Case Number: 170007

Whether the Department's refusal of access to records relating to a work-place investigation is justified under section 30(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 23 October 2016 the applicant made an FOI request to the Department for certain records relating to a work-place investigation. On 23 November 2016, the Department granted access to certain information and refused access to the remaining records, on the basis that they were exempt under sections 30(1), 36(1)(b) and 37(1) of the FOI Act. On 23 November 2016, the applicant applied for an internal review. On 23 December 2016, the Department issued its internal review decision, in which it varied its original decision by altering the exemption relied on in respect of one record and granting access to an additional record. On 5 January 2017 the applicant applied to this Office for a review of part of the Department's decision.

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

During the review, the Investigator obtained confirmation from the applicant that the scope of his request for review is confined to the following records: 1, 2, 3, 4, 5, 6, 7 and 8. The question for this review is therefore whether the Department is justified in withholding access to these records under section 30(1)(a) of the FOI Act.

Preliminary Matters

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

First, section 22(12)(b) of the FOI Act provides that when I review 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 Department to satisfy me that its decision is justified.

Secondly, 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 has been endorsed by the Courts.

Thirdly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Finally, the Department did not give proper reasons for its decisions; neither did it address matters relating to the public interest in either its original or internal review decision. I would remind FOI bodies that section 13(2) of the FOI Act requires them to give reasons for refusing access to records, including matters relating to the public interest. I would urge FOI bodies to make use of the FOI resources available on www.foi.gov.ie (the website of the Central Policy Unit of the Department of Public Expenditure and Reform) and this Office's website at www.oic.ie.

Analysis and Findings

Section 15 - Refusal on administrative grounds to grant FOI request

The Department refused access to Record 3 under section 30(1) of the FOI Act. Record 3 is an excerpt from the Civil Service Disciplinary Code, which is available publicly.

Accordingly, I find that the Department is justified in refusing access to this information on the ground that it is already in the public domain, under section 15(1)(d) of the FOI Act. In making this finding, I would ask the Department to point the applicant to this information, to ensure that he is aware that it is in the public domain.

Section 30(1)(a) - Functions and negotiations of FOI bodies

I will consider section 30(1)(a) of the FOI Act in relation to Records 1 (copied at 4), 2 (copied at 5) 6 (copied at 8) and 7, which I will refer to as "the records". Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. It is subject to a public interest balancing test in section 30(2).

When a public body relies on section 30(1)(a), it should first identify the potential harm or prejudice to the relevant test, examination, investigation etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of the relevant test, examination, investigation etc. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations etc. now in progress but may also cover similar exercises conducted in the future. The FOI body should go on to consider the public interest test under section 30(2).

Submissions

The Department submits that being allowed to investigate the matters concerned justly, fairly and securely is extremely important. It says that releasing any gathered evidence or investigatory proceedings prior to concluding the process and issuing the report would prejudice the methods and effectiveness of this and future investigations. It submits that investigations into wrongdoings need confidentiality to be effective. In that regard, the Department queries whether those involved in the investigation would be content to give evidence or contribute to the investigation if the information were released. In relation to the public interest, the Department submits that there is a public interest in good decision-making by public bodies, in upholding standards of integrity, in ensuring justice and fair treatment for all.

The applicant submits that a person has the right to be fully aware of allegations made against them and to have any information available to them in order to refute the allegations, as he believes that the information contains details that may enable him to challenge the allegations concerned.

Section 30(1)(a)

The records concern an investigation into alleged wrongdoings in the work-place. I accept that they relate to an investigation for the purposes of section 30(1)(a) of the FOI Act.

The records disclose details of certain allegations, the individual staff members involved and steps which were taken in order to investigate those allegations. Having regard to the particular content of the records and the nature of the investigation, I accept that the staff involved would have raised their concerns and/or participated in the investigation on an understanding of confidentiality. I further accept that it is reasonable to expect that releasing the records could prejudice the effectiveness of this and future such investigations, on the ground that confidentiality supports the effectiveness of this kind of an investigation. I therefore find that section 30(1)(a) applies to the records.

Section 30(2) - The Public Interest

In view of this finding, I am required to apply the public interest balancing test under section 30(2) of the FOI Act.

On the one hand, section 30(1)(a) itself reflects the public interest in FOI bodies conducting investigations effectively. On the other hand, there is a public interest in transparency around the way in which the Department carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making.

The applicant submits that there is a public interest in his right to be aware of allegations against him, as he says that the records contain information by which he could challenge the allegations. However, I believe that this is more properly viewed as a private interest. I consider that I am supported in this opinion by the High Court decision of FP v The Information Commissioner [2016] IEHC 771. There, the Court found that the public interest in granting access to information was not to be determined on the basis of the appellant's personal circumstances and the fact that access to records might assist the applicant in determining whether he had a cause of action did not qualify as a matter of public interest.

I must also bear in mind that release under the FOI Act is tantamount to release to the world at large. Accordingly, this is not a question of whether to disclose the records to the applicant for the purpose of defending himself in a workplace investigation. It is a question of whether to disclose the records to the world at large. I have also had regard to the fact that the Department's investigation is ongoing.

In the circumstances of this case, I consider that the public interest in ensuring an effective workplace investigation outweighs any public interest in transparency around the way in which the Department carries out its functions. I therefore find that on balance, the public interest would not be better served by granting access to the records.

Finding

I therefore find that the Department is justified in withholding access to the records under section 30(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's decision to withhold access to the records, under section 15(1)(d) and section 30(1)(a) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator