Case 030056. Request for reference supplied to the Order by previous employer - whether there was an understanding of confidence - section 26(1)(a) - whether equitable duty of confidence owed to referee - section 26(1)(b) - whether contract for services between referee and a public body - section 26(2) - whether contract for services must be with the public body holding records - section 26(2) - application of section 26(1) restricted by section 26(2).

Case Summary

Facts

Following her application for a position with the Order, Ms. T understood she had been successful subject only to satisfactory references being obtained. In the event, she was not given the position and assumed this was because of an unsatisfactory reference. Ms. T then made a request under the FOI Act for a reference supplied to the Order by her previous employer, the X Centre (the Centre). The Order refused access to the reference under section 26(1)(a).

Decision

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

The Commissioner considered the relevance of section 26(2) which restricts the type of situation in which section 26(1) applies. There are two tests to be met for the restriction to apply; one has to do with the source of the record at issue and the other has to do with the identity of the person in respect of whom a duty of confidence is owed (and where disclosure of the record would constitute a breach of a duty of confidence). The first test requires that the record concerned is one "prepared" by a public body or by "a person who is providing a service for a public body under a contract for services". The second test requires that the duty of confidence is one owed to a public body or to a "person who is providing or provided a service for a public body under a contract for services". It is important to be clear that the tests in section 26(2) are expressed in terms of a contract for services with "a public body" rather than with "the public body". Applying these tests to the present case, it is clear that the record concerned (the employment reference) was "prepared" by the Centre and that any breach of a duty of confidence would be a breach of a duty of confidence owed by the Order to the Centre.

From information provided to her Office by the Health Service Executive (HSE), the Commissioner was satisfied that there is a contractual relationship between the Centre and the HSE and that this relationship amounts to a contract for services. Therefore, for the tests to be met it is not necessary in this case to establish that the Centre has a contract for services with the Order ( "the public body"); it is enough to establish that the Centre has a contract for services with "a public body" (which includes the Health Service Executive). Thus, the Commissioner was satisfied that the two tests identified above - and which trigger the application of section 26(2) - have been met and that section 26(2) applies to the record at issue in this case and that section 26(1) does not apply.

While it was not necessary to deal with the issue of of whether or not disclosure of the record would amount to a breach of an equitable duty of confidence, the Commissioner indicates that had she to deal with this question it is very likely that her finding would be that disclosure, in the particular circumstances of this case, would not amount to a breach of an equitable duty of confidence. The reasons why she would take this approach are summarised in the decision.

The Commissioner annulled the decision of the Order and directed the Order to provide Ms. T with a copy of the record in question.

Date of Decision: 21.05.2007

Our Reference: 030056

21.05.2007

Ms. T

Dear Ms T

I refer to your application to the Information Commissioner under the Freedom of Information (FOI) Act, 1997 for a review of the decision of the Sisters of Charity of Jesus and Mary (the Order) on your FOI request of 4 July 2002.

I very much regret the long delay which has arisen in dealing with this case. Unfortunately, due to the high level of applications received in the early years of FOI, substantial arrears of work built up in this Office and yours is one of the cases affected by this situation. I appreciate that this delay has been very frustrating for you.

Background

In your FOI request of 4 July 2002 you sought "a copy of the reference from the X Centre, Carlow". In subsequent correspondence with this Office you explained that you had been offered "the position of RNMH by the Sisters of Charity pending satisfactory documentation and then turned down due to this reference". It is clear that the reference sought is one provided by a former employer.

The manner in which the Order dealt with your request was far from satisfactory and it is relevant to set out, briefly, the sequence of events relating to the decision-making process.

Decision-Making Process

On 16 July 2002 the then FOI decision maker in the Order wrote to the X Centre in accordance with section 29 of the FOI Act. Section 29 is a provision which requires a public body to notify a relevant third party where the public body proposes to release, in the public interest, records whose release may affect the interests of the third party. For present purposes, it is enough to say that this section 29 notification was initiated correctly. The Order's decision maker informed the X Centre that while (in the decision maker's view) the reference sought had been obtained on a confidential basis, and was otherwise exempt from release under section 26(1)(a) of the FOI Act, she was considering its release on the basis of the public interest. Before making a definitive decision on the matter, the decision maker was inviting the X Centre to make a submission on the question of whether the public interest would, on balance, be better served by the release of, rather than by the withholding of, the reference.

