Case 020021. Access to employment reference provided to the former Southern Health Board by the subject of the reference - whether it was provided in confidence - section 26(1)(a) - whether release would amount to a breach of a duty of confidence - section 26(1)(b) - whether release would prejudice the effectiveness of inquiries conducted by the Board in its recruitment process - section 21(1)(a) - whether the public interest warrants release - section 21(2)

Case Summary

Facts

The requester had been placed on a panel for a particular post by the former Southern Health Board (the Board). A negative reference was provided in response to an inquiry form sent by the Board to one of her former employers. Following receipt of the reference, the Board told Ms X it was not proceeding with her job application. Ms X sought access to the reference, which the Board refused on the grounds that it contained information provided to it in confidence; that its release would result in the breach of a duty of confidence owed by it to the provider of the reference; and that its release would prejudice the effectiveness of inquiries that the Board conducts in respect of all applicants for employment.

The standard form, supplied by the Board to anyone from whom it is seeking a reference, bore the words "Private and Confidential" at the top of it, and also stated that "all personnel records, including references, are subject to the terms laid down in the Freedom of Information Act and may be available to the candidate at their request". It stated that the referee "will be contacted prior to disclosure or release" of such records.

Decision

While the referee said that she did not consent to the release of the reference and that it would not have been provided if it had not been covered by confidentiality, the Commissioner found no evidence to suggest that the Board had explicitly assured the referee of confidentiality, or that the referee had sought such assurances.

The Commissioner also considered whether there existed an implicit assurance of confidentiality. She said that she considered the words "Private and Confidential", taken along with the mention of the FOI Act, to indicate merely that the reference would not be disclosed to other job applicants or third parties, and that the mention of the FOI Act (as cited above) could only be taken as meaning that the reference may well be made available to the "candidate" under the FOI Act. She said that, while this does not mean that the reference will definitely be released under the FOI Act, it does mean that the referee is not being given any assurance of confidentiality in so far as disclosure of the reference to the candidate is concerned. Furthermore, while the inquiry form says that the referee will be contacted prior to disclosure or release of the reference, she took it that this is intended to mean that the referee will be informed of the proposed release as a matter of courtesy. She did not accept that these words could be taken as giving the referee any right of veto over the potential release of the record, which the Board suggested might be the case.

She also noted the wording of the Board's internal review decision, which told the requester that, although the referee had said that release of the reference should constitute a breach of confidence between herself and the Board, the latter considered that "[t]his argument cannot be fully supported as the wording of the confidential query does state that it is subject to the terms of the FOI Act." The Commissioner commented that it was reasonable to infer that the Board did not consider itself to have given the referee any express assurances of confidentiality, nor did it consider itself to have done so implicitly by its conduct.

The Commissioner found that neither section 26(1)(a), nor section 26(1)(b), applied to the reference.

In considering section 21(1)(a), the Commissioner questioned whether the effectiveness of references themselves could be likely to be prejudiced by their release under the FOI Act, but accepted that they added value to the overall recruitment process. She said that, if a reference contained less information than it ordinarily would have because of its potential release under FOI, the further enquiries a prospective employer might make might not be as informed as they might otherwise have been, and that section 21(1)(a) applied to the reference.

The Commissioner commented that she would expect that, once listed on a panel following a selection process, a person would have a right to, and a legitimate expectation of, fair procedure in the public body's assessment as to how he or she might progress from that panel. She commented that it was inherently unfair that a candidate, who has been successful in being placed on a panel following a selection process, should lose out on possible employment on the basis of a reference which is secret and which the candidate cannot attempt to rebut. The Commissioner noted that there was a substantial public interest in the Board abiding by fair procedure in relation to the selection process in question and that this public interest would be served by the granting of the request. She said that it was arguable that the right to fair procedure might have been met had the Board, in the course of its selection process, given the requester the gist of the reference as well as identifying the author. However, this did not happen at the relevant time, and thus, she decided that the public interest warranted the release of the reference in this case.

Date of Decision: 19.06.2006

Our Reference: 020021

19.06.2006

Ms. X

Dear Ms. X

I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the former Southern Health Board on your FOI request dated 15 October 2001. The Southern Health Board has now been incorporated into the Health Service Executive but for the purposes of this decision I will refer to it as "the Board" throughout.

I wish to apologise for the very long delay which has arisen in dealing with your case.  As Ms. Moran of my staff has explained to you, the large number of applications received in the early years of FOI, and staff shortages in that same period, meant that a backlog of cases built up.  I can appreciate that this delay has been frustrating for you. 

