Case 000365 . Letter of complaint to Minister for Education and Science regarding poor working atmosphere in school - whether release of letter could reveal the identities of suppliers of information given in confidence relating to the administration of the civil law - section 23(1)(b) - whether its contents amounted to personal information relating to the signatories - whether its contents amount to personal information relating to requesters - section 28(1) - whether letter given in confidence - section 26(1)(a) - public interest.

Case Summary

Facts

A number of teachers in a school in the West of Ireland wrote a letter to the Minister for Education and Science under the terms of the Safety, Health and Welfare at Work Act, 1989 regarding working conditions in their school. The Department sent an acknowledgement to all the teachers in the school, following which a number of the teachers who had not signed the letter requested a copy of the letter under the FOI Act from the Department. The Department decided that the letter had been sent to it in confidence but that the public interest was better served by the release of the letter than by withholding it. The Department decided to release the letter. The signatories to the letter then applied to the Information Commissioner for a review of the Department's decision.

Decision

The Commissioner accepted that the letter amounted to information given in confidence to a public body "in relation to the enforcement or administration of the civil law" and that section 23(1)(b) was relevant. The only information in the letter which might reveal, or lead to the revelation of, the identities of the signatories were their names and signatures which he considered to be exempt from release under section 23(1)(b) of the FOI Act.

The Commissioner found that the information in the letter did not amount to personal information about the signatories as the letter expressed their views as a group and did not attribute personal experience or viewpoints to any specific individual signatory. He found that the letter contained no specific allegations about any of the other teachers but that the school principal was identifiable by inference. He considered that, as the views of a person about an individual amounts to personal information about that individual, the fact that the Principal was referred to implicitly meant that the information contained in the letter amounted to personal information about her. The Commissioner found that no other teacher was identifiable either from a specific allegation or by inference and, accordingly, that the letter did not contain personal information about any teacher other than the Principal.

The Commissioner found that the letter had been given in confidence but that the public interest was better served by release of the content of the letter to the Principal. He found that while the content of the letter should be released to the Principal, the identities of the signatories should not be released. The Commissioner found that the release of the content of the letter to the requesters, other than the Principal, would breach the privacy rights of the Principal and that the public interest was best served by withholding the contents of the letter from the other requesters.

Date of Decision: 16.10.2001

DECISION UNDER SECTION 34(2) OF THE FREEDOM OF INFORMATION ACT, 1997 IN RELATION TO CASE NUMBER 000365 - MS. ACH AND OTHERS AND THE DEPARTMENT OF EDUCATION AND SCIENCE

Background:

[1]. On 15 May 2000 some members of the staff of a primary school in the West of Ireland (referred to as "the school" hereafter), wrote a letter to the Minister for Education and Science following their attendance at a seminar on workplace bullying. The Department of Education and Science (the Department) subsequently sent an acknowledgement to all members of staff of the school, including those who had not signed the letter in question (referred to as "the letter" hereafter). A number of the teachers who had not signed the letter subsequently made a request to the Department under the Freedom of Information Act, 1997 (the FOI Act), on varying dates in June 2000, for access to the letter.

[2]. Whereas the Department's handling of these requests reflects some confusion as to the provisions of the FOI Act, the effect of the Department's decision was that the letter should be released. The Department's decision letter of 26 July 2000 conveyed that the letter should be released in the public interest but that this decision was subject to the right of the signatories of the letter to appeal the decision to my Office. The Department's reliance on the public interest as the basis for its decision, and its acceptance of the right of the signatories to appeal the decision to my Office, indicates it had accepted that the letter would be exempt from release (for example, on grounds of confidentiality) but for public interest considerations. The Department's contacts with the signatories, and its advice that they had a right of appeal to this Office, was in accordance with the provisions of section 29 of the FOI Act. The signatories to the letter availed of this right of appeal (technically termed a review) and applied accordingly to this Office on
31 July 2000. I accepted the matter for review, on the basis that it is a review of a decision on a request to which section 29 applies.

Scope of the Review

[3]. This review is concerned solely with the question of whether or not the Department is justified, under the terms of the FOI Act, in its decision to give the requesters access to the letter.

Process of the Review

[4]. During the course of this review, I received oral and written submissions from the signatories of the letter on 4 January 2001, 25 January 2001 and 29 January 2001. I have also received written submissions from the requesters of the letter, dated 23 October 2000 and 10 September 2001. I have also had regard to the meetings, between some of the requesters and staff of my Office, of 12 July 2001 and 26 July 2001, and to various telephone calls made by them to my Office. The details of these submissions are below. I have also taken into account all of the decision-related correspondence from the Department as well as the provisions of the FOI Act.