On 19 July 2002 the X Centre replied to the section 29 notification saying: "we do not give permission for reference information given by us to be released for public access". On 6 August 2002, the Order wrote to the X Centre to say that, "following consideration of your concerns" it nevertheless felt "it necessary to release such record in the public interest". The Order advised the X Centre that it could appeal "this decision" to the Office of the Information Commissioner. On 6 August 2002, also, the Order wrote to you to inform you of the position. Unfortunately, this letter was somewhat confused in the message it conveyed. On the one hand, it conveyed that a decision had been sent to a third party and that the third party had to be allowed time in which to consider an appeal to the Information Commissioner; on the other hand, it failed to inform you of the content of this decision and said that, in the event of not receiving a decision by 5 September 2002, you would have a right of appeal to the CEO of the Order. Regrettably, this last information was not correct. In cases in which section 29 has been invoked, there is no right of further appeal to the public body (the Order in this case); rather, any further appeal is to the Office of the Information Commissioner. In this case, where a decision had been taken to release the record to you, any right of appeal would fall to be exercised by the third party and the appeal would be to the Information Commissioner.

On 16 August 2002 solicitors for the X Centre wrote to the Order to say that the Order was mistaken when, in its decision letter of 6 August 2002, it had advised the X Centre of a right of appeal to the Information Commissioner. The solicitors told the Order that the X Centre "is not obliged to appeal the decision ... to release the employment reference to Ms. T"; and went on to say that the "correct legal procedure is for the [Order] to refuse to release the reference to Ms. T under Section 26 of the Act and thereafter the obligation is on Ms. T to appeal the decision." It is important to state categorically that this position is incorrect. The FOI Act makes it quite clear that a public body is entitled to decide to release records even where that release is opposed by an affected third party. The Act also makes it clear [see section 14(1)(a) along with section 34(1)(f) and section 34(15)] that, in such circumstances, the right of appeal is direct to the Information Commissioner rather than by way of further appeal (internal review) to the public body and this right of appeal may be exercised by an affected third party.

Unfortunately, it appears that the Order accepted the position outlined by the solicitors for the X Centre and, in effect, resiled from its decision to grant your request. Subsequently, on 23 December 2002, it informed you that it "was not in a position to facilitate your request in this instance" and invited you to seek an internal review. The outcome of this internal review, sent to you on 23 January 2003, was a refusal of your request on the basis of section 26(1)(a) of the FOI Act. On 29 January 2003 you applied to this Office for a review of the Order's refusal of your request.

Given the confusion surrounding the processing of your FOI request, my Office decided to accept your review application in the normal way, notwithstanding that the Order had actually decided to grant your request and subsequently resiled from that decision. I am satisfied that this is the correct course of action bearing in mind, in particular, that had the original decision stood it would most likely have been appealed to my Office by the X Centre. The important point here is that, for the purposes of this review, my Office has contacted and received submissions from all of the relevant parties (including the X Centre) and taken these submissions into account.

Conduct of this Review

In reviewing this case, I have had regard to the following matters:

• the correspondence which passed between you and the Order in relation to your request;
• the Order's conclusions on the matter;
• your application to this Office;
• the correspondence/communications between the parties and between the parties and this Office;
• information provided by the Health Service Executive regarding its contractual relationship with the X Centre, and
• the provisions of the Freedom of Information Act, 1997, as amended by the Freedom of Information [Amendment] Act, 2003.

I note that Mr Des O'Neill of my Office, the investigator handling this case, sent a statement of his preliminary views to the Order and to the X Centre on 7 April 2003. While I have had regard to these preliminary views, it will be clear from what follows that I do not adopt these views in every respect.

Scope of Review

The issue in this review is whether the Order is justified, under the provisions of the FOI Act, in deciding to refuse access to the record concerned.

Findings

Preliminary Matters

Given the passage of time since you made your FOI request, it is relevant to point out that this review, under section 34 of the FOI Act, is a de novo review based on the law and the circumstances as they apply at the time of the making of the review decision. That this is so is clear from the judgment of the High Court in the case Minister for Education and Science v Information Commissioner - the text of this judgment is available at www.oic.ie - where Mr. Justice O'Caoimh, commenting on the nature of a review under section 34 of the FOI Act, said that "importance must be attached to the fact that the nature of the appeal agreed between the parties arising under Section 34 of the Act is by way of a hearing de novo by the Information Commissioner" and that "the decision that was to be made by Information Commissioner in light of the appeals taken to him were to be made in light of the facts and circumstances applying at the date of the review by him and not those facts and circumstances pertaining on the date of the original decision". This position was explicitly endorsed by Mr Justice Quirke in his recent judgment in The National Maternity Hospital and The Information Commissioner. 

