Case 020311. Records relating to the scheme of performance related awards for posts at Assistant Secretary level in the Civil Service - whether information sought is personal information about the various Assistant Secretaries - section 2 and section 6(6)(a)

Case Summary

Facts

The requester applied to the Department of Finance for information relating to the scheme of performance related awards for posts at Assistant Secretary level including details of the objectives of the Assistant Secretaries of six specific Government Departments and information on how progress against achieving the six specific objectives will be measured. The Department refused access to records containing details of the specific objectives for the Assistant Secretaries of the identified Departments on the ground that access would involve the disclosure of personal information about the individuals concerned.

Decision

The Commissioner found that the records sought could be described as "personnel records" in that they relate to the competence or ability of the individual in his or her capacity as a member of the staff of a public body or an evaluation of the performance of his or her functions. He considered 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 he found that this type of information is held by public bodies on the understanding that it would be treated by them as confidential. The Commissioner found that the objectives of the various Assistant Secretaries constitute personal information about the individuals concerned and that the provisions of section 28(1) applied. He decided that, on balance, the public interest in protecting the right to privacy of the Assistant Secretaries outweighed the public interest that the request be granted.

Date of Decision: 13.08.2002

Our Reference: 020311

13.08.2002

Ms X

Dear Ms 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 Finance ("the Department") in respect of your request for records relating to the scheme of performance related awards for posts at Assistant Secretary level.

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, to your letter of 5 July 2002 to my Office and to the Department's submission of the same date to my Office.

Scope of Review

You requested details of (i) the criteria that will be used to decide the size of the award that will be recommended for various Assistant Secretaries and (ii) the objectives of the Assistant Secretaries of six specific Government Departments and information on how progress against achieving the specific objectives will be measured, including performance indicators and targets associated with each objective.

In response to the first part of your request, the Department decided to release a copy of the guidelines on the scheme of performance-related awards for posts as Assistant Secretary level which describe, among other things, the criteria to be used in deciding on the amounts of any such awards and which include blank copies of the forms on which objectives are described, performance is assessed and recommendations are made. However, it decided to refuse access to the records containing details of the specific objectives for the Assistant Secretaries of the identified Departments on the ground that access would involve the disclosure of personal information. In a subsequent submission to my Office, the Department also claimed that the records qualify for exemption under section 21(1)(b) of the FOI Act.

Accordingly, my review is concerned solely with the question of whether the Department was justified in deciding to refuse access to those records containing details of the objectives of the Assistant Secretaries of the six Government Departments in question.

Findings

Protection of Personal Information

As I have indicated above, the Department refused access to the information sought on the ground that access would involve the disclosure of personal information relating to the Assistant Secretaries of the relevant Government Departments. 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 Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) 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) of the Act. 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".

The Act also excludes certain information from the definition of personal information. Specifically, paragraph (I) of the definition of personal information provides that it does not include, "in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid". Your argument is that the objectives of the various Assistant Secretaries is not personal information relating to the individuals who hold those positions as it is information "relatingto the office or position or its functions or the terms upon and subject to which the individual holds or held that office". It is clear, therefore, that the key question I must address in this case is whether the information sought is, for the purposes of the Act, personal information relating to the Assistant Secretaries in question.

Is the Information Sought "Personal Information"?

The Department says that the records which contain the agreed objectives of the various Assistant Secretaries have been created entirely for the purpose of being used in the scheme of performance related awards and will be the basis of awards made under the scheme. It argues that they can, therefore, be defined as "personnel records" thereby coming within section 6(6)(a) of the Act and, in turn, within the definition of personal information.

The current scheme of performance related awards for Assistant Secretaries was implemented this year on foot of a recommendation by the Review Body on Higher Remuneration in the Public Sector in its Report No. 38 (published in September 2000). A "Committee for Performance Awards" has been established to monitor and adjudicate on the awards process. The guidelines on the scheme provide, among other things, that

• performance related awards will be based on achievements against the objectives defined,
• having reached agreement with the relevant Secretary General in respect of priorities for the year and the level of achievement to be aimed at, Assistant Secretaries should define their agreed objectives for the period,
• agreed objectives should "be based on stretched performance by a fully competent officerand go beyond the normal requirements of the job",
• at the end of the review period, Assistant Secretaries are required to complete a self-assessment of performance,
• the relevant Secretary General is charged with reviewing self assessments of performance and with forming a conclusion on the amount of an award,
• The Committee for Performance Awards is charged with ensuring that overall guidelines are adhered to and that there is consistency in the approach adopted in different Departments.