Submissions

The Letter

[5]. The letter was sent by the signatories to the Minister for Education and Science following their attendance at a seminar on workplace bullying. The letter itself is framed in a very general manner and describes the feelings and opinions of the signatories as to how they perceived their treatment within the school and the effects this has had, both on them and on the pupils of the school. It does not attribute specific viewpoints or particular experiences to any individual signatory. The letter does not contain specific allegations about individual staff members; by inference, one staff member may be identifiable. In the letter, the signatories refer twice to the fact that it is being written under the terms of the "Health and Safety Act" and I take this to be a reference to the Safety, Health and Welfare at Work Act, 1989.

Submission of the Requesters

[6]. The requesters claim that it is necessary for them to get a copy of the letter to ensure that their names were not forged on it as signatories. In the event that their names are not on the letter, they contend that, by inference, the letter refers to them and thus damages their professional and personal integrity. They contend that the letter was sent with the intention of discrediting those colleagues who did not sign the letter. They say that the withholding of the letter deprives them of evidence which will ensure them a fair hearing in the course of grievance proceedings initiated. It is claimed that the letter itself is a form of bullying and intimidation; they point out that there are agreed procedures in place for dealing with the complaints of staff whether individually or collectively. In by-passing these procedures by writing to the Minister, they contend that such actions are suspect and possibly malicious. It is also alleged that there have been representations made in the past to the Board of Management regarding the administration of the school but that the teachers concerned were unwilling to use the agreed grievance procedures.

Submission of the Signatories

[7]. The signatories contend that their letter is of a private and sensitive nature, addressed to the Minister for his attention only. They refer to employees being encouraged to confront bullying in the workplace in today's age of openness and say that this was what they did by writing to the Minister. They say that they were advised, by the co-ordinator of a seminar on workplace bullying which they attended, to have their difficulties recorded with the Department and were advised that any such communication would be private. They claim that, at the time of the writing of the letter, there was no Board of Management or Single Manager in place and thus they contend that they were writing to the Minister on an employee/employer basis. They also claim that this was the first occasion in which they had, outside of their own group, expressed the effects of the atmosphere in the school on their private and personal lives; that is, the information contained in the letter was not already in the public domain. As such, they claim that the contents of the letter is information which is personal to them and that they should be in a position to inform the Department of any difficulties they are experiencing in their workplace without fear that there will be any invasion of privacy for them or their families.

Findings

[8]. Some issues have arisen in this case which I would like to address at the outset. In a case such as this, a case to which section 29 of the FOI Act applies, the onus of proof is on the signatories, as objectors, to show that the Department is not justified in releasing the letter in question. This is in accordance with the provision at section 34(12)(a) of the FOI Act. However, I consider that it would contravene the purposes of the Act to allow the release of a record in a manner which would be inconsistent with the public interest and/or the right to privacy simply because the objector failed to identify any specific error on the part of the decision maker. Accordingly, in applying the presumption provided for at section 34(12)(a) of the FOI Act, I may nevertheless be constrained to make an independent assessment of the decision. It is also relevant to mention that, in accordance with section 8(4)(a) of the FOI Act, in making my decision I am precluded from taking into account "any reason that the requester gives for the request".

[9]. The Department considered section 26(1)(a) in its decision in this case. The signatories, in their submissions to my Office, suggested that section 28(1) was applicable to the letter. In addition, while the possible application of section 23(1)(b) was not raised at any stage by any party to the review, it seems to me to be of particular relevance to this case. Consequently, I will consider the application of sections 23(1)(b), 26(1)(a) and 28(1) of the FOI Act in this case.

Section 23(1)(b)

[10]. Section 23(1)(b) of the FOI Act provides that a request for access to a record may
be refused if release of the record could reasonably be expected to "reveal or lead to the revelation of the identity of a person who has given information to a public body in confidence in relation to the enforcement or administration of the civil law or any other source of such information given in confidence".

[11]. In order for this exemption to apply, the three strands of the exemption must be met, i.e.

• release of the record could reveal the identity of the supplier of information to the public body, and
• the information must have been given in confidence, and
• the information must have been supplied to the public body in relation to the enforcement or administration of the civil law.

