Whether the Council was justified in refusing to confirm or deny the existence of certain records sought by the applicant, which he contended related to an investigation into the conduct of a named Council employee

Conducted in accordance with section 34(2) of the FOI Act, by Peter Tyndall, Information Commissioner

Background

On 7 March 2014, the applicant made the following request to the Council under the FOI Act.

" ... My request primarily relates to an investigation that was carried out into an agreement to buy land at Deerpark, Charleville. The land in question was the focus of an investigation into the conduct of [name of Council official]. It arose from the purchase of land from [two named parties].

I seek

• A copy of all investigation reports or reviews, draft or otherwise, in relation to this deal;
• A copy of all affidavits sworn on behalf of the council (sic) arising from or related to this case;
• A copy of any report, memo or document from the internal audit department arising from this case;
• A copy of any correspondence with Cork City Council or the Local Government Auditor in relation to this case.

 

The Council's decision of 9 May 2014 refused to confirm or deny the existence of the records requested above on the basis that do so "would disclose personal information contrary to section 28(1) of the legislation".

The schedule to its decision also referred to section "28(5A)(b) of the FOI Act", as well as other provisions of the Act it considered potentially applicable to such documents. The Council also released records to the applicant further to the three other aspects of his request, the details of which I see no reason to include in this decision.

The applicant sought an internal review of the Council's decision on 12 May 2014, in which he made a number of arguments as to why he felt his request should be granted. On 9 June 2014, the Council affirmed its refusal to confirm or deny the existence of the records requested at parts 1. to 4. of his request, again relying on what it referred to as "section 28(5A)(b)" of the FOI Act. On 17 June 2014, the applicant sought a review by this Office of the Council's decision.

In carrying out my review, I have had regard to the above correspondence; to various correspondence between the Council and this Office; and to the provisions of the FOI Act.

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.

Scope of the Review

The scope of this review is confined to whether the Council has justified its refusal to confirm or deny the existence of the records requested by the applicant at parts 1. to 4. of his FOI request of 7 March 2014.

Findings

Section 28(5A)
Although the Council's internal review decision, and its initial submission to this Office, referred to "section 28(5A)(b)"/section 28(5)(A)(b)", I am satisfied that section 28(5A) is the primary provision of the FOI Act on which the Council intended to rely in refusing to confirm or deny the existence of the requested records.

Section 28(5A) provides as follows:

"Where-

(a) a request under section 7 relates to a record to which subsection (1) applies but to which subsections (2) and (5) do not apply or would not, if the record existed, apply, and

(b) in the opinion of the head concerned the disclosure of the existence or non-existence of the record would have the effect specified in subsection (1),

he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists."

This provision of the Act is intended to protect the personal information of a third party in situations where knowledge of the existence, or non-existence, of particular records would effectively disclose that party's personal information. The usefulness of the section 28(5A) depends upon it being invoked both in instances in which relevant records do not exist as well as in cases in which relevant records do exist. For reasons I will elaborate on below, to confirm that an employee had been under investigation for alleged wrong-doing would be to disclose personal information of that employee. It is also the case that to state that no such investigation was conducted would also disclose personal information of that employee.

Consideration of section 28(5A) must be conducted on the basis of what would be the case were the Council to hold records of the kind sought by the requester, rather than on whether or not such records are actually held. Furthermore, while section 34(10) of the FOI Act requires me to give reasons for my decision, section 43(3) also requires me not to disclose information that is exempt or which is claimed to be exempt. Therefore, I cannot outline in detail the reasons for certain aspects of my decision in the circumstances of this case, and I must be careful not to disclose whether or not the specific records sought by the requester do, or do not, exist.

Analysis

The Terms of the Request

At the outset, I wish to make it clear that I take the view that it is in the public domain that an inquiry or investigation was held by the Council into its agreement to buy lands at Deerpark, Charleville in April 2006. It seems to me that to refuse to confirm or deny the existence of any records concerning the fact that such an investigation took place would not be a realistic proposition in circumstances where the Council had previously confirmed this fact.

