Request for e-mails containing discussions relating to a lack of resources within a particular section of the Department - whether disclosure would involve the disclosure of personal information relating to an official of the Department - section 28(1)

Case Summary

Facts

The requester applied to the Department of Enterprise, Trade & Employment for access to certain e-mails between two officials of the Department concerning the lack of availability of FOI appeals officers within a particular section of the Department. The Department granted access to a number of records but refused access to part of one record on the ground that the withheld information was personal information relating to a third party.

Decision

There were two passages of text at issue in this case. The first sentence of the first passage was an expression by an official of the Department of his opinion about the work of another official. The Commissioner found that the sentence, when viewed in the context of the whole record, would enable the reader to identify the particular individual about whom the opinion was expressed. He accepted the Department's assertion that it holds information of this nature, i.e. the recording of views regarding the work performance of individuals, on the understanding that it would be treated by it as confidential. He found that section 28(1) applied to the first sentence.

The Commissioner considered that the second sentence of the first passage was an expression by a Department official of his views of the reasons for the standard of performance achieved by the section of the Department in respect of the processing of FOI applications and, in particular, in respect of a specific part of the process. The Department argued that the release of the last four words of the sentence would result in the disclosure of personal information about an individual as the specific function of the Department's work under discussion could be linked to that individual. The Commissioner considered that if he were to accept such an argument, an argument could be made that most information relating to the performance by a public body of its functions is personal information relating to the specific officials who carried out those functions. He did not accept the Department's argument and he found that the provisions of section 28(1) did not apply to the second sentence of the first passage.

The Commissioner found that the disclosure of the first two sentences of the second passage would involve the disclosure of personal information relating to an individual in his capacity as a member of staff of the Department and that the provisions of section 28(1) applied. He found that the information contained in the third sentence related to the performance by the Department of one of its functions and not to the performance of a specific individual. He found that the provisions of section 28(1) did not apply to the third sentence.

Date of Decision: 19.06.2001

Our Reference: 99451

19.06.2001

Mr X

Dear Mr X

I refer to your application under the Freedom of Information Act, 1997 ("the FOI Act") for a review of the decision of the Department of Enterprise, Trade and Employment ("the Department") relating to your request for access to certain "e-mails that were being discussed by Mr Y and Mr Z" of the Department. I apologise for the delay which has arisen in dealing with your application. Unfortunately due to staff shortages and pressure of work, it has not been possible to finalise your case until now.

Background

I have now completed my review of the Department's decision. In carrying out that review I have had regard to your correspondence with the Department and with my Office and to the Department's submission of 20 December, 2000 and further discussions with my Office. I have also examined the record at issue.

Scope of Review

The Department decided to grant full access to 18 records and partial access to one record with the deletion of three passages of text by reference to section 28(1) of the FOI Act. Following discussions with my Office, the Department indicated that it is now prepared to grant partial access to the first two passages and full access to the third passage. Accordingly, my review is concerned solely with the question of whether the Department is correct in deciding to refuse access to the remaining parts of the first two passages.

Findings

Section 28

Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the FOI Act, personal information is (a) information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) information about the individual that is held by a public body on the understanding that it would be treated by it as confidential. The Act details twelve specific categories of information which is personal without prejudice to the generality of (a) and (b) above. Category (iv) is "information relating to the individual in a record falling within section 6(6)(a)". That section in turn defines such a record as "[one] relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member".

I note that you claim in your letter of 14 September, 1999 that the information withheld in this case relates to individuals in the course of their employment and that such information is excluded from the definition of personal information. I assume you are referring to the exemption in paragraph (I) of the definition of personal information. Analysis of this paragraph shows that what is excluded is the name of the official, the grade or duties of the official, the terms on which the official holds office and finally, any records created by that official in the course of performing the functions of the office. No argument has been put to me that the two passages of text at issue contains personal information relating to the authors of the records. It follows, therefore, that the question of the record having been created by an official in the course of performing the functions of the office is not a relevant consideration here. Furthermore, the exemption does not exclude personnel records relating to "the competence or ability of the individual in his or her capacity as a member of the staff of a public body". While the records containing the passages at issue are not personnel records, as they do not relate "wholly or mainly" to matters as described in section 6(6)(a), it seems to me that public servants, as with all employees, are entitled to a degree of privacy in relation to the evaluation of their work performance, competence or ability and I am satisfied that this type of information is held by public bodies on the understanding that it would be treated by it as confidential and that it is, therefore, personal information for the purposes of the FOI Act. In the circumstances, I am satisfied that the exemption in paragraph (I) is not a relevant consideration as regards the passages of text at issue in this case.

