Whether the Department was justified in its decision to refuse access to records relating to the applicant's Administrative Officer applications and related complaints to the Commission for Public Service Appointments (CPSA)

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

Background

The Public Appointments Service (PAS) advertised a recruitment campaign in 2012 for the position of Administrative Officer (AO) in the Civil Service in respect of a number of different specialties. The applicant applied for the AO competition and was short-listed for the Economics and Human Resources (HR) streams, but was not called for interview in respect of either specialty. He made a number of complaints to the CPSA as a result.

On 3 June 2014, the applicant made an FOI request to the Department seeking copies of all records in the control of the Department concerning his application for AO Economics and AO HR and his subsequent complaints. On 4 June 2014 the Department replied stating that it did not hold any records relating to his request and suggesting that he contact PAS or the CPSA.

The applicant sought an internal review of the Department's decision on 5 June 2014. On 2 July 2014 the Department issued a decision on internal review and stated that it had identified 26 records relating to his request, one of which (Record No. 24) did not fall within the scope of his request, but was included for the sake of completeness. Having examined Record No. 24, I am satisfied that it is not within the scope of this review, as it was created after the applicant's original request, and therefore I do not need to consider it further. The Department released 21 of the remaining records in full (Records No. 1-9, 12-17, 19-22 and 25-26) and four others in part, two of which were subject to redactions relating to the personal information of third parties (Records No. 10 and 11) under section 28(1) of the FOI Act. The two remaining redacted records (Records No. 18 and 23), contained information which it considered to be exempt on the grounds of legal professional privilege (LPP) as set out in section 22(1)(a) of the Act. The applicant applied to this Office on 4 July 2014 for a review of the Department's decision.

I note that Ms Sandra Murdiff, Investigating Officer in this Office, contacted the applicant by email on 25 August 2014 and explained that, in her view, the Department was justified in its decision not to release Records No. 10 and 11 as the redacted information clearly comprised the personal information of a third party, and, as such, was exempt under section 28(1) of the FOI Act. She also stated that, in her view, the Department was correct in its application of the exemption in section 22(1)(a) of the Act in relation to Records No. 18 and 23, as, in her opinion, the information would be exempt from production in proceedings in a court on the grounds of LPP.

Subsequently, the applicant made a separate application to this Office for a review of the decision of the Department of the Taoiseach in refusing to grant access to what transpired to be a number of the same records being considered in this review (Case No 140228). On 24 September 2014 Ms Murdiff contacted the applicant and informed him that while she still considered Records No. 18 and 23 to be exempt from release under section 22(1)(a), she was now of the view that these records (and those in Case No. 140228) were not held by the respective Departments as required by section 2(5)(a) of the Act. She stated that, in her view, in both cases, the Department's refusal to release the records in question was justified on the basis that they were held by the CPSA and not the Department in question. The applicant did not agree with Ms Murdiff's views relating to LPP and made a submission to this Office on 30 August 2014, wherein he also stated that further records might exist in relation to his request. He made a further submission on 23 September 2014 relating to Case No. 140228, which he forwarded in response to Ms Murdiff's views on both cases.

As the position of the Department and that of the applicant fundamentally differ, I have decided to conclude this review by way of a formal binding decision.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003, notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

In conducting this review I have had regard to the Department's decisions on the matter and its communications with this Office; the applicant's communications with this Office and the Department; the records in question and the provisions of the FOI Act.

Scope of Review

The scope of this review is solely concerned with whether or not the Department was justified, under the provisions of the FOI Act, in deciding to refuse access to the records in question.

Analysis and Findings

Section 10(1)(a)
The Department's position is that it has released all of the records it holds in relation to the applicant's FOI request and that no further records can be located. Accordingly, section 10(1)(a) of the FOI Act is relevant, which provides that a request for access to a record may be refused if the record concerned "does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken".

The Commissioner's role in cases such as this is to review the decision of the public body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner [2002] No. 18 M.C.A.. This, and other decisions referred to below are available on this Office's website, www.oic.ie.

While the Department had initially informed the applicant that it did not hold any records relating to his request, it informed him on 23 June 2014 that it had transpired that it did hold relevant records. It stated that the error had occurred as it had initially consulted with its Recruitment Policy Section, which stated that no records existed relating to the applicant's request. Following the applicant's internal review request the Department conducted a more thorough search and sent an email to all staff in the Department in an effort to locate records. It then emerged that some records (numbered 1-16 and 21-22 and 25-26) were held by members of staff of the Department who had served on short-listing boards for the AO HR and Economics streams, copies of which it released to the applicant. At this time it also released Records No. 17, 19 and 20 in full and Records No. 18 and 23 in part, all of which comprised correspondence between the Secretary General and the CPSA, which I shall consider later in this review.

