The Commissioner found that the Council was justified in its decision to refuse the request and justified in its decision not to disclose whether or not the records sought by the Applicant actually exist.

Case Summary

Issue

Whether the Council is justified in its decision to refuse a request for records made under section 7 of the FOI Act and, in reliance on section 28(5A), to refuse to disclose whether or not it holds records of the kind sought by the Applicant.

Summary of Commissioner's Decision

The Commissioner found that the Council was justified in its decision to refuse the request and justified in its decision not to disclose whether or not the records, sought by the Applicant actually exist.

Date of Decision: 19.08.2008

Philip Boucher-Hayes, RTÉ and County Council X

Background:

In his FOI request, dated 22 January 2008, the Applicant sought certain records relating to a named employee of the Council. The records sought were "all correspondence, memos, e-mails or minutes of meetings and any other relevant records relating to disciplinary hearings or internal inquiries involving Waterford County Council employee [name]". The Applicant specified that the records sought included all actions of the Council, in respect of the employee, back to 21 October 1998. The Council's decision, dated 29 January 2008, was to refuse the request. Subsequently, following an application for an internal review by the Applicant, the Council affirmed the generality of the original decision and, in addition, it released two records which it did not regard as exempt from release. It is relevant to note that the two released records do not appear to be records of the kind specified in the original request as they do not relate to any disciplinary hearing or internal enquiries involving the named employee.

Following internal review, it was the Council's position that it was refusing the request by reference to section 28(5A) of the FOI Act. While the Council's decision letter cites "section 23(5a)(b)", I am satisfied that this was intended to be a reference to section 28(5A)(b) which provides that a public body may, in very specific circumstances (dealt with in detail below), refuse to disclose whether a particular record does or does not exist. The Council also sought to rely on the exemption at section 21(1) of the FOI Act which protects the functions and negotiations of public bodies.

In conducting this review I have had regard to the submissions of the Council as well as those of the Applicant (including those he made to the Council). I have also had regard to additional information and clarification provided by the Council at the request of my Office.

Scope of Review

The issue in this review is whether the Council is justified, having regard to the provisions of the FOI Act, in its decision to refuse the request and in its decision to refuse to state whether or not it holds records of the type sought.

As set out at section 34(12)(b) of the FOI Act, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the Council to satisfy me that its decision is justified.

Submissions

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Findings

Section 28(5A)

It is clear from its submissions that the primary basis for the Council's decision is section 28(5A); this provides for the refusal of a request for records and, in addition, for a refusal to disclose whether records of the type sought actually exist. This latter aspect is an example of what is often referred to as a "neither confirm nor deny" response which the FOI Act provides for in certain specific instances. One of these instances is in the context of a request for personal information. The basis for this provision, as explained by Professor McDonagh at P.444 of Freedom of Information Law (2nd edition), "is that, even if the records are not themselves released, knowledge that they exist could prove damaging". The usefulness of the provision depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist.

Section 28(5A) provides as follows:

"Where-

(a) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (5) do not apply or would not, if the record existed, apply, and

(b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1),

he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists."

While this is a complex provision, it is clear that its overall purpose is to protect the personal information of third parties in situations where knowledge of the existence, or non-existence, of particular records would be to disclose personal information. For example, in the present case, the request is predicated on an assumption that a named Council employee is under investigation for alleged breach of discipline or some form of wrong-doing; to confirm this assumption would be to disclose personal information of that employee; equally, however, to state that no such allegations were made and that no investigation is in train is also to disclose personal information of that employee.

For section 28(5A) to apply, the following requirements must be satisfied:

1. the records sought must be of a type which disclose the personal information of a third party and which, on the face of it, are exempt from release by virtue of section 28(1) of the FOI Act;
2. none of the exceptions to the section 28(1) exemption, contained at sub-sections (2) or (5) of section 28, applies or, in the case where relevant records do not exist, would apply if such records did exist; and
3. the head of the public body must form the opinion that to state whether or not relevant records exist would in itself be to disclose the personal information of a third party.

For the purposes of this review I have had to ascertain the actual position regarding the existence or non-existence of records of the type sought by the requester. Necessarily, however, consideration of the three requirements above must be conducted on the basis of what would be the case were the Council to hold records of the kind sought by the requester rather than on whether or not such records are actually held. While the FOI Act [section 34(10)] requires that I give reasons for a review decision, this requirement is subject to my not disclosing in the course of a decision information which is exempt information or information which is claimed to be exempt [section 43(3)]. Accordingly, in the analysis which follows, I must be careful not to disclose whether or not records of the type sought by the requester do, or do not, exist.

