Whether the refusal of access by the Council to records concerning the processing of an FOI request by the Council is justified under sections 30(1)(b), 36(1)(b) and (c) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 17 July 2015 the applicant made an FOI request to the Council for "all internal records, drafts and emails, including correspondence, draft schedules and other records" relating to a previous FOI request. By letter dated 12 August 2015, the Council granted access to some of the records and refused access to others, on the basis that they were exempt from release under sections 20(1), 21(1) and 28(1) (sic) of the FOI Act. On 18 August 2015, the applicant applied for an internal review in respect of the records which had been withheld. By letter dated 15 September 2015, the Council issued its internal review decision, in which it released additional records and information previously redacted and withheld the remaining records, on the basis that they were exempt under sections 30(1)(b), 36(1)(b) and (c) and 37(1) of the FOI Act. On 2 December 2015, the applicant applied to this Office for a review of the Council's decision.

In the course of the review, the Council released some parts of records that had originally been withheld. The applicant requires a formal binding decision on the remaining parts.

In conducting this review I have had regard to the Council's decision on the matter; the Council's communications with the applicant and with this Office; the applicant's communications with the Council and with this Office; the submissions of the Council; the content of the withheld records, provided to this Office by the Council for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, in its original decision, the Council referred to provisions of the repealed FOI Act 1997 - 2003 when, in fact, the FOI Act 2014 applied. Also, it wrongly referred to "section 20(1)" in purporting to rely on the deliberative process exemption. However, my review is of the Council's internal review decision, in which the Council correctly numbered the relevant provisions of the FOI Act 2014. Therefore I do not believe that anything turns on the inaccurate numbering in its original decision. Nevertheless, I would urge FOI bodies to refer to the correct provisions of the FOI Act (including section numbers) when communicating their decisions.

Secondly, I note the applicant's strong criticism of the Council's handling of her FOI request. The issues raised by her are addressed in this decision insofar as they are relevant to a review under section 22(2) of the FOI Act. However, I must state that I do not accept that the release of additional records by the Council in the course of this review can be interpreted as "a tactic by the Arts Council", as the applicant has alleged. Where additional records come to light during the review process or where, in re-examining the decision in light of submissions to the Commissioner or simply the passage of time, an FOI body decides to release records or parts of records previously withheld, this Office encourages the body to release such records in advance of a formal decision by the Commissioner.
Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records at issue is very limited.
Fourthly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. This approach was endorsed by the High Court judgment of Mr Justice Ó Caoimh in the case of Minister for Education and Science v Information Commissioner[2001] IEHC 116. In The National Maternity Hospital and The Information Commissioner [2007] 3 IR 643, [2007] IEHC 113, the High Court (Quirke J) explained:

"The Commissioner was entitled to consider all of the material before her on the date on which she made her decision and to make her decision having regard to the circumstances which existed on [the date of her decision]".

Finally, it is important to note that section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, 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". Therefore in this case, the onus is on the Council to satisfy me that its decision is justified.

Scope of the Review

I would like to make several points about the scope of this review.

First, the redacted parts of record 13 relate to an FOI request made by a person other than the applicant. They do not relate to the applicant's previous FOI request. In addition, the Council has already granted access to records 30 and 31 in the applicant's previous FOI request, which this Office dealt with in Case 140258. Therefore, records 13, 30 and 31 fall outside the scope of this review.

Secondly, in correspondence with this Office, the applicant asked this Office to examine the following matters: (a) her previous FOI request and what the content of the records in this review discloses about the way in which the Council dealt with that request; (b) "all relevant documentation not just the ones listed by the Arts Council"; and (c) "the documents that were not released until you started to investigate".

In relation to point (a), my jurisdiction in this decision is to review the Council's decision to withhold or redact the records within the scope of this review; it is not to examine the way in which the Council dealt with the applicant's previous FOI request in Case 140258.

In relation to point (b), the applicant has not pointed this Office to any other relevant documentation which should be listed on the Council's schedule. The applicant alleges that records have been concealed. However, it seems to me that it would not be unusual that further documents come to light in the course of a review and/or that there would be some discussion as to whether certain records fall within the scope of a particular request. I have no reason to consider that the Council holds further records within the scope of this FOI request.

In relation to point (c), in the course of this review, the Council released further records to the applicant by letter dated 2 February 2016. Accordingly, the scope of my review is confined to the records or parts of records withheld from the applicant and outlined on the most recent schedule, provided by letter dated 2 February 2016. This is with the exception of records 13, 30 and 31, for the reasons given above.

Analysis and Findings

Section 37 - Personal Information

The Council claims this exemption in respect of the redacted parts of records 3, 16 and 23.

Section 37(1)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by a public body on the understanding that it would be treated as confidential. The Act details fourteen specific categories of information which is personal without prejudice to the generality of (a) and (b) above. Following the decision in Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC 26, I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within the scope of either (a) or (b) above or where it comes within one or more of the categories (i) to (xiv), which are non-exhaustive.

Record 3

Section 25 limits what I can say about the redaction in record 3. It relates to the individual author of the email in which the redaction appears. This individual is a member of the Council's staff. Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally". Having regard to the inherently private nature of the redacted content of this record, I find that it is personal information for the purposes of section 37(1). I therefore find that it is exempt from release under section 37(1). This finding is subject to section 37(2) and 37(5), which I examine below.

Record 16 - unsuccessful candidates

Some redactions in record 16 disclose the identities of unsuccessful candidates for grants by the Council. I accept that these candidates applied to the Council for grants on the understanding that their identities would be treated by the Council as confidential. I therefore find that these redactions are personal information for the purposes of section 37(1) and exempt from release under that section. This finding is subject to sections 37(2) and 37(5), which I examine below.

