Case 010314. Request for access to personnel records held by the former South Eastern Health Board (the Board) - whether records of contacts between solicitors for the Board and solicitors for the applicant, marked "without prejudice" attract legal professional privilege - section 22(1)(a) - whether information provided by a University to the Board in relation to the applicant's performance on a course was provided in confidence - section 26(1) - whether disclosure of records would involve the release of personal information - section 28(1).

Case Summary

Facts

The applicant sought access to his personnel records as held by the Board. The Board released a number of records to him but withheld the remainder on the grounds, inter alia, that certain records (records of contacts between the applicant's solicitors and those of the Board for the purpose of settlement of an action) attracted legal professional privilege (section 22(1)(a)). The Board also withheld records of information provided by a University in relation to the applicant's performance on a course on the grounds that the information had been provided in confidence [section 26(1)].

Findings

The Commissioner accepted that the records of the contacts between the parties' solicitors with a view to settling the legal action concerned are of a type that could not be introduced in evidence in a court of law. However, she was satisfied that such privilege was of a separate category from that of legal professional privilege and that section 22(1)(a) was not applicable to them. The Board had also submitted that the records were exempt under other provisions in the FOI Act but the Commissioner was not satisfied that the exemptions concerned applied to the records.

The Commissioner did not accept that section 26 applied to the information provided by the University to the Board. While she accepted that such communications were understood to remain confidential vis à vis third parties, she did not accept that the information was sought and provided on the basis that it would not be disclosed to the applicant. Thus, she did not accept that there was a mutual understanding between the University and the Board that the information would be withheld from the applicant. She said that, in the absence of exceptional circumstances, such an understanding would not accord with the principles of constitutional justice.

The decision also dealt briefly with whether all reasonable steps had been taken to look for further records, and whether the release of information in other records would involve the disclosure of personal information of individuals other than the applicant.

Date of Decision: 22.09.2006

Our Reference: 010314

22.09.2006

Mr. X

Dear Mr. X

I refer to your application to this Office for a review of the decision of the South Eastern Health Board on your Freedom of Information (FOI) request of 2 November 2000. The South Eastern Health Board has now been replaced by the Health Service Executive, South Eastern Area, but for the purposes of this decision is referred to as "the Board".

Please accept my apologies for the very long delay that has arisen since you made your application to this Office. Because of the large number of applications received in the early years of FOI, and because of staff shortages in that same period, significant work arrears built up. I appreciate that this delay has been quite frustrating for you.

Background

In your request of 2 November 2000 you sought access to "a Full Copy of All Files, Documents ... held by the South Eastern Health Board & or its Agents in relation to [your] Employment as a Social Worker with the South Eastern Health Board." In its decision of 2 February 2001, the Board identified 168 documents as being covered by your request and informed you that these were being released with the following exceptions: records 15, 21, 47, 59 (part thereof), 78, 136 (part thereof), 166, 167 and 168. The Board said that it considered these documents to be exempt under the provisions of one or other of sections 6(6), 22, 26 and 28 of the FOI Act.

On 20 February 2001, you sought an internal review of the Board's decision; in your application you contended that not all the records covered by the request had been identified as you believed your file contained substantially more than the 168 records identified by the Board. The Board's internal review decision, dated 26 March 2001, upheld its refusal to release the records listed above. It also said that it had located another two records, which it was releasing to you. The Board's position then was that the records considered by it at that point represented your entire personnel file. On 1 August 2001, you made your application to this Office for a review of the Board's decision.

In the course of this review, I understand that a copy of record 21 (referred to above) was provided to you by the Board. Also, in the course of this review and following queries raised by Ms. Moran of my staff, the Board obtained copies of three relevant files held by its solicitors and I understand that some of the records from these files have now been released to you.

