Case 040193. Records relating to the applicants' complaints in relation to their childrens' school made to the Department of Education and Science - information given in confidence - section 26(1)(a).

Case Summary

Facts

The applicants objected to the proposed release by the Department of Education & Science (the Department) on foot of an FOI request of records relating to complaints made by them which detailed incidents alleged to have occurred in the school which the requesters' children attended. The FOI request included all records held by the Department in relation to the complaints. The Department decided to release the records. The applicants claimed that the records should not be released as the information was given to the Department in confidence.

Decision

The exemption contained at section 26 of the FOI Act is designed to protect information obtained in confidence. The Commissioner found that two of the four requirements of section 26(1)(a) were not met, thus she was satisfied that the exemption contained at section 26(1)(a) did not apply to the particular records at issue.

The Commissioner noted that the Department, on two seperate occasions, advised the applicants that in line with its standard complaints procedure it would be necessary for the applicants to agree to a copy of their complaint being sent to the Board of Management of the school. It would not have been possible for the Department to take any action were their correspondence to be considered confidential.

Furthermore, following receipt of advice from the Department in relation to its standard complaints procedure, the applicants continued to correspond with the Department and request the Department to take steps to deal with their complaints in relation to the school. The applicants also wrote to the Bishop with direct responsibility for the school on at least two occasions in relation to their dissatisfaction with the school and asked a Minister who was one of their constituency T. D.s to make representations to the Minister for Education and Science on their behalf in relation to their continuing perceived difficulties in relation to the school.

Given the Department's advice in terms of presenting the material to the Board of Management and the wide circulation of the material relating to the complaints the Commissioner did not accept that the applicants' submissions to the Department could be considered to be confidential.

The Commissioner affirmed the decision of the Department to release the records.

Date of Decision: 11.08.2005

Our Reference: 040193

11.08.2005

Mr. & Mrs ABC

Dear Mr. & Mrs ABC

I refer to your application to the Information Commissioner under the Freedom of Information (FOI) Acts, 1997 & 2003, for a review of the decision of the Department Education & Science (the Department) to release records (relating to the period 1 September 2001 to 15 January 2004) which may affect your interests. The Department's references FOI/2004/47 and FOI/2004/48 refer. This Office's reference 040193 refers. I have been authorised by the Information Commissioner to conduct this review on her behalf.

Background

The FOI requests were first made on 16 January 2004. The Department notified you by letters dated 5 and 10 March 2004 that it was considering its decision and then informed you by letter dated 10 May 2004 that it had decided to grant access to the records concerned. You applied (under section 29 of the Act) to the Information Commissioner for a review of the Department's decision by letter dated 20 May 2004 (received in this Office on 27 May 2004) on the grounds that the records concerned were exempt from release under the FOI Act on the basis that the information had been given to the Department in confidence.

In carrying out this review, I have had regard to the following matters:

• the correspondence which passed between you and the Department in relation to the request;
• the Department's conclusions on the matter;
• your application to this Office;
• the detailed enquiries and correspondence between the Department and this Office;
• the contents of the records in question (copies of which have been provided to this Office by the Department for the purposes of this review), and,
• the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information [Amendment] Act, 2003.

I have carefully noted the correspondence that you have had with the Department in respect of these FOI requests and your submission to this Office dated 18 October 2004. I have also noted that Mr. O'Neill, Investigator in this Office, wrote to you, on 20 December 2004, setting out his preliminary views on this case and inviting you to comment. Your response dated 20 January 2005 has also been noted. I have now decided to conclude this review and issue a decision in the matter. All references in correspondence from this Office to particular sections of the FOI Act, unless otherwise stated, refer to the FOI Act, 1997 as amended by the Freedom of Information [Amendment] Act, 2003.

Scope of Review

The Commissioner's review is concerned only with the question of whether or not the Department is correct, under the provisions of the FOI Act, in granting access to the records concerned.

Findings

Preliminary matters

You will find some explanatory material relating to the Freedom of Information Acts and on the procedures followed by this Office at www.oic.ie. Access to the internet is generally available from most public libraries throughout the country. Further information on the applicability and operation of the FOI Acts is also available from the Central Policy Unit of the Department of Finance and from any public library.

The Freedom of Information Act, 1997, as amended by the Freedom of Information [Amendment] Act, 2003, is designed to provide a right of access to information held by public bodies to the greatest extent possible. However, the Acts, by making certain exceptions, seek to achieve a balance between this right of access, on the one hand, and, on the other, the right to privacy and in some cases the public interest in maintaining confidentiality. The Act came into force over 7 years ago on 21 April 1998

Before dealing with the exemptions appropriate to this case I would first draw your attention again to the terms of section 34(12) of the FOI Act. This provides that a decision to grant a request to which section 29 applies shall be presumed to have been justified unless this third party concerned shows to the satisfaction of the Information Commissioner that the decision was not justified. In the circumstances, the onus of satisfying the Information Commissioner that the decision of Department, to release the information in this case, was not justified rests with you.

