Whether TII was justified in refusing access to records relating to a work-place investigation, on the grounds that the records are exempt under sections 30, 31, 35, 36 and 37 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

By email dated 21 April 2017, the applicant made an FOI request to TII for records relating to the review of a work-place investigation. On 19 May 2017 TII granted access to some information and refused access to the rest of the information sought, on the basis that it was exempt under sections 15(1)(a), 15(1)(i), 30(1)(b), "31(1)(b)" (its submissions make clear it means 31(1)(a)), 35(1)(a) and (b), 36(1)(b) and 37 of the FOI Act. On 26 May 2017, the applicant applied for an internal review of that decision. TII issued its internal review decision on 16 June 2017, in which it affirmed its original decision. On 22 June 2017 the applicant sought a review by this Office of TII's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the TII as outlined above and to the correspondence between this Office and both parties, as well as to the contents of the withheld records that were provided to this Office by TII for the purposes of this review. During the review, the Investigator obtained submissions from a third party and I have also had regard to these.

Scope of the Review

During the review, TII released further information to the applicant (the name of a member of staff which had previously been redacted). Furthermore, the applicant confirmed to this Office that he was not challenging TII's decision to refuse access to Records 4 and 20, which TII had withheld under section 15(1)(i) of the FOI Act. Finally, regarding section 15(1)(a), TII's position is that no further records exist relating to its appointment of a third party company for the review of a work-place investigation. In his application for review to this Office, the applicant does not argue that further records exist in this regard and I will not address this aspect of TII's decision in my review.
Accordingly, this review is solely concerned with whether TII was justified in refusing access to the remaining withheld records, under sections 30(1)(b), 31(1)(a), 35(1)(a) and (b), 36(1)(b) and 37 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, the onus is on TII in this case to satisfy me that its decision to refuse access to the records at issue was justified.
Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. Therefore I can only consider the applicant's reasons insofar as they might be construed as a public interest argument.

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 limited.

Fourthly, 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. This Office takes the view that the provisions of section 18 do not 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.  Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, 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.

Analysis and Findings

Section 31(1)(a) - Legal Professional Privilege
TII claims section 31(1)(a) over Record 8. Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).

Having reviewed Record 8, I am satisfied that section 31(1)(a) applies to it, on the basis that it is a confidential communication between a client and their legal adviser for the purpose of seeking and obtaining legal advice. I therefore find that TII is justified in withholding access to Record 8 under section 31(1)(a) of the FOI Act.

Section 36 - Commercial Sensitivity
Section 36(1)(b)
TII claims section 36(1)(b) over the withheld parts of Record 25. Section 36 provides that an FOI body shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation". However, section 36(1) does not apply if the public interest would, on balance, be better served by granting rather than refusing the request (section 36(3) refers).

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. The harm test in the first part of subsection (1)(b) is that disclosure of the information could reasonably be expected to result in material financial loss or gain. I take the view that the test to be applied in this regard is whether the decision-maker's expectation is reasonable. The harm test in the second part of subsection (1)(b) is whether disclosure of the information "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard to meet the test of "could reasonably be expected to" in the first part of subsection 36(1)(b).

Record 25 is a letter of engagement between TII and a company which provided a service to TII. TII released most of this record, but withheld a mobile telephone number, details of the company's insurance arrangements and bank account, as well as the company's hourly rate. I will consider the mobile telephone number under section 37 below and the rest of the information under section 36.

Parties' Submissions

During the review, this Office obtained clarification from the applicant about whether he  sought access to the information about the company. The applicant submits that he should be provided with all information held by TII concerning the company, "as TII's decision to engage the company should be demonstrably above question - why and how was the company selected, what were the conditions of contract, what checks were carried out to demonstrate value for money etc".
TII submits that releasing the company's hourly rate could reasonably be expected to prejudice the company's competitive position, as it would enable the company's competitors to undercut its pricing for future projects. It says that releasing the company's insurance details would provide third parties who wish to lodge claims with information they would not otherwise know and may encourage claimants to seek higher amounts in claims than they otherwise would. TII says that if the withheld information were released, TII may find it difficult to engage the company or similar service providers.

The company submits that releasing the data has the potential to damage its competitiveness. It says that it operates in a very specialised field of work which is subject to intense competition. It says that having its pricing structure in the public domain would put it at a competitive disadvantage vis-a-vis other organisations who specialise in this area.

Analysis and Finding

Generally, this Office has accepted in other cases that details of a company's internal business and its approach to a particular project are regarded as commercially sensitive and may be entitled to confidential treatment even after the award. Therefore I accept that the withheld information would not otherwise be available to the company's competitors and that releasing it could prejudice the company's competitive position in future projects. I find that section 36(1)(b) applies to the withheld information.

Section 36(2)
Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arises in this case.

