Whether the Department was justified in refusing to release general details concerning employers that were "banned", as at 20 January 2015, from "using the JobBridge Scheme (the scheme) since its establishment"

Conducted in accordance with section 22(2) of the FOI Act, by Peter Tyndall, Information Commissioner

Background

On 20 January 2015, the applicant made an FOI request to the Department, seeking "details of all companies 'banned' from using [the scheme] since its establishment" and "all correspondence with the banned companies informing them of their ban and all correspondence following the ban."

The Department's decision of 12 February 2015 refused to release details of "the identity" of the relevant employers under sections 29(1), 30(1)(a), and 36(1)(b) of the FOI Act. By way of an undated application, which the Department considered to be dated 13 March 2015, the applicant sought an internal review of this decision. Its internal review decision, dated 2 April 2015, affirmed its refusal to release the "identity of [relevant employers]".

On 14 April 2015, this Office received the applicant's application for a review of the Department's refusal of his request.

Ms Anne Lyons, Investigator, wrote to the applicant on 4 August 2015, clarifying that the scope of the review would be confined to the sole issue of whether the Department has justified its refusal of general details pertaining to the "banned" employers that it had considered on foot of the request. These general details comprised the names, general region and county in which the employers are situated, dates and duration of bans, and summary details of the rationale for the bans. Ms Lyons explained that, while the applicant had sought "correspondence" relating to the various host organisations, the Department had not specifically identified or considered the contents of any such correspondence it holds (an effective refusal of that correspondence). She went on to say that she would recommend that I should annul the Department's effective refusal of those records, and direct it to identify, and decide whether or not to release, the requested records.

Ms Lyons also referred the applicant to my recent decision in case reference number 140253 (available at http://www.oic.gov.ie/en/Decisions/Decisions/Mr-Ciarán-Doherty-and-the-Department-of-Social-Protection.html). That decision concerned a request for the names of employers who had been excluded from further participation in the scheme as at 21 April 2014. In the course of that review, it emerged that the continued exclusion of the various employers, as at 21 April 2014, did not necessarily comply with the requirements of fair procedure. For this and other reasons set out in that decision, I considered that it was not in the public interest to direct the release of the details at issue in that case.

Ms Lyons explained to the applicant why, having regard to my decision in case reference number 140253, she felt that the majority of the details at issue in the present case should not be released. She also explained that she was consulting with the remaining employers whose details were at issue, to invite their views on whether the requested details should be withheld, given the Department's stated position that it had complied with fair procedure in sanctioning the employers concerned.

Also on 4 August 2015, Ms Lyons consulted with the 11 employers concerned. A small number of the letters sent to these employers were returned undelivered due to the company no longer being at the relevant address. The letters were subsequently sent again to the employers at other addresses supplied to this Office by the Department and, to date, have not been returned undelivered. Therefore, I think it is reasonable to proceed on the basis that all relevant employers were given an opportunity to make submissions.

Ms Lyons was contacted by six of those employers who, by and large, contended that the Department had not treated them fairly in its decisions to impose sanctions on them. Ms Lyons referred the general details of these employers' views to the Department. On 24 August 2015, the Department stated in response that one of the 11 employers had been placed on the list in error while, on 31 August 2015, it further said that it was satisfied another of the employers (which had contacted it directly on foot of Ms Lyons' letter) had not been afforded fair procedure.

As explained in my decision in case reference number 140253, 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. In the present case, however, Ms Lyons noted the factors that informed my decision in case reference number 140253, the similarity of claims made by the employers that responded to her, and the content of the Department's August 2015 responses. Thus, on 31 August 2015, Ms Lyons asked the Department to confirm that it remained of the view that it had complied with the requirements of fair procedure when deciding to exclude the nine remaining organisations, including those that had not responded to her invitations to comment. The Department replied on 7 September 2015, and explained why it no longer considered this to be the case.

Accordingly, Ms Lyons asked the applicant to explain why, in light of the Department's revised position, she now considered that all details at issue in this case should be withheld (as well as the related correspondence sought in the request, which the Department had not considered for release in the first instance). She invited the applicant to make submissions. The applicant's reply of 8 September 2015 outlined why he felt that at least some, if not all, of the details at issue should be released.

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.

Scope of the Review

The scope of this review is confined to the sole issue of whether the Department has justified its refusal of general details pertaining to the 52 employers "banned" from the scheme as at the date of the applicant's request.

Findings

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

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request 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 25(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.

Section 36(1)(b)

Section 36(1)(b) is a mandatory exemption that must be applied to certain types of 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 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.

I accept that release of details pertaining to an employer's "ban" from the scheme would reflect negatively on that employer and could be used by its competitors to their advantage. Therefore, I accept that release of the information 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 that the details at issue are exempt under section 36(1)(b) of the FOI Act. I find accordingly.

A record to which section 36(1)(b) applies may still be released, however, further to the provisions of sections 36(2) and 36(3) of the FOI Act.