I should also point out to you that section 29 only applies to a request to which section 26(3) applies. Section 26(3) of the FOI Act provides that section 26(1)(a) does not apply to a case in which the public interest would on balance be better served by granting than by refusing to grant the request. In its initial letter to you, dated 5 March 2004, the Department indicated to you that it was considering release in the public interest. However, in its decision letter, dated 10 May 2004, the Department found that section 26(1)(a) did not apply and found therefore that it did not need to consider the public interest test in section 26(3). It did go on to state, however, while it was not "entirely necessary" to do so it would have found in favour of release in the public interest. Notwithstanding this finding, it notified you of a right of appeal to this Office. In its decision letter of the same date to the original requester, however, the Department stated that it had decided to release the records in the public interest.

In light of the Department's handling of the matter I have, in the circumstances, decided to process your application as a section 29 application.

Section 26(1)(a)

In your original application to my Office, on 27 May 2004, you claim that the records should not be released as the information was given to the Department in confidence. This is a claim that the records are exempt (from release) under section 26(1)(a) of the FOI Act. I deal below with this provision claimed as providing a basis for exempting the records.

Section 26(1) of the FOI Act states that:

"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 is necessary to show four things, viz:

• That the information was given in confidence, and
• that the information was given on the understanding that it would be kept 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.

All four tests of section 26(1)(a) must be met for that section to apply. If any one test is not met then the exemption does not apply. In his preliminary views letter Mr. O'Neill set out the thinking of the Commissioner (and an example of a previous decision) in relation to this section of the Act and I do not propose to repeat this reasoning.

Having examined the records in question it is clear that they relate to your difficulties and complaints in relation to the school. I note that the Department, in letters dated 21 October 2002 and 5 December 2002, advised you that in line with its standard complaints procedure it would be necessary for you to agree to a copy of your complaint being sent to the Board of Management of the school. It would not have been possible for the Department to take any action were your correspondence to be considered confidential. Furthermore in my examination of your correspondence with the Department between 2002 and 2004 I can find no trace of your requesting that the information be treated in confidence. I can only find a reference, in your letter dated 14 November 2003, to "We would appreciate that you would not relay our names specifically to the manager or the Teachers of Scoil X". 

In any event the advent of FOI brought about changes in the manner in which public bodies conduct their business and the agreements which they make. Given the importance of openness and accountability in the public service and given the fact that at the time these letters were written the FOI Act, 1997 had been in force for over four years, I am satisfied that the Department was most certainly aware of the implications of the provisions of the Act and could not have given any assurance of confidentiality in this case. The enactment of the Freedom of Information Act allowed for the release, in the public interest, of information that might be otherwise exempt.

Furthermore, following receipt of advice from the Department in relation to its standard complaints procedure, you continued to correspond with the Department and request the Department to take steps to deal with your complaints in relation to the school.

I also note that you wrote to the Bishop of (Place name deleted) on at least two occasions in relation to your dissatisfaction with the school. My examination of the Department's files confirms that there were representations to the Minister for Education from (name deleted), T. D., Minister for (Department name deleted), on your behalf in relation to your continuing perceived difficulties in relation to the school.

Given the Department's advice in terms of presenting the material to the Board of Management and the wide circulation of the material relating to the complaints I do not accept that your submissions to the Department could be considered to be confidential. I believe that the information was not given to the Department in confidence and that there was no understanding that it would be kept confidential.

The public interest factors favouring the release or withholding of the records in question have been set out in Mr. O'Neill's letter to you, dated 20 December 2004. As I have found that section 26(1)(a) is not applicable it is not necessary for me to consider the public interest override in section 26(3) in this case. However, I would point out that the public interest in individuals being aware of allegations/comments made in respect of them is such that the public interest in this case is best served by the release of the records proposed to be released by the Department.

I note your concerns that release of this information may cause relationship difficulties for some or all affected by a decision to release the records. You will appreciate, however, that this is not part of the Commissioner's remit. The Commissioner's role in such cases is to review the decision of the public body (in relation to the release of the records) and decide whether that decision was justified, under the provisions of the FOI Act. In addition, given that many of the issues have been resolved and some of the key personnel are no longer in situ I believe that any such concerns have been diminished in the interim.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 as amended, I hereby affirm the decision of the Department to release the records.

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

Yours sincerely

Emily O'Reilly
Information Commissioner