Background

Your request of 15 October 2001 sought access to "official records held by the Southern Health Board, in relation to me" - specifically, you referred to references supplied by previous employers in relation to your application for the post of [name of post concerned]. You also said you wished to amend the information in those records.

The Board's decision, dated 14 November 2001, refused you access to one reference on the basis that section 26(1)(a) of the FOI Act applied to it. That decision indicated that the person who supplied the reference (the referee) was female. You sought an internal review of the Board's decision, on 19 November 2001, in which you said that the Board should also have considered information supplied by other referees in relation to you. However, the Board's internal review decision, dated 19 December 2001, upheld its previous refusal of one particular reference, on the grounds that section 26(1)(a) applied. It did not address your contention that your request was intended to cover all references supplied in relation to you. You made your application to this Office on 7 January 2002.

You say that the Board informed you that you had been placed tenth on a panel for a post as [name of post concerned]. However, you say that the Board subsequently told you that it was no longer proceeding with your application because it had received an unsatisfactory reference from one of your past employers. You say that you do not know what this negative reference contains. The Board says that, according to its electronic records, you were in 19th place on the panel. It says that the competition was based on an interview, as well as on satisfactory references and a pre-employment medical, with a job offer being subject to a vacancy arising within the lifetime of the panel.

In conducting this review, I have had regard to correspondence between yourself and Ms Moran, Investigator, as well as correspondence between Ms Moran and the Board. I have also taken account of correspondence between Ms Moran and the referee concerned. I have conducted this review in accordance with the provisions of the Freedom of Information (FOI) Act, 1997, as amended by the Freedom of Information (Amendment) Act, 2003. All references in this letter to particular sections of the FOI Act refer to the FOI Act, 1997 as amended.

Scope of Review

The issue in this review is whether the Board's refusal to release to you the records sought in your request of 15 October 2001 is in accordance with the FOI Act. The review is not concerned with examining the merits of the Board's decision on your job application. Thus, the review will examine:

• whether the Board has considered all records the subject of your request in its decision making process; and
• whether the Board is justified in refusing you access to all such records.

I agree with Ms Moran's view that the review cannot encompass whether or not the information in the record(s) at issue warrants amendment under section 17 of the FOI Act. However, should you gain access to the record(s) concerned on the basis of this review, it will be open to you to make a fresh application for amendment under section 17 of the FOI Act.

Findings

The Existence of Further Relevant Records

The Board has supplied this Office with a copy of the single reference considered by it in its decision making process; it was also asked to supply the other relevant references. However, as you are aware, the Board says that the other references were destroyed on 10 November 2003, in line with the Policy for Health Boards on Record Retention Periods. Ms Moran outlined to you the circumstances in which the records were destroyed. I do not intend to repeat those circumstances in detail in this letter.

Again, I apologise if the delays in this Office have contributed in any way to a situation having arisen whereby records, requested by you, no longer exist. However, as Ms Moran explained, this Office can only review the stance of a public body in the light of circumstances applicable at the time of the review. I have no reason to doubt the Board's statement that all records on your job application file (other than the one reference initially considered by the Board on foot of your FOI request) have been destroyed and that it cannot provide this Office with the other references supplied in relation to you.

Section 10(1)(a) of the FOI Act 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". As other records, further to the reference considered by the Board in its decision of 14 November 2001, no longer exist, I agree with Ms Moran's view that section 10(1)(a) of the FOI Act applies to this element of your request.

The Refused Reference

The reference concerned was provided in August 2001 in response to an inquiry form sent by the Board to one of your former employers. The inquiry form sent to the referee, whilst bearing the words "Private and Confidential" at the top of it, also states that "all personnel records, including references, are subject to the terms laid down in the Freedom of Information Act and may be available to the candidate at their request". It states that the referee "will be contacted prior to disclosure or release" of such records. The referee has stated that she does not consent to the release of the reference and that it would not have been provided if it had not been covered by confidentiality.

The Board says that its practice is not to release such references where the referee does not consent to release. The question is whether this practice is compatible with the requirements of the FOI Act bearing in mind, in particular, that the inquiry form is stated to be subject to the terms of the FOI Act. The mere existence of such a practice is not a determining consideration for the purposes of the FOI Act; rather, it is the provisions of the FOI Act which will determine whether release is, or is not, required.

In its decisions, the Board relied on section 26(1)(a) in refusing you access to this record. The Board has subsequently claimed that the record is also exempt under sections 21(1)(a), 21(1)(b) and 26(1)(b) of the FOI Act. Each of these exemptions is considered in what follows.

Section 26

The relevant provisions of section 26 of the FOI Act are as follows:

"26._(1) 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 a public body 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, or

(b) disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule) or otherwise by law.