Before dealing with the specific claims to exemption in relation to the two passages, I consider it useful to examine the background to the e-mails containing the passages. The e-mails in question effectively relate to a resource issue within a particular section of the Department. It seems that the section in question had a difficulty in sourcing appeals officers to deal with requests for internal review of FOI decisions. Two officials within the Department corresponded by e-mail concerning the lack of availability of appeals officers for the section and opinions were expressed by the officials as to the reasons for the lack of availability of appeals officers. It is clear to me, therefore, that the e-mails which contain the passages at issue relate, in the main, to the performance by the Department of its function of processing FOI appeals.

First Passage

The first passage at issue, consisting of two sentences, is contained in an e-mail sent from Mr Z to Mr Y. Sentence one is an expression by Mr Z of his opinion about the work of an official of the Department. I am satisfied that the sentence, when viewed in the context of the whole record, would enable the reader to identify the particular individual. The Department claims, not unreasonably in my view, that information of this nature, i.e. the recording of views regarding the performance of individuals, is held by it on the understanding that it would be treated by it as confidential. In the circumstances, and having regard to the definition of "personal information" as outlined above, I am satisfied that the sentence contains personal information relating to the official in question and that access would involve the disclosure of personal information relating to that official. I find, therefore, that section 28(1) applies to this sentence.

The second sentence is, in my opinion, an expression by Mr Z of his views of the reasons for the standard of performance achieved by the section of the Department referred to above in respect of the processing of FOI applications and, in particular, in respect of a specific part of the process. The Department has indicated that it is willing to release this sentence with the exception of the last four words. It argues that full release would result in the disclosure of personal information about an individual as the specific function of the Department's work under discussion could be linked to that individual.

It seems to me that the Department's argument is that release of the full sentence may result in the reader concluding that Mr Z's comment is, in effect, a comment about the work performance of a particular individual. The fact that such a conclusion may be drawn, rightly or wrongly, is unfortunate. However, if I were to accept this argument, it seems to me that an argument could be made that most information relating to the performance by a public body of its functions is personal information relating to the specific officials who carried out those functions. I cannot accept this argument. In the circumstances, I find that the provisions of section 28(1) do not apply to the second sentence of the first passage at issue. For the avoidance of doubt as to the specific function to which the sentence refers, I also find that access should be granted to part of the first sentence, viz. the text from "the" to "response" inclusive in accordance with section 13(1) of the Act. In so finding, I am satisfied that the protection afforded to the personal information contained in the first sentence by the provisions of section 28(1) is not diminished in any way.

Second Passage

The second passage, consisting of three sentences, is contained in an e-mail sent from Mr Y to Mr Z. Having examined the passage carefully, I am satisfied that the first two sentences, when viewed in context, contain Mr Y's opinion of the work performance of Mr Z. Having regard to the definition of "personal information" as outlined above, I am satisfied that release of this information would involve the disclosure of personal information relating to an individual in his capacity as a member of staff of the Department. I find, therefore, that section 28(1) applies to these two sentences.

Sentence three contains Mr Y's opinion of the performance of the Department in dealing with your FOI requests. The Department has indicated that it is willing to release this sentence with the exception of the text between "was" and "generating". The Department's argument for withholding the information in question is similar to that put forward in respect of the second sentence of passage one as described above. It argues that release of the full sentence would, in effect, involve the disclosure of personal information relating to a third party. For the same reasons as set out above, I am satisfied that the information relates to the performance by the Department of one of its functions and not to the performance of a specific individual. I find, therefore, that the provisions of section 28(1) do not apply to the text in question.

The Public Interest

Having found that section 28(1) applies to sentence one of the first passage and to the first two sentences of passage two, I am required to consider the application of the public interest test contained in section 28(5) to this information. In your letter of 14 September, 1999 to my Office you claim that you have a legitimate expectation to receive records particularly when you are the subject matter of the records. I accept that there is a strong public interest in requesters availing of their rights under the FOI Act particularly where the information sought is personal information relating to the requesters. In this case, however, I am satisfied that the passages at issue do not contain personal information relating to you. Furthermore, as I have indicated above, it seems to me that public servants are entitled to a degree of privacy in relation to the evaluation of their work performance, competence or ability and release of the information at issue would, in my view, involve a serious intrusion on the privacy of the officials concerned. I am satisfied, therefore, that the public interest in protecting the right to privacy of the individuals to whom the information relates outweighs the public interest in your request being granted.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby vary the decision of the Department in this case and direct that you be given access to

• the text from "the" to "response" inclusive in sentence one of the first passage,
• sentence two of the first passage,
• sentence three of the second passage.

A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than 4 weeks from the date of this letter.

Yours sincerely

Information Commissioner