Having regard to these guidelines and to the contents of the particular records at issue in this case, the records can, in my view, be described as relating to"the competence or ability of the individual in his or her capacity as a member of the staff of a public body ... or an evaluation of the performance of his or her functions..". I am satisfied, therefore, that they can be defined as "personnel records" coming within the scope of section 6(6)(a) of the Act and that, as a result, the information contained in the records comes within category (iv) of the definition of personal information. However, the fact that the information comes within category (iv) is not, of itself, sufficient for the information to be considered personal information for the purposes of the FOI Act. It must also come within paragraph (a) or (b) of the definition as described above.

On this point, the Department says that there would have been a general expectation among Assistant Secretaries that the information furnished in relation to personal objectives would be treated as confidential. In says that, in discussion with Assistant Secretaries prior to the introduction of the new scheme, it was indicated that it was envisaged that the scheme would be operated on a confidential basis, subject to my finding otherwise in relation to any appeal referred to me. It seems to me that the agreed objectives of the various Assistant Secretaries reflect the views of the respective Secretaries General as to the competence or ability of those Assistant Secretaries, particularly given that agreed objectives should "go beyond the normal requirements of the job". In my view, 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. I find, therefore, that the objectives of the various Assistant Secretaries constitute personal information for the purposes of the FOI Act.

On the matter of whether the exemption in paragraph (I) of the definition of personal information might apply, analysis of that 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. 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". Furthermore, in my view the objectives of the various Assistant Secretaries are specific to those individuals and have regard to their personal abilities, qualities and skills as opposed to relating to the functions of the office or to the terms upon which and subject to which the individual holds that office. Indeed, as I have outlined above, the scheme guidelines provide that the agreed objectives should "go beyond the normal requirements of the job". In this regard, I think it is relevant that the Review Body on Higher Remuneration in the Public Sector has made it clear that the basic salary it has recommended for the job of Assistant Secretary reflects its view of the job's worth. Performance related awards are available only in respect of exceptional individual performance. I am satisfied, therefore, that the exemption in paragraph (I) does not apply.

Having found that the information contained in the records is personal information, I find that the records are exempt pursuant to section 28(1) of the FOI Act.

The Public Interest

Having found that section 28(1) applies, I am required to consider whether, on balance, the public interest that your request should be granted outweighs the public interest that the right to privacy of the third parties to whom the information relates should be upheld. In other words, I am required by section 28(5) to identify a positive public interest which can outweigh the privacy rights of the various Assistant Secretaries.

I note that you have identified a number of public interest factors in favour of release of the records in your letter of 11 April 2002 to the Department. You argue that the manner in which stated objectives are achieved and an individual's responsibility in achieving those objectives must be made public in order that the public may participate in Government in an open and informed way. You also argue that release of the information sought would put the public in a better position to hold senior civil servants more accountable for their actions and would ensure value for money. I agree that there is a positive public interest in allowing members of the public participate in Government in an open and informed way and in maximising openness and transparency in the use of public funds and in improving accountability. However, these positive public interest factors must be balanced against the right to privacy of the individuals concerned. There is also a public interest in ensuring the continued operation of the scheme of performance related awards, one of the key functions of which is to improve performance which in turn should lead to improved service to the public.

I do not agree that knowledge of an individual's responsibility in achieving the objectives of the public body is entirely necessary to facilitate increased public participation in Government. In my view, the publication by public bodies of Statements of Strategy which set out, among other things, the objectives of the bodies allows members of the public to make informed decisions as to whether, and to what extent, the public bodies are meeting those objectives. While it can certainly be argued that release would increase accountability of individuals, this must be weighed against the right to privacy of those individuals. In my view, the public interest in favour of the release of the records sought in this case is diminished somewhat by (i) the release by the Department of the guidelines on the operation of the scheme, (ii) the publication by Government Departments of Statements of Strategy and their overall objectives and (iii) the existence of the Committee for Performance Awards which is charged with ensuring that overall guidelines are adhered to and that there is consistency in the approach adopted in different Departments.

As regards the accountability of senior civil servants to the public, while I fully support the view that the decisions taken by them which affect the public or the public interest should be more transparent and open to public scrutiny, I see a difference between that and the formal accountability provided for in the Public Service Management Act, 1997. Section 6 of that Act provides that the Secretary General shall be accountable to the Minister while section 9(2) provides, inter alia, that Assistant Secretaries shall be accountable to their Secretaries General. In all the circumstances, I am satisfied that the public interest that your request should be granted does not outweigh the public interest that the right to privacy of the third party to whom the information relates should be upheld. I find therefore, that the Department was justified in deciding to refuse your request. Having so found, it is not necessary for me to consider whether exemption under section 21(1)(b) of the Act would also apply.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, I hereby affirm the decision of the Department of Finance in this case.

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