In submissions made to this Office, the Department has provided details of the steps taken to locate the records in question. It stated that no files were kept in any sections of the Department in relation to this matter, and searches were confined to manual and electronic searches of all computer drives, including email records. The Department also stated that it contacted a member of staff who had left the Department 6 months earlier and his archived files and emails were also searched by the IT Department for relevant records. The Department contends that an exhaustive effort was made to locate records relating to the applicant's request and that no further records exist. I note that the applicant states that he believes that the staff members dealing with his FOI request acted in good faith. I also note that, while he suggests that further records may be held by the Department, he has provided no supporting evidence to suggest that other relevant records should, indeed, exist. Having considered the submissions of both parties and the measures taken to locate the records, I am satisfied that the Department has taken all reasonable steps to locate any further records and that its decision was justified in accordance with section 10(1)(a) of the FOI Act. I find accordingly.

Section 28(1)
Information has been redacted from Records No. 10 and 11 on the grounds of section 28(1) of the FOI Act, which provides that 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 2 of the Act defines personal information as including

"(i) information relating to the educational, medical, psychiatric or psychological

history of the individual".

The material which has been withheld in this case consists of the educational qualifications of a member of the short-listing board relating to the AO competition. I am satisfied that information concerned comprises the personal information of a third party as defined in the FOI Act and that the Department was justified in withholding the information concerned, pursuant to section 28(1) of the Act.

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. Having carefully examined the details to be withheld, I am satisfied that none of the circumstances identified at section 28(2) arise in this case. 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 party has 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 record at issue here.

Section 28(5)
Section 28(5)(a) provides that a record, which has been found to be exempt under section 28(1), 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". While there is a public interest in openness and accountability on the Department's part, 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 unenumerated 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 Department has stated that it cannot identify any public interest consideration which would outweigh the individual's right to privacy. Similarly, the applicant has not identified any public interest factors which would favour release. While I acknowledge the public interest in accountability and transparency in relation to the civil service recruitment process, I do not consider that the public interests in favour of release of the details are sufficiently strong in this case to require the breach of the rights to privacy of the third party (nor has the applicant made any arguments to the contrary). I find accordingly.

Turning to section 28(5)(b), I note that the applicant has contended that it may be in the best interests of the board member in question that her qualifications were disclosed, but has not indicated how this would be in her interest. As there is no basis before me to consider that the release of this information would benefit the individual to whom it relates, I do not consider section 28(5)(b) to be of relevance in this case.

Taking the above into account, I therefore consider that the Department was justified in its decision to refuse to release the information withheld in Records No. 10 and 11 in response to the applicant's FOI request, in accordance with section 28(1) of the FOI Act. I find accordingly.

Section 6(1) and 2(5)(a)
Section 6(1) of the FOI Act confers a general right of access to records held by a public body. While the term "held" is not defined in the Act, section 2(5)(a) of the Act provides that a reference to records held by a public body includes a reference to records "under the control" of that body. It is clear that the intent of section 2(5)(a) is to ensure that records which are not physically held by a public body but are under its control are deemed to be held by it for the purposes of the FOI Act.

While the Department has identified Records No. 18 and 23 as containing information which is exempt from release pursuant to section 22(1)(a) of the FOI Act, having carefully examined these records, it seems to me that these records are held by the Secretary General of the Department in his capacity as Commission member of the CPSA. It also seems to me that he holds Records No. 17, 19 and 20 on the same basis. However, as the Department has already released Records No. 17, 19 and 20 to the applicant, and partly released Records No. 18 and 23, this review is concerned only with the question of whether a right of access exists to the redacted portions of Records No. 18 and 23.

The CPSA is a regulatory body with a primary responsibility to establish standards of "probity, merit, equity and fairness" for the recruitment and selection of persons for positions in the Civil Service and other public bodies. It is made up of a Commission and an Office of the Commission. The Commission has five ex-officio members: the Chairperson of Dáil Éireann (the Ceann Comhairle), the Ombudsman, the Secretary General of the Department of Public Expenditure and Reform, the Secretary General to the Government, and the chairperson of the of the Standards in Public Office Commission. The Office of the Commission comprises a Director and a number of staff members as may be designated from time to time. The Director and staff assist the Commission in carrying out its statutory functions. Records No. 18 and 23 are emails from the Office of the Commission to the Commission members of the CPSA setting out legal advice received from the CPSA's legal adviser in relation to the Judicial Review case taken by the applicant against the CPSA.