For example, I note that, as early as 13 July 2006, the Irish Examiner reported that the County Manager had appointed the Head of Personnel to conduct an internal investigation following complaints about the Council's handling of the land deal. On 12 June 2007, the Irish Examiner further reported that a published Local Government Audit Service Report made reference to the land deal and investigations concerning staff members of the Council. I note also that the minutes of the Council meeting held on 11 June 2007 record that the then ongoing investigation into property dealings in North Cork was referred to in the course of a discussion on the Local Government Auditor's Report for the year 2005. On 23 February 2008, an Irish Times report quoted a Council statement to the effect that a disciplinary process had commenced into the conduct of an official and that "a comprehensive and in depth investigation had been completed". The Council was reported as having said that "a statement is being prepared for An Garda Síochána". The same report mentioned that a case taken by the vendors against the Council had been settled in the High Court. More recently, on 12 February 2013, the Irish Times reported that the Council's disciplinary process had concluded with the retirement of an official on health grounds.

Thus, the disclosure of nothing more than the fact that the Council holds records concerning that investigation and the land deal would not, in itself, disclose personal information. If the Council had to make a decision on an FOI request for access to such records, I consider that it would be obliged to examine the records that it held and consider whether any of the exemptions in the Act applied to them. In other words, it would not be open to it to "neither confirm nor deny" the existence of the investigation and related records.

However, the applicant did not choose to make an FOI request for access to records of the investigation generally. Instead, it seems to me that parts 1. to 4. of his request are predicated on the applicant's contention that the investigation into the "deal" focused on "the conduct of" the named employee. Thus, I consider parts 1. to 4. of the request to seek access to any of the specified records arising from any investigation carried out by the Council into the conduct of the named official in relation to the agreement to purchase the land in question. Accordingly, the question I must consider is whether confirmation of the existence or non-existence of such records would disclose personal information relating to the named official, and if so, whether a right of access to such records exists.

Section 28(5A)

For section 28(5A) to apply, the following requirements must be satisfied:
the records sought must be of a type which disclose the personal information of a third party and which, on the face of it, are exempt from release by virtue of section 28(1) of the FOI Act;
none of the exceptions to the section 28(1) exemption, contained at sub-sections (2) or (5) of section 28, applies or, in the case where relevant records do not exist, would apply if such records did exist and
the head of the public body must form the opinion that to state whether or not relevant records exist would in itself be to disclose the personal information of a third party.

 

1. Would the Records Constitute "Personal Information"?

Section 2 of the FOI Act defines "personal information", and goes on to list 12 specific categories of information that comprise personal information.

Of these, the following categories are of relevance to the present case: (iii) information relating to the employment or employment history of the individual; (iv) information relating to the individual in a record falling within section 6(6)(a); and (xii) the views or opinions of another person about the individual. By referring to section 6(6)(a) of the FOI Act, category (iv) includes the personnel record of a public body employee within the definition of "personal information". Section 6(6)(a) defines a personnel record as "a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member".

However, section 2 also provides that certain types of information about an individual public body employee are excluded from the definition of "personal information". Thus, it might be argued that the requested records, if they exist, cannot constitute personal information as they relate to the conduct of a public servant in carrying out official duties.

Section 2 provides that personal information does not include:

"(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,"

Applying this qualification to the circumstances of this case, it is clear that the following do not constitute personal information: the name of the individual in the context of being an employee of the Council; information regarding the office or functions of that employee within the Council; the terms upon which the employee holds office or performs a function; records created by that employee in the course, of and for the purpose of, the performance of the functions assigned.

As already stated, I consider parts 1. to 4. of the request at issue to seek access to any of the specified records that confirm if the named employee was the subject of an internal investigation. Any such records (if they exist) pre-suppose alleged misconduct; they suggest the likelihood of complaints having been made, and of an investigation into that official's actions. If it were the case that the employee had been involved in misconduct, and that this misconduct arose in the course of the employee's work, I do not accept that any such misconduct could be characterised as being for the purpose of the performance of the employee's functions. While misconduct may sometimes occur while at work, and indeed may be facilitated by virtue of the work position held by an individual, it cannot be said to be something done for the purposes of performing one's work functions. Accordingly, the qualification on the definition of "personal information" cited above does not apply to the type of information sought by the requester.

Having considered the matter carefully, I am satisfied that the records I consider to have been requested at parts 1. to 4. of the applicant's request would, if they exist, fall into categories (iii), (iv) and (xii) of the 12 categories of personal information specified by the FOI Act.

I find, therefore, that the records sought, if they existed, would constitute personal information and that, on the face of it, they would be exempt from release under section 28(1) of the FOI Act (which provides for the mandatory refusal of personal information about an individual other than the requester).