[12]. I accept that release of the record, in its entirety, would certainly lead to the signatories of the letter being identified and, accordingly, that the first test of this exemption has been satisfied. Secondly, I consider that the letter was sent in confidence to the Department for the following reasons. I understand in the case of schools that where there are concerns about poor working conditions, the normal procedure is to report such concerns directly to the Board of Management. However, I accept that in deciding to write to the Minister the signatories were acting on the advice of the co-ordinator of the seminar (on workplace bullying) which they had attended. I also accept that they deemed the seminar co-ordinator to be an authority in the issue of health and safety at work and, in accordance with the advice given, opted to write to the Minister rather than to the Board of Management. The signatories have contended that that at the time of their letter there was no Board of Management or Single Manager in place for their school and that this influenced the decision to write to the Minister. Whether or not this contention is valid, I do accept that there is frequently some confusion among teachers as to whether their employer is the local Board of Management or the Minister. In any event I can accept that, in relation to the letter at issue, the signatories understood that they were writing to the Minister on an employer/employee basis, and that the letter was sent to him on a confidential basis.

[13]. With regard to the third test of this exemption, I note that, in the opening and closing paragraphs of the letter, explicit references are made to the Safety, Health and Welfare at Work Act, 1989. I note that section 9 of this latter Act places a requirement on employees to report to the employer, "any defects in ...[the] system of work, which might endanger safety, health or welfare of which he [employee] becomes aware". While this piece of legislation may be aimed principally at preventing accidents in the workplace, I consider that the Act covers all activities of a work-related nature, including management practices. Accordingly, it seems to me that the letter does relate to the "enforcement or administration of the civil law".

[14]. Therefore, I consider that any material in the letter which could reasonably be expected to lead to the revelation of the identities of the signatories is exempt under section 23(1)(b) of the FOI Act. In reading the letter, in the absence of the names and signatures of the signatories which are contained only at the end of it, it cannot be said that anything in the body of the letter points to any member of staff of the school as having written it. Therefore, the only material which I consider to be exempt from release, under this provision of the FOI Act, consists of the names and signatures of the signatories contained at the end of the letter. This exemption is subject to a public interest test in certain specified situations, none of which apply to the case at hand. Accordingly, I find the names and signatures of the signatories to be exempt from release, regardless of whether or not any other exemptions may apply to the content of the letter.

Section 28(1)

[15]. The signatories, in their submission, put forward the view that the content of the letter amounted to personal information about them, in that the letter expressed their personal views on the effect that the atmosphere in the school was having on them. This is a claim for exemption under section 28(1) of the FOI Act, which provides that a request for access to a record shall be refused if such access "would involve the disclosure of personal information". They contend that this was the first occasion on which they set out their views of how they are being treated in the school. They also say that while they may have spoken to previous Boards of Management about their problems, that such conversations were merely on a superficial basis and did not detail how they felt as individuals about the treatment they were allegedly enduring.

[16]. Section 2 of the FOI Act defines "personal information" as information about an identifiable individual which would, inter alia, "in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual". I acknowledge that the views and opinions of the signatories may indeed constitute information that would only be known to themselves, or possibly to their family or friends. However, the definition of personal information requires that the information contained in the record at issue concerns an identifiable individual. I have noted that while the letter represents the views of the signatories as a group, it does not attribute particular viewpoints or experiences of the alleged misconduct to any one of the signatories. In the absence of the names and signatures of the signatories, which I have already found to be exempt under section 23(1)(b) above, I do not consider that the views contained in the letter, relating to the experiences and feelings of the group as a whole, amount to personal information relating to any of the signatories as an identifiable individual within the meaning of the FOI Act. I do not, therefore, consider that the text of the letter is exempt from release to the requesters on the sole basis that it contains personal information relating to the signatories as identifiable individuals.

[17]. I have also given consideration to the possibility that the information contained in the letter may amount to personal information about the requesters. I have already noted that there are no specific allegations of misconduct in the letter made about any particular teacher. However, I note that one teacher, the Principal, is identifiable by inference from some of the comments in the letter relating to the implementation of rules and regulations for staff. It seems to me that, while no specific allegation is made relating to the Principal's actions or her management of the school, the inference is clear that the signatories of the letter see her management of the school as being defective. The definition of personal information, as provided for at section 2 of the FOI Act, includes the "views and opinions of another person about the individual". Accordingly, I consider that the text of the letter amounts to personal information about the Principal of the school.