In conducting this review I have taken account of correspondence between yourself and Ms Moran of this Office, and of correspondence between the Board and Ms Moran. I have also examined copies of the records at issue, which were supplied to my Office for the purposes of this review. Finally, in conducting this review, I have considered the provisions of the FOI Act [as amended by the Freedom of Information (Amendment) Act, 2003]. All references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the 1997 FOI Act as amended.

Scope of Review

There are two matters at issue in this review:

1. whether further records exist, relevant to your request, which should have been considered by the Board; and
2. whether the Board's decision in respect of the records it has withheld from you is in accordance with the provisions of the FOI Act.

In relation to 2. above, the records being withheld include records identified by the Board in its initial decision (referred to hereafter as the "Original File") as well as some records from the solicitors' files which were first considered by the Board in the course of this review. The three solicitors' files are referred to hereafter as File One, File Two or File Three as appropriate.

The withheld records from the original file are as follows: records 15, 47, 59 (part thereof), 78, 136 (part thereof), 166, 167 and 168. (Please note that in her letter to you of 11 February 2005 Ms Moran referred in error to record 14 on this file rather than to record 15.)

The withheld records from the three solicitors' files are as follows:

File One

Withheld in part - records 1, 6, 7, 9, 10, 11, 26, 27, 29, 31, 33, 39, 40, 41, 43, 45, 46, 47, 49, 50, 51, 66, 67 and 68.

Withheld in full - records 28 and 32.

File Two

I understand that, at this stage, all records on this file have been released with the exception of small portions of record 84 which is a copy of record 136 on the original file (which has been released with the same small deletions). It is not necessary, therefore, to consider File Two for the purposes of this review.

File Three

Withheld in part - record 36

Withheld in full - records 50, 51, 52, 77, 78, 80, 83-85, 88, 89-90, 91, 92, 93, 94, 100, 101, 103, 104, 105, 107, 108, 110-111 and 113.

The remaining withheld records on File 3 are copies of records already contained in the original file and which were withheld by the Board in its initial decision. As these records will be considered in relation to the original file, it is unnecessary to consider them in the context of File Three.

This review does not extend to assessing whether any complaints you made to the Board were dealt with properly, nor does this Office have any role in passing such complaints on to any other body for resolution. Finally, any reference to a withheld record in the remainder of this letter may also be taken as a reference to any portion of a record that has been withheld from you.

Findings

I deal separately below with the two matters identified under the heading "Scope of Review".

Whether Further Records Exist

Section 10(1)(a) provides that access to a record may be refused if "the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken". Ms Moran has described to you the role of this Office in such cases and it not necessary for me to repeat this in any detail.

In her letter of 11 February 2005, Ms Moran described the steps which the Board says it has taken to look for records relevant to your request. You subsequently wrote to Ms Moran in relation to a number of the released records and suggested that further records should exist. In her letter of 31 March 2005, Ms Moran told you that the Board's solicitors held three further relevant files (Files One, Two and Three of which File Two was also described as the "Waterford File") and that the Board was releasing some of these records to you. She also gave you the Board's responses to queries you had raised and asked you to clarify which particular records or parts of records you believed to be missing.

In your most recent letter, I note you did not specifically respond to Ms Moran's queries regarding records you claimed were missing. It is not clear to me from that letter whether you are suggesting that further records should exist, or whether you are commenting on the manner in which the Board dealt with your complaint.

Ms Moran has told you that she considers the searches conducted by the Board to have been reasonable. You may wish to note that the Board says it conducted a search of the Waterford office in which you had been based and that no further records have been found. Having regard to the searches that the Board has described, even if it is the case that you contend that further relevant records should exist, I am satisfied that the Board's searches for records relevant to your request were reasonable and I find that section 10(1)(a) of the FOI Act applies to this aspect of the review.

Withheld Records

Ms Moran has described to you the withheld records and the exemptions being claimed in respect of them by the Board. I note that you have not made any specific argument as to why the records should be released to you, nor have you made any comments in respect of the public interest in their release to you in the case of those exemptions (claimed by the Board) where a public interest test applies.

