from boards of management generally. In dealing with these points, let me first make it clear that, in my view, boards of management - as the employers of teachers - have every right to expect full and comprehensive reports from a teacher employed by them in relation to any relevant complaints made against teachers by parents and/or students. What I am concerned with in this review is whether the release of a teacher's written response by the Department would prejudice the effectiveness of the investigation process conducted by the Department.

The first question which arises in relation to this matter is whether or not the process engaged in by the Department in relation to complaints is, in fact, an investigation. I note that the Department currently does not have a statutory basis for compelling boards of management to submit to the Department reports of the kind under consideration in this review. The INTO, in its submission, acknowledged that, while a board of management is the final arbiter under the present INTO/CPMSA procedure for dealing with complaints by parents against teachers, the Department currently provides a mechanism for parents to appeal board decisions. The INTO points out, however, that the appeal is only by way of review of documentation and the Department does not meet with parents or arrange a hearing. While I would question whether the present procedures constitute an appeals mechanism for parents, particularly in the sense of its involving a review of a decision already taken by a board of management, I accept that the Department's procedures constitute an investigation in the normal sense of that term.

The second question which arises is whether release of a teacher's report by the Department could reasonably be expected to have the harmful results envisaged in section 21(1)(a).

I have already found that the teacher's response in this case was given to the Board in confidence and passed on to the Department in confidence.

Having considered this matter I am satisfied that it is reasonable to expect that the release of the record in this case involving, as it would, a breach of confidence, would create a perception among boards of management that similar breaches will occur in future. While I have no doubt that boards of management would be anxious to continue to give the Department the fullest co-operation in any investigation by the Department of a complaint against a teacher, I accept that, in present circumstances, the release of a teacher's response to a board by the Department could well result in boards of management having difficulty giving such reports to the Department in future. As I will explain in dealing with the Department's claim to exemption under section 21(1)(b), the precise purpose served by the investigations of the kind undertaken in this case is not clear. Nor is it clear what action may be taken by the Department on foot of such an investigation. However, as I will also explain, there will be occasions on which the Department has a clear duty to investigate complaints. It seems to me in such cases, it is essential to any proper investigation that the actual written response of a teacher to a complaint should be available to the investigator. Therefore, I find that access to record number 19/3 could reasonably be expected to prejudice the procedures adopted by the Department for the investigation by it of complaints against teachers. Accordingly, I find that the Department was justified in its claim for exemption from the release of record 19/3 under section 21(1)(a) of the Act. I deal with the public interest test in section 21(3) later in this decision.

I now return to the final paragraph of record number 19/2. I have already found that the information in that paragraph was not furnished to the Department in confidence. In the circumstances, I am unable to see how either the procedures adopted by the Department or the Board could be prejudiced by release. I find that the exemption in section 21(1)(a) does not apply to the final paragraph of record number 19/2.

The claim for exemption under 21(1)(b)

Section 21(1)(b) of the Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information if access to the record concerned could, in the opinion of the head, reasonably be expected to -

"(b) have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff) or,....."

I have already indicated that, in arriving at a decision to claim an exemption under section 21(1)(a) of the Act, a decision maker must have reasonable expectations of the anticipated harm arising from release. In my view, in the case of a claim under section 21(1)(b), the establishment of "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 21(1)(a). When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected but it must also be expected that the harm will be of a more significant nature than that required under section 21(1)(a).

Other than the specific references to industrial relations and the management of staff, section 21(1)(b) does not indicate what other management functions are embraced by the term "functions relating to management".

However, management is a word of wide import and is apt to cover a variety of activities apart from management of staff and industrial relations, such as strategic planning, the management of financial resources and the management of operational matters. Implicit in the Department's claim on this point is the view that its role includes investigating complaints made to it against national school teachers. It has not, however, explained to me which of the Department's functions relating to management could be affected by release in this case.