Each of the three requirements for the application of section 28(5A) is considered below.

1. Would the Records Constitute "Personal Information"?

The requester argues that the records sought are not of a kind that disclose personal information and that, accordingly, they do not fall to be protected by section 28 of the FOI Act. Specifically, the requester argues that allegations against the particular employee were "the subject of public debate in the council chamber, though [the employee] was not named"; that the employee was moved to a different area of work within the Council "as a consequence" of mis-conduct; and that as certain issues in relation to the employee are already in the public arena, they are not confidential. Further, the requester argues that the issue involving the employee "is not a personal matter as it involves the conduct of a public official in the execution of their public duties". The requester further refers to the fact that An Garda Síochána has made written enquiries of the Council in respect of the particular employee and that this is in the public domain - the Garda letter being one of the two records released by the Council under its internal review decision. While the requester accepts that certain information held by the Council about the employee (for example, medical information) would be "personal information", his argument is that information about how the employee performed work functions is not "personal information".

"Personal information" is defined at section 2 of the FOI Act as

"information about an identifiable individual that -

(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or

(b) is held by a public body on the understanding that it would be treated by it as confidential"

The definition goes on to list 12 specific categories of information which, without prejudice to the generality of (a) and (b) above, are "included" in the definition. Of these, the following categories are of relevance to the present case:

"(iii) information relating to the employment or employment history of the individual,

(iv) information relating to the individual in a record failing within section 6 (6) (a),

[...]

(xii) the views or opinions of another person about the individual,"

The effect of category (iv) above - which refers to section 6(6)(a) of the FOI Act - is to include the personnel record of a public body employee within the definition of "personal information". Section 6(6)(a) defines a personnel record as:

"a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member"

However, section 2 goes on to provide that certain types of information about an individual public body employee are excluded from the definition of "personal information"; it provides that the definition does not include:

"(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,"

Applying this qualification to the circumstances of this case, it is clear that the following do not constitute personal information: the name of the individual in the context of being an employee of the Council; information regarding the office or functions of that employee within the Council; the terms upon which the employee holds office or performs a function; records created by that employee in the course, of and for the purpose of, the performance of the functions assigned.

On the other hand, the records sought by the requester (if they exist) pre-suppose mis-conduct or a breach of discipline at work; they suggest the likelihood of complaints having been made, of an investigative process and of action within the terms of the Council's Grievance and Disciplinary Procedures. If it were the case that the employee had been involved in mis-conduct, and that this mis-conduct arose in the course of the employee's work, I do not accept that any such mis-conduct could be characterised as being for the purpose of the performance of the employee's functions. While mis-conduct may sometimes occur while at work, and indeed may be facilitated by virtue of the work position held by an individual, it cannot be said to be something done for the purposes of performing one's work functions. Accordingly, the qualification on the definition of "personal information" cited above does not apply to the type of information sought by the requester.

Having considered the matter carefully, I am satisfied that records of the type sought by the requester would, if they exist, constitute information held by the Council on the understanding that it would be treated as confidential. I believe this would be the case even if it were the situation that there was some public knowledge of allegations having been made or of a disciplinary process having been initiated. It would be unconscionable for a public body, engaged in a process of dealing with allegations of mis-conduct, not to treat information relating to the process as confidential. I am satisfied that this would be the case both while such a process is underway as well as following the conclusion of the process. This does not necessarily create an absolute prohibition on the release, under the FOI Act, of records of such a process. Confidential material may in certain instances be released in the public interest; but this does not change the fact that the material is held in confidence.

I am satisfied, therefore, that the records sought would satisfy one of the two over-arching tests set out in the definition of "personal information", that is, it would constitute information about an identifiable individual "held by a public body on the understanding that it would be treated by it as confidential". Furthermore, in looking at the 12 categories of information identified as being "included" within the definition, I am satisfied that records of the type sought by the requester would fall into categories (iii), (iv) and (xii).

I find, therefore, that the records sought would constitute personal information and that, on the face of it, they would be exempt from release under section 28(1) of the FOI Act.

2.  Do any of the Exceptions to Section 28(1) Apply?

While section 28(1) prohibits the disclosure of personal information where it is sought under FOI, this is not an absolute prohibition. Within section 28 there are some exceptions to the general rule that personal information will not be disclosed. For present purposes, the exceptions of possible relevance are those contained at sub-sections (2) and (5) of section 28.

