Whether the Department was justified in refusing to release the names of the employers that were excluded, at the date of the applicant's request, from further participation in the JobBridge Scheme (the scheme)

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

Background

On 21 April 2014, the applicant made an FOI request to the Department, seeking:

copies of the Department's "report on the 32 host organisations which have been excluded from any further participation in JobBridge";
copies of all briefing material provided to the Minister's office for the purposes of answering Parliamentary Questions 50873/13 on 28 November 2013; and
the "names of all companies that have availed of the scheme and the number of interns each has taken on plus dates".

The Department's decision of 17 June 2014 refused the names of the excluded organisations under sections 20, 21 and 27 of the FOI Act. It also refused to release any of the requested details pertaining to companies that had taken on interns but who "wished their details to remain anonymous", on the basis that section 26 of the FOI Act applied. As I understand it, an employer choosing to participate in JobBridge is asked "Would you like the details of your company NOT to be shown for this vacancy (a so-called closed vacancy)". The employer must choose one of two options: "closed" or "open". The Department's decision considered those employers who had chosen the "closed" option as having "wished their details to remain anonymous". I will refer to these employers as "closed vacancy employers" in the remainder of this decision. The Department released the requested briefing materials and details pertaining to companies that had selected the "open" vacancy option.

The applicant sought an internal review of the Department's decision on 2 July 2014, which affirmed its earlier decision on 24 July 2014.

On 22 September 2014, this Office received the applicant's application for a review of the Department's refusal of the details he had requested pertaining to the excluded organisations and the closed vacancy employers.

Ms Anne Lyons, Investigator, wrote to the applicant on 5 March 2015, clarifying the scope of this review. She noted that while the applicant had sought "reports" on the 32 host organisations, the Department had confirmed that it did not specifically identify, or consider for release, any individual reports that are encompassed by the relevant part of his request. It instead had focussed its decisions on the names of such organisations. Ms Lyons explained that the review in the case at hand would consider only the Department's refusal of the names of the excluded host organisations accordingly.

In relation to that element of the request that sought the "names of all companies that have availed of the scheme and the number of interns each have taken on plus dates", Ms Lyons explained that she considered it reasonable for the Department to have understood this to concern only the names of those employers who took on interns (as opposed to also seeking names of employers who sought to participate in the JobBridge scheme and for whatever reason did not take on interns). She said that the review would consider the withheld relevant details of such companies that "wished their details to remain anonymous".

The applicant did not reply to Ms Lyons' letter.

On 19 March 2015, Ms Lyons, having obtained the relevant contact details from the Department, sought submissions from the various excluded employers as to why release of details identifying them as excluded employers should be withheld under the FOI Act. On 20 March 2015, she sought submissions from the Department on this matter and also on why the requested details pertaining to the closed vacancy companies should be withheld.

By close of business on 23 March 2015, Ms Lyons had been contacted by six employers, who alleged that the Department had not treated them fairly in deciding to exclude them from further participation in the scheme. In dealing with records generated by public bodies, my Office generally assumes that the requirements of fair procedure have been complied with by those bodies. However, because of the similar themes emerging in the contacts from the employers, Ms Lyons emailed the Department on 23 March 2015 to ask it to confirm in its submission whether it had complied with the requirements of fair procedure when deciding to exclude the organisations whose names are at issue. I note that Ms Lyons received similar comments from roughly half of the consulted employers over the following month (the others made no comment at all). On 24 April 2015, the Department made its submission as to why the names of the excluded companies should be withheld.

I am very pleased to note that, on 27 April 2015, the Department confirmed that it no longer intended to refuse any requests for names of participating employers. On 25 May 2015, it confirmed that it had released all details requested by the applicant pertaining to closed vacancy employers.

On 9 June 2015, Ms Lyons emailed the Department to outline why, having regard to particular circumstances on which I will elaborate later in this decision, she considered I should find that the names of the excluded employers be withheld. The Department responded positively to her email on the same date. Two days later, Ms Lyons wrote to the applicant to explain her position. She invited the applicant to make any further submissions he wished, and asked for such submissions to be sent to her by 25 June 2015. As no reply to Ms Lyons' letter has been received, I must now conclude this review by way of a final, binding, decision.

