Case 040152. Access to employment reference provided to a former Health Board - whether release would amount to a breach of a duty of confidence - section 26(1)(b)

Case Summary

Facts

The requester had been placed on a panel for a particular post by a former Health Board (the Board). A negative reference was provided in response to an inquiry form sent by the Board to her former employer. Following receipt of the reference, the Board told Ms X it was not proceeding with her job application. Persons placed lower down the panel were subsequently appointed. Ms X sought access to the reference, which the Board refused on the grounds that it contained information provided to it in confidence and that its release would result in a breach of a duty of confidence owed by it to the provider of the reference.

Decision

The Commissioner found that the record did not qualify for exemption under section 26(1)(b). She did not accept that the understanding of confidence in this case extended to an understanding that the content of the reference would never be made known to the requester. She took account of the fact that, when the requester left the employment of the company involved, it provided her with a positive reference which differed significantly from that given to the Board. The decision went on to find that, in the circumstances, the job applicant had a right to, and legitimate expectation of, fair procedure on the part of the public body. The Commissioner took the view that any understanding of confidentiality between the Board and the former employer must be assumed to accord with the principles of constitutional justice.

Date of Decision: 05.02.2007

Our Reference: 040152

05.02.2007

Ms X

Dear Sirs (Solicitors representing Ms X)

I refer to your application to my Office under the Freedom of Information (FOI) Acts, 1997 - 2003 for a review of the decision of the former X Health Board on Ms X's FOI request [date]. The X 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 long delay which has arisen in dealing with this case. As we have explained to Ms X, 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 your client.

Background

Your client's request of [date] related to a reference supplied by a previous employer in relation to her application for the post of [details of post] at [name] (the Hospital).

The Board's decision, [date], stated that the Assistant Hospital Manager had contacted the source of the reference and that "they are not prepared to allow [me] to disclose any details in relation to the reference supplied." You sought an internal review of the Board's decision on [date]. The Board's internal review decision, [date], varied the original decision and released those parts of the reference which it considered to consist of factual information. The remainder was withheld on the basis that a duty of confidence was owed to the supplier of the information and that, therefore, the record was exempt under section 26(1)(b) of the FOI Act. Before the internal review decision issued, you had made your application to this Office on [date] on the basis that the Board's "non-reply" is deemed to be a refusal of access.

Documents submitted by Ms X show that the Board informed her that she had been placed [number deleted] on a panel for the post at the Hospital and that offers of employment would be made subject, inter alia, to satisfactory references. The Board subsequently told her that it was no longer proceeding with her application because it had received an unsatisfactory reference.

In conducting this review, I have had regard to contacts between your client and this Office, as well as correspondence from the Board. I have also taken account of correspondence from 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.

Scope of Review

The issue in this review is whether the Board's refusal to release a complete copy of the record sought is in accordance with the FOI Act. The review is not concerned with examining the merits of the Board's decision on your client's job application.

Findings

Preliminary Observations

Before examining the record and the exemption applied, I wish to make two preliminary points.

Firstly, the initial "decision" given by the Board on your client's FOI request is seriously deficient and fails to comply with the requirements of the FOI Act in a number of respects. In particular, the Board's letter of [date] does not, as required by section 8, give reasons for the refusal or refer to any of the exemptions provided for in the FOI Act. It also fails to notify the requester of her rights of appeal and review [Section 8(2)(f) of the FOI Act]. Fortunately, the Board treated your letter of [date] as an application for internal review and the matter became the subject of a new decision by a more senior member of staff.

Secondly, I have had regard to the provisions of section 34(12)(b) of the FOI Act which provides that, in a review, "a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." This places on the HSE the onus of showing that the decision to refuse access to the records at issue is justified under the provisions of the FOI Act.

The Reference

The reference concerned was provided in [date] in response to an inquiry form sent by the Board to one of Ms X's former employers. The inquiry form sent to the referee has the title "Confidential Personal Reference" . The Board's covering letter which accompanied the form stated "I wish to assure you that the information which you give will be treated as strictly confidential..." The referee has stated that the information was given on a confidential basis and does not agree to the release of the information in the record.

The Board's Decision

In its internal review decision, the Board relied on section 26(1)(b) in refusing access to this record.

Section 26

The relevant provision is as follows:

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

...(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.

The Board' internal review decision reflects the fact that what is being claimed here is that a duty of confidence arises in equity rather than by way of an agreement or enactment. I take it that, in relying on section 26(1)(b), the Board is claiming that a duty of confidence is owed to the provider of the reference "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. the 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.

[see Coco v. A. N. Clark (Engineers) Limited F.S.R.415 (which is accepted as reflecting Irish law on the subject in, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611)]

In previous decisions I have explained that to have the quality of confidence records must concern private or secret matters rather than information which is trite or which is already in the public domain. It is clear that the responses in the form are not trite or routine comments and, accordingly, I accept that the information has the necessary quality of confidence.