The Department clearly performs a management role in relation to some aspects of teaching. I also accept that the Department has a role in relation to monitoring teacher performance and behaviour. For example, Rules 106 and 108 of the Department's publication entitled "Rules for National Schools under the Department of Education" envisage a role for the Department in relation to teachers whose school work has been estimated as "Not Satisfactory" and in relation to teachers who "Conduct Themselves Improperly". The Rules provide that the Minister may withdraw recognition from a teacher or take disciplinary action, including prosecution, and envisage situations where serious incompetence or misconduct arise. These Rules are not concerned, per se, with complaints against teachers, but it is easy to see that a decision to invoke them could have its origins in a complaint against a teacher. In this sense, the Department can have a role to play in relation to the investigation of complaints made against teachers. However, it does not follow necessarily that the Department has a role in relation to all such complaints or that it is always performing a management function when it becomes involved in such complaints. Since the teachers are employed by the boards of management and the Department does not directly provide a teaching service, it is arguable that the management function of investigating complaints must be regarded as a management function of the boards of management, rather than of the Department. As against that, education is very heavily funded by the state and I would be reluctant to accept the argument that what goes on in a school is the business only of the board of management, teachers, parents, or pupils.

I accept that, in practice, the Department involves itself in complaint cases, such as that of Ms ABY. However, it is not clear to me what the Department's role is in such cases or what action it may take against a teacher outside of Rules 106 and 108.

At this point, the investigation of Ms ABY's complaint has not yet reached finality and there is no indication of what, if any, action the Department may be contemplating or may be in a position to take. Given the lack of clarity about the Department's role in cases such as Ms ABY's, I am unable to identify any function of the Department relating to management which might be adversely affected by release of the record in this case. In the circumstances, I am not satisfied that the exemption in section 21(1)(b) applies in this case.

The claim for exemption under section 26(1)(a)

Section 26(1)(a) of the Act provides as follows:

"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, ........"

For section 26(1)(a) to apply it would be necessary for the Department to demonstrate four things, viz.

• that the information contained in the teacher's response to the complaint was given in confidence, and
• that the information was given on the understanding that it would be treated as confidential, and
• 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
• that it is of importance to the body that such further similar information should continue to be given to the body.

I have already found that the first two requirements of section 26(1)(a) are met in respect of record 19/3, but not in respect of the final paragraph of record number 19/2. It follows that I do not accept that section 26(1)(a) applies in the case of the latter record.

I shall now consider the application of the third and fourth requirements of section 26(1)(a) to record 19/3. While I have already considered these arguments to some extent in my consideration of section 21(1)(a) , it may be no harm for me, at the risk of some duplication, to flesh out my thinking given the complexity of the relationships involved in this case.

The third requirement of section 26(1)(a) is that the disclosure of the information would be likely to prejudice the giving to the Department of further similar information from the same person or other persons in the future. The Department has accepted that it does not have a statutory basis for compelling boards of management to submit reports on complaints. The transmission of reports to the Department by a board of management seems to be effectively a matter of choice for individual boards.

In the circumstances, given that transmission of the teacher's report to the Department in this case was a matter of choice for the Board, it seems to me reasonable to conclude that the Board, which could reasonably have expected the Department to treat the report in confidence, could have serious misgivings in relation to the transmission of future such reports in the event of the disclosure of a such a report on foot of a FOI request, so that the release of the teacher's report in this case would be likely to prejudice the giving to the Department of further similar information from this particular Board or, indeed other boards, in the future. I satisfied, therefore, that the third requirement of section 26(1)(a) is met.

Having regard to the fourth requirement of section 26(1)(a), I have considered whether obtaining reports which teachers have made to boards of management is important to the Department. The Department has claimed that the continued receipt of information from boards in relation to complaints is vital so that it can continue to discharge its overseeing functions in relation to the operations of boards in an effective manner. To the extent that the Department has an overseeing role in relation to the operations of boards of management, I can accept that it is important that it continues to receive information in relation to their activities. Given, however, that boards are the employers of teachers, it may not be immediately apparent why it is of continued importance to the Department to receive the reports of teachers to boards in response to complaints. After all, if the responsibility for dealing with complaints rests with the boards, and if the system of resolving complaints is operating properly then why should the Department need to involve itself in the detail of individual complaints? The answer to this question may be found by analysing more closely the Department's role in relation to teacher complaints - a role which is the subject of some confusion.