In carrying out my review, I have had regard to various correspondence between this Office and the Department, the third parties, and the applicant, including those specified above. I have had regard also 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

In light of the Department's release of all requested details pertaining to closed vacancy employers, the scope of this review is confined to the sole issue of whether the Department has justified its refusal of the names of those organisations that, as at 21 April 2014, were excluded from further participation in the scheme.

Findings

Preliminary Matters
At the outset, it is relevant to note a number of preliminary matters.

Section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 7 shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified. Although I am obliged to give reasons for my decision, section 43(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Names of the Excluded Companies

Section 27(1)(b) is a mandatory exemption that must be applied to information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 27(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. Revelation of the names at issue in this case discloses that the relevant employer has somehow breached the requirements of the scheme, which I accept would reflect negatively on that employer and could be used by its competitors to their advantage. Therefore, I accept that release of the names at issue in this case could reasonably be expected to prejudice the competitive position of the employers in the conduct of their profession or business or otherwise in his or her occupation. I accept, and find accordingly, that the names of the excluded companies are exempt under section 27(1)(b) of the FOI Act.

A small number of the letters sent to the relevant employers were returned undelivered due to the company no longer being at the relevant address. This may mean that the company has moved, or that it is no longer in operation. I do not consider it necessary for the purposes of my review for me to track down the relevant companies, or establish if they are still going concerns. It seems to me that disclosure of the relevant employer names in this case can be taken as also reflecting on the business performance of those who operated that particular concern and with whom I have been unable to consult. These persons may be operating other businesses today and I consider section 27(1)(b) to apply to the names of those employers whose letters of consultation were not delivered.

There are a number of exceptions to the exemption at section 27(1)(b). Section 27(2) provides that details to which section 27(1)(b) applies may be released if (a) the party to which the information relates consent to the release of the details concerned; (b) information of the same kind as that at issue in respect of persons generally or a class of persons that is, having regard to all the circumstances, of significant size, is available to the general public; the record relates only to the requester; (d) the information at issue was given to the body by the person to whom it relates and the person was informed on behalf of the body, before its being so given, that the information belongs to a class of information that would or might be made available to the general public; or (e) disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or the environment. I do not consider any of these exceptions to apply in the case at hand.

Section 27(3) provides for release of a record to which section 27(1)(b) applies where the public interest would, on balance, be better served by granting than by refusing to grant the request concerned.

The July 2011 Supreme Court judgment, in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner,[2011] 1 IR 729, [2011] IESC 26), has indicated that I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

There is a general public interest in ensuring that persons can exercise their rights under the FOI Act. Furthermore, the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, section 27(3) also recognises a public interest in protecting the release of information to which section 27(1)(b) applies. Thus, in the case at hand, I must consider whether the public interest served by granting the request (and releasing information that I accept to be exempt under section 27(1)(b)) is sufficiently strong to outweigh the public interest in protecting that information.

In the case at hand, I consider there to be a strong public interest in ensuring openness and accountability in respect of the Department's operation and monitoring of the scheme. This public interest is, in my view, particularly weighty in this case, given that employers taking part in the scheme indirectly benefit from State monies (in that, simply put, the State bears the costs of the interns concerned). It would undoubtedly serve that public interest if I directed release of the names of the organisations that the Department has found to have breached the scheme's requirements.

Normally, this Office assumes that public bodies have complied with the requirements of fair procedure in their dealings with any person or entity and reviews proceed accordingly. However, as noted above, further to comments received from a number of third parties, Ms Lyons felt it appropriate to seek confirmation from the Department as to whether or not it believed it had complied with the requirements of fair procedure in its decision to exclude the relevant employers in this case. I should make it clear that I consider myself to have no role in determining whether any public body has met the requirements of fair procedure in any area, or in making any finding on the question of maladministration, which would be a matter for me to consider in my entirely separate role as Ombudsman.

Having considered the relevant records, the Department told this Office that it felt it had not complied with fair procedure in respect of a number of employers that it had not notified in writing of their exclusion from the scheme.