I deal below with each of the FOI Act exemptions relied upon by the Board as a basis for withholding specific records. I understand that the Board is no longer relying on section 6(6) of the FOI Act in refusing you access to particular records.

Section 22(1)(a)

Section 22(1)(a) provides that a request for a record shall be refused if it "would be exempt from production in proceedings in a court on the ground of legal professional privilege"; this provision does not require any consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice, and
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation.

In her letters of 11 February 2005 and 31 March 2005, Ms Moran outlined her view that section 22(1)(a) applied to records 15, 166, 167 and 168 from the Original File as well as to records 50, 51, 52, 78, 80, 83-85, 88, 89-90, 91, 92, 93, 94, 100, 101, 104, 105, 110-111 and 113 from File Three.

I agree with Ms Moran's view and consider that these records fall into one or other of the two types of communication protected by legal professional privilege. Accordingly, I find that section 22(1)(a) applies to the records identified immediately above.

Records 77, 103, 107 and 108 on File Three

These records comprise contacts between your solicitor and the Board's solicitors with a view to a possible settlement of your action against the Board. Records 77 and 107 are letters from your solicitor to the Board's solicitors and record 108 is a letter from the Board's solicitors to your solicitor. Each of these letters is marked "Without Prejudice". Record 103 is a note by the Board's solicitors of a telephone conversation with your solicitor; it is not marked "Without Prejudice". However, the Board has argued that a note of discussions being conducted on a "Without Prejudice" basis should be treated, for FOI purposes, in the same manner as a record of a written communication marked as "Without Prejudice".

Whereas the Board claimed initially that these records are exempt on the basis of legal professional privilege [section 22(1)(a)], in its most recent submission (9 May 2005) it appears to accept that legal professional privilege does not apply to them; however, it argues that they are exempt on the basis of other exemptions. For the avoidance of any doubt, I wish to make it clear that it is my position that these records are not covered by legal professional privilege.

As set out below, records marked "Without Prejudice" may be covered by privilege but this privilege, where it applies, is a separate category to legal professional privilege. The exemption at section 22(1)(a) applies only to legal professional privilege.

"Without Prejudice" Records - File Three

It is clear that records marked "Without Prejudice" may be covered by privilege in a legal sense. According to Murdoch's Irish Legal Companion:

"Letters written and oral communications made during a dispute between parties, which are made or written for the purpose of settling the dispute, and which are expressed or otherwise proved to have been made "without prejudice", cannot generally be admitted in evidence. Where the privilege is challenged, the court is entitled to examine the communications to determine whether they are of such a nature as to attract privilege: Ryan v Connolly [2001 SC] 2 ILRM 174 and 1 IR 627."

Murdoch goes on to comment that this rule is founded on the public policy that parties are to be encouraged as far as possible to settle their disputes without recourse to litigation.

Cross and Tapper on Evidence (Eighth Edition) says that:

"[a] witness is said to be privileged when he may validly claim not to answer a question ...which would be relevant to the determination of an issue in judicial proceedings ...

Only four heads of privilege are sufficiently important to require discussion here, the privilege against self incrimination, legal professional privilege, privilege for statements made without prejudice as part of an attempt to settle a dispute and a privilege derived from the former for statements made to a conciliator...... (P. 451)

[Statements made "without prejudice"] often relate to the offer of a compromise, and, were it not for the privilege, they would constitute significant items of evidence on the ground that they were admissions. Obviously it is in the public interest that disputes should be settled and litigation reduced to a minimum, so the policy of the law is in favour of enlarging the cloak under which negotiations may be conducted without prejudice. This policy is carried out by means of a rigorous insistence on the absence of any magic in the form of words used by the parties, everything being made to depend on their intention and the objective circumstances of the case, but difficulty occasionally arises as to the scope and effect of the privilege." (P. 501)

Cross and Tapper explain (P. 500 - 501) that such statements "cannot be put in evidence without the consent of both parties, the case being one of joint privilege" and that "it is not possible to import the notion of waiver from legal professional privilege, since where 'without prejudice' privilege exists it is essentially joint" (P. 503). Clearly, there is a distinction between legal professional privilege and that privilege which attaches to statements made without prejudice as part of an attempt to settle a dispute.

