Case 100112

The Senior Investigator annulled the Body's decision and found that the records should be released with the exception of certain specified references that constitute the personal information or joint personal information of third parties.

Case Summary

Whether the Body is justified in its decision to withhold certain records in accordance with sections 20 and 21 of the FOI Act. 

Date of Decision: 21.03.2012

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

Background:

On 21 September 2009, the applicant sought access to records relating to a report commissioned by the Body to restructure its Finance Office.  On 25 November 2009, the Body released most of the relevant records but refused access to eight records on the grounds that they were part of a deliberative process and therefore protected by section 20 of the FOI Act and that they were also protected by section 21 of the Act (see below).   On 1 December 2009, the applicant wrote to the Body seeking an internal review of its decision.  On 11 May 2010, the Body upheld its original decision to withhold the records.

On 10 May 2010, the applicant applied to this Office for a review of the Body's decision. In her submission of 28 June 2010, she asserted that the report was completed and that the deliberative process was at an end.  However, the Body, in its submission of 8 July 2010, maintained that the deliberative process was ongoing.  It also again asserted that the records are protected by section 21 of the FOI Act since their release would prejudice the effectiveness of the review being conducted, would have a significant adverse effect on its ability to manage its staff and would prematurely disclose opinions given in confidence by the staff and management of the Body. 

On 3 August 2010, Mr. Seán Garvey, Senior Investigator in this Office, informed the Body of his outline opinion on the case and sought clarification of the status of the Body's review of its Finance Office.  Mr. Garvey explained that if the review had been completed he could not see a basis for exemption of any of the records.  He did, however, identify certain information contained in the records at issue which, he considered, constituted the personal information or joint personal information of third parties that should be withheld in accordance with section 28 of the FOI Act.  

On 2 September 2010, the Body again asserted that the review was not yet completed and that it still considered that section 20 and 21 of the FOI Act applied.   In a further submission of 22 November 2011, it confirmed that this was still its view.   In that submission it also indicated that it would be entering into a mediation exercise with the applicant in relation to the restructuring of the Finance Office.

On 21 December 2011, in response to specific queries from this Office, the Body confirmed, inter alia, that the report is complete; that consultations - as opposed to mediation - are not ongoing; that initial feedback on the report arising from the consultation process has been consolidated and that the deliberative process has not developed since its letter of 2 September, 2010.

Preliminary matters

Section 34(12)(b) of the FOI Act 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 puts the burden of proof on the Body to show to my satisfaction that its decision to refuse to grant the request is justified.

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

Scope of Review

The scope of the review is confined solely to the question of whether the Body is justified in deciding to refuse access to the eight records at issue.  In arriving at my decision I have taken account of the various submissions made by both parties and I have had regard to the contents of the records at issue.

Submissions

.

Findings

Section 20(1)

Section 20(1) of the FOI Act provides that:-

A head may refuse to grant a request under section 7 if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes),

In its original decision on the request, the Body explained that the records at issue consist of summary notes written by the person engaged to conduct the review of the Finance Office, along with feedback from members of the Body's management in relation to the workings of the Office.  Having examined the records at issue in this case, I am satisfied that they contain information relating to the deliberative process of the Body.  However, this is not the end of the matter because section 20(3) provides that section 20(1) does not apply if the public interest would, on balance, be better served by granting than by refusing to grant the request.  I deal with the public interest arguments below.

Section 21(1)

The Body further seeks to rely on section 21(1)(a)(b) and (c) of the FOI Act as a basis for its refusal of the records. Section 21(1) provides:

"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-

(a) 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,

(b) 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), or

(c) disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be carried on by or on behalf of the Government or a public body."

In the case of the Sunday Times Newspaper & Others and the Department of Education and Science (case number 98104 on the Office's website) the previous Information Commissioner, Mr. Kevin Murphy, explained the approach which he adopted to applying this exemption - an approach that the current Commissioner has also adopted.  In summary, the exemption is dependent on whether or not the decision maker's expectation is reasonable.  Therefore, in arriving at a decision to claim a section 21 exemption, a decision maker must firstly identify the potential harm to the functions covered by the exemption that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur.

The Body says that release of the records could prejudice the outcome of its review of its Finance Office, would have a significant adverse effect on its ability to manage its staff and would prematurely disclose opinions given in confidence by the staff and management of the Body making them less willing to give honest and frank views.

Section 21(1)(a)

I consider it appropriate here to refer to the Supreme Court judgment in Sheedy v Information Commissioner [2005] IESC 35 in which Mr. Justice Kearns stated, in relation to section 21(1), that "the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation [of prejudice] ... could never constitute sufficient evidence in this regard...". In the present context, it is clear that the Body must show some evidence of prejudice if its reliance on section 21(1)(a) is to be justified.