The Department maintains that teachers are employed by boards of management and that complaints are matters to be taken up with a teacher's employer, the board, in the first instance. The INTO states that the board of management is the final arbiter, that the Department provides an appeal mechanism by way of review and that documents relating to complaints come into the possession of the Department through this review/appeals mechanism. Notwithstanding this the agreed complaints procedure provided to me by the Department makes no reference to any such appeals mechanism and I have already queried whether the present arrangements constitute an appeals mechanism as such. The NPC, while accepting that teachers are employed by the boards, argues that there is a grey area when it comes to determining where the responsibility for the investigation of a complaint lies and that this arises as a consequence of the lack of a clear definition as to what constitutes matters of professional competence.

I have already accepted that the Department has a role to play in relation to the investigation of complaints against teachers. Having regard to that role I am satisfied that, on occasion, it would be of importance to the Department that reports which teachers have made to boards of management in response to complaints made against them should continue to be made available to it. I find, therefore, that the fourth requirement in relation to section 26(1)(a) has been met in this instance.

The claim for exemption under section 26(1)(b)

Section 26(1)(b) provides that a head shall refuse to grant a request for access to information if:

"(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."

The question that arises in this case is whether the Department owes the Board of Management or the teacher a duty of confidence in relation to record number 19/3 - in view of my earlier findings it will be clear that I find that no such duty exists in relation to the final paragraph of record number 19/2. No specific argument has been put to me by the Department that disclosure of record 19/3 would breach such a duty imposed by an agreement or by statute and I am not aware of any relevant agreement or statute which might apply in this case. I have considered whether an equitable duty of confidence might exist. In doing so, I have applied the tests set out in the leading case of Coco v. A.N.Clark (Engineers) Limited F.S.R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R.611) in which Megarry, J. stated as follows:

"Three elements are normally required if, apart from a 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 information contained in record 19/3 is the teacher's response to the Board in relation to the complaint. It sets out the teacher's version of the events in respect of which the complaint was made and contains information in relation to her experience and professional competence as a teacher. I have already found that the Board furnished this record to the Department in confidence. I am satisfied that the information contained in the record does display the necessary quality of confidence to enable it to meet the test set out above.

I have also concluded that the record was sent to the Department by the Board in circumstances which imposed an obligation of confidentiality. I am satisfied that the record was given for a limited purpose only, that is to say, for the purpose of enabling the investigation of the complaint and that this purpose did not include the release of the information either generally or to Ms ABY.

In considering whether release to Ms ABY of the teacher's report made to the Board of Management would be unauthorised and to the detriment of the party communicating it, I have considered the position of both the Board and the teacher. Neither the Board nor the teacher were consulted by the Department under the FOI Act in relation to the potential release of the teacher's report under the Act. I have already indicated, however, that the report was given to the Board by the teacher in confidence and that the Board could reasonably conclude that the Department would treat it with the same degree of confidence as was expected from the Board. Under these circumstances it seems to me that, in the absence of a specific permission from either the Board or the teacher, release of the report would be unauthorised.

The Department has put it to me that the release of information submitted to the Board in confidence by the teacher could be used by the complainant to the detriment of the teacher and that such detriment could occur regardless of whether or not the teacher denies or admits the incident. While not wishing to imply that Ms ABY would in any way use the information contained in the teacher's report to the detriment of the teacher concerned, I am satisfied that the release of the report would, of itself, be a use of the information it contains to the detriment of the teacher in that any wider dissemination of that information could be a source of embarrassment to its author.

I am satisfied that disclosure of the information contained in record 19/3 to the requester in this case would, subject to consideration of the public interest, constitute a breach of an equitable duty of confidence owed by the Department to the teacher. I find, therefore, that the claim for exemption under section 26(1)(b) was therefore justified.

The application of section 26(2)

Referring to its claim for exemption under section 26, the Department submitted that it was satisfied that a contract for services does not exist between a board and the Department. It stated that a board carries out various functions many of which are carried out on behalf of the Minister for Education and Science with a view to ensuring that good quality educational services are provided to pupils. It accepted that the Chairpersons of boards have a responsibility to ensure that schools are operating properly and are also involved in certifying various returns for the Department. It stated, however, that Chairpersons or other member of boards are not remunerated by the Department for their roles.

