Case Number: 160190

Whether the refusal of access by the HSE to records relating to human resources is justified under sections 30(1)(b) 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 24 September 2015 the applicant made an FOI request to the HSE for records of all temporary appointment applications within a certain area of the service from January 2015 to 23 September 2015, excluding personal information but including business cases, applications etc. Having received no decision, the applicant requested an internal review of the HSE's deemed refusal by letter dated 6 January 2016. Having received no internal review decision, the applicant then applied to this Office for a review on 3 February 2016. Following correspondence from this Office, the HSE issued an "effective position" letter to the applicant dated 22 February 2016, in which it refused access to the information sought on the basis that it was exempt under section 37(1) of the FOI Act (personal information) and section 30(1)(b) of the FOI Act (functions and negotiations). On 9 March 2016 the applicant then again applied to this Office for a review of the HSE's decision.

In conducting this review, I have had regard to the HSE's decision on the matter; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the content of the withheld records, provided to this Office by the HSE 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, 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 HSE to satisfy me that its decision is justified.

Secondly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. I take the view that neither the definition of a record under section 2 nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent.

Handling of the Review by the HSE

I must comment on the very poor handling of this matter by the HSE, both in relation to the applicant's FOI request and this Office's FOI review. I regret that the processing of this review took a lot longer than I would have wished, due in no small part to difficulties encountered with the HSE. It appeared at one stage that this case might be settled, as the HSE was considering release of some records. However, the HSE again delayed in progressing this and there is a lack of clarity around what it proposed to release. I therefore consider it appropriate to conclude this matter by issuing a binding decision.

FOI Request

As noted above, the HSE issued neither an original FOI decision nor an internal review decision. It was only following this Office's intervention that it communicated its position on the records to the applicant. Its "decision" of 22 February 2016 fell far short of what the FOI Act requires, in that it did not comply with section 13 in regard to the reasons for refusal and made no reference to the public interest. These are clear breaches of the statutory requirements under the FOI Act.

FOI Review

By way of background, the applicant in this matter made a separate application for a review in respect of a HSE decision, which this Office dealt with in Case 160093. This Office initially closed this case (160190), as it was under the impression that the applicant did not wish to appeal the HSE's decision in this matter as well as the HSE's decision in Case 160093. However, this Office then clarified that the applicant wished to appeal both decisions. It therefore re-opened this Case 160190 and notified the HSE of this by letter dated 28 April 2016.

Since April 2016, there have been a number of delays in getting the relevant records from the HSE, in identifying who within the HSE is dealing with this case and in getting replies to queries. This Office cannot be expected to identify the correct person within a large organisation such as the HSE to deal with a review without cooperation from the FOI body. The investigator had to contact a number of HSE staff on several occasions in order to progress this case.

On 19 May 2016, this Office served a statutory notice on the head of the HSE, requiring him to provide the records, under section 45 of the FOI Act. The investigator spoke to a staff member of the HSE on 24 May 2016, who said that there was a lot of confusion about the matter. The investigator confirmed that the statutory notice related to the applicant's FOI request being dealt with as Case 160190, noting that the HSE had already provided this Office with the records for Case 160093.

This Office finally received the records on 3 June 2016, without a schedule. At this Office's request, the HSE subsequently provided a document marked "schedule of records". In fact this document was not a proper schedule of records. It did not list each individual record, instead referring to four "documents", which comprised various records bundled together. It "scheduled" the records as "email correspondence and documentation, continuation of email correspondence and documentation etc". When dealing with FOI requests, public bodies should ensure that their schedule of records is clear and accessible. In this regard, I would refer the Department to the Central Policy Unit's manual on dealing with FOI requests, which contains a sample schedule of records and guidance on preparing schedules. It is clear from that manual that the schedule of records is intended to be an essential reference point, both for the person seeking access and for this Office if the matter goes to review.

On reviewing each individual record, it became apparent to the investigator that many of the records provided fall outside the scope of the applicant's FOI request. A significant number pre-date January 2015; others do not relate to the subject matter of the applicant's FOI request. In addition, the HSE provided this Office with a significant number of illegible records, blank pages and duplicates. These factors cause me to question whether HSE staff examined the records which they provided to this Office.

In my view, the overriding issue in this case is the HSE's failure to assume responsibility for dealing with this FOI case. The fact that this case seems to have been passed around between various members of staff led not only to delays, but ultimately to a fundamental failure by the HSE to justify its decision under the FOI Act. I would remind public bodies that it is incumbent on them to ensure that sufficient resources are in place to facilitate compliance with FOI legislation. I will bring this decision to the attention of the HSE "National Lead Office" for FOI.

Scope of the Review

In her original FOI request, the applicant stated that she did not seek personal information. In discussion with this Office, she clarified her position to state that if this Office considered the names of people applying for, or being facilitated with, a temporary appointment to be personal information, she did not seek them. However, she did seek the names of the staff members dealing with and processing the applications. In view of this position, I will consider the names of staff members under section 37 below.

In establishing the scope of this review, I also note that the applicant's request relates to applications from January 2015 and that some records included by the HSE relate to matters other than the subject matter of the applicant's FOI request, while many others are blank pages. The question for this review is whether the HSE is justified in withholding access to the records listed below, under sections 30(1)(b) and 37(1) of the FOI Act.