(2) Subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services.

(3) Subject to section 29, subsection (1) (a) shall not apply in relation to a case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the request under section 7 concerned."

Section 26(1)(a)

In order for section 26(1)(a) to apply, four separate requirements must be satisfied:

1. that the information was given in confidence, and
2. that the information was given on the understanding that it would be kept confidential, and
3. 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
4. that it is of importance to the body that such further similar information should continue to be given to the body.

In considering whether section 26(1)(a) applies to a record, I take the view that any understanding of confidentiality concerning the imparted information must be mutual - that both provider and receiver were of the view that the information was being provided and accepted in confidence.

Although the Board has stated that the referee was "very unambiguous" that she required the reference to stay confidential, it has not provided me with any evidence that it actually assured the referee of such confidentiality, or that the referee sought such assurances. Indeed, I note that when the Board notified the referee in October 2001 that it was considering release of the reference, it did not refer to any possible breach of a specific guarantee that it had given her. While the referee's reply to the Board said that the reference had been made on the understanding that it was confidential and that it would continue to be treated as such, I note that she did not refer to the Board having given her an explicit assurance to this effect. On foot of contact from this Office, the referee stated that the reference was provided to the Board on the strict understanding that it would not have been given if it was not confidential, but, again, she did not refer to any express guarantee of confidentiality either having been requested by her, or given to her by the Board.

Therefore, I find that there is no evidence before me to support the notion that there was a specific undertaking given by the Board to the referee, by which I could accept that there existed a mutual understanding of confidence.

I have also considered whether there might be an implicit mutual understanding of confidence. The Board has not said how this might be the case. Furthermore, the referee did not, either in her correspondence with the Board or with this Office, refer to any action on the Board's part from which she inferred there to be a mutual understanding of confidence.

I have considered whether the inquiry form itself could be taken as implying to the referee that the reference would be accepted as being given in confidence and on the understanding that it would remain so. While it bears the words "Private and Confidential", there is no suggestion that the information in the reference would remain confidential vis à vis the subject, particularly given that it states that references are subject to the FOI Act and may be available to the candidate at their request. The words "Private and Confidential", taken along with the mention of the FOI Act, seem to me to indicate merely that the reference would not be disclosed to other job applicants or third parties. On the other hand, the mention of the FOI Act (as cited above) can only be taken as meaning that the reference may well be made available to the "candidate" (yourself) under the FOI Act. While this does not mean that the reference will definitely be released under the FOI Act, it does mean that the referee is not being given any assurance of confidentiality in so far as disclosure of the reference to the candidate is concerned. Furthermore, while the inquiry form says that the referee will be contacted prior to disclosure or release of the reference, I take it that this is intended to mean that the referee will be informed of the proposed release as a matter of courtesy. I do not accept that these words could be taken as giving the referee any right of veto over the potential release of the record.

Finally, the lack of any explicit or implicit mutual understanding of confidence is, in my view, underlined by the Board's internal review decision of 19 December 2001. It said that, while the referee had insisted that the release of the reference would constitute a breach of confidence between herself and the Board, the latter considered that "[t]his argument cannot be fully supported as the wording of the confidential query does state that it is subject to the terms of the FOI Act." While the internal review decision goes on to say that the Board would have to take into account the referee's concerns about the release of the record, it seems reasonable to infer that the Board did not consider itself to have given the referee any express assurances of confidentiality, nor did it consider itself to have done so implicitly by its conduct.

I do not accept, therefore, that there was a mutual understanding of confidence as between the Board and the referee. As I do not accept that the first two requirements of section 26(1)(a) have been met, and as each of the four requirements must be met, I find the reference not to be exempt under this provision of the FOI Act.

Section 26(1)(b)

In the present case, there is no argument that a duty of confidence arises by way of an agreement or enactment. I take it that, insofar as the Board is now attempting to rely on section 26(1)(b), this attempt is based on a claimed duty of confidence arising "otherwise by law" in the form of an equitable duty of confidence.

For an equitable duty of confidence to apply, three conditions must be met:.

1. the information contained in the record must have the necessary quality of confidence about it, and
2. that information must have been imparted in circumstances imposing an obligation of confidence, and
3. there must be an unauthorised use of that information to the detriment of the party communicating it.

For reasons similar to those arising in the case of section 26(1)(a), I do not accept that the information was imparted in circumstances imposing an obligation of confidence on the Board. Indeed, it is explicit that the referee was not being offered, and had no reason to expect, that confidence would apply to the reference insofar as the rights of the candidate (yourself) were concerned. Neither the Board nor the referee has suggested what "circumstances" might have existed that imposed a duty of confidence on the Board at the time of seeking and receiving the reference. Furthermore, the wording of the Board's internal review decision makes clear that it did not consider itself to have been bound by any duty of confidence.

