Whether the Institution was justified in its decision to refuse access to records concerning the applicant's employment under sections 10(1)(a), 20(1), and 21(1)(b) of the FOI Act.

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

Background

On 29 August 2013, the applicant made an FOI request to the Institution for:

1. A copy of the file on his application for promotion in 2008,
2. Copies of all documents in his file in the HR Department since 1 September 2011,
3. Copies of all correspondence sent by two members of academic staff and the HR Department in which he is mentioned since 1 September 2011,
4. Details of meetings or discussions that have taken place between the above relating to the applicant since 1 September 2011.

On 27 September 2013, the Institution granted partial access to the records requested. The applicant sought an internal review of this decision. On 3 April 2014, the Institution varied its original decision and released further records to the applicant. On 28 September 2014, the applicant applied to this Office for a review of the decision of the Institution. Both the applicant and the Institution made submissions in the course of the review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this. In conducting this review, I have had regard to correspondence between the applicant and the Institution, to correspondence between the Institution and this Office, to correspondence between the applicant and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

The Institution identified 98 records as relevant to the applicant's request, it decided to release 81 of these records in full. It released six records in part on the basis that the information redacted was personal information and was exempt under section 28 of the Act. The Institution refused to release eleven records on the basis that they were exempt under sections 20(1) and/or 21(1)(b) of the Act. In submissions to this Office the applicant claimed that the Institution ought to hold further records relevant to his request. On 5 August 2015, the applicant confirmed in writing to this Office that he was willing to exclude the records redacted under section 28 from the scope of this review. On 4 September 2015, the Institution confirmed that, in light of the passage of time, it was willing to release all of the records which it had claimed were exempt under sections 20(1) and or 21(1)(b) with two exceptions, records 48 held by HR and record 13 held by a member of academic staff.

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 Review

In light of the Institution's release of certain records in the course of the review as outlined above, the scope of this review is confined to the following two questions:

(i) whether the Institution was justified in deciding that no further records exist which are relevant to the applicant's request i.e. whether section 10(1)(a) of the Act applies,

(ii) whether the Institution was justified in refusing to release records 48 and 13 on the grounds that these records are exempt under sections 20(1) and or 21(1)(b) of the Act.

Preliminary Matters

Section 34(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the Institution to satisfy me that its decision is justified.

I am required to give reasons for my decision; this is subject to the requirement of section 43 (3) that I take all reasonable precautions in 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 and the circumstances of their creation is somewhat limited.

Finally, the applicant has made submissions in relation to the inadequacy of the Institution's practices and procedures for the purposes of compliance with the FOI Act. An assessment of the Institution's practice and procedures, if it were deemed necessary, would have to be carried out pursuant to section 36 of the FOI Act, while this review, conducted pursuant to section 34 of the FOI Act, must be confined to reviewing whether the Institution has justified its refusal of the request under the FOI Act.

Analysis and Findings

Section 10(1)(a)
The applicant argues that further records relevant to his request ought to exist and have not been released. In such cases the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means the Commissioner 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 was reasonable. The Commissioner's understanding of his 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. available on this Office's website at www.oic.ie).

The applicant states that under parts 2, 3 and 4 of his request he sought records dating back to 1 September 2011. The applicant points out that the records he received from HR and two members of academic staff were all from dates in 2013. The applicant argues that it is difficult to understand how the HR Department and the two members of academic staff, who were the applicant's manager and the head of the school he works in, would have no records mentioning the applicant from 2011 or 2012.

The Institution states that, in response to parts 1 and 2 of the applicant's request, the applicant was provided with a copy of all records in his promotion application file and his personnel file, both of which were stored in hardcopy in the HR Department. It says that, in relation to part 3 of the applicant's request, almost all of the records which exist are emails. The length of time such email correspondence is retained is not standardised across the Institution. Prior to January 2013, there was no correspondence about the applicant between the two members of academic staff and the HR Department. The Institution explains that the reason for this is that the applicant only raised issues in relation to his employment with the Institution in early 2013. In relation to part 4 of the applicant's request the Institution pointed out that no formal dispute resolution mechanisms have been invoked by the applicant to date. Attempts to resolve the applicant's issues have been ongoing for some time on an informal basis. In such circumstances, it would not be unusual for very few records to be created. According to the Institution, the contacts between the two members of academic staff were on an informal basis with a view to resolving the issues with the applicant. The only records of any dates of meetings etc. were the diary/calendar entries which were provided to the applicant.

The applicant has not pointed to any specific record which he thinks exists and which was not provided to him. In the absence of any details of records which the applicant contends actually exist, this Office, as is its practice in these type of cases put questions to the Institution about the steps taken to search for records and its record management policy. According to the Institution, the applicant's promotion and personnel file were searched manually by staff in HR; electronic searches of email, diary entries and electronic records were conducted by HR personnel and the two members of academic staff. In addition to these searches, the Institution's IT Services Department was also asked to search the servers for records sent by and to HR staff. I am satisfied having regard to the information provided by the Institution that reasonable searches have been carried out. I find that section 10(1)(a) applies to the applicant's requests 1-4.

Section 20(1)
The Institution has refused to release record 48 held by HR and record 13 held by one member of academic staff on the basis that these records contain material in relation to the Institution's Academic Workload Distribution Model (AWDM) and are exempt under section 20(1) of the Act. Section 20(1) allows a head to refuse to grant a request for information if the record concerned contains matter relating to the deliberative processes of a public body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of staff of the body for the purpose of those processes. Section 20(1) of the Act is subject to consideration of the public interest.