2. Do any of the Exceptions to Section 28(1) Apply?

While section 28(1) prohibits the disclosure of personal information where it is sought under FOI, this is not an absolute prohibition. Within section 28 there are some exceptions to the general rule that personal information will not be disclosed. The exceptions of possible relevance in this case are those contained at sub-sections (2) and (5) of section 28.

Subsection 2 of section 28 provides that section 28(1) does not apply to a record if (a) the third party information contained in the records relates solely to the applicant; (b) the third party has consented to the release of their information; (c) the information is of a kind that is available to the general public; (d) the information at issue belongs to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

I am satisfied that none of these provisions has relevance in the present case. I find that section 28(2) would not apply to the requested records, if they existed.

Section 28(5) provides that a record, which is otherwise exempt under section 28(1), 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), 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".

The applicant's internal review application makes a number of comments, which I take to be arguments that the public interest in release of any relevant records (if they exist) outweighs the public interest in respecting the right to privacy of the employee concerned. He has referred to the need for "good corporate governance" and proper "administration of public money", which I take to relate to the public interest, recognised by the FOI Act itself, in ensuring the openness and accountability of public bodies.

On the other hand, however, 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.

Having considered the matter very carefully, and based on all of the information available to me, I take the view that if records of the type sought by the requester exist, the public interest served by their release would not outweigh the public interest in upholding the right to privacy of the employee concerned. I find accordingly.

The effect of section 28(5)(b) is that a record, which has been found to be exempt under section 28(1), may still be released if it can be demonstrated that the grant of the request would benefit the third party or parties whose personal information is also contained in the records. There is no obvious case, nor has such a case been made, that the release of relevant records to the requester (if such records exist) would be to the benefit of the named official. Thus, I find also that section 28(5)(b) would not apply in this case if the requested records existed.

In summary, therefore, I find that if the records sought at parts 1. to 4. of the request exist, none of the exceptions to section 28(1), as provided for in section 28(2) and section 28(5), would apply in this case.

3. Would Disclosure of Existence or Non-Existence of Records Amount to Disclosure of Personal Information?

There are two possibilities here. The first is that the Council does, in fact, hold records of the type sought by the requester. In this event, disclosure of the existence of such records will convey some or all of the following: that allegations of misconduct have been made against the named employee; that the Council has grounds for believing the employee may have engaged in misconduct; that the Council has investigated the employee's actions; that such an investigation is on-going or that such an investigation has been concluded. For the reasons already set out above, I am satisfied that to disclose that records of this type exist would be to disclose personal information.

The second possibility is that the Council does not hold records of the type sought by the requester. Knowledge that this is the situation would disclose that the Council has no record of allegations of misconduct having been made against the employee and no record of any investigative or disciplinary process having been conducted. While this may be less obvious than in the case where the existence of relevant records is confirmed, I am satisfied that confirmation that no such records exist would also cause the disclosure of personal information. For example, disclosing that no allegations of wrong-doing have been made against an employee of a public body is to disclose information regarding the employee's "employment or employment history"; similarly, it is to disclose in a general sense what is contained in the employee's personnel file; and, finally, it is to disclose the "views or opinions of another person about the individual" in as much as it discloses that such views held do not include a view that the employee has engaged in misconduct or in a breach of discipline.

Accordingly, I find in this case that to disclose the existence, or non-existence, of records of the type sought by the requester would be to disclose personal information.

I note that my predecessor as Information Commissioner dealt with similar issues and circumstances to the case at hand in her decision in Case Number 080050 (Philip Boucher-Hayes, RTE and County Council X on www.oic.ie); I agree with her analysis in relation to the application of the relevant exemption.

Section 28(5A) - Summary

For the reasons set out above, I find that each of the three requirements for the application of section 28(5A) is satisfied in this case, having regard to the specific nature of the applicant's request. Accordingly, I find that the Council is justified in its reliance on section 28(5A) as the basis for refusing the request, and as the basis for refusing to disclose to the requester whether or not records of the type sought at parts 1. to 4. of his request do, or do not, exist.

In the light of my finding above, it is not necessary for me to consider the other exemptions relied upon by the Council in refusing the request. As I have indicated earlier, if an FOI request for access to the investigation report itself and/or related records was made it would fall be considered by the Council under the various provisions of the FOI Act 2014 including the public interest balancing test where required.

Decision

Having carried out a review under section 34(2) of the FOI Act 1997 (as amended) I hereby affirm the decision of the Council in this case.

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.

Peter Tyndall
Information Commissioner