I accept that the records of correspondence between the solicitors which are marked "Without Prejudice" came into existence in the context of efforts to reach a settlement in your action against the Board. In the case of record 103 (a note by the Board's solicitors of a telephone conversation with your solicitor), which is not marked "Without Prejudice", I accept that it may be treated in the same manner as the three letters which are marked "Without Prejudice". Having regard to the comments in Murdoch's Irish Legal Companion and Cross and Tapper, it seems that documents relating to oral attempts to reach a settlement, while not marked "Without Prejudice", may nevertheless be withheld from introduction in evidence. Cross and Tapper state (P. 501) that "[i]t is unnecessary to use the words or any equivalent, if it is clear from the surrounding circumstances that the evidence is part of a continuing negotiation, or obtained pursuant to one."

I accept that records 77, 103, 107 and 108 were created in a context of attempted settlement of your action against the Board and, for this reason, are of a type that could not be introduced into evidence in a court of law. I am satisfied that the privilege applying to these records is a separate category from that of legal professional privilege and that, accordingly, section 22(1)(a) is not applicable to them.

In its submission of 9 May 2005, the Board noted that legal professional privilege is "the only privilege explicitly excluded from the [FOI] Acts". I take this to mean that legal professional privilege is the only form of privilege for which the FOI Act provides an explicit protection by way of an exemption from the normal right of access created by the Act. The Board then suggests that it is unlikely that the legislature would have intended that documents covered by other forms of privilege (and it instanced sacerdotal/confessional privilege, privilege against self-incrimination and "Without Prejudice" privilege) "would be freely available under the FOI Acts". The Board then argues that "such documentation would fall to be exempted from the application of the Acts under section 26 - 'information obtained in confidence'." Later in this submission, the Board argues that even if section 26 is not found to apply, these records may be exempt by virtue of other provisions in the FOI Act and it cites sections 20(1) and 21(1)(b) & (c).

Given the Board's present contention that these records are exempt by virtue of provisions other than section 22(1)(a) - which was its original contention - it is necessary to consider the Board's present contention. However, there has to be an air of unreality about this exercise given that the records concerned consist of communications between the Board (via its solicitors) and yourself (via your solicitors).

Application of section 20(1) to records marked "without prejudice" - File Three

Section 20(1) of the FOI Act provides that a request for access to a record may be refused "if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations and the results of consultations, considered by the body or a member of the body or of the staff of the body for the purposes of those processes)." The Board appears to suggest that the contacts between your solicitors and its own solicitors, for the purpose of achieving a settlement in your legal action, constitute a deliberative process as envisaged at section 20(1) of the FOI Act.

I am aware that it is the view of commentators on the operation of this type of exemption in the context of Australian and other FOI jurisdictions that, in order to qualify as a record relating to the deliberative process, the record would have to be concerned with a policy-making processes as opposed to purely procedural or service delivery functions. In addition, a deliberative process is very likely to be an internal process. The records at issue here are records of contact with a third party (yourself) and relate to a possible settlement of a legal action. I can see no merit in the Board's reliance on section 20(1) and I find accordingly.

Application of section 21(1)(b) to records marked "without prejudice" - File Three

Section 21(1)(b) provides for the refusal of a request where the release of the requested record could reasonably be expected to have a "significant adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and its management of its staff").

The Board argues that release would have a significant adverse impact on "the willingness of the management of the HSE to authorise their legal representatives to negotiate potential settlement of cases with the legal representatives of employees and other parties in the future, if they realised that such discussions could be disclosed at any time under FOI despite settlement not having resulted from the negotiations."