The issue as regards the circumstances in which the information was given is whether or not the Board's soliciting and subsequent acceptance of information from one of Ms X's former employers was done under a cloak of confidentiality which precludes the Board from disclosing this information to her. In the course of this review, my Office consulted with the referee regarding the information provided to the Board. The referee's position is that the author of the reference believed that the information would be treated in a confidential manner having regard, in particular, to the term "confidential" at the top of the form.

I accept that in the contacts between the Board and the former employer there would have been a general understanding of confidentiality; that is, that the content of the form 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 content of the reference would never be made available to the subject of the reference. In coming to this view, I have considered carefully the circumstances in which the information at issue was given to the Board. I am influenced by the fact that when Ms X left the employment of the company involved, it provided her with a reference which, it is fair to say, differs significantly from the information provided by the same company in relation to her suitability for the post of [details of post]. I cannot accept that the previous employer, having given a positive reference to Ms X when she left their employment, could have expected the second reference (regarding her suitability for the particular post) to be kept secret. Indeed, Ms. X could reasonably expect that any subsequent reference from the same employer would be consistent with the positive reference provided when she left her previous employer. It is also relevant to note that the reference provided on her leaving the previous employer was signed by a senior manager, [title].

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, vis à vis the subject, and on the understanding that it would remain so. It includes the words "Private and Confidential". There is no mention of the fact that records held by public bodies are subject to the FOI Act and that the personal information of the candidates may be available to them at their request. The definition of personal information in the FOI Act includes "the views and opinions of another person about the individual". While this does not mean that the reference will definitely be released under the FOI Act, it does mean that the referee cannot be given any assurance of confidentiality insofar as disclosure of the reference to the subject is concerned. 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.

Turning to the role of the public body in these circumstances, the advent of FOI has brought about changes in the manner in which public bodies conduct their business, the agreements which they make and the guarantees which they may give. Given the fact that at the time of the recruitment process, the FOI Act, 1997 had been in force in relation to health boards for five years, I am satisfied that the Board was aware, or ought to have been aware, of the implications of the provisions of the Act. Public bodies should exercise caution with regard to confidentiality agreements and the giving of guarantees of confidentiality in the light of the general aim of the FOI Act to enable access "to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies". I have set out my views on the issue of "Confidentiality Agreements in an Era of FOI" in my decision on Case Number 000528 - Mr. John Burns and the North Eastern Health Board [available here].

It is clear that Ms X suffered a significant loss as a result of the Board's decision not to appoint her. The Board has not made the case that its decision was based on anything other than the information in the reference. 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 on www.oic.gov.ie] 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."

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 understand from the Board that persons placed lower down the panel in this case have had offers of employment and that these offers were accepted.

I note that two Australian cases - 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, whilst a right to fair procedure does not appear to apply at all stages in an external recruitment process, it does apply once the body has established a panel. I consider that 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.

In its submissions to my Office the Board refers to a decision [Case Number 020425 - Dr X and the Civil Service and Local Appointments Commission - available here] of my predecessor, Mr Kevin Murphy. I note that, in the particular circumstances of that case, the information was held to be exempt. However, I would distinguish it from the present situation on the basis that, crucially, the person to whom the reference related was appointed to the post sought. In his decision, Mr Murphy said:

"I wish to add that had you not been successful in the competition as a result of the adverse report from Dr A and bearing in mind that you had not been given an opportunity to address the adverse comments in his report, then I would have had to consider whether the public interest in according procedural fairness required that the duty of confidence be breached on the ground that to maintain such a duty would be unreasonable in the circumstances."

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 [2006] IESC 2. What this means in the present case is that, in taking a view of what understanding the Board and the referee 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 referee, that the Board would withhold from Ms X the information provided by her former employer, would breach the requirements of constitutional justice. I have to assume that whatever understanding there was between the two entities was one which accords with the principles of constitutional justice. Therefore, I have to take the view that the understanding of confidentiality between them did not extend to an understanding that the Board would withhold from Ms X whatever information would be provided by the referee.

For the reasons discussed above, I do not accept that the information was imparted in circumstances imposing on the Board an obligation of confidence of a kind which precluded it from disclosing the content of the reference to Ms. X. In these circumstances, I do not accept that the disclosure of the reference to Ms. X would constitute a breach of a duty of confidence. I find, therefore, that the record is not exempt under section 26(1)(b) of the FOI Act.

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 Ms X in full.

A copy of this letter will also be sent to your client, to the supplier of the reference concerned, and to the Health Service Executive (which is responsible for implementing my decision). 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