Records 16 and 23 - confidential concerns

Other redactions in record 16 and some redactions in record 23 disclose the name of a member of staff of the Council who raised certain concerns with the Council in confidence. The Council submits that it has an obligation to keep this information confidential to ensure that other employees have reassurance that their anonymity is protected should they feel the need to report a matter of concern. As noted above, I consider that in certain circumstances, the names of, and information about, staff members of FOI bodies can qualify as "personal information" under the FOI Act. I accept that the relevant member of staff raised certain concerns with their employer on the understanding that their identity would remain confidential. I do not believe that members of staff who raise such concerns in confidence are performing their "official functions" as such. Moreover, having regard to protected disclosure legislation, I accept that the FOI body holds information about the identity of such members of staff in confidence. I therefore find that in the circumstances, the name of this staff member is personal information for the purposes of section 37(1) and exempt from release under that section. This finding is subject to sections 37(2) and 37(5), which I examine below.

Record 23

Section 25 limits what I can say about the remaining redactions in record 23. I accept that they constitute personal information about an individual for the purposes of section 37(1). I therefore find that they are exempt from release under section 37(1). This finding is subject to section 37(2) and 37(5), which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in relation to the redacted parts of records 3, 16 or 23. That is to say, (a) the information contained in the redactions does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to personal information may be granted where:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the request would be to the benefit of the person to whom the information relates.

I am satisfied that releasing the records would not benefit the individuals to whom the information relates, so that section 37(5)(b) does not apply.

In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, the language of section 37 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, 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. I consider that in this case, the public interest in openness and transparency in relation to the Council's functions has been served to a large extent by the release of the bulk of the records and that the public interest that the request be granted does not outweigh the public interest in upholding the right to privacy of the individuals to whom the redacted parts of records 3, 16, and 23 relate.

I therefore find that the Council is justified in refusing access to the redacted parts of records 3, 16 and 23, under section 37(1).

Section 30 - functions and negotiations

Section 30(1) of the FOI Act provides, among other things:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

...

(b) have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)"

...".

The Council invokes section 30(1)(b) in respect of all the records within the scope of this review. In view of my findings above, I do not need to consider records 3, 16 or 23 further. I will therefore consider this exemption in relation to records 2, 11, 15, 18, 19, 21, 25 and 32.

When a public body relies on section 30(1)(b), it should first identify the potential harm to the performance of its any of its functions relating to management and secondly consider the reasonableness of the expectation that the harm will occur. In identifying the harm, it should identify the significant adverse effect on its management functions. To satisfy the Commissioner, the public body must show that there are adequate grounds for its expectation.

Records 2, 15, 18, 19, 21

The redactions in these records are links to the Council's internal computer files. The Council submits that it has withheld these to protect the efficient management and internal controls and that someone could sabotage its internal IT systems and access a wide range of very confidential and commercially sensitive information. I accept that, in this case, ensuring the security of information technology functions is a management function for the purpose of section 30(1)(b). Furthermore, I consider that releasing internal computer links could reasonably be expected to have a significant adverse effect on this function: specifically, facilitating an attempt to unlawfully access, or the actual unlawful accessing, of data in the Council's IT system. I am therefore satisfied that section 30(1)(b) applies to these redactions. Section 30(2) then requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request. I do not consider that any public interest in openness and transparency regarding how the Council dealt with the applicant's previous FOI request would be served by granting access to the remaining small pieces of information comprising links to the Council's internal IT systems. I consider that the public interest would, on balance, be better served by protecting the system's security and by refusing this part of the request. I therefore find that the Council is justified in withholding access to the redactions in records 2, 15, 18, 19 and 21 under section 30(1)(b).

Record 11

The redaction in record 11 is an instruction on how to edit a form. The Council submits that it relates to efficient management and its internal controls and that someone could use it to sabotage the Council's internal IT systems and access a wide range of very confidential and commercially sensitive information. Having examined the redaction, I do not believe that the Council has made out a case that releasing it could reasonably be expected to cause a significant adverse effect to the performance of its management functions. I therefore find that the Council is not justified in withholding the redaction in record 11 under section 30(1)(b).

Record 25

The redaction in record 25 is the content of an internal email. The Council submits that this should not be released on the ground that it discloses an error which was subsequently addressed. I accept that the Council has understandable concerns about the content of the record. Nonetheless, I do not believe that the Council has made out a case that releasing it could reasonably be expected to cause a significant adverse effect on the performance of its management functions. I therefore find that the Council is not justified in withholding the redaction in record 25 under section 30(1)(b).

Record 32

The redaction in record 32 is a file-name. The Council submits that its release would adversely affect the management of and controls around the Council's processes. I do not believe that the Council has made out a case that releasing this piece of information could reasonably be expected to cause a significant adverse effect to the performance of its management functions. I therefore find that the Council is not justified in withholding record 32 under section 30(1)(b).

Section 36(1)(b) and (c) - Commercial Sensitivity

The Council claims these exemptions in respect of its redaction in record 32. As noted above, this redaction is a file-name. However, the Council has not explained how either of these provisions apply to this redaction, or what commercial harm could flow from the release of the file-name. Having regard to section 22(12)(b) of the FOI Act, I therefore find that the Council is not justified in refusing access to this record under section 36(1)(b) or (c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of the Council. I affirm its decision to refuse access to parts of records 3, 16 and 23, under section 37(1) of the FOI Act and parts of records 2, 15, 18, 19 and 21, under section 30(1)(b) of the FOI Act. I annul its decision to refuse access to parts of records 11, 25 and 32 and direct the release of those parts.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Elizabeth Dolan
Senior Investigator