Whether the Revenue was justified in refusing access to further excerpts of records concerning a compensation claim, made to the Revenue on behalf of the applicant and others, for loss of earnings.

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

Background

In 2010, the applicant's union made a claim for compensation for loss of earnings, on behalf of the applicant and others, to the Revenue Departmental Council. On 6 February 2012, the applicant made an FOI request for records concerning this claim "in so far as it applies to [him]self". His request also sought a copy of the final decision that he maintained had been made by the Board of the Revenue in respect of his claim, and "their reasons for so deciding". The Revenue's decision of 2 March 2012 partially released a number of records of relevance to the request, of which the applicant sought an internal review on 6 March 2012. The Revenue's internal review decision of 28 March 2012 upheld its earlier decision. On 28 March 2012, the applicant sought a review by this Office of the Revenue's refusal to fully release the records concerned. In the course of this Office's review, the Revenue agreed to release some further excerpts of the records.

In carrying out my review, I have had regard to copies of the records considered by the Revenue (which were provided to this Office for the purposes of the Commissioner's review); to correspondence between the Revenue and the applicant as set out above; to details of contacts between this Office and (i) the Revenue; (ii) the applicant; and (iii) the unions with an interest in the claim. I have had regard also to the provisions of the FOI Act and, in considering the public interest at section 28(5)(a), the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner(to which I will refer as "the judgment").

Scope of the Review

The scope of this review is confined to assessing (i) whether or not the Revenue is in accordance with the terms of the FOI Act in not fully releasing all the records it had considered on foot of the request, and (ii) whether it is reasonable for the Revenue to contend that no record exists of the decision said by the applicant to have been made by the Board of the Revenue regarding the claim.

Findings

It is relevant that:

• the Courts have recognised that the review by this Office is by way of a hearing de novo in the light of the facts and circumstances applying at the date of that review;
• section 8(4) of the FOI Act does not allow this review to have regard to any reasons as to why the applicant may have sought the records concerned (although such reasons may be relevant to consideration of the public interest);
• section 13(1) provides for the release of a record with any exempt material therein being redacted, so long as to do so would not render the ensuing copy of the record to be misleading (section 13(2) refers);
• while the FOI Act requires the Commissioner to provide reasons for her decisions, section 43(3) of the Act requires her to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record;
• section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request shall be presumed not to have been justified unless the head of the relevant public body shows to the Commissioner's satisfaction that its decision was justified. In a case such as this, involving third parties, it is important that the third parties are given an opportunity to make whatever submissions they wish and that such submissions are taken into account in the final decision on the case; and
• release of a record under the FOI Act has been found by the Courts to be akin to its release to the world at large.

The Revenue identified 36 records as relevant to the request, of which records 1; 2; 5; 8; 10; 13; 17; 19-22; 24; and 26-36 have been fully released, and the remainder released in part. Accordingly, this review is concerned with the details that have been withheld from records 3; 4; 6; 7; 9; 11; 12; 14; 15; 16; 18; 23; and 25.

Details Outside Scope of the Request
The Revenue withheld excerpts of records 3; 4; 6; 7; 9; 11; and 12 on the basis that they relate to matters other than the claim the subject of the FOI request. Having examined the details concerned, I accept that this is the case. I also consider Appendix A to record 18 to relate to matters other than that claim, "in so far as it applies to [the applicant]". I find that these excerpts are outside the scope of the applicant's request, and accordingly, this review. Therefore, they will not be considered further.

Personal Information of Third Parties
I am satisfied that personal information of third parties is contained in the remainder of records 14-16 and 25; all of paragraph 5.1 and the first bullet point contained in paragraph 5.3 of record 18; and in the following elements of record 23 (five words in the first sentence, and the entire last sentence, of the first paragraph in the section headed "Background"; the majority of the first paragraph under the heading of "Recommendation"; the only paragraph under the "Conclusions" section; and the remainder of appendices A and D). Furthermore, a small amount of the information concerned may be described as joint personal information (i.e. information about the applicant that is inextricably linked to personal information of a third party or parties).

As it is not entirely clear if the applicant is seeking access to such details, I will deal with such information for the sake of completeness.

