Case Number: 170091

Whether the Body has justified its refusal to release further records relating to the applicant's request for records relating to himself, specifically records concerning a Dignity at Work Investigation

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 20 November 2015, the applicant made an FOI request for any records relating to him, including records concerning a Dignity at Work investigation carried out by a Mr Y on behalf of the Body. I understand that what purported to be the Body's decision, issued in December 2015, was simply a schedule or list. According to the schedule, the Body granted access to some (attached) records in full, but withheld access to the Dignity at Work records, which it did not individually list, under section 30(1)(b) (the exemption applicable to records concerning an FOI body's management functions).

The applicant asked the Body for "the response from Mr [Y]" on 16 December 2015. The Body told the applicant, also on 16 December 2015, to refer to "page 14, last point, which he is giving as exemption. This is valid under the FOI Act."

The applicant emailed the Body on 29 December 2015, asking for an internal review. However, the Body replied, on 31 December 2015, that it "had not completed this request and [that the applicant] can lodge an appeal following completion .... ."

In the meantime, the Office of the Data Protection Commissioner (the ODPC) carried out an investigation concerning, as I understand it, the Body's disclosure of the applicant's personal data during the Dignity at Work investigation. On 16 November 2016 the applicant made a further internal review application in relation to the Body's refusal to grant access to the Dignity at Work records. The Body's internal review decision of 9 January 2017 affirmed its refusal to grant access to the records, again under section 30(1)(b) of the FOI Act.

The applicant sought a review by this Office of the Body's decision, which was received on 20 February 2017.

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above, and to correspondence between this Office, the Body and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

A review such as this is carried out under section 22 of the FOI Act. As set out in this Office's email to the applicant of 9 May 2017, the scope of this review is confined to the adequacy of the Body's searches for further records relevant to the request of 20 November 2015, including recordings; correspondence between Mr Y and the Body in relation to the Dignity at Work investigation (including any such records regarding the disclosure of the applicant's personal data in breach of the Data Protection Acts); notes the applicant said he saw being taken by Mr Y; and e-mails between the applicant's union Shop Steward and Mr Y.

My decision cannot have regard to matters such as the Body's records management practices generally, or the Body's compliance with the requirements of the FOI Act in this case, or the ODPC's findings.

The Body's Handling of the Request

The Body's handling of the applicant's request of 20 November 2015, and his further request of 13 November 2016, was poor. While I appreciate that the Body might not deal with many FOI requests, the FOI Act places strict requirements on FOI bodies as to how they should deal with requests and applications for review. The Body should refer to the Central Policy Unit website which details, along with other guidance material and template letters, how public bodies should process FOI requests (see http://foi.gov.ie/guidance/manuals/).

In summary, section 13 of the FOI Act sets out clearly what a decision should contain. A schedule, on its own, does not meet those requirements. Furthermore, the schedule should give sufficient details of the relevant records to enable the person seeking them to decide whether or not he wants the records that have been withheld. In this case, further to this Office's queries, it transpired that the records withheld generally under section 30(1)(b) comprised material that had been provided to the applicant during the investigation process. The applicant subsequently confirmed to this Office that he was seeking only records that had not already been provided to him.

I also understand that the Body did not obtain the records held by Mr Y that were relevant to the request, and simply adopted his view on whether those records should be released. While there is nothing in the Act that prevents an FOI body from informally seeking the views of someone like Mr Y, nonetheless it is responsible for deciding on FOI requests. It must make its decisions in accordance with the requirements in the FOI Act, and must have regard to the contents of relevant records in doing so. It is not appropriate, as was done in this case, to refer a requester to a letter from a party such as Mr Y and suggest that this is a "valid" decision under the FOI Act. Mr Y was a service provider to the Body and section 11(9) provides that a record in the possession of a service provider shall be deemed to be held by the FOI body.

The Body should also note that the Act does not provide for applications for internal review to be dealt with only upon conclusion of related matters such as Dignity at Work investigations (assuming that this was what was meant by the Body's email to the applicant of 31 December 2015).

The Body's poor handling of this request also caused difficulties for this Office in determining the scope of this review, which resulted in considerable correspondence with the Body and the applicant before the review could even commence.

Findings

It is the Body's position that it has found all records relevant to the applicant's request of 20 November 2015. In effect, it is relying on section 15(1)(a) of the FOI Act. Section 15(1)(a) provides that an FOI body may refuse to grant a request where the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken.

A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or that the requested records do not exist. I should explain that, in any case involving section 15(1)(a) of the FOI Act, a decision from this Office may find that an FOI body has conducted reasonable searches, even where records that are known to exist cannot be found. In such circumstances this Office is unlikely to require the FOI body to continue searching indefinitely for those records. It is not normally this Office's function to search for records (a position that was upheld by the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)).

Records Held by Mr Y
The Body contacted Mr Y when it was preparing its submission in this case, to establish what, if any, further relevant records he might hold. It appears that Mr Y initially mistakenly understood the applicant's request to be quite narrow. Mr Y described his searches to the Body and, where relevant, also commented on the various records that the applicant had identified as missing. This Office in turn provided these details to the applicant; I see no reason to repeat them in this decision.