I note the applicant's contention that records like those at issue in this review are emailed on a regular basis to the Secretary General's private secretary at an official email address of the Department, and that, therefore, there is no question that they are within the control of the Department. However, as acknowledged by the applicant, the CPSA is a statutorily independent office. In his submission dated 30 August 2014, where the applicant addresses the issue of legal professional privilege, I note that he states that there is no agency relationship between the Department and the CPSA. I also note that he quotes the Minster for Public Expenditure and Reform as saying that the CPSA "is an independent entity" and that the Judicial Review proceedings between the CPSA and the applicant was "not relevant to any of the functions or responsibilities" of the Department. The records concerned were addressed to CPSA Commission members and I do not consider the fact that they were sent by way of emails to the private secretaries of these Commission members to be sufficient as to place these records under the control of the Department. While I accept that the Secretary General's private secretary is not a Commission member, it is common practice for correspondence for a Secretary General to be routed through his/her private secretary. The Secretary General is a member of a number of bodies by virtue of his position in the Department and it does not seem reasonable to me to expect correspondence relating to each of these to require separate, non-Departmental email addresses. I also do not consider that it would be reasonable, for administrative reasons, to expect such correspondence to bypass the Secretary General's private secretary.

It is noteworthy that in a recent High Court case, The Minister for Health and the Information Commissioner, O'Neill J. found that certain records in the possession of the Department of Health were not under its control. He stated as follows:

"I am satisfied that to hold that mere lawful possession of a document was sufficient to make that document amenable to disclosure under the 1997 Act, on the basis that the document was "held" by the public body within the meaning of s. 6(1) would give rise to absurd and wholly unintended consequences, albeit in rare circumstances."

I note the Public Service Management (Recruitment and Appointments) Act 2004 (the 2004 Act) which established the CPSA and in particular, section 13(2)(a), which provides that the Commission is independent in the exercise of its functions. I also note section 11(2) of the Act, which provides that the Commission is a body corporate with perpetual succession and a seal and with power to sue and be sued in its corporate name. Having regard to its nature and the provisions of the 2004 Act, I am satisfied that the CPSA is an independent statutory body. It seems clear to me that correspondence between the Office of the Commission and the Commission members does not constitute disclosure outside the organisation and does not constitute submission of the records concerned to the bodies to which the Commission members belong.

I note the applicant's argument that the recent High Court case Westwood Club v Information Commissioner & anor [2014] IEHC 375 (the Westwood case) significantly extends the question of when public bodies are deemed to be in control of records under the FOI Act. However, the facts of the case in this review are very different. In the Westwood case the records requested from a Town Council were created by a board of a company whose three directors were all employees of the Town Council in question. The Council asserted that it did not control the records concerned. It contended that the company, which it was 100% shareholder of, controlled the records in question. The Council had provided a loan in excess of €10 million to the company, which occupied a property owned by the Council, in respect of which it did not pay an open market rent. Having regard to all of these factors in the Westwood case, Cross J. held that the records were under the control of the Council. In this review, the CPSA is a separate, independent body, separately funded by the State and with its own remit and functions, including the establishment of standards of equity and fairness in the recruitment and selection of civil and public servants. While I recognise the presumption in favour of disclosure in the FOI Act, and the public interest in ensuring the openness and accountability of public bodies, in terms of access to records under the FOI Act, this can only apply where the public body concerned holds the records in question. In this regard Cross J. clearly stated that:

"I accept that proposition that while there is a presumption in favour of disclosure there is no absolute right to disclosure."

The applicant also notes that the Secretary General is a Commission member of the CPSA solely by virtue of his post in the Department and contends that it has been long established in prior determinations of this Office that where an official of a Department is on a public body due to his position then papers held by him are held by the Department. Having regard to previous decisions of this Office in relation to this issue (including Case No. 98098 (Mr. Mark Henry and the Department of Tourism, Sport and Recreation)), I am satisfied that the Secretary General holds the records sought as they were supplied to him as a Commission member of the CPSA, in the course of CPSA business. In my view, he holds those records as a Commission member of the CPSA, rather than as an official of the Department. Furthermore, I am satisfied that the records are not held by the Department for the purpose of the Department's business. I consider the records to be held by the CPSA for the purposes of the FOI Act and, on that basis, access may only be granted by the CPSA.

Regardless of the basis on which the Department decided to release Records No. 18 and 23 in part, this review can have regard only to whether a right of access exists by virtue of the provisions of the FOI Act. For a right of access to exist, the records sought must be held by, or under the control of, the Department in accordance with section 2(5)(a) of the Act. Having considered the nature of the records, and having regard to the provisions of the FOI Act, I find that they are not held by, or under the control of, the Department for the purposes of the Act. I find therefore that the Department was justified in refusing to release the relevant parts of Records No. 18 and 23.

Section 22(1)(a)
I mentioned earlier in this decision that the Department relied upon section 22(1)(a) of the FOI Act as the basis for withholding portions of Records No. 18 and 23. As I have found that the Department does not hold or control the records in question, it is not necessary to give consideration to the application of section 22(1)(a) of the Act to the records concerned. However, having carefully examined the records in question, the submissions of both parties in this regard and Ms Murdiff's email to the applicant setting out her view that the information concerned would be exempt from release under this section of the Act, I am satisfied that the information concerned would be exempt from release on the grounds of legal professional privilege under section 22(1)(a) of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the Department's decision to refuse access to the records concerned in accordance with sections 2(5)(a), 10(1)(a) and 28(1) 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