Case 100224

The Senior Investigator annulled the Council's decision and found that the record should be released.

Case Summary

Whether the Council is justified in its decision to withhold a record in accordance with section 21 of the FOI Act.

Date of Decision: 31.03.2011

Review Application under the Freedom of Information Acts 1997 and 2003 (the FOI Act) to the Information Commissioner

Background:

On 12 July 2010, the applicant sought a copy of a specific record from the Council.

Mindful of section 43(3), which provides that I must not reveal the content of an exempt record, I can say that the record consists of a letter issued by the Council to a named SIPTU Official.  On 10 August 2010, the Council refused access citing section 21(1)(b) of the FOI Act.   On 18 August 2010, the applicant sought an internal review of this decision.  In his request the applicant made several assertions including his opinion that release of the record could not reasonably be expected to result in the harms envisaged in section 21 because some people had already been shown the record and its contents were widely known.   In its internal review decision of 7 September 2010, the Council upheld its original decision.  It should be noted that the Council, in both its original decision and in its internal review, should have referred to and applied the public interest test provided for in section 21 but that it failed to do so.

On 16 September 2010, the applicant applied to the Commissioner for a review of the Council's decisions and restated the arguments he had made in request for an internal review.  Following correspondence between this Office and all parties,  Mr. Colin Stokes of this Office, on 10 February 2011, issued his preliminary view that the record should be released.  In response to that view both the Council and a third party, a SIPTU official,  made submissions arguing that the record should not be released.   I am therefore proceeding to a formal binding decision on the issue.

Conducted in accordance with section 34(2) of the FOI Act by Mr. Seán Garvey, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner ("the Commissioner") to conduct this review).

Scope of Review

This decision is confined to the question as to whether the Council is correct in withholding the record described above.  

In arriving at my decision I have taken account of the submissions made by all parties.  I will, for the sake of completeness, revisit some of the facts and issues as laid out by Mr. Stokes in his preliminary view.

Submissions

.

Findings

Both the Council and a third party have quoted section 21(1)(b) in support of the decision to withhold the record.

Section 21(1)(b)

Section 21(b) provides that:-

A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, 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)

In his preliminary view Mr. Stokes summarised the Council's arguments for withholding the record as follows:-

• release would undermine long-established and important informal lines of communication between Council management and union officials.  Such communications are important and their loss would damage industrial relations and adversely effect the Council's performance of its functions.
• release and the loss of a confidential line of communications would render it more difficult to reach any agreement on future necessary changes which are vital in the current economic climate.
• having issued the letter to the Union Branch Secretary, its dissemination within SIPTU is a matter for the Union to decide.

However, as Mr. Stokes pointed out, while the FOI Acts allows for the withholding of records under specific circumstances, it does not generally provide for a blanket exemption of entire classes of records.  This means that each record must be examined on its own merits.   In addition, under section 34(12)(b) the onus is on the public body to justify to the satisfaction of the Commissioner its decision to withhold a record.

I am satisfied that in seeking to withhold this record the Council is more concerned with the potential damage that release might cause to a line of communication rather than with the record at issue per se.  I do not consider that this record can be considered confidential as its contents are widely known and were advertised by one of the correspondents to be available for inspection by members of the Union with clarification of the issues raised therein also offered. 

In relation to potential damage to a line of communications that the Council finds useful in conducting its industrial relations function, I would again emphasise that each record must be considered on its own merits.  A decision to release this record, the contents of which can, in my view, no longer be regarded as secret, does not mean that all future such communications would fall to be released.  However, even if this line of communication were to seen to be compromised, I am satisfied that both the Council and the Union have the expertise and the experience to continue to conduct their business using alternative methods without adversely effecting their ability to conduct industrial relations negotiations.  I do not accept that release of this record could adversely effect possible future negotiations or changes that the Council may wish to introduce since this record is simply a statement of a current position which is also being broadcast in other ways.   In addition, an argument could be made that rather than damage industrial relations, release of this record could improve them by ending misguided speculation and rumour.  I also agree with Mr. Stokes in not accepting the validity of the Council's argument that, since the record was issued to the Union Branch Secretary, its further dissemination within SIPTU is a matter for that Union to decide.  Rather, this record is a record held by a public body and therefore the question as to whether or not it should be released legitimately falls to be considered under the FOI Acts.

Public interest

I am therefore not convinced by the arguments advanced in favour of refusing access to this record, i.e. that its release would compromise an important mechanism for communicating  on industrial relations matters and thereby prejudice the Council's ability to properly carry out its functions in that area.  But even if I were so convinced, as was pointed out by Mr. Stokes, there is a public interest test under section 21(2) of the exemption quoted that should have been considered.

Section 21(2)

21(2) Subsection (1) 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.

To apply section 21(2), it is necessary to identify the various public interests served by the

release of this record as well as those served by its withholding.  Relative weights must then be applied to these conflicting public interests and a judgement made as to which set of public interests outweighs the other.

I have considered the following as public interest factors favouring release of the record:-

• the public interest in individuals being able to exercise their rights under the FOI Act
• the public interest in members of the public knowing how a public body performs its functions and being able to form an opinion as to whether those functions are being properly discharged
• the individual's right in an open and representative democracy to have full access to all information relating to their rights and entitlements

while those that favour withholding the records include:-

• the public interest in public bodies being able to perform their functions, including industrial relations, effectively.

As I have made clear above, I do not consider that the release of this record will seriously effect the Council's ability to carry out its functions relating to industrial relations.   On the other hand, I consider that there is a very real benefit in enhancing the transparency in how the Council conducts its functions particularly those that have a very real and immediate impact on those seeking specific records.  In this regard, it is important to take into account the extent to which the FOI Act confers on members of the public a statutory right to access records held by public bodies.

Taking account of the foregoing, it is my view that the public interest would, on balance, be better served by releasing than by not releasing the record and it should therefore be released. I find accordingly.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Council and I find that the record should be released.

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 [decison].   

Seán Garvey

Senior Investigator

31 March 2011