Again, it is important to remember that the requester in this case (yourself) is a direct party to the communications disclosed by these particular records. Were it the case that the requester was not such a party, the contents of the records would be highly likely to be protected by section 28 which protects the personal information of third parties. It may be that the Board's approach is based on a view that the identity of the requester is not relevant and that any release of these records will undermine attempts at such settlements in the future. If this is the Board's approach, I cannot accept that it is the correct approach. There can be no detriment to the Board's capacity to attempt settlements in the future arising from the release to you of records which disclose negotiations it has already had with you. I cannot accept that the release to you of these records will cause the Board, for the future, to be less willing to enter into negotiations in similar situations. I do not accept that the Board has demonstrated that the release of the records could reasonably be expected to have a "significant adverse effect" on the performance by the Board of any of its functions relating to management.

I find that section 21(1)(b) of the FOI Act does not apply to these records.

Application of section 21(1)(c) to records marked "without prejudice" - File Three

This provision provides that a request for access to a record may be refused if its release could reasonably be expected to "disclose positions taken, or to be taken or plans procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiation carried on or being or to be carried on by or on behalf of the Government or a public body."

I accept that the release of the four records could reasonably be expected to disclose positions taken for the purpose of the negotiations that took place between your solicitors and the solicitors of the Board. However, the disclosure being sought in this instance is to someone (yourself) who was a direct party to the negotiations. It seems reasonable to assume that the release to you of these records will do no more than confirm what you already know, that is, the content of the communication between your agent and the Board's agent. I take the view that the word "disclose", in the present context, involves the conveying of information which, hitherto, has not been conveyed or the revelation of material which, hitherto, has not been revealed. Release of these records to you can hardly be regarded as a disclosure given that you were a party to the communication evidenced in the records.

The purpose of section 21(1)(c), it would seem, is to protect the capacity of a public body to conduct negotiations. In this context, it is hardly tenable to contend that the provision should be invoked where the person seeking the records is the same as the person to whom the negotiations relate and where the records are the records of actual communication between the public body and that person. Whereas one might take a different view in the case of Board records disclosing its internal discussion on how best to negotiate, this is not the situation in relation to the records at issue here.

I consider that, in the specific context of this case, section 21(1)(c) cannot be relied upon and I find accordingly. In any event, even if I had found that section 21(1)(c) did apply, this is a provision which is subject to the public interest test at section 21(2). Were it necessary to apply this public interest test, I am satisfied that I would find, in the specific circumstances of this case, that "the public interest would, on balance, be better served by granting than by refusing to grant the request".

Application of section 26(1)(a) to records marked "without prejudice" - File Three

Section 26(1)(a) provides that a FOI request shall be refused where 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 and,
• 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.

The Board's position is that there was a mutual understanding of confidence between its solicitors and your solicitors that the communications concerned would be treated as confidential. I am not clear whether the Board is contending that the two sets of solicitors had an understanding of confidence which precluded them from disclosing the communications to their respective clients. If so, then clearly this understanding has already been dishonoured in as much as the Board now holds these records. I accept that the communications in question are confidential vis à vis parties who are not involved in the case but I do not accept that they can be deemed to be confidential in relation to yourself. I say this because solicitors are agents of their principals and I consider that the communications concerned took place effectively between the Board and yourself.

I do not believe it is useful or necessary to engage in a lengthy analysis of whether the release to you of the "without prejudice" records is prohibited by virtue of section 26(1)(a). For the exemption to apply, each of the requirements in the bullet points above must be met. I do not accept that release to you of records disclosing your solicitors communications with the Board's solicitors "would be likely to prejudice the giving to the body of further similar information from the same person or other persons". Accordingly, and without looking at each of them in detail, I find that the requirements for section 26(1)(a) to apply have not been met and that the exemption does not apply.