As the second condition required, in order for section 26(1)(b) to apply, has not been met, there is no need for me to consider the remaining tests. I find that the record is not exempt under section 26(1)(b) of the FOI Act.

Section 21(1)

Section 21(1)(a) provides for the refusal of a record where its release could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof".

The harm test in section 21(1)(a) that must be considered is whether release of the record could reasonably be expected to "prejudice" the effectiveness of inquiries etc. conducted by the Board in respect of candidates for employment. A public body must firstly identify the potential harm that it considers might arise from disclosure of the records at issue to the inquiries, etc. that it conducts. Having identified that harm, it must then consider the reasonableness of any expectation that the harm will occur. In claiming that section 21(1)(a) applies, there must be a reasonable exception of the anticipated harm arising from release.

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

I consider that the establishment of the "significant, adverse effect" that is necessary for section 21(1)(b) to apply requires stronger evidence of harm than does the "prejudice" standard of section 21(1)(a). In other words, not only must the harm reasonably be expected, but it must also be expected that the harm will be of a more significant nature than that envisaged under section 21(1)(a).

Both provisions are subject to the consideration of the public interest [section 21(2)], which provides that neither section 21(1)(a) nor (b) shall apply where, on balance, the public interest in release outweighs the public interest in the record being withheld.

Section 21(1)(a)

Section 21(1)(a) envisages two potential types of "prejudice" which must be considered by a decision maker in terms of his or her expectations. The decision maker must hold the view that the release of the records will prejudice the "effectiveness" of the tests etc. or that release will prejudice the "procedures or methods employed for the conduct thereof". The use of the word "effectiveness" in section 21(1)(a) of the FOI Act must be interpreted as the ability of the test, audit or inquiry to produce or lead to a result of some kind or the ability of the procedures or methods employed for the conduct of the test, audit or inquiry to achieve its purpose.

I accept that seeking an employment reference constitutes an inquiry of a type to which section 21(1)(a) might apply, in that it forms part of a system of inquiry that the Board undertakes before employing a particular job candidate.

The Board contends that release of references under the FOI Act could cause the quality and frankness of the information provided to "diminish, perhaps to the point of being worthless".

Firstly, it seems to me that there can never be a guarantee that a reference will be as detailed as the Board, or any other public body, would like. Furthermore, it seems to me that it would be a positive development if the consequence of potential release under FOI was to cause referees to use more balanced and reasoned language and to outline both positive and negative attributes of the candidate rather than to emphasise some attributes at the expense of others.

Secondly, I am of the view that the information provided in references, whether of a positive or negative nature, can sometimes be without basis. To be truly useful, references should only give opinions that referees are able to support with relevant evidence. Thus, I do not accept that the Board's inquiries could be prejudiced if it were no longer in a position to receive references containing comments, whatever their nature, which cannot be substantiated.

Should an employer have positive views about a candidate that can be supported, I see no reason why that employer would have any concerns about the release of their comments under the FOI Act. It could also be suggested that referees with negative, yet well-founded, views about the candidate could provide the relevant background detail in their references. However, it could also be argued that such referees might fear legal action being taken by the candidate and that they may be likely to provide little or no detail, accordingly. It is also possible that a reference may lack detail because the referee simply has neither positive nor negative comments to make about the subject.

Thus, it seems to me that a prospective employer cannot tell the difference between a truthful, honest reference (whether positive or negative), a bland reference, and an untruthful reference, without making other inquiries. Thus, it could be argued that the effectiveness of the references themselves would be unlikely to be prejudiced by their release under the FOI Act.

However, as I have said earlier, I consider the recruitment process to be comprised of different elements. While references themselves may not be reliable as a stand alone means of vetting a particular candidate, it seems to me that they can inform the potential employer as to the nature of questions that he or she should put to the former employer when verifying those references. Thus, I can accept that they add some value to the overall recruitment process.

If a reference contains less information than it ordinarily would have because of its potential release under FOI, I accept that it is possible that the further inquiries a prospective employer makes might not be as informed as they might have otherwise been. I can, therefore, accept that the release of references could reasonably be expected to prejudice the effectiveness of the recruitment process, and of the procedures employed by the Board in that process, and that section 21(1)(a) applies.

Accordingly, there is no need for me to consider the Board's reliance on section 21(1)(b) of the FOI Act in withholding the reference. However, a record found to be exempt under section 21(1)(a) [or section 21(1)(b)] will nevertheless fall to be released where it is determined that the public interest is better served by its release than by its being withheld.