The Body's argument is that the release of the records could prejudice the effectiveness of its review of the Finance Office.  I accept that this is an argument that the release of the records could reasonably be expected to prejudice the effectiveness of examinations or inquiries conducted by or on behalf of the Body.  In its initial decision, the Body explained that part of the review process was to seek feedback from management, that this process had not concluded and that disclosure of such feedback during the review process, and while negotiations are ongoing, would be prejudicial to the integrity of the whole process.  The  Body continues to contend that the review process is ongoing.  In support of this contention, it states that it and the applicant "will shortly be taking part in a mediation exercise which aims to resolve the issues involved in this sensitive re-structuring process."  It seems to me that there is a distinction to be drawn between the process of conducting a review of the Body's Finance Office and the process of implementing the recommendations arising from that review.  In its submission of 21 December 2011, the Body confirmed that the report which was prepared in the course of the review is now complete, that initial feedback on the report arising from the consultation process has been consolidated and that consultations - as distinct from mediation - with key members of the staff of the Finance Office in relation to the recommendations are not ongoing.  This suggests to me that the review process has effectively been completed and that the Body is now at the stage of addressing outstanding issues relating to the implementation of the recommendations arising from that review. In such circumstances, it is not clear to me how the release of the records at this stage could reasonably be expected to prejudice the effectiveness of the review process.  Accordingly, I find that section 21(1)(a) does not apply.

Section 21(1)(b)

The standard to be met in applying the test of section 21(1)(b) is relatively high. An expectation of "significant, adverse effect" requires evidence to support the likelihood of serious harm occurring were the records to be released. When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed.  Not only must the harm be reasonably expected but it must also be expected that the harm will be significant in its extent.

The Body argues that the release of the records at issue would have a significant adverse effect on its ability to manage its staff specifically in relation to the management structure of the Finance Office.  It argues that release of the records would prematurely disclose opinions given by the Body and its staff and that if such records were released while the review was ongoing, the Body's ability to manage in a fair, efficient and effective manner could be compromised.  As I understand it, the Body's position is that it would be difficult for it in a management context if the records in question were released prematurely.  As I have indicated above, I do not accept that the review is ongoing in this case.  Furthermore, even if I accept that release of the records will not be without consequence or effect or may be regarded as resulting in an additional burden from the Body's point of view, I am not, however, satisfied that it is reasonable to expect that such effect or burden would amount to a significant adverse effect on the Body's performance of its functions relating to management.  I consider that a staff member asked to contribute to a review of his/her area of work would, like any other employee, owe a duty of good faith to their employer which would include an obligation to offer to their employer their honest and full cooperation with that review.  It is possible to envisage circumstances where the release of detailed contributions by staff in the context of a sensitive investigation would have significant adverse effect on management functions of a public body.  However, I am not convinced that such circumstances exist in this particular case.  Accordingly, I find that section 21(1)(b) does not apply.

Section 21(1)(c)

The Body argues that section 21(1)(c) applies to the records at issue.  It has not, however, explained how their release could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on, or to be, carried on by or on behalf of the Body.  Accordingly, I find that section 21(1)(c) does not apply.

It is noteworthy that even if I had found any part of section 21(1) to apply, the matter of consideration of the public interest test under section 21(2) would remain.  As I have found that the records at issue contain information relating to the deliberative process of the Body (section 20(1) refers), I address the public interest arguments below.

Section 20(3)

The section provides that:

(3) Subsection (1) does 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.

In deciding whether or not to release a record on public interest grounds, the FOI Act requires me to strike a balance between the competing public interest factors in favour of release of a record against those favouring exemption of a record.  In this case, the factors I considered in favour of release are:

• the public interest in individuals being able to exercise their rights under the FOI Act to the fullest extent,
• 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 public interest in increasing the openness and transparency of decisions taken by public bodies thereby enhancing understanding of the reasons for courses of action taken by a public body.

The Body has quoted the following arguments against release:-

• the need to preserve confidentiality having regard to the subject matter and the circumstances of the communications,
• release could impair future decisions on other similar sensitive matters,
• premature release of the records could impair the integrity and viability of the review process.      