Application of section 26(1)(b) to records marked "without prejudice" - File Three

Section 26(1)(b) provides that a request for access to a record shall be refused "if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law". That duty of confidence must be owed by the public body concerned to a person other than to any member of its staff or to another public body.

Whereas this particular exemption can be quite difficult in its application, for it to be relevant in the present context it would have to be the case that release to you of the records marked "without prejudice" would constitute a breach of a duty of confidence. In the present context, the only party with whom the Board might have a confidential relationship is yourself. For all of the reasons outlined already above, I cannot accept that release to you of these records (which are records of communication between the Board and yourself) would constitute a breach of a duty of confidence. Release of these records by the Board to some other party would certainly raise issues in relation to confidentiality; but such a release is not contemplated in this case.

In the context of this particular case, I find that the records marked "without prejudice" are not exempt under section 26(1)(b) of the FOI Act.

Summary in respect of records marked "without prejudice" - records 77, 103, 107 and 108 of File Three

I find that none of the exemptions claimed by the Board, in relation to these records, applies in the circumstances of this case. The key circumstance is that the proposed release is to the person to whom the records relate and that the records do not involve any other person other than the Board itself. The outcome would be likely to be different were these records being sought by a party other than yourself.

Section 26(1) -Records 59 (portion only) & 78 - Original File

As you know from records already released to you, the Board sought information from the University of Wales, Swansea in relation to your performance while undertaking professional social work training there in 1990-1991. The withheld portions of record 59 as well as the withheld record 78 (both from the Original File) contain information provided by the University of Wales in response to the Board's request. [Record 22 on File Three is a copy of part of the withheld portion of record 59.]

In the preliminary views sent to you by Ms. Moran of my Office, she accepted the Board's position that these records should not be released on the basis that they are exempt under one or other of the provisions contained at section 26 which protects information obtained in confidence. [The details of the section 26 provisions are set out earlier in this letter.] However, as will be made clear below, this is not a position with which I can agree. The issue here is whether or not the Board's soliciting and subsequent acceptance of information from the University of Wales was done under a cloak of confidentiality which precluded the Board from disclosing this information to you. I have no difficulty in accepting that the information was sought, and provided, on the basis that it was confidential in general terms; what I find I cannot accept is that it was sought, and provided, on the basis that it would not be disclosed to yourself.

I note that record 78, which is the Board's note of a telephone conversation with Professor Y in the University of Wales, is marked "Private & Confidential". On the other hand, there is no reference to confidentiality in the Board's subsequent written request for information sent to the University of Wales. However, the withheld portion of record 59, consisting of the letter of reply from the University of Wales, is marked "CONFIDENTIAL".

In the course of this review, my Office consulted with the University of Wales regarding the information it had provided to the Board and as to its views on whether it should be disclosed to you. The University's position is that its communications with the Board were "in effect professional references" and "should continue to be treated as confidential and should not be disclosed". The University gave as its reasons for this position:

• that any departure from the practice of treating such references as confidential "will tend to reduce the willingness of referees to state their views fully and frankly" and that this would not be "in the general interest, particularly in relation to occupations such as social work which provide services to vulnerable members of the public", and
• that the University's comments included some material which it had itself received on a confidential basis from third parties and that it would be "undesirable for this to be disclosed"; though it accepted that much of this would already be known to you.

I accept that in the contacts between the Board and the University of Wales there would have been a general understanding of confidentiality, that is, that the communication was to remain confidential vis à vis third parties. However, I do not accept that this general understanding of confidentiality extended to an understanding that the University's reply would not be made available to you. In taking this view, I am influenced in particular by the context in which the Board sought information about you from the University. The approach by the Board to the University arose in the context of the Board's consideration of whether your employment by the Board should be terminated. In his letter of 17 June 1998 to the University - a copy of which has been released to you - the Board's Area Manager for Child Care Services said he had been asked by his Programme Manager "to formally request a report from Swansea University on Mr Xs performance on the aforementioned Course", that is, the Diploma in Applied Social Studies and CQSW course.