Sections 28(1) and (5B)
Section 28(1) of the FOI Act provides that, subject to other provisions of section 28, a public body shall refuse a request for a record where granting it would involve the disclosure of personal information about an identifiable individual. Section 28(5B), also subject to other provisions of section 28, provides for the mandatory refusal of a record that contains the joint personal information of the person making the FOI request and that of another party or parties. I consider, and find, the above mentioned details to be exempt from release under sections 28(1) and 28(5B) of the FOI Act.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemptions at section 28(1) and section 28(5B) do not apply. Having examined the withheld details, I am satisfied that none of the circumstances identified at section 28(2) arises in the case of the details referred to above. That is to say, (a) that the third party information contained in the records does not relate solely to the applicant; (b) that the third parties have not consented to the release of their information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. No argument to the contrary has been made by the applicant, and I find that section 28(2) does not apply to the records at issue here.

Section 28(5)
Section 28(5) provides that a record, which is otherwise exempt under section 28(1) or 28(5B), may be released in certain limited circumstances.

The effect of section 28(5)(a) is that a record, which has been found to be exempt under section 28(1) or 28(5B), may be released if it can be demonstrated that "on balance, 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". In the judgment referred to earlier, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates.

Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution). Accordingly, when considering 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.

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies as well as the public interest in ensuring that persons can exercise their rights under the Freedom of Information Act. However, I am not satisfied in the circumstances of this case that these public interests are, of themselves, sufficient to warrant the breach of the third parties' rights to privacy. Furthermore, the applicant, although invited to do so, has not identified any other true public interest that might warrant the release of the withheld details. Thus, I find that the withheld details should not be released further to section 28(5)(a) of the FOI Act.

Finally, it is necessary to consider whether section 28(5)(b) is of relevance. The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1) or section (5B), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose information would be released. The applicant has not made any case that the release to him of the personal information of the third parties would "benefit the individual" to whom it relates. Nor am I otherwise aware of any reason to think that such release would be to the benefit of the third parties concerned. I find that no right of access to the relevant details arises further to the provisions of section 28(5)(b) of the FOI Act.

Information Impacting on the Performance of Functions Relating to Management/Disclosure of Negotiating Positions
The Revenue contends that the remainder of records 18 (i.e. the remainder of section 5 and all of section 6) and 23 (the remainder of the "Background" and "Recommendations" sections, and the fully withheld section headed "Current Situation") should be withheld. In the course of the review, it has cited both section 21(1)(b) and section 21(1)(c) of the FOI Act.

Section 21(1)(b) of the FOI Act provides that a request for access to a record may be refused "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)". A record found to be exempt under section 21(1)(b) may be released if, on balance, the public interest would be better served by granting than by refusing to grant the request concerned (section 21(2) refers).

Section 21(1)(c) of the FOI Act provides for the refusal of a record where, in the opinion of the head, its 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 being, or to be, carried on by or on behalf of the Government or a public body". It is also subject to section 21(2).

The process for dealing with the claim at issue clearly involved negotiation between the Revenue and the union that had made the claim. I accept that the remainder of record 18 contains details of the Revenue's views on the merits of the claim and the approach it should take, whilst the remainder of record 23 sets out the history to the claim, particular positions taken by the Revenue and the union concerned, and how the Revenue intended to proceed.

Thus, in so far as the Revenue is concerned, the relevant details have potential to be exempt from release under section 21(1)(c) of the FOI Act. Furthermore, this Office has previously found that section 21(1)(c) can apply to negotiating positions, etc, of a party other than the Government or a public body. However, if section 21(1)(c) is not appropriate, it would seem to me that section 21(1)(b) of the FOI Act could be relevant, in that it could be argued that disclosure of a union's position, without its consent, could impact on its willingness to cooperate with the Revenue in other industrial relations matters.

Regardless, it seems to me that the key issue is whether or not the release of the records at issue could reasonably be expected to "disclose" such information. If release does not result in such "disclosure", then I see no reason to find the records to be exempt under section 21(1)(c). (Alternatively, if no "disclos[ure]" arises, then one cannot reasonably expect unions to be less cooperative with the Revenue in dealing with industrial relations matters in general. Thus, I would not accept that release could reasonably be expected to have a significant, adverse effect on the Revenue's management of industrial relations, in which case section 21(1)(b) would not apply).