Section 36(2)
Section 36(2) provides that details to which section 36(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; (c) 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 36(3) - The Public Interest
Section 36(3) provides for release of a record to which section 36(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. "

In favour of granting a request is the public interest in ensuring the openness and accountability of public bodies. This has to be balanced against the public interest, recognised by section 36(3) of the Act, in protecting the release of information to which section 36(1)(b) applies. The question I must consider is whether the public interest served by granting the request, and releasing information that I have found to be exempt under section 36(1)(b), sufficiently outweighs the public interest in protecting that information.

There is a strong public interest in ensuring openness and accountability in respect of the Department's operation and monitoring of the scheme, particularly having regard to the fact that employers taking part in the scheme indirectly benefit from State monies (in that, essentially, the costs of the interns are entirely borne by the State). Similar to what I said in this regard in my decision in case reference number 140253, that public interest would undoubtedly be served if I directed release of details pertaining to organisations that the Department has found to have breached the scheme's requirements.

Employers 1-32
The names, as "banned" organisations, of 32 of the employers whose related general details are at issue in this case have already been the subject of my decision in case reference number 140253 (available at http://www.oic.gov.ie/en/Decisions/Decisions/Mr-Ciarán-Doherty-and-the-Department-of-Social-Protection.html). That decision, which was conducted under the FOI Acts 1997 and 2003, found the names concerned to be exempt under section 27(1)(b), the wording of which is identical to that of section 36(1)(b) of the 2014 Act.

In concluding that the public interest did not warrant release of the names concerned, I had regard to the very particular circumstances of that case. Normally, in carrying out reviews, this Office assumes that public bodies have complied with the requirements of fair procedure in their dealings with any person or entity. However, due to the volume and nature of comments received from a number of the potentially affected third parties consulted in case reference number 140253, my Office considered 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.

I do not intend to repeat all of the relevant details. In summary, in my decision in case reference number 140253, I considered the Department to have effectively acknowledged that the continued exclusion of the various employers on the list, as 21 April 2014, did not necessarily comply with the requirements of fair procedure, and that, in at least some instances, its decision to exclude the employers from the scheme may have been flawed. Accordingly, I found that the details at issue should not be released.

For the same reasons as those set out in my decision in case reference number 140253, I accept that the public interest does not warrant release of the general details at issue in this case concerning these 32 employers. I find accordingly.

Employers 33-41
I understand that the circumstances that informed my decision in case reference number 140253 are equally relevant to a number of the other organisations whose general details are at issue in this case (i.e. those numbered from 33-41). In particular, these organisations were also "banned" before the Department introduced a formal complaints procedure in August 2014. They also received indefinite bans that did not have any regard to the type or scale of their breach of the scheme requirements, in which circumstances the continued exclusion of these employers as at 20 January 2015 may not have been appropriate. In this regard, I note that the Department has undertaken to review the exclusion of these employers at this point in time.

I thus consider that, the public interest would, on balance, be better served by refusing rather than granting access to the general details pertaining to these employers. I find accordingly.

Employers 42-52
As already outlined, the Department told this Office in its initial submissions on this case that it considered itself to have complied with the requirements of fair procedure in its decisions to sanction the remaining 11 employers. However, the Department re-examined the documentation concerning these 11 employers further to contacts from this Office during the review process. It said that it is not satisfied that procedures, which it had introduced in August 2014 for sanctioning employers that had breached system requirements, had been fully complied with in all of the cases concerned. It explained that its initial assurances to this Office had presumed that these procedures had been fully complied with.

Furthermore, while previously decisions to impose sanctions were made in local offices, the Department said it now intends to centralise responsibility for determining sanctions for any breaches of system requirements in the Job Bridge Central Policy Unit. In my view, this may indicate that decisions on sanctioning made by the local offices were not necessarily consistent with each other.

In particular, however, the Department also said that, following discussions with its Legal Advisor, it considered the procedures themselves not to be robust enough such as to ensure fair procedure. It said it now it intends to draft revised guidelines that will be reviewed by the Legal Advisor to ensure that they provide fair procedure. I also understand that the Department intends to review the decisions to exclude the remaining nine employers.

When Ms Lyons outlined the above to the applicant, he expressed concern that the Department had only found fault with its own guidelines "several months after [his] request for a review because of the prospect of the "banned" company's names being released." He emphasised the comment I made in my decision in case reference number 140253, where I said I was "very unhappy to have to find that I cannot direct release of the list of excluded employers in this instance". Essentially, his position is that the Department has a duty to put proper procedures in place, and should have realised that its guidelines were lacking well before now, or at least from April 2014 when the request in case reference number 140253 was made. He questioned if the Department had "deliberately allowed a flawed process to continue on the basis that it could be used as a justification to block release of employers' names" and also questioned if subsequent requests will also be refused if the Department continues to find fault with its own systems.