[18]. I have also considered the issue of whether or not the letter also amounts to personal information about the other requesters. They are not mentioned in the text, nor are they included as signatories. No allegations are made about them, either specifically or by inference. In these circumstances, I consider that the content of the letter does not amount to personal information about any of the other requesters. In effect, releasing the letter to these other requesters would amount to the revelation of personal information relating to the Principal. Thus, I find the letter to be exempt from release to the requesters (other than the Principal) under section 28(1) of the FOI Act. Section 28 provides for a number of grounds on which a record, which is exempt by virtue of section 28(1), may nevertheless be released. I am satisfied that the only one of these grounds of potential relevance in this context is section 28(5)(a) which provides that the letter may be released to the other requesters if I am satisfied that the public interest is better served by breaching the rights to privacy of the Principal than by withholding the content of the letter from the other requesters.

[19]. There is a public interest in defending the right to privacy of the person to whom the letter relates - the Principal. There is also a public interest in the requesters exercising their rights under the FOI Act but I do not consider that this factor alone would warrant the breaching of the Principal's privacy rights. I note that no action has been taken by the Department on foot of the letter, to date. While the possibility remains that action of some sort may be taken on foot of it in the future, it is my view that, as there are no allegations either specifically or by inference relating to the remaining requesters, their reputations or careers cannot suffer any detriment as a result of such potential action. It seems to me that the only person who might suffer, in such an event, is the Principal. Accordingly, I consider that there is no public interest in breaching the rights to privacy of the Principal and accordingly, I find that the letter is exempt from release to the remaining requesters under section 28(1) of the FOI Act.

[20]. I note that the letter lists the names of a number of representatives of various bodies and organisations, with whom the signatories had apparently communicated in the past about their concerns. I do not consider that the fact, that these persons had received complaints in their representative capacities, amounts to personal information about them. Thus, I do not find that the names of these representatives should be deleted from the text of the letter on the basis that its release would cause personal information about them to be revealed.

[21]. Even though I have found the text of the letter to amount to personal information about the Principal, I must also consider the possibility that the content of the letter may yet be exempt from release under section 26 of the FOI Act.

Section 26 - Information Obtained in Confidence

[22]. The Department relied, in effect, on section 26(3) of the FOI Act as the basis for its decision. This means that, while the Department has accepted that the information was obtained in confidence, and would in the normal course be exempt from release under section 26(1)(a) of the FOI Act, it considered that this exemption should be set aside in the public interest in accordance with section 26(3). However, before I deal with the public interest arguments for and against release, I consider it appropriate to examine whether or not it seems reasonable for the Department to consider that the letter qualified for exemption under section 26(1)(a) in the first place.

[23]. Section 26(1)(a) provides that access to a record shall be refused if that record contains information

• which was given to the public body in confidence and
• on the understanding that it would be treated by it as confidential and,
• that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and
• that it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

[24]. I have already outlined why I feel that the letter was sent in confidence to the Minister and thus the first test in relation to this exemption has been satisfied.

[25]. The issue of whether or not the signatories expected that the letter would be treated as confidential begs the question of what kind of action they expected the Department would take on foot of the letter. I have already explained how the signatories wrote their letter under the terms of the Safety, Health and Welfare at Work Act, 1989. I note that they did not seek any specific action to be taken against any member of the teaching staff - rather, they merely asked that their complaint be recorded by the Minister. In the light of this, I accept that the signatories provided the information in the expectation that the Department would do nothing more than record their views and that their letter would remain confidential. I understand that the Department, in the event of its taking action, normally refers the content of any complaints to the Board of Management or Single Manager of a school for investigation. If such action had been taken in this case, it seems to me that any confidentiality which would have attached to their letter to the Minister would have transferred to the Board of Management/Single Manager in the course of such an investigation. It seems to me that any action which might have been taken by the Department would not have required a breach of confidentiality. Accordingly, I consider the second test of section 26(1)(a) to have been satisfied.

[26]. The signatories state categorically that release of their letter will certainly result in their refusal to give such information to the Department in future. I accept this statement. Furthermore, I consider that there is a need for the Department to continue to receive such information, if only to be in a position to refer such information to the Board of Management or Single Manager of the school for investigation.

[27]. Accordingly, I accept that the letter is exempt under section 26(1)(a) of the FOI Act. This exemption is, however, subject to the public interest test as provided for at section 26(3). Thus in this case, if it can be demonstrated to my satisfaction that the public interest is better served by the record being withheld rather than by it being released, the letter will not fall to be released, even though it contains personal information relating to one of the requesters.

The Public Interest

[28]. I accept that there is a public interest in requesters exercising their rights under the FOI Act. I acknowledge also that there is a public interest in enabling people, against whom allegations have been made, to be made aware of those allegations and to be in a position to attempt to refute them. There is also a public interest in discouraging the making of false or malicious allegations.