Although it did not explicitly state it this is, in effect, a claim that section 26(2) of the Act does not apply in this case. Section 26(2) states:

"(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 a head or a director, or a 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."

It is clear that neither teachers nor board members are employed by the Department. Therefore, the only questions which arise in relation to this aspect of the matter is whether boards of management or teachers provide services to the Department under a contract for services. The Department has argued that as Chairpersons or other members of boards are not remunerated by the Department for their roles they are not acting as contractors for the Department. I accept this to be the case. I am also satisfied that teachers are engaged under contracts of service with the boards rather than under contracts for services with the Department.

Section 26(2) is aimed at limiting the use of the exemption contained in section 26(1) to restrict disclosure of records prepared by staff members or contractors of public bodies in the course of the performance of their duties. Such records will only be subject to the confidentiality exemption in section 26(1) where their disclosure would constitute a breach of a duty of confidence and that duty is owed to someone other than a public body or head or a director, or member of staff of a public body or a person who is providing a service for a public body under a contract of services.

Since the record at issue was prepared by the teacher who is neither an employee of the Department nor engaged by it under a contract of service, I find that section 26(2) does not apply.

The public interest

I have found that the Department's claims for exemption from release of record number 19/3 under sections 21(1)(a), 26(1)(a) and 26(1)(b) were justified. However, the exemptions in sections 21(1)(a) and 26(1)(a) are subject to the public interest tests set out in sections 21(2) and section 26(3) respectively. These latter two subsections each require the head of the public body to consider whether the public interest would, on balance, be better served by granting the request.

The public interest test in section 26(3) does not apply to section 26(1)(b). However, it is well established that the action for breach of confidence is itself subject to a public interest defence and I can see no reason why the existence of such a defence should not be considered when applying the provisions of section 26(1)(b). This defence was considered in the case of National Irish Bank Limited v Radio Telefís Eireann [1998] 2 I.R. 475. In the Supreme Court, Keane J made reference to the dictum of Goff L.J. in AG v Guardian Newspapers (No. 2) in which he said -

"although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure......it is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure."

In the circumstances, I propose to consider whether or not the public interest would, on balance, be better served by granting access to record number 19/3.

The Department stated that, in arriving at its decision to refuse access in this case it considered the following public interest factors:

• the public interest in the requester exercising rights of access under the FOI Act
• the public interest in the accountability of officials and scrutiny of decision making processes
• the public interest in maintaining the ability of a body to effectively discharge its functions and
• the public interest in the need to preserve confidentiality having regard to the subject matter and the nature of the communication.

The Department also stated that, in its view, disclosure of the documents from the Board of Management and the teacher would be contrary to the public interest in that

a) the deliberations of a board of management on a dispute within a school should remain confidential to the board and

b) that the Board, as employer of the teacher, would have an employer/employee relationship with the teacher and correspondence, discussions, statements between the Board and the teacher are within the remit of that relationship and should remain confidential to the people in that relationship.

I am of the view that there is a clear public interest in a public body, in this case the Department, being able effectively to investigate complaints made to it. In case number 99273 Mr ABL and the North Western Health Board (OIC Decisions Vol. 3 pp. 137 - 150), I stated:

"The choice of the most suitable procedures in individual cases rests with the public body. Generally speaking, there is no onus on the public body to justify its choice of procedures in individual cases to me as Information Commissioner..........although I do not rule out the possibility that the use of a seriously defective procedure might bring about a situation in which release of a record might be required in the public interest."

In my view there is a strong public interest in the public being made aware as to how public bodies deal with complaints made to them. I am also of the view that there is a public interest in a complainant being made aware of the outcome of any investigation which takes place in relation to the complaint. In this case all parties appear to be in agreement that a complainant should be informed as to the outcome of his/her complaint, yet the NPC has put it to me that parents are generally not advised in any manner in relation to the outcome of a complaint and that it is only where a parent persists that that they will get an answer from the Department. If so, this is clearly an unsatisfactory situation.