Furthermore, it is important to bear in mind that the nature of the review undertaken by the Information Commissioner is by way of a full re-consideration of the merits of the case and not simply a judicial review type of exercise. I make this point specifically because of what appears to be a misunderstanding as to the role of my Office contained in a submission made by solicitors acting on behalf of the Order.

Finally, while I have had regard to the detailed submissions made by solicitors acting for the Order and for the X Centre, respectively, I do not feel it is necessary to address each of the arguments raised in these submissions.

Section 26(1)(a)

The Order relied on section 26(1)(a) of the FOI Act as the basis for its refusal of your request. Section 26(1)(a) states that:

"(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

For section 26(1)(a) to apply, it is necessary to show four things, viz.

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.

The term "understanding" in the context of section 26(1)(a) is interpreted as meaning a mutual understanding between the confider and the confidant. I would make the following general comments. The advent of FOI has 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 this reference was requested the FOI Act, 1997 had been in force for more than four years, I am satisfied that the Order was aware (or ought to have been aware) of the implications of the provisions of the Act. The enactment of the Freedom of Information Act allows for the release, in the public interest, of information that might otherwise be exempt on grounds of confidentiality.

Looking at the circumstances in which the reference was sought and provided, I note that the letter from the Order which requested the reference included the following paragraph:

"The office will protect information received on an agreed understanding of confidentiality, consistent with the Freedom of Information Act. Such information will enjoy protection in the normal course under section 26 of that Act. We will release no such information provided by you under that Act against your wishes."

The last sentence in this paragraph is inconsistent with the reference to section 26 of the Act. While section 26(1)(a) of the FOI Act provides protection for confidential information obtained by public bodies, this is not an absolute protection. Section 26(1)(a) is subject to the provisions of section 26(3) which requires that the information be released if, on balance, the public interest would be better served by granting than by refusing to grant the request for access to the record. It is relevant to recall here that the Order's first decision, given on 6 August 2002, was to release the reference on the basis of the public interest test contained at section 26(3). This suggests that the Order's reference to "an agreed understanding of confidentiality, consistent with the Freedom of Information Act" was not intended to be an offer of absolute confidentiality. If it is the case (and this is far from certain) that the Order intended to convey to the X Centre that any information provided would be treated in absolute confidence, then this is an undertaking that the Order was not in a position to give.

A further consideration is that, whatever understanding there may have been regarding confidentiality, it may not have included an understanding that the reference would not be disclosed to the reference subject (yourself). In a number of decisions involving access to employment references, where the requester is the subject of the reference (as in this case), I have drawn attention to the fact that public bodies are likely to be governed by the requirements of fair procedure in such situations. [See my decisions in Cases No. 040152 and 020021 on www.oic.ie] I have observed that fair procedure may well require that a job applicant would be entitled to know the content of a reference considered by the public body as part of the selection process. Furthermore, the burden of fair procedure would appear to be weightier in those situations in which a job applicant would have been appointed to a post but for the taking into account of a negative reference.

For present purposes, I am not convinced that there existed between the Order and the X Centre a mutual understanding of confidentiality such as precluded the Order from disclosing the content of the X Centre's reference to you. Incidentally, I have no difficulty in accepting that there was a mutual understanding of confidentiality such as precluded the Order from disclosing the contents of the reference to third parties.

The third test, in order for section 26(1)(a) to apply, is 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. The Order has argued that it needs to "secure full and frank references" from past employers when recruiting new staff and that the release of the reference in this case would be likely to have negative consequences when seeking such references in the future. The Order commented as follows:

"Our contention is that the interests of our clients would be poorly served if our policy and practice in relating (sic) to accessing references was such as to create a likelihood that the references available to us in future years were circumscribed and guarded".

This appears to be an argument that full and frank references will only be made available in circumstances where the referee understands that the reference will not be disclosed to the subject. In other words, disclosing the contents of the X Centre reference to you would have the effect of prejudicing the giving to the Order of further similar information from the same person or other persons in the future. I cannot accept the validity of this argument. Arising from this particular case, the Order has changed the terms on which it seeks employment references. According to the Order, in seeking such references now it refrains from offering protection from disclosure on the basis of section 26 of the FOI Act; rather, it now simply informs referees that "the terms and conditions of the Freedom of Information Act apply to this organisation". On this basis, which I understand has been in operation since February 2003, referees can have no understanding of absolute confidentiality in relation to their reference; they will know that the possibility of disclosure under FOI exists. In these circumstances, it is not tenable to argue that release of the 2002 reference in your case will have the effect of prejudicing the giving of such references in the future. This is because all referees for the future, and since February 2003, will be aware that their references do not enjoy absolute confidentiality and are subject to the possibility of release under the FOI Act. Granting you access to the X Centre's reference from 2002 cannot be seen as prejudicing the provision of references in the future as such a grant would be no more than a reflection of the terms on which such references are sought at present - that is, all referees will know that references may be released in accordance with the FOI Act.