"Document 1": pages/records 17, 18, 23, 24, 25, 28, 29, 30

"Document 2": pages/records 7, 8, 9, 15, 16, 19, 20, 21, 29, 31, 32, 33, 39, 40, 43, 44

"Document 3": pages/records 1, 19, 21, 22, 23, 24, 25, 27, 28, 29, 31, 32, 33, 35, 36, 37, 39, 40, 41, 43, 44, 45, 47, 48, 49

"Document 4": pages/records 1-3, 5-7, 9-11, 13-15, 17-18, 25

Analysis and Findings

Illegible Records

Some of the records which the HSE provided to this Office are illegible, in spite of the fact that they are no more than a few years old. Despite contacting the HSE on various occasions, this Office had no success in obtaining legible copies of those records. I therefore annul the HSE's decision to withhold access to the records listed below and direct the HSE to make a fresh decision on these records, in accordance with section 13 of the FOI Act.

It seems to me that at least some of the records are illegible following scanning of the originals. In this regard, I refer the HSE to section 17 of the FOI Act, which provides, among other things, for access to records through transcription or inspection in certain circumstances.

I appreciate that this further delay is unsatisfactory for the applicant, but I cannot make a decision on access to information where the records are such poor copies that I cannot read the material in them. I should say here also that in some cases the dates are indecipherable, so that I cannot be sure whether these records fall within the scope of the applicant's request.

Document 1 - Records 19, 20, 21, 22, 31
Document 2 - Records 10, 11, 12, 13, 17, 23, 28, 35, 36, 37, 41
Document 3 - Record 14

Section 37 - Personal Information

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 would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal, without prejudice to the generality of the foregoing definition.

Certain records contain information about identifiable members of the HSE'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".

Where the information identifies people who applied for temporary appointments or "regularisation", I am satisfied that it falls within the definition of "personal information" and does not fall into the categories of information in paragraph I of section 2 of the FOI Act. Neither do I consider that the particular salary details of any staff members (as opposed to a salary range for a particular grade or post) fall within the definition of personal information. However, where the information identifies staff members who dealt with and processed such applications in the performance of their functions, I do not consider that it falls within the definition of "personal information".

Having regard to the above, I find that the information listed below is exempt from release under section 37(1). This finding is subject to the provisions of sections 37(2) and 37(5), which I will examine.

"Document 1": Records 17 & 18 - names of staff members in "subject" and "attachments"; Records 23, 24, 28, 29, 30 - name of staff member applying for regularisation.

"Document 2": Records 7 & 8 - names of staff members applying for regularisation; Record 9 - personnel numbers, names and salary details; Record 15 - name and employee number; Records 19 & 20 - names of staff members applying for regularisation; Record 21 - personnel numbers, names and salary details; Record 29 - name of staff member who is the subject of the correspondence; Records 31 & 32 - names of staff members applying for regularisation; Record 33 - personnel numbers, names and salary details; Record 39 - name and employee number; Records 43 & 44 - job title and name of staff member applying for temporary appointment.

"Document 3": Record 1 - names of staff member in "attachments"; Record 19: names of staff members in "attachments"; Records 23, 27, 31, 35, 39, 43, 47 - names of staff members who are the subject of the forms and their personnel and position numbers.

"Document 4": Records 1, 5, 9, 13 - names of staff members who are the subject of the forms and their personnel and position numbers; Record 17 - names of staff members in "attachments".

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 the circumstances in section 37(2) apply to the information which I have found to be exempt under sections 37(1). That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates 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.

I am then required to consider section 37(5) as it applies to the records.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act provides that access to the personal information of a third party 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 benefit the person to whom the information relates.

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 ("the Rotunda case") outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Therefore in considering section 37(5)(a), 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. "

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. 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, when considering section 37(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.

On balance, I do not believe that there is a public interest which overrides the Constitutional rights to privacy of the people concerned in the information I have found to be personal information. I therefore find that section 37(5)(a) does not apply in the circumstances.

It has not been argued that releasing the records would benefit the people to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.

I find that the HSE is justified in withholding access to the information which I have identified above as personal information, under section 37(1) of the FOI Act.

Section 30 - Functions and negotiations

Section 30(1)(b) of the FOI Act provides:

"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 HSE claims section 30(1)(b) in this case. I will consider it in relation to the information which I have not found to be exempt under section 37 (the remaining information).

Section 30(1)(b)

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. Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). Not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a).

The HSE has not made any submissions to support its contention that section 30(1)(b) applies, despite being given opportunities to do so. I can find nothing in the HSE's correspondence which goes any way towards satisfying the harm tests outlined above or justifying its position under section 22(12)(b). Having examined the remaining information, it is not apparent to me how releasing it could reasonably be expected to have a significant, adverse effect on the performance of the HSE's functions relating to management.

As I have found that section 30(1)(b) does not apply, I am not required to apply the public interest balancing test under section 30(2) of the FOI Act.

Accordingly, I find that the HSE is not justified in refusing access to the remaining information under section 30(1)(b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE's decision. I annul its decision to withhold access to the illegible records listed above and direct it to make a decision on those records in accordance with the requirements of section 13 of the FOI Act. I affirm its decision to withhold access to the information identified above as being personal information, under section 37(1) of the FOI Act. I annul its decision to withhold access to the remaining information and direct the release of that information.

I specify that, subject to sections 24 and 26 of the FOI Act:

- effect shall be given by the HSE to my decision to direct the release of the remaining information within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) of the FOI Act; and

- effect shall be given by the HSE to my decision to direct a fresh decision on the illegible records in accordance with section 13 of the FOI Act.

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