Given the context in which the report was sought, given that the University had already provided some information by telephone, given that the Board gave no written assurances of confidentiality in relation to yourself and given that information was being sought "formally", I cannot accept that there was any mutual understanding between the Board and the University that the latter's information would be withheld from you.

As an institution involved in the professional training of social workers, it is difficult to imagine that the University would refuse to give information to a social worker employer, such as the Board, in the absence of guarantees of confidentiality. Indeed, it is arguable that the University has a responsibility to an employing authority to give any relevant information it has about individual social workers employed, or proposed to be employed, by that authority. Such a responsibility would be even stronger where the University had information to suggest that a particular individual is not suited to employment as a social worker. Accordingly, I do not accept that the University had any reasonable basis to believe that information it provided, regarding your performance in the University, was being given on an understanding that it would not be disclosed to you.

In the case of the Board, it must have been aware of the seriousness of the context in which it sought information from the University. In earlier decisions relating to the seeking of employment references by public bodies [see, for example, the decisions in Case No. 010310 and Case No. 020021 ] I have stressed the relevance of fair procedure or constitutional justice in such cases. In Case No. 010310 I commented:

" ...I believe it is not sustainable for a public body to seek to protect a particular approach to the performance of a particular function where that approach would appear to breach the requirement to abide by fair procedure. In so far as their actions impinge on the rights or interests of individuals, all public bodies are required to act on the basis of fair procedure. This requirement applies in the case of employee selection processes. A selection process which provides for the taking into account of references from third parties, or from supervisors or managers within the employing body, and where these references (or their content) are not to be made available to the applicant, is inherently unfair. Such a process precludes the applicant from knowing what is being said about him or her and renders the applicant incapable of rebutting comment or assessments which he or she would consider incorrect or biased."

It seems to me that in your case - where what was at issue was the possible termination of employment as opposed to the possibility of being employed following a job selection process - the burden of constitutional justice is significantly greater. It is hardly tenable for the Board to argue that, as part of a process which might (and actually did) lead to the termination of your employment, it could have regard to relevant information about you and expect that this information could be withheld from you. It may be that, at the time of the contacts between the Board and the University, neither party had thought out the implications of what was being done. If the parties had considered the implications, it is my view that neither side could have had any reasonable expectation that the University's information could, or should, be withheld from you.

It is relevant to note that the provisions of the FOI Act fall to be interpreted in accordance with the Constitution. A very clear statement to this effect was made by the Supreme Court in its judgment of January 2006 in NMcK v Information Commissioner. What this means in the present case is that, in taking a view of what understanding the Board and the University may have had, it is necessary to assume that it respected the principles of constitutional justice. As I understand it, in the absence of exceptional circumstances, any understanding between the Board and the University, that the Board would withhold from you the information provided by the University, would breach the requirements of constitutional justice. I have to assume that whatever understanding there was between the two bodies was one which accords with the principles of constitutional justice. Therefore, I have to take the view that the understanding of confidentiality between the bodies did not extend to an understanding that the Board would withhold from you whatever information would be provided by the University.

As explained earlier in this decision, the section 26(1) exemption has two separate provisions at sub-sections (1)(a) and (1)(b). However, for either of the provisions to apply it is a prerequisite that there be an established relationship of confidentiality between the provider of information and the public body concerned. In the present case, the issue is whether there was an understanding of confidentiality between the University and the Board which extended to an understanding that the information provided by the University would not be disclosed to you. For the reasons set out immediately above, I do not accept that such an understanding existed. In the context of this particular case, I do not accept that the information obtained from the University satisfies the first two requirements for the application of section 26(1)(a); nor do I accept that the release to you by the Board of the University's information would constitute a breach of a duty of confidence as envisaged at section 26(1)(b) of the FOI Act. Accordingly, I find in the case of the withheld portions of record 59 and the entirety of record 78 (both from the Original File) that they are not exempt from release under section 26(1) of the FOI Act.