In the light of this, I find that the grant of your FOI request would not be likely to prejudice the giving to the Order of further similar information (employment references) from the same person or other persons. As outlined above, for section 26(1)(a) to apply it is necessary that each of the four identified tests is satisfied. Having found that one of these tests is not met, I find that section 26(1)(a) does not apply in this case.

Section 26(1)(b)

In the present context, section 26(1)(b) must be taken in conjunction with section 26(2):

"(1) Subject to the provisions of this section, a head shall refuse to grant a request under section 7 if_

(a) ...

(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."

In its internal review decision of 21 January 2003, the Order relied solely on section 26(1)(a) as the basis for its refusal of your request. In the course of this review, Mr O'Neill of my Office gave it as his preliminary view that section 26(1)(b) of the FOI Act required to be considered as (in his view) an equitable duty of confidence existed as between the Order and the X Centre. However, Mr O'Neill also put forward the view that this equitable duty of confidence should be set aside in the public interest. In its response to these preliminary views, solicitors for the Order supported the view that there was an equitable duty of confidence but argued against its being set aside in the public interest.

However, Mr O'Neill's preliminary views letter did not deal with the possible relevance of section 26(2) and this is something to which I now turn my attention.

Section 26(2)

The relevance of section 26(2) is that it restricts the type of situation in which section 26(1) applies. There are two tests to be met for the restriction to apply; one has to do with the source of the record at issue and the other has to do with the identity of the person in respect of whom a duty of confidence is owed (and where disclosure of the record would constitute a breach of a duty of confidence). The first test requires that the record concerned is one "prepared" by a public body or by "a person who is providing a service for a public body under a contract for services". The second test requires that the duty of confidence is one owed to a public body or to a "person who is providing or provided a service for a public body under a contract for services". Clearly, the section 26(1)(b) exemption is not intended to protect the interests of a public body or the interests of any person acting as a contractor to a public body. In effect, the logic would seem to be that bodies which are publicly funded, while not being public bodies in the sense of being part of the State sector, should be subject to the same levels of transparency and accountability as are bodies in the State sector.

Applying these tests to the present case, it is clear that the record concerned (the employment reference) was "prepared" by the X Centre and that any breach of a duty of confidence would be a breach of a duty of confidence owed by the Order to the X Centre.

From information provided to my Office by the Health Service Executive (HSE), I am satisfied that there is a contractual relationship between the X Centre and the HSE and that this relationship amounts to a contract for services. (While I have not enquired specifically, I would also expect that the relationship between the Order and the HSE is one which amounts to a contract for services; but it is not necessary to decide this issue for present purposes.) I understand from the HSE that the services provided by the X Centre are funded very substantially by the HSE (in excess of €2m.per year at present) and that more than 90% of the X Centre's core funding is provided by the Health Service Executive. I understand also that the HSE has representation on the Board of Management of the X Centre. Furthermore, I understand that, to a large extent, the services of the X Centre are services of a kind which the HSE has a statutory duty to provide and that the HSE discharges this duty, in part, by way of a contractual arrangement with the X Centre. Finally, I understand that while there is currently no formal service agreement between the X Centre and the HSE, the HSE is satisfied that the relationship is one that amounts to an implied contract for services. Indeed, it would seem to me that the X Centre is in the same position vis à vis the HSE as many other service providers and that, like these other service providers, the X Centre might expect at some point to become directly subject to the FOI Act.

For present purposes, it is important to be clear that the tests in section 26(2) are expressed in terms of a contract for services with "a public body" rather than with "the public body". Therefore, for the tests to be met it is not necessary in this case to establish that the X Centre has a contract for services with the Order ( "the public body"); it is enough to establish that the X Centre has a contract for services with "a public body" (which includes the Health Service Executive).

I find, on the basis of the information available, that the X Centre is a person providing a service for a public body under a contract for services. Arising from this finding, I am satisfied that the two tests identified above - and which trigger the application of section 26(2) - have been met. Therefore, I find that section 26(2) applies to the record at issue in this case and that section 26(1) does not apply.

