Whether the Institute was justified in its decision to refuse access to records relating to the selection process for a post and to a review of the said process under sections 21(1)(b) and 23(1)(a)(iv) of the FOI Act

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

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.

Background

On 13 January 2014, the applicant submitted a Freedom of Information request to the Institute for access to eight categories of records. Each category broadly related to the recruitment process for a particular post, and a subsequent review of that process. By way of letter dated 14 February 2014, the Institute granted access to some records coming within scope of the applicant's request, consisting of a set of appendices to a review report in relation to the recruitment process and seven emails between other officers of the Institute, but also refused access to seven further records, consisting of correspondence between other officers of the Institute. The Institute included in its decision the text of sections 21(1)(b) and 23(1)(a)(iv) of the FOI Act as part of its decision, but did not set out the basis upon which these exemptions were asserted, nor specify to which of the records these exemptions were held to apply.

The applicant sought an internal review of this decision by way of letter dated 18 February 2014. The internal reviewer upheld the original decision, going on to specify that access was refused to each of the seven records in question as section 21(1)(b) of the FOI Act was held to apply on the basis that "[t]he disclosure of the detail of these records may inhibit any HR process that may arise on foot of the content of these records"; and because section 23(1)(a)(iv) of the Act was deemed to apply, on the basis that "[t]he disclosure of records 8-14 ... to you at this time could prejudice the ability of the Institute to fully defend its position in [a] Tribunal". The outcome of the internal review was communicated to the applicant by way of letter dated 13 March 2014. On 13 May 2014, the applicant sought a review by this Office of the Institute's decision.

I note that Mr. Niall Mulligan of this Office has sought and received detailed submissions from both parties. I therefore consider that the review should now be brought to a close by the issue of a formal, binding decision.

In conducting my review, I have had regard to the Institute's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Institute. I have also had regard to the provisions of the FOI Act and to the records in question, a copy of which have been provided to this office for the purpose of this review.

Preliminary Matter

While I am required by section 34(10) of the FOI Act to give reasons for decisions, this is subject to the requirement of section 43(3) that I take all reasonable precautions during the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue is somewhat limited as is the level of detail I can disclose in relation to the Institute's submissions.

Scope of the Review

This review is concerned solely with the questions of whether the Institute was justified in its decision to refuse access to seven records, consisting of correspondence between officers of the Institute, under sections 21(1)(b) and 23(1)(a)(iv) of the FOI Act.

Analysis and Findings

The applicant's original request was for access to records broadly relating to the recruitment process for a particular post, and a subsequent review of that process. It should be noted that certain elements of record 12 fall outside the scope of the applicant's request and will accordingly be withheld on that basis.

Section 21(1)(b) of the FOI Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information 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 the body of any of its functions relating to management (including industrial relations and management of its staff). 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 of a significant nature.

While I am constrained by the provisions of section 43(3) in describing the records at issue in this case in detail, I can say that they relate primarily to grievances between certain employees of the Institute, other than the applicant, and the Institute itself. In its submissions to this Office, the Institute describes the matter as one of significant sensitivity. It submits that the release of the correspondence may seriously inhibit any HR processes that may arise. The thrust of the Institute's submission regarding the application of section 21(1)(b) is that there is a "legitimate and reasonable expectation of expectation of privacy and confidentiality" on the part of the authors of the correspondence in question. The Institute claims that the release of the correspondence will cause harm through the "inability ... to protect employee confidentiality in such circumstances, [which] is likely to become a significant point of contention and will hamper the Institute's ability to properly document and resolve such grievances".

Having carefully considered the matter, I am satisfied that the Institute has established that the release of the records in this case could reasonably be expected to have a significant, adverse effect on its performance of its HR and industrial relations functions. I am satisfied that the release of the records will not only significantly impair the ability of the Institute to resolve the grievances concerned, but could also reasonably be expected to significantly impair its ability to document and resolve future industrial relations issues. I note that the applicant has cited a previous decision of this Office (Case 98169, Ms. ABY and the Department of Education and Science) which found that section 21(1)(b) would not apply if the sole consequence of release would be that it caused a "potentially difficult industrial relations situation". In my view, the Institute has shown the harm arising from the release of the records at issue in this case to be a more significant harm.

In her submissions, the applicant argued that the Institute had failed to link the exemption at section 21(1)(b) with the individual records. While, again, I am constrained by the provisions of section 43(3), having closely examined the records, it seems to me that they are only tangentially related to the her main areas of concern, but relate very directly to HR and industrial relations issues involving third parties. Accordingly, I find that section 21(1)(b) applies in relation to each of the records. However, that is not the end of the matter as I must also consider the the public interest balancing test as set out in section 21(2).

Section 21(2) provides that the exemption under section 21(1)(b) does not apply if the body considers that the public interest would, on balance, be better served by granting than by refusing the request. While I am satisfied that there is a public interest in public bodies being open and transparent in matters related to regulation and governance, this must be balanced against the public interest in ensuring that public bodies are free to conduct their functions relating to management, including industrial relations and management of their staff, in an effective manner. Moreover, there is also a strong public interest in public bodies being able to resolve sensitive matters and to facilitate the the parties involved in co-operating fully and providing information in a frank and open manner, without fear that any confidences will be breached. There is also a recognised public policy of encouraging parties insofar as possible to settle their disputes without recourse to costly litigation (Case 080208, Mr John Burns, The Sunday Times and Trinity College Dublin and Case 130017 Mr X and The Department of Public Expenditure and Reform refer). In my view, this policy operates against the release of records in circumstances where such release would be expected to prejudice the ability of public bodies to resolve industrial relations disputes through mediation or other modes of alternative dispute resolution. It is noteworthy that the applicant stated in her submissions that she is not seeking information concerning grievances but rather is seeking information directly related to her interview of January 2013, the interview process and her subsequent treatment. Having carefully considered the contents of the records at issue, I am satisfied that their release would not serve to further transparency in how the Institute dealt with such matters. I am satisfied, therefore, that the public interest would, on balance, be better served by refusing access to the records at issue and I find that section 21(2) does not apply.

Having found section 21(1)(b) to apply, it is not necessary for me to consider the Institute's claim for exemption under section 23(1)(a)(iv), nor do I consider it necessary to consider whether part of one of the records at issue is exempt under section 22(1)(a) as suggested by Mr Mulligan of this Office in correspondence with the applicant during the course of the review.

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 the Institute to refuse access to records coming within scope of the applicant's request, under section 21(1)(b) of the FOI Act.

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.

Stephen Rafferty
Senior Investigator