Case 020436. Request for access to records created during the course of an investigation - whether disclosure of information received during the course of an investigation could reasonably be expected to prejudice or impair the detection or investigation of offences - section 23(1)(a)(i) - whether name and position of an employee with a private company is personal information - section 28(1)

Case Summary

Facts

Mr X made a complaint to the Health and Safety Authority (HSA) in which he alleged he was being bullied and harassed in his place of employment. The HSA investigated the complaint but took no action against the employer. Mr X subsequently made an FOI request for the HSA's notes created during the investigation. While the HSA granted access to most of the records it refused access to part of a file note which recorded a telephone discussion with an employee of the company and separately, the name of another employee with the company.

Decision

The Commissioner was satisfied that the contents of the telephone discussion were given in confidence to the HSA during the course of the investigation. He was also satisfied that it was the type of information that the HSA needed to obtain during its investigations and that its disclosure could reasonably be expected to prejudice or impair the investigation of future offences or the effectiveness of the HSA's methods for doing so.

The Commissioner directed that access be granted to the name of the other employee of the company as the position held by that employee was director of the company, which is a matter that is required to be on the public record. The Commissioner added that he may have found differently had the name of the employee not been required to be published.

Date of Decision: 20.11.2002

Our Reference: 020436

20.11.2002

Mr X

Dear Mr X

I refer to your application for a review of the decision of the Health and Safety Authority ("the HSA") to refuse you access to certain parts of records relating to your complaint to the HSA.

Background

I have now completed my review of the HSA's decision. In carrying out that review I have had regard to your letters of 17 August, 16 September and 17 October 2002. I have also had regard to the decision of the HSA and I have examined the records to which you were refused access.

Scope of Review

The HSA refused access to parts of five records. Following correspondence with Mr Nutley of this Office I note that you have agreed that my review should focus only on access to the sentence at the end of record numbered 2, (file note of 28 February 2001) and the name and position of an employee with ABC Construction Limited at the end of record numbered 7.

My review therefore is concerned solely with the question of whether the decision of the HSA to refuse access to part of records numbered 2 and 7, as outlined above, is justified.

Findings

Record 2 - File Note of 28 February 2001

The HSA refused access to a sentence from record numbered 2 under sections 21(1)(a), 23(1)(a)(i) and 26(1)(a) of the Freedom of Information (FOI) Act.

Section 23(1)(a)(i)

Section 23(1)(a)(i) of the FOI Act provides that access to a record may be refused if access could reasonably be expected to prejudice or impair "the prevention, detection or investigation of offences ....or the effectiveness of lawful methods, systems, plans or procedures employed for the matters aforesaid".

In arriving at a decision to claim exemption under section 23 a decision maker must firstly identify the potential harm to the matters covered by the exemption that could arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.

The HSA has overall responsibility for the administration and enforcement of health and safety at work in Ireland. The HSA monitors compliance with legislation at the workplace and can take enforcement action, including prosecutions. In this case the HSA contends that information collected in the course of its investigations, such as the information in question here, forms a major part of the evidence used to progress investigations and prosecutions. It points out that most of the information it receives is provided voluntarily and its procedures rely heavily on parties involved in the investigation, including complainants and witnesses, believing that information given to the HSA is given in confidence. In this regard the HSA states that the information is only revealed to the extent necessary to ensure fair procedures in its investigations and for the HSA to make findings or recommendations, or to take criminal proceedings. The HSA argues that disclosure of information supplied in confidence to the HSA could result in other parties in investigations being less co-operative and therefore its investigations could be prejudiced.

In summary, the HSA's contention is that disclosure of confidential information provided to it in the course of its investigations could reasonably be expected to prejudice or impair the detection or investigation of offences or the effectiveness of the HSA's methods for doing so. In examining the merits of the HSA's contention I do not have to be satisfied that the outcome envisaged by the HSA will definitely occur. It is sufficient for the HSA to show that it expects such an outcome and that its expectations are reasonable.

As the investigation into your complaint is completed I assume that the HSA's claim relates to possible prejudice to future investigations. I have examined the sentence in question. It is clear to me from the nature of the comment that the comment was made in confidence to the HSA's Inspector in this case during the course of an investigation. I am satisfied that it is the type of information that the HSA needs to obtain during its investigations in order to receive a more complete picture of the situation it is investigating. I am also satisfied that its disclosure could have the effect envisaged by the HSA and while I have sympathy with your particular case, I find that the HSA is justified in refusing access under section 23(1)(a)(i).

Section 23(3) provides that access to a record may be granted in specified circumstances where the public interest would, on balance, be better served by granting than by refusing to grant the request. Those circumstances include those where the record discloses that an investigation is not authorised by law or contravenes any law, contains information concerning the performance of a public body of functions relating to law enforcement or contains information concerning the effectiveness or merits of any programme for prevention, detection or investigation of breaches of the law. I am satisfied that the comment in question here does not meet any of these circumstances and that section 23(3) does not apply.

As I have found that the HSA is justified in refusing access under section 23(1)(a)(i) I do not consider it necessary to examine the application of sections 21(1)(a) or 26(1)(a).

Record 7 - Name and position of an employee with ABC Construction Limited

Record 7 is a note created by the HSA's Inspector involved in this case. The note details the contact between the HSA and an individual acting in his/her capacity as representative of the company where the HSA was proffering advice to the company on its anti-bullying policy. The HSA refused access to the name and position of an employee with ABC Construction Limited under section 28(1) of the FOI Act. The remainder of the note was released to you.

Section 28

Section 28(1) of the FOI Act provides for the protection of an individual's personal information. The FOI Act defines personal information as 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 and without prejudice to the generality of (a) and (b) includes (ii) information relating to the employment or employment history of the individual.

As the remainder of the note has been released to you, what is at issue here is access to the information that a particular individual is employed by ABC Construction Limited. I am satisfied that the name and position of the employee with the company can be said to be information relating to the employment of the individual. However for the information to meet the definition of personal information it must meet the criteria at (a) or (b) above. The investigation in question was initiated by the HSA and the name of the employee and the employee's position was supplied to the HSA in the context of that investigation. However, in this case the position held by the employee is that of director of the company which is a matter that is required by law to be on the public record (see decision 98022 - Mr. Tom Cronin and the Office of the Director of Consumer Affairs under "Decisions" at website www.oic.ie). While I may have found differently in a situation where details of the position of an employee was not required to be publicly available, I am satisfied that the information in this case does not meet the criteria set out at (a) or (b) in the definition of personal information and is not exempt under section 28(1).

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the decision of the HSA and direct that access be granted to the name and position of the director with ABC Construction Limited in record 7.

A party to a review, or any other person affected by the decision of the Information 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 four weeks from the date of this letter.

Yours sincerely

Information Commissioner