In the first instance, I must stress that as matters stand I have no reason to believe that the Department is misleading this Office in saying that it only recently sought internal legal advice which found the relevant procedures to be flawed. While I have some sympathy for the applicant's position, it seems to me that it would be unjust to direct the release of exempt third party information, and essentially penalise those parties, because of the Department's failings. That being said, I would give serious consideration to carrying out an investigation under section 44 of the FOI Act if it became apparent to me that a public body was deliberately taking steps that it considered might result in this Office deciding not to direct release of particular information under FOI. Beyond that, however, I do not intend to speculate on what approach I might take in any further review under section 22 of the FOI Act, concerning similar such records, if it is again claimed that procedures for sanctioning employers participating in the scheme are inadequate. Noting that the Department intends to review and amend the current procedures, I would not expect the circumstances applying in this case and in case reference number 140253 to reoccur. I would expect that the various steps that the Department is taking will ensure that fair procedure is afforded in future to employers facing sanction.

The applicant also noted that only "some" of the employers with which this Office had consulted said that they had not been treated fairly by the Department, and that the Department had admitted one company had been banned in error. He suggested that details of those employers that "have raised no objection to their being banned, or who have failed to prove they were treated unfairly" should be released. In this regard, he said that "[p]resumably there are degrees of wrongdoing which would be reflected in terms of the duration of bans etc. Are some of these cases not so clear-cut that the Department's ineptitude in establishing guidelines should be deemed irrelevant on the basis that any guidelines would have produced the same result i.e. a ban."

To avoid any doubt on the matter, as I stated in my decision in case reference number 140253, I consider myself to have no role in determining under the FOI Acts 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. Neither have I any remit to consider, or make any finding on, whether or not any employer was appropriately sanctioned.

However, I do not think it appropriate, in the circumstances of this case, to assume that those employers who did not respond to Ms Lyons' letter consent to the release of the details at issue, or to expect any employer to "prove" that they were treated unfairly. Neither is it appropriate for the Department to seek to identify the cases that the applicant describes as "clear cut", such that I should direct release of the details concerned. Apart from the rather subjective nature of such an exercise, it is not a reasonable proposition that the nature of certain breaches obviates the need for the relevant employer to be sanctioned in accordance with fair procedure in the first instance. By way of analogy, such an approach would suggest that, where it seemed "clear cut" that a person had carried out some particularly heinous crime, they would not be entitled to the usual procedural and Constitutional rights afforded to others suspected of criminality.

In the very particular circumstances of this case, I consider the public interest to weigh in favour of withholding the details of the 11 employers at issue. I see no public interest in directing release of details of an employer that, in fact, has not breached the scheme requirements and is on the relevant list in error. Neither would it be in the public interest to direct the release of details concerning employers that were not, or may not have been, sanctioned in accordance with the requirements of fair procedure, especially where the underlying sanctioning procedures themselves may not provide for fair procedure to be afforded to the relevant parties in the first place. I find accordingly.

This finding is not to suggest, in any way, that I do not share the applicant's obvious frustration with the outcome of this case, such that, in particular, details of any employers who carried out serious transgressions will not be released. I stress that the outcome of both reviews should not be taken as any indication that I would, as a matter of course, find that the public interest weighs in favour of withholding details pertaining to employers that have been excluded from the scheme.

Under the circumstances, there is no need for me to consider the other exemptions relied on by the Department in this case.

Related Correspondence
The Department did not explain to this Office why it did not identify, and consider for release, the specific correspondence that was also captured by the applicant's FOI request. As I made clear in my decision in case reference number 140253, where the Department similarly did not consider certain records also clearly sought in that case, it is not appropriate for a public body to unilaterally narrow the scope of any aspect of an FOI request.

In any event, the Department has effectively refused that aspect of the applicant's FOI request seeking correspondence informing the relevant companies of their "ban" and subsequent correspondence. While section 22(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. Any such correspondence that exists concerns the interests of the same third parties whose general details I have already found should be withheld under section 36.

In the normal course, where a public body fails to consider a particular aspect of a request, thus effectively refusing the request, I annul that effective refusal and direct the body to undertake a fresh decision making process in relation to the relevant records. I see no point in taking this course of action in the case at hand. I can see no basis on which the Department would consider release, or under which I would direct release of, the records concerned when I have already found that general details pertaining to the employers concerned should be withheld in the particular circumstances outlined earlier.

In the very particular circumstances of this case, I find section 36(1)(b) of the FOI Act to apply to the requested correspondence. I also find that the public interest in favour of release thereof is outweighed by the public interest in favour of withholding the records concerned. This, again, is not to be taken as suggesting that I would generally find in favour of fully or partially withholding such reports.

Decision

Having carried out a review under section 22(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 general details, and related correspondence, concerning those companies who were "banned" from the scheme as at 20 January 2015, under section 36(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 or, where the party or person concerned contends that the release of a record concerned would contravene a requirement imposed by European Union law, on a finding of fact set out or inherent in the decision.

Such an appeal must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Peter Tyndall
Information Commissioner