The Public Interest

There is a strong public interest in public bodies abiding by fair procedures in the manner in which they conduct their business in relation to individual persons. There is also a very strong public interest in transparency in relation to the manner in which public bodies conduct their business and in their being accountable for their actions which, after all, are taken on behalf of the public. I take the view that these public interests are relevant, to a greater or lesser extent, in the present context.

The Board appears to be arguing that the requirements of fair procedure, or constitutional justice, do not apply in the present type of case. It has referred me to a number of foreign cases which, it says, suggest that "a common law duty to accord with procedural fairness does not ordinarily apply to the initial recruitment of external applicants" on the basis that "nothing is being taken away from such candidates." The Board makes the point that a job applicant does not have a right to the job, or a legitimate expectation of success, and that this diminishes any sense of disappointment when the applicant is not offered the position. However, the Board has not identified the specific aspects of the cases in question which, in its view, support its argument; nor have I been able to identify the precise relevance of these cases. Given the requirements of section 34(12)(b) of the FOI Act, it seems to me that the Board has not justified the relevance of those cases to me. In any event, while case law from other jurisdictions is frequently helpful in deciding on Irish FOI cases, it is not binding.

It is not for me to determine whether public body job applicants have a right to a job or a legitimate expectation of success in being appointed to a particular post. However, it seems to me that, once listed on a panel following a selection process, a person would have a right to, and a legitimate expectation of, fair procedure in the public body's assessment as to how he or she might progress from that panel. I believe this would be the position regardless of your place on the panel and of whether a vacancy would arise during the lifetime of that panel. Indeed, I note that two of the cases relied on by the Board - Hamilton and Queensland Police Service [1994] QICmr 21 (26 August 1994); (1994) 2 QAR 182 and Kupr and Department of Primary Industries [1999] QICmr 6 (27 September 1999); (1999) 5 QAR 140 - found that, while a right to fair procedure does not appear to apply at all stages in the recruitment of external candidates, it does apply once the body has established a panel.

I note that one of the decisions referred to me by the Board (Attorney General (N.S.W.) v Quin [1990] HCA 21; (1990) 170CLR 1 F.C. 90/022 (7 June 1990)) refers to "procedural fairness" as the concept of adopting fair procedures which are appropriate and adapted to the circumstances of the particular case. In the Irish context, I note the judgment in Mooney v An Post which says that "what the justice of a particular case will require [in terms of natural and constitutional justice] will vary with the circumstances of the case" but that "the minimum he is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions". I accept that these comments were made in the context of the dismissal of an employee as opposed to a person who has been placed on a panel, as is your own position.

It seems to me that the Board was obliged to adopt fair procedures in respect of your application from at least the point at which you had been placed on a panel. Whether fair procedure would apply to the entire selection process is a question which it is not necessary to answer in the present context. It is inherently unfair that a candidate, who has been successful in being placed on a panel following a selection process, should lose out on possible employment on the basis of a reference which is secret and which the candidate cannot attempt to rebut.

I am satisfied that there is a substantial public interest in the Board abiding by fair procedure in relation to the selection process in question and that this public interest will be served by the granting of your request. It is arguable that the right to fair procedure/constitutional justice might have been met had the Board, in the course of the selection process, given you the gist of the reference as well as identifying its author. However, this did not happen at the relevant time. As matters stand, and in the context of your request, the only way in which fair procedure can now be met is by the granting of your request for a copy of the adverse reference.

While the Board accepts that there is a public interest in knowing how a public body conducts its inquiries, it contends that this is satisfied in the present context by the candidate consenting to the public body making inquiries of previous employers or organisations with which he or she has been associated. However, it feels that the public interest is better served by the protection of references that are obtained pursuant to these procedures. I cannot accept this argument. The transparency argument is directly linked to the fair procedure argument. It is difficult to accept that the public interest in transparency is served by the mere knowledge that a public body will have regard to the views of a third party (a referee) where those views are to be withheld from the person about whom the views are expressed.

Having considered the matter very carefully, I find that the public interest is better served in this case by the release of the reference to you, rather than by it being withheld from you. On this basis, neither of the exemptions provided for in section 21(1) can apply as a basis for refusing your request.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act, 1997 (as amended) I hereby annul the decision of the Board in this case. I direct that the withheld reference be released to you. While I accept that your application also extended to all references supplied to the Board in relation to your application for the post concerned, I find that section 10(1)(a) applies to your request for such records as I am satisfied that they no longer exist.

A copy of this letter will also be sent to the person who provided the reference concerned. 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