In his submissions to this Office, the applicant argues that deliberations in relation to the AWDM were completed by late 2011/early 2012. The applicant argues therefore, that records 48 and 13, which both date from 2013, should not qualify for exemption on the basis that they contain matter relating to the deliberative processes of the Institution. The applicant provided background as to his views on the dates of introduction of the model. The applicant also points out that records 48 and 13 relate to his workload and it would be unlikely that deliberations in relation to the workings of the model in general were taking place in correspondence specifically related to his personal workload. Finally, the applicant argues that the Institution failed to properly address the public interest as required by section 20(1).

The Institution argues that the records which were exempted under section 20 relate to the Institution's consideration of the AWDM and specifically to discussions undertaken with the applicant with regard to his workload under that model. According to the Institution, the workload allocation distribution model is in its final pilot cycle therefore the deliberative process is still ongoing. The Institution states that the applicant raised multiple issues regarding his workload under the model and it has a policy in all such cases to pursue informal resolution. That informal resolution is ongoing and is linked to the deliberative processes within the Institution on the model itself. The Institution states that the public interest arguments in favour of release that were considered include transparency and openness in its operations. However the Institution considered that the public interest would be better served by the Institution being in a position to consider such schemes, particularly as required by the Department of Education and Skills and the Higher Education Authority and to deliberate on such matters until the Institution is satisfied that an appropriate and objective workload allocation system is in place in the Institution.

A deliberative process can be described as a thinking process that refers to the way an FOI body makes decisions. It involves the gathering of information from a variety of sources, and weighing up or considering carefully all of the information and facts obtained with a view to making a decision, or reflecting upon the reasons for or against a particular choice. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. I am limited in the description that I can give of the records by section 43(3) of the Act. I can say that both records consist of short emails which concern specific work place issues in relation to the applicant. Neither record consists of a weighing up or balancing of competing options in relation to the AWDM. I would draw a distinction between deliberating on a workload distribution model which is to apply to all staff and deciding on how to deal with specific workplace issues in relation to a single member of staff. I have considered records 48 and 13 closely and I am not satisfied that they contain material relating to the deliberative process concerning the AWDM. I find therefore that records 48 and 13 are not exempt under section 20(1). In light of this finding it is not necessary to consider the question of where the public interest lies under section 20(1) of the Act.

Section 21(1)(b)

The Institution has also refused to release records 48 and 13 on the basis that these records are exempt under section 21(1)(b) of the Act. Section 21(1)(b) allows a head to refuse to grant a request for information if access to the record concerned could 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). Section 21(1)(b) of the Act is subject to consideration of the public interest.

The applicant states that what he is looking for are records which relate specifically to him. He argues that there is no reason to believe that disclosure of records which relate to him could have a significant adverse effect on the management functions of the Institution. The applicant argues that releasing the records would not harm the Institution's ability to resolve the applicant's employment issues as openness and transparency in relation to the records would assist with an informal resolution of matters.

The Institution argues that release of records 48 and 13 could damage the possibility of informal resolution of the issues raised by the applicant with the Institution. Release of the records could also damage the process of establishing or finalising a workload model which is fair, objective, transparent and acceptable to all academic staff. The Institution submits that in these circumstances the public interest is better served through the internal management of staff issues and the informal resolution of difficulties that arise within the Institution rather than the release of information to the applicant as a member of the public at large, with possible ongoing detriment to the possibility of internal/informal resolution.

In arriving at a decision to claim a section 21 exemption, a decision maker must identify the potential harm to the functions covered by the exemption that might arise from disclosure, having identified that harm the decision maker must consider the reasonableness of any expectation that the harm will occur. To show that the expectation that harm will occur is reasonable, the decision maker must explain how and why he or she believes release of these particular records will give rise to the harm envisaged. The Institution argues that release of the records could harm the prospect of reaching an informal solution to the applicant's employment issues. The Institution has not however tied the content of the records to the harm envisaged, nor has it explained why it is reasonable to expect harm in the context of its performance of its management functions. I accept that cases arise in which release of records disclosing information about a specific staff member or dispute could have a significant adverse effect on the staff management and industrial relations management of a public body.
However in these particular circumstances, I am not satisfied that there is a basis for deciding that the records should be withheld. The Institution also cites harm to finalising the AWDM as another reason why the records should be refused under section 21(1)(b). As stated above, records 48 and 13 consist of short emails dealing with specific workplace issues in relation to the applicant. Neither record mentions the workload model. I find that section 21(1)(b) does not apply to records 48 and 13. In light of this finding it is not necessary to consider the question of where the public interest lies under section 21(1)(b) of the Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Institution. I affirm the Institution's decision that section 10(1)(a) is applicable as no further records exist which are relevant to the applicant's request. I annul the Institution's decision that records 48 held by the Department of Human Resources and 13 held by a member of academic staff are exempt under sections 20(1) and/or 21(1)(b) of the Act and I direct that the Institution to release these records to the applicant. The Institution has agreed to the release of the following records: records 37, 41, 45 and 54 held by the Department of Human Resources, records 1, 3, 10, 11, and 17 held by members of academic staff. If it has not already done, I direct that the Institution also releases these records to the applicant.

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.

Elizabeth Dolan
Senior Investigator