[29]. Countering these is the public interest in safeguarding the right of staff members to report, under the terms of the Safety, Health and Welfare at Work Act, 1989, any problems they have identified in their workplace. There is also the public interest in defending the right to privacy of persons who reveal personal information to their employer regarding the effects that their work conditions are having on them personally.

[30]. The requesters contend that the letter was sent to the Department with the purpose of tarnishing their reputations. However, I find no evidence to suggest that the signatories wrote otherwise than in good faith. While the agreed grievance procedures may have been by-passed, it seems to me that they still had the prerogative to advise the Department of their perceived problems. This right is contained in the Safety, Health and Welfare at Work Act, 1989. I also note a recent decision (Recommendation No. DEC - E - 2001/05) from the Director of Equality Investigations in a case on lines broadly similar to the present one. It was found that any action taken (in that case, by the School Principal) to reveal the identities of those teachers who had brought a complaint of sexual harassment against the school was a gross intrusion on their rights to bring their complaint to an Equality Officer. Bearing this in mind, it is my opinion that the public interest is weighed strongly against the release of any information which might prejudice the reporting of any kind of unacceptable working conditions.

[31]. However, I consider any risk to the reporting systems of the Safety, Health and Welfare at Work Act, 1989 which may be posed by release of the text of the letter at hand, to be negligible. A distinction must be drawn between the reporting of the dangers posed by, for example, working with defective machinery on the one hand and the reporting of the effects of poor management practices, on the other hand. In a situation where a person, working in substandard physical conditions, makes a complaint to their employer on foot of which these conditions are likely to improve, it seems to me that the making of such a complaint would not be prejudiced by the possible release of the details of the complaint. I appreciate that, in a case where a person is suffering as a result of bullying or any other defective management practice, the content of such a complaint is likely to be on a more personal basis than a report relating to poor physical working conditions. It is possible that a person, in such a situation, may be reluctant to complain in case his or her identity might be revealed should the actual contents of his or her complaint be released. However, in such circumstances, a case may be made that the contents of such a letter would also be exempt under section 23(1)(b), should it seem reasonable to conclude that the person making the complaint may be identified, not only from having put his or her name to the complaint, but also by its content. In this case, however, I have found that the content of the letter, in the absence of the names and signatures of the signatories, does not point to any one person as being responsible for making the complaint. Consequently, I do not see how the release of the content of the letter, in this situation, would prejudice the reporting systems of the Safety, Health and Welfare at Work Act, 1989.

[32]. As I have outlined, there is a public interest in defending the right of the signatories to report defective work practices to the person they deemed to be their employer, in this case the Minister. However, by withholding the names and signatures of the signatories, in accordance with section 23(1)(b), I consider any breach of this right to have been eliminated, in that the signatories cannot be identified from the content of the letter.

[33]. I have outlined that the letter does not contain any specific allegations against any of the requesters and that no action has been taken to date on foot of the letter. However, the lack of action taken to date does not preclude the possibility that, in the future, some kind of action may be taken to the detriment of that teacher identifiable from the letter - the Principal. I feel that there is a strong public interest in a person, against whom any kind of allegation is made, being given an opportunity to refute such allegations should the need arise.

[34]. In summary, I have found the names and signatures of the signatories to be exempt under section 23(1)(b). To my mind, release of the content of the letter will not serve to reveal, or lead to the revelation of, the identities of the signatories and thus it will not undermine their right to confidentiality in respect of their complaint. I also consider that release of the contents of the letter, under the circumstances in this case, will have a negligible effect on the reporting mechanisms of the Safety, Health and Welfare at Work Act, 1989. At the same time, release of the contents may allow the Principal, should this become necessary, to refute the allegations made about the running of the school, for which she is primarily responsible. Accordingly, I find that the public interest in this case is better served by the release of the content of the letter to the Principal.

[35]. I have outlined my view that I do not see a situation arising in which the reputations of the remaining requesters could suffer, in the future, as a result of the holding of this letter by the Department. There seems to me no public interest in releasing the content of the letter to the remaining requesters and thus I find that it is exempt from release to them under section 28(1) and section 26(1)(a) of the FOI Act.

Decision

[36]. Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby annul the original decision of the Department in this case. I direct that the contents of the letter in question be released to one of the requesters, that is to the Principal of the school, subject to the deletion of the names and signatures of the signatories to the letter. I also direct that the letter be withheld, in its entirety, from the other requesters.

INFORMATION COMMISSIONER

16 October 2001