The Revenue has expressed particular concerns about the release of the remainder of record 23. It says that there is a "subtle difference" between the material therein and that in the released records. It says that release of the remainder of record 23 would thus breach the confidentiality of the negotiation process and, particularly in light of current industrial relations in the public sector, would weaken the basic level of trust that surrounds such communications with management. In terms of the public interest, it maintains that the details in records 18 and 23 should be withheld in order to protect its ability to conduct similar negotiations in future, and otherwise manage its industrial relations.

Those unions with an interest in the outcome of the claim were consulted in the course of the review regarding the release of record 23. One did not reply. The other says that the details concerned outline exploratory contacts between it and the Revenue. It maintains that release thereof could "create a set of circumstances whereby the Union or its Officials could be brought into conflict with members where issues need to be explored in discussion on an absolutely confidential basis even where individual members feel that they should not be so explored." It says that positions taken in negotiations require to be treated in confidence, and disclosure of the details concerned "would make the process of conducting industrial relations virtually impossible". It also points out that it is not a public body for the purposes of the FOI Act.

It is arguable that confidentiality may be required to attach to positions taken in, and plans adopted for, negotiations regarding industrial relations, for at least a period of time. However, having regard to the other records released to the applicant, and thus already in the public domain, it seems to me that the details in the remainder of records 18 and 23 have already been "disclose[d]". I do not consider the Revenue to have met the requirements of section 34(12)(b) of the FOI Act in respect of its contentions as to why I should consider otherwise, or why I should accept that release of the details concerned could, in the circumstances of this case, impact on its ability to conduct similar negotiations in future or impact on its ability to manage its industrial relations. Neither do I consider the union's arguments to provide a basis for me, again in the circumstances of this case, to direct that the remainder of record 23 should be withheld. Therefore, I find that section 21(1)(c), or section 21(1)(b) if appropriate, does not apply to the remaining elements of records 18 and 23.

Having regard to the above finding, there is no need for me to consider the public interest.

Existence of Further Records
This Office's letter to the applicant of 10 June 2013 explained why section 10(1)(a) of the FOI Act appeared relevant to his request for records of the decision that he contended had been made by the Board of the Revenue. It outlined the nature of the Commissioner's review in a case involving section 10(1)(a) (which provides that a request for access to a record may be refused if the record does not exist, or if searches for a record that is known to exist (but cannot be found) have been reasonable). It also outlined the Revenue's explanation of where it normally files records relating to a claim such as that at issue, and the searches described by it as having been undertaken to identify records of relevance to the request. I see no reason to repeat the details concerned in this decision.

The letter also told the applicant the Revenue had said that, as only its Staff Relations Unit has responsibility for negotiating claims such as that at issue, the Board had no role in the matter and was, thus, effectively arguing that records of a Board decision do not exist.

Having considered the matter, I consider it reasonable for the Revenue to contend that no records exist of the decision said by the applicant to have been made by the Board. On a general level, I also consider the searches as described by the Revenue to have been reasonable. Accordingly, I find that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby vary the Revenue's decision.

I affirm its refusal of the remaining elements of records 3; 4; 6; 7; 9; 11; and 12 on the basis that they do not relate to the request. I affirm its refusal of the remainder of records 14-16 and 25; the majority of paragraphs 5.1 and 5.3 of record 18; and the following elements of record 23 (five words in the first sentence, and the entire last sentence, of the section headed "Background"; the majority of the first paragraph under the heading of "Recommendation"; the only paragraph under the "Conclusions" section; and the remainder of appendices A and D) on the basis that these details are exempt under sections 28(1) and 28(5B) of the FOI Act. I also affirm the Revenue's effective reliance on section 10(1)(a) of the FOI Act in respect of those records of the decision said by the applicant to have been made by the Board.

Finally, I annul its refusal of the remainder of records 18 and 23 and direct that these excerpts be released.

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 on which notice of the decision was given to the person bringing the appeal.

Sean Garvey
Senior Investigator