Subsection (2) of section 28 provides that the exemption does not apply if-

"( a ) subject to subsection (3), the information concerned relates to the requester concerned,

( b ) any individual to whom the information relates consents, in writing or such other form as may be determined, to its disclosure to the requester,

( c ) information of the same kind as that contained in the record in respect of individuals generally, or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,

( d ) the information was given to the public body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public, or

( e ) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual,".

I am satisfied that none of these provisions has relevance in the present case and no argument has been made that they are relevant. I find that section 28(2) would not apply in this case.

Subsection (5) of section 28 provides that the exemption does not apply -

"Where, as respects a request under section 7 the grant of which would, but for this subsection, fall to be refused under subsection (1), in the opinion of the head concerned, on balance_

(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or

(b) the grant of the request would benefit the individual aforesaid,

the head may, subject to section 29, grant the request."

In the case of section 28(5)(b), this may be disposed of summarily. There is no obvious case, nor has such a case been made, that the release of relevant records to the requester (if such records exist) would be to the benefit of the employee in question. I find that section 25(b) would not apply in this case.

However, the requester has made arguments that the public interest warrants the release of the records sought and, accordingly, it is necessary to consider the public interest test, contained in section 28(5)(a), and to decide whether the public interest served by release of any relevant records (if they exist) outweighs the public interest in respecting the right to privacy of the employee concerned.

In the case of section 28(5)(a), privacy rights will be set aside only where the public interest to be served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Weighing against release is the very strong public interest in protecting privacy rights, which is reflected in the language both of section 28 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Furthermore, the right to privacy has a Constitutional dimension as one of the unenumerated personal rights under the Constitution.

The public interest arguments made by the requester in favour of granting his request are as follows:

• the public interest in transparency in relation to how public bodies, and individual public servants, perform their functions;
• the public interest in promoting public confidence in how public bodies perform their functions (for example, the public should be satisfied, where allegations of mis-conduct are made against an employee, that the public body concerned has investigated the allegations and has not engaged in a "cover up");
• the public interest in ensuring accountability by public bodies in how they spend public money;
• the public interest in ensuring the media are not inhibited in pursuing legitimate enquiries.

These are substantial and relevant public interest arguments. They would carry even more weight in circumstances where there were solid grounds for believing that the public body concerned had failed to investigate allegations of wrong-doing by an employee or that it was engaged in attempts to "cover up" wrong-doing.

Having considered the matter very carefully, and based on all of the information available to me, I take the view that if records of the type sought by the requester exist, the public interest served by their release would not outweigh the public interest in upholding the right to privacy of the employee concerned. I find accordingly.

In summary, therefore, I find that none of the exceptions to section 28(1), provided for in section 28(2) and section 28(5), applies in this case.

3. Would Disclosure of Existence or Non-Existence of Records Amount to Disclosure of Personal Information?

There are two possibilities here. The first is that the Council does, in fact, hold records of the type sought by the requester. In this event, disclosure of the existence of such records will convey some or all of the following: that allegations of mis-conduct have been made against the named employee; that the Council has grounds for believing the employee may have engaged in mis-conduct or some breach of discipline; that the Council has investigated the employee's actions; that such an investigation is on-going or that such an investigation has been concluded. For the reasons already set out above, I am satisfied that to disclose that records of this type exist would be to disclose personal information.

The second possibility is that the Council does not hold records of the type sought by the requester. Knowledge that this is the situation would disclose that the Council has no record of allegations of mis-conduct having been made against the employee and no record of any investigative or disciplinary process having been conducted. While this may be less obvious than in the case where the existence of relevant records is confirmed, I am satisfied that confirmation that no such records exist would also cause the disclosure of personal information. For example, disclosing that no allegations of wrong-doing have been made against an employee of a public body is to disclose information regarding the employee's "employment or employment history"; similarly, it is to disclose in a general sense what is contained in the employee's personnel file; and, finally, it is to disclose the "views or opinions of another person about the individual" in as much as it discloses that such views held do not include a view that the employee has engaged in mis-conduct or in a breach of discipline.

Accordingly, I find in this case that to disclose the existence, or non-existence, of records of the type sought by the requester would be to disclose personal information.

Section 28(5A) - Summary

For the reasons set out above, I find that each of the three requirements for the application of section 28(5A) is satisfied in this case. Accordingly, I find that the Council is justified in its reliance on section 28(5A) as the basis for refusing the request and as the basis for refusing to disclose to the requester whether or not records of the type sought do, or do not, exist.

In the light of my finding above, it is not necessary for me to consider the other exemptions relied upon by the Council in refusing the request.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the decision of Waterford County Council in this case.

Appeal

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 decision.

Emily O'Reilly

Information Commissioner

19 August 2008