Section 26(2) has the effect of dis-applying section 26(1) which includes both section 26(1)(a) and 26(1)(b). I have already found, earlier in this decision, that section 26(1)(a) does not apply; the application of section 26(2) represents a separate ground for finding that section 26(1)(a) does not apply.

Breach of Equitable Duty of Confidence

Given my finding that section 26(2) applies and that section 26(1)(b) does not apply, it is not strictly necessary for me to deal with the issue of whether or not disclosure of the record would amount to a breach of an equitable duty of confidence. If I had to deal with this question it is very likely that my finding would be that disclosure, in the particular circumstances of this case, would not amount to a breach of an equitable duty of confidence. The reasons why I would take this approach are summarised below.

I have already commented earlier in this decision, in the context of section 26(1)(a), on the nature of the understanding of confidentiality which existed between the Order and the X Centre in relation to the seeking and provision of the reference. In short, I am not convinced that there existed between the Order and the X Centre a mutual understanding of confidentiality such as precluded the Order from disclosing the content of the X Centre's reference to you. This conclusion not withstanding, it may be helpful to deal specifically with the argument that release of the reference to you would give rise to a breach of an equitable duty of confidence.

As a starting point, I think it is useful to reflect in general terms on the nature of the law of equity. Without purporting to make a comprehensive statement on what "equity" imports, it is correct to say that equity has to do with fairness and natural justice. There are certain recognised principles of equity, expressed in well-known maxims, which (as cited in Murdoch's Dictionary of Irish Law) include: "equity will not suffer a wrong to go without a remedy"; "he who seeks equity must do equity"; "he who comes to equity must come with clean hands"; "equity regards the balance of convenience" and "equity imputes an intention to fulfil an obligation".

Applying these broad principles to the circumstances of the present case, I take it that should the X Centre seek to sustain a claim for a breach of a duty of confidence - arising from the release of the reference to you by the Order - it would be relevant to have regard to these broad equitable principles.

Furthermore, the law of confidence has been dealt with in a number of recent Irish Superior Court judgments - [for example: O'Callaghan - v - Judge Alan Mahon & ors (2005 IESC 9) and Mahon - v- Post Publications (2007 IESC 15)] - which, in turn, review the authorities on this area of law. Again, while not purporting to present a comprehensive analysis of these judgments, some very relevant principles are identifiable. These include:

• the principle that a person who has obtained information in confidence shall not take unfair advantage of that confidence;
• the principle that the recipient of confidential information is expected to respect the duty to be of good faith;
• the principle that a requirement to withhold confidential information from an impugned party is sustainable only where the refusal to disclose is "just in all the circumstances";
• the principle that confidentiality is qualified by the Constitutional requirements of natural justice or fair procedure.

Were it the case that release to you of the reference constituted a breach of an equitable duty of confidence, owed to the X Centre by the Order, then the following would be the case:

• equity would appear to countenance a failure in natural justice/fair procedure (in that a secret reference would have influenced your employment prospects with the Order);
• equity would appear to countenance the doing of a wrong for which there is no remedy;
• equity would appear to countenance the withholding of information from an impugned party where to do so would not appear to be "just in all the circumstances";
• equity would appear to support the rights of a party (or parties) who seek equity not having "clean hands", or who seek equity but are not prepared to "do equity" (in the sense that the Order and the X Centre would be confirmed in their right to agree to terms which are, on the face of it, unfair).

On the other hand, I cannot see that the release of the reference to you, by the Order, could be regarded as: taking unfair advantage of the Centre; or as evidence of bad faith vis à vis the Centre. It is seems to be the case that the reference was sought and provided without either side having articulated a clear statement of the precise terms on which the transaction was based. However, it seems to me that neither side - had they taken the time to reflect on what was involved - could have expected that a reference, with such significance for an individual's employment prospects, could legitimately be withheld from the reference subject. In making this comment, I am fully aware that in the past such a practice may have been the norm in some sectors. This, however, does not make the practice acceptable. As I have suggested in other decisions - for example in Case No. 010310, decision on www.oic.ie - public bodies and publicly funded bodies have a range of options available in seeking to establish the suitability of a prospective employee; there should be no need to rely on practices which are inherently unfair.

In short, were it necessary to decide whether or not disclosure of the record to you would amount to a breach of an equitable duty of confidence, my finding would be that, in the circumstances of this particular case, such a breach would not arise.

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 Order to refuse access to the record requested and I direct the Order to provide you with a copy of the record in question.

Appeal Rights

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