Against a background of an FOI Act that had already been in operation for 10 years at the time it made its decision, I do not accept that a public body can reasonably claim to have been operating on the  basis of confidentiality in relation to an entire category of information.  The Body contends that staff might be reluctant to engage with similar reviews in the future if their contributions were likely to be released under FOI.  However, as Mr. Garvey pointed out in his preliminary view, it is professionally incumbent on staff to cooperate in matters relating to their employment and this principal has been upheld in previous decisions by the Commissioner such as Case Number 080144, Mr. Y and the HSE, and Case Number 090154 Ms X and the HSE, (available on the Office's website:  www.oic.gov.ie).  I accept that the cooperation of employees is desirable for any future or ongoing investigations.  However, I am not convinced that such cooperation would necessarily be curtailed if these records are released under FOI.  Presumably, any persons directly effected or potentially effected by a review of the organisation of a particular office would remain anxious to give their assessment of its performance and future.  In addition, there is a general onus on public servants to cooperate in regard to matters relating to their employment. Having said that, while I consider the cooperation of employees to be desirable, I do not consider that cooperation is always a prerequisite to the effective management of an organisation and managers are entitled to take appropriate action where information sought is not supplied by staff reporting to them.  In addition, it is also entitled to manage and make decisions with or without such cooperation or information.

Furthermore, as I have indicated above, the review process has, in my view, effectively been completed and it is not clear to me how the release of the records at this stage could impair the integrity and viability of the review process, nor has it shown how release might impair future decisions on other similar sensitive matters.  In the circumstances, I consider that the arguments made in favour of release of the records outweigh those favouring exemption.   I am therefore satisfied that the public interest would, on balance, be better served by granting than by refusing to grant the request and I find that, with the exception of certain limited comments that constitute the personal information or joint personal information of third parties, the records should be released.

Section 28

In addition to the exemptions quoted above I have identified a small number of references (see attached schedule) to the personal information or joint personal information of third parties which must be considered in accordance with section 28 of the Act.  While I am required to explain any decision I might make regarding access to records, section 43(3) provides that I must not reveal the content of an exempt record in providing such explanation. This is to preserve the right of appeal of all parties to the High Court in cases where there is disagreement with a decision I might make. Having said that, I consider that I can safely describe the references as either comment by the author of the report on his view of the level of understanding of some issues among particular staff, or comment by those interviewed by the author on issues regarding other identifiable staff members. 

Personal information is defined in 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 detail twelve specific instances of information which is personal, including the views or opinions of another person about the individual.  Having regard to that definition, I am of the view that the references I have identified contain personal or joint personal information.  In forming this view, I see a distinction between a view expressed on the functioning of a particular section or unit, on the one hand, as opposed to a view expressed about an identifiable individual on the other, as a view on a section or unit that does not identify any particular individual within that unit would not, in my opinion, be personal information and would therefore fall for release.

The FOI Act provides a strong protection for personal information where it is sought by a person other than the person to whom the information relates. From my examination of the references in question, I note that they fall into two distinct categories - personal information about third parties other than the applicant and information relating to the applicant which is closely intertwined with personal information about another party or parties i.e. joint personal information".  Section 28(1) provides that a request shall be refused if the body considers that access to the record concerned would involve the disclosure of personal information.  In a situation where a record or part of a record contains personal information relating to an applicant which is closely intertwined with personal information relating to another party (or parties) and where it is not feasible to separate the personal information relating to the applicant from that relating to the other party (or parties), it can be described as joint personal information and the provision at section 28(5B) applies. Section 28(5B) - which was inserted by the Freedom of Information (Amendment ) Act 2003, - provides that, subject to the other provisions of section 28, a request shall be refused where access to the record concerned would, in addition to involving the disclosure of personal information relating to the applicant, also involve the disclosure of personal information relating to an individual other than the applicant.

Section 28(5)(a)

There are a number of exceptions to both section 28(1) and section 28(5B) of the FOI Act, the only one of which I consider applicable to the current case being that at section 28(5)(a). That section provides for the release of personal or joint personal information where the public interest that the request should be granted outweighs the right to privacy of the individual(s) to whom the information relates.  The same public interest arguments for and against release apply as have already been discussed under section 20(1) above but there is an additional consideration in relation to section 28 relating to privacy.

The FOI Act recognises a very strong public interest in protecting privacy rights and this is recognised both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY".  In the case of section 28(5)(a), privacy rights will be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.  Having examined the records at issue, I do not consider that the release of the personal information at issue would add to the applicant's understanding of how the Body performs its functions or how it might enhance an understanding of the reasons for courses of action taken by the Body.  I consider that the public interest would be better served by protecting the rights to privacy of the person (or persons) to whom the information relates, rather than by releasing this information to the applicant.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Body and find that the records should be released with the exception of certain specified references, copies of which I am forwarding to the public body, (see also attached schedule), which constitute the personal information or joint personal information of third parties.

Right of 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 letter. 

Stephen Rafferty

Senior Investigator

21 March 2012