Section 28 - Personal Information

From my examination of the refused records, I am satisfied that a number of them disclose the personal information of identifiable individuals and that they should not be released on the grounds that they are exempt under section 28(1) of the FOI Act. As Ms. Moran has already dealt in general terms with the operation of section 28(1), I do not believe it necessary to repeat these details at this point. In addition, it is relevant to note that it is not at all clear, in relation to several of the records dealt with immediately below, that these records are actually encompassed in the FOI request as made by you.

Original File

Record 47 from the Original File contains information provided by Dr Z to the Board. [Record 39-40 on File Three is a duplicate of this record.] The Board has refused this record by reference to section 26 (information obtained in confidence) and, in her preliminary views letter to you of 11 February 2005, Ms. Moran of my Office agreed with the Board's approach. I have decided not to make any finding on the application of section 26 to this record as I believe it is, in any event, exempt on the basis that it discloses the personal information of Dr. Z. As you may know, section 28(1) is not an absolute exemption and there are some exceptions to its application. In the present context, the only such exception of possible relevance is that at section 28(5)(a) which provides for the release of personal information in the public interest. I am not aware of any compelling public interest that would be served by the release of this record and I find that it is exempt by virtue of section 28(1) of the FOI Act.

I note that the withheld portions of record 136 on the Original File (and its duplicate, record 84 on File Two) refer to a staff member other than yourself and that Ms Moran has told you she considers this to be exempt under section 28(1). I agree with her view. Furthermore, I consider that there is no information in this record that relates in any way to the investigation of your complaint by the Board. Its release to you would not add to your understanding of how the Board dealt with your complaint. On the other hand, release of record 136 would breach the rights to privacy of the individual concerned. I consider, on balance, that the public interest is better served by record 136 of the original file, and its copy (Record 84 on File Two) being withheld from you.

File One

Ms Moran has told you that she considers records 1, 6, 7, 9, 10, 11, 27, 29, 39, 40, 41, 43, 45, 46, 47, 49, 50, 51, 66, 67 and 68 to be outside the scope of your request in that they referred to the hours worked and pay earned by staff members of the Board other than yourself.

Ms. Moran also told you that as records 26, 28, 31, 32 and 33 were created by you in the course of your duties, they could not be said to contain your personal information. Ms Moran told you that because these records contained the personal information of individuals other than yourself, she considered them to fall outside the scope of your request. I agree with her view that such records do not fall within the scope of your request for records "in relation to [your] employment as a Social Worker with the Board."

I see no need to further consider the records listed in the previous two paragraphs. In any case, even if you had argued that the records listed in the these two paragraphs are covered by the scope of your request, I would have found them to be exempt under section 28(1) of the FOI Act. For the reasons already set out in respect of records 47 and 136 from the Original file, I would take the view that whatever public interest may be served by release of these records would not be sufficient to outweigh the right to privacy of the individuals whose personal information is disclosed by these records.

File Three

Ms Moran told you that she considered section 28(1) to apply to the withheld portion of record 36. I agree with her view and, for the reasons set out earlier, see no public interest in the release to you of the withheld information.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended) I hereby vary the decision of the Board in the following terms:

• I find that the Board has taken reasonable steps to look for further records covered by the scope of your request and that section 10(1)(a) applies to this aspect of the case.
• I annul the Board's decision in respect of the withheld portions of record 59 and the entirety of record 78 on the Original File and I direct that these records be released to you.
• I annul the Board's decision in respect of records 77, 103, 107 and 108 on File Three and direct that they be released to you.
• I affirm the decision of the Board in relation to the remainder of the withheld records and find that they have been withheld in accordance with the FOI Act.

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