While the choice of investigation procedure rests with the public body, in this case the Department, it seems to me essential that there be clarity and certainty for all the relevant parties in relation to the procedures to be adopted and the time scales within which matters are likely to be brought to a conclusion. I am not necessarily saying here that a complainant should always be made privy to all of the papers considered during the course of the investigation procedure or that strict time scales should always be adhered to. Those are matters for consideration in the context of procedural design. However, I am of the view that, having regard to the range of complaints that could be made against a teacher in the performance of his/her duties, the potential for an adverse effect on the well being of the child concerned, the reputation of the teacher and of the school generally, it is in the interests of all the relevant parties that such design should incorporate procedures which would allow for the expeditious conclusion of investigations into complaints. There is a clear public interest in members of the public exercising their rights of access under the FOI Act and I am in agreement with the Department that there is a public interest in the accountability of officials (which I take to include all those paid out of public moneys) and the scrutiny of the decision making process. However, in the case of an investigation into a complaint against a teacher, I am satisfied this particular public interest can be best achieved through the use of transparent procedures and a clear notification of the outcome to all the relevant parties within a reasonable time frame.

Both the Department and the INTO have commented on the potential for the notification of an outcome to affect seriously the standing of the teacher in the local community and the employer/employee relationship between a teacher and a board of management. I accept the argument of the NPC that the notification of decisions to the relevant parties could be as useful to teachers as to parents and that clear decisions would serve to vindicate teachers. The INTO put it to my staff that it would be counterproductive to the deliberation process if all or some of the matters considered by the Board or the Department and which would generally be contained in the rationale for the decision were to be released under FOI. While I accept that it would not be in the public interest for the deliberations relating to an investigation to be made available while such deliberations are in progress, I cannot agree that it would be counterproductive for the rationale behind a decision to be released. It seems to me to be essential that the rationale underlying such a decision be set out for the purposes of both clarity and certainty.

I am not suggesting here that all of the arguments and counter arguments tabled during the course of the deliberations which take place during an investigation need to be set out in detail. Neither am I saying that, where an employer imposes some form of sanction on an employee, the nature of such sanction ought to be notified to all parties. It does seem to me, however, that there is a clear public interest in public bodies setting out those factors which were taken into account for the purposes of arriving at a particular decision following an investigation in order that the parties might see that all relevant matters were considered. I am of the view that, at a minimum, such a notification might consist of some form of statement by the investigating body as to whether or not the complaint was upheld, the matters that were taken into consideration by the investigating authority in arriving at its conclusion and the rights of further appeal, if any.

I think that it is clear that the present system of dealing with complaints against teachers is not wholly satisfactory in the sense that the complainant is not always told whether or not the complaint has been upheld and if it has not been upheld, the reason why. In this particular case, I accept that the complaint has not been resolved to Ms ABY's satisfaction.

Notwithstanding this, I have concluded that the situation would not be helped by the release of the teacher's response in this case. The public interest requires that complaints against teachers be properly investigated with outcomes which are both fair and impartial. I cannot see how release in this case would further this aspect of the public interest. Release is no substitute for the proper discharge of their duties by the Department and the Board of Management. Accordingly, I have decided that the public interest would not be better served by the release of record number 19/3.

The claim for exemption under section 28

For the sake of completeness I should also refer to the Department's claim for exemption from the release of record 19/3 under section 28. I have already indicated that Ms ABY has a right of access to that part of record 19/3 which relates to personal information about her (and her daughter has a similar right in relation to her personal information) unless those parts of the record are exempt in accordance with some other provision of the Act. As I have already found that the Department's claims for exemption from release of this record under sections 21(1)(a), 26(1)(a) and 26(1)(b) were justified and that the public interest would not be better served by its release it follows that, in accordance with the provisions of section 6(7) of the Act, neither right of access arises.

Decision

In light of the findings set out above, I have decided to vary the decision of the Department of Education and Science dated 10 November 1998. I hereby direct that the withheld second paragraph of record number 19/2 now be released to Ms ABY.

Information Commissioner

06 July 2000