In summary, while Mr Y provided the applicant with various documents (including transcripts) during the investigation that the applicant has excluded from this review, Mr Y also holds other relevant records. He subsequently sent copies of these records, which include emails, letters and other documents, to the Body.

Mr Y also gave an account of when and how recordings are normally made, transcribed and deleted. I note that Mr Y said he deleted the recordings made in this particular investigation, and although not able to be specific about when exactly he did so, said he believes it would have been soon after the final report issued. Mr Y also said he does not specifically recall taking any notes, although he might jot down "working notes" to remind him to come back to an issue later in the interview. He also acknowledged that some witness names are annotated on typed documents. I also note he said that the only written record of an interview that he retains is the transcript.

Records Held by the Body
The Body's submission to this Office set out the kind of records that would normally result from a Dignity at Work investigation, and how and where they are stored. It described the searches it said it twice carried out, and explained why certain emails and records may no longer exist. This Office has put the relevant details to the applicant; again I see no reason to describe them in detail here. In particular, I note that the Body said it would have "minimal" contact with an investigator such as Mr Y, to ensure the investigator's independence. The Body also described as "minimal" its contacts with Mr Y about the disclosure of the applicant's personal data, and gave a general outline of the ODPC's advice in this regard.

The applicant disputed that contacts between the Body and investigator were minimal. He said that Mr Y "was also carrying out a conflict analysis which came out of the [investigation]". He also said that "there was a great deal of contact between Management and HR in relation to my case also at this time my [union] Shop Steward raised concerns by e-mail about incidents involving witnesses in my case which [Mr Y] would have had to address with the HR Department and Management."

The Body replied that, during his investigation, Mr Y identified a "significant amount" of high level conflict concerning communications and feedback, between line management and department staff in the general area where the applicant worked. It said that the conflict was not between any individuals. It said that Mr Y was engaged to analyse this conflict and make recommendations to resolve it for both management and staff. The Body said that this analysis was not particular to the applicant, but to the Body. Its position is that, accordingly, records concerning this conflict do not relate to the applicant.

The Body also said that the file it received from Mr Y contains copies of a number of emails between Mr Y and its HR department. However, it said that the corresponding copies it held were "deleted by the HR Department and the HR Manager has confirmed that this would be carried out as best practice on the conclusion of the investigation." It said that while the applicant is correct in his assumption that there was considerable contact between HR and Mr Y, the Body has provided him with all records that its HR department retained.

Finally, the applicant did not accept the Body's description of the level of contacts it said it had had with Mr Y in relation to the data protection breach, the extent to which the Body said it kept related records, and what it said it was told by the ODPC. The Body maintains its position that the contacts were minimal. I note it said that these were by phone with no notes made. It also maintains its position regarding what it said it had been told by the ODPC.

Analysis
Because its decision on the applicant's request of 20 November 2015 did not include the records held by Mr Y that he has now sent on to it, the Body effectively refused to grant access to those records. However, I do not consider it appropriate to direct that they be released. Given their subject matter, their release could well affect the interests of third parties, whose rights must be considered. Neither is it appropriate for this Office to effectively act as a first instance decision maker in relation to those records. In the circumstances, the most appropriate decision for me to make is to annul the Body's effective refusal of the records that Mr Y recently forwarded to it, and to direct the Body to undertake a fresh decision making process in respect of those records. The applicant has the usual right of internal and external (OIC) review of the Body's fresh decision. That said, the Body and the applicant should note that the provision of records to a requester in a process outside of FOI, such as in the course of a Dignity at Work investigation, does not of itself create an entitlement to the same or related records under FOI.

My remit in a case such as this does not require me to categorically establish the level, or nature, of contacts between different parties. Neither does it extend to considering or making findings on whether the Body's records management processes generally are appropriate, or on whether it was appropriate for records to have been destroyed.

I accept that it is not possible for the Body to be definitive about whether all records identified by the applicant were created in the first place, or, if they were, what exactly has become of them. Having regard to the Body's description of the searches it says it carried out in this case (including the various contacts with Mr Y in this regard) and its responses to various queries put to it by this Office, I consider it to have adequately justified its position that it has taken reasonable steps to look for any further records of relevance to the request of 20 November 2015 that may exist. While it may be possible that further relevant records exist that have not been found, I do not believe that the FOI Act requires me to direct the Body to indefinitely carry out general searches for such records. I have no reason to dispute that the recordings made by Mr Y, and certain records held by the Body's HR department, have been destroyed. Finally, I also I accept the Body's explanation regarding why records concerning the conflict identified and assessed by Mr Y are not considered to fall within the scope of the applicant's request. In the circumstances, I affirm its effective application of section 15(1)(a) to this particular request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Body's decision.

I annul its effective refusal of access to the records recently forwarded to it by Mr Y. I remit this matter to the Body for fresh consideration, and for it to inform the applicant of its decision in accordance with section 13 of the FOI Act. I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by the Body to this element of my decision 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.

I also affirm the Body's effective reliance on section 15(1)(a) in refusing to grant access to further records relevant to the request of 20 November 2015.

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