The Department also explained that when the scheme was first introduced, it was intended to run for two years. Thus, bans were for the duration of the scheme. However, when it extended the scheme, the Department said it did not review the excluded companies to consider whether they should still remain on the list. It says it intends to review the continued exclusion of the companies at issue in this case, but feels it likely that a number will have served a period of exclusion that is more than appropriate given the nature of the breach involved. The Department said that, in addition, it only adopted a formal complaints procedure in August 2014. Importantly in my view, it also now applies defined periods of sanction that relate to the type of breach that has taken place. In all, I consider this to amount to an effective acknowledgment on the Department's part that the continued exclusion of the various employers on the list, as at the date of the request in this case, did not necessarily comply with the requirements of fair procedure. I note that the Department did not take issue with Ms Lyons' interpretation of its position accordingly.

In these very particular circumstances, I consider the public interest to weigh in favour of withholding the names of the organisations that were excluded from further participation in the scheme as at the date of the request at issue, and find accordingly. I consider that to direct the release of the names of the excluded employers would be to risk identifying those employers as having breached or abused the scheme in circumstances where the Department accepts that, in at least some instances, its decision to exclude the employers from the scheme may have been flawed. This is not to be taken, however, as an indication that I would, as a matter of course, find that the public interest weighs in favour of withholding the names of employers that have been excluded from the scheme. Indeed, I must stress here that I am very unhappy to have to find that I cannot direct release of the list of excluded employers in this instance.

It is most unfortunate that this means that the names of any employers that were notified of their exclusion, and whose continued existence on the list as at the date of the request was justified, will remain withheld. While it is open to the applicant to submit a fresh FOI request for the list of excluded employers as it stands once the Department has conducted its review of the employers whose names are at issue in this case, given the passage of time, that up to date list may not necessarily include any such employers whose presence on the list as at 21 April 2014 was justified. However, I do not consider it in the public interest to direct the release the names at issue where, in particular, the Department's position is that the continued exclusion of the various employers as at the date of the request was not necessarily appropriate.

Given my findings above, there is no need for me to consider the Department's application of any other provisions of the Act that it relied on in its decision making process.

"Reports" on Excluded Companies
The Department did not explain to this Office why it considered a request for "reports" to cover only the names of the parties referred to in such reports. It may well be that the applicant is not concerned with anything other than the names of the organisations concerned, as suggested by his OIC application. Indeed, I note the Department's arguments that it does not necessarily hold detailed reports, in that it has said that the outcome of its investigations into the excluded companies amount in some cases to only a paragraph or few lines. However, it is not appropriate for a public body to unilaterally narrow the scope of any aspect of an FOI request.

The result of all this is that the Department effectively refused that aspect of the applicant's FOI request encompassing "reports" it holds on the excluded companies. While section 34(12)(b) requires me to direct the release of records where a public body has not justified their refusal, I do not consider it appropriate to do so in this case given that whatever records that exist affect the interests of third parties the names of which I have already found should be withheld. I have also considered whether I should annul the Department's effective refusal of "reports" concerning the employers who were excluded as at the date of the request in this case, and to direct that the Department undertake a fresh decision making process in respect of those records. This is normally the direction I make in such circumstances. However, I see little merit in doing so in the circumstances of this case. I see no basis on which I would consider it appropriate to direct full or partial release of the "reports" pertaining to the excluded companies when I have found that their names should be withheld in the particular circumstances outlined above. Again, this is not to be taken as any indication on my part that I would generally find in favour of fully or partially withholding such reports.

In the very particular circumstances of this case, I find section 27(1)(b) of the FOI Act to apply to the requested reports, and I also find that the public interest weighs in favour of withholding the records concerned.

Decision

Having carried out a review under section 34(2) of the FOI Act, and having regard to the very particular circumstances of this case, I hereby affirm the Department's refusal of access to the names of the companies who were excluded from further participation in the scheme as at 21 April 2014 under section 27(1)(b) of the FOI Act, and any such related reports that exist.

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.

Peter Tyndall
Information Commissioner