Section 36(3)
Section 36(3) of the FOI Act requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the FOI request.

Section 36(1) itself reflects the public interest in protecting commercially sensitive information. I recognise that there is a legitimate public interest in entities being able to conduct commercial transactions with public bodies without fear of suffering commercially as a result. On the other hand, the FOI Act recognises, both in its long title and in its individual provisions that there is a significant public interest in public bodies being open and accountable.  Section 11(3) of the FOI Act provides that public bodies shall, in performing any function under the FOI Act, have regard to a number of matters. These include: the need to achieve greater openness in their activities and to promote adherence to the principles of transparency in government and public affairs; the need to strengthen their accountability; and the need to improve the quality of their decision-making.

I take the approach that in attempting to strike the balance between openness on the one hand and the need to protect commercially sensitive information on the other, it is legitimate to consider two things: the positive public interest which is served by disclosure; and the harm that might be caused by disclosure.

I consider that there is a positive public interest in openness and accountability around the use of public funds. During this review, TII confirmed that the rate was the final agreed hourly rate between TII and the company. However, the records identified as falling within the scope of the review do not disclose the overall cost of the service provided. Neither do they disclose the number of hours invoiced. I have already identified the potential harm to the company's competitive position. As a general principle, I do not believe that the FOI Act was designed as a means by which the operations of private enterprises were to be opened up to scrutiny. The applicant says that TII's engagement of the company should be shown to be above question in relation to such matters as why and how the company was selected, the conditions of contract and value for money checks. I should emphasise that this Office's role is to decide whether TII was justified in its decision and not to adjudicate on how TII engages contractors. In any event, the principle of transparency which I believe underlies the applicant's argument is a factor which I am required to weigh in the balance.

I do not see how disclosing details of the company's insurance arrangements and bank account would serve the public interest. Moreover, as the hourly rate does not reveal the final cost of the service, on balance I do not consider that the public interest in releasing it would outweigh the potential harm to the company, which I accept operates in a specialised sector. In the circumstances, I find that the public interest would not be better served by granting access to the withheld information. I find that TII is justified in refusing access to the withheld information under section 36(1) of the FOI Act.

Section 37 - Personal information
Sections 37(1) & 37(7)
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. 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. These categories include: "(i) information relating to the educational, medical, psychiatric or psychological history of the individual", "(iii) information relating to the employment or employment history of the individual" and "(v) information relating to the individual in a record falling within section 11(6)(a)". Section 11(6)(a) of the FOI Act refers to personnel records of members of staff of FOI bodies.

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".

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The following records (whole pages and/or redactions) relate to individuals other than the applicant: 1, 2, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30. As noted above, Record 25 includes the mobile telephone number of a staff member of a third party company. The remaining records include correspondence to and from solicitors acting for a third party individual, as well as the names of witnesses in the investigation. They also contain information relating to the medical and employment histories of individuals other than the applicant. A few pages include references to the applicant.

As noted above, the personnel records of staff members of FOI bodies are included within the definition of personal information. The records at issue concern a work-place complaint and an investigation into the complaint. I do not accept that such matters could be characterised as being for the purpose of the performance of the functions of employees concerned. Accordingly, the qualification on the definition of "personal information" cited above does not apply to the records. I am satisfied that none of the information at issue falls into any of the categories of information in paragraph I of section 2 of the FOI Act.

Even if the references to the applicant can be said to constitute personal information relating to him, it is clear to me that releasing the records would involve the disclosure of personal information relating to individuals other than him. In theory, one could extract certain words or a sentence from the records which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, the references to the applicant appear in the context of information relating to third parties. Having regard to section 18 of the FOI Act, I conclude that to provide redacted copies of the records would be to provide misleading records.

I consider that the records are covered by the definition of personal information under the FOI Act and exempt from release under section 37(1) of the FOI Act. This is subject to the provisions of sections 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 the circumstances in section 37(2) apply to these records. That is to say, (a) the information contained in them 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. 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 the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates.

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.
The applicant submits that there is a clear overriding public interest in ensuring that the records he seeks are released to him under the FOI Act. He says that they relate to a process which resulted in an attack on his good name, integrity, good standing and professional reputation. He says that it is essential that those "outside the closed doors" of an investigation can be assured that the procedures taking place "inside the closed doors" are carried out in accordance with the organisation's policy and with due regard to the rights of fair procedures and the protection of each employee's good name.

As noted above, I am required to disregard the applicant's reasons for his FOI request. Therefore I can only take into account the purpose for which he seeks this information to the extent that he identifies a public interest. I believe that the interest which the applicant sets out is more properly viewed as a private rather than a public interest. It would not be appropriate for me to direct the release of any third party personal information on the basis of any private interests that the applicant may have in the release of the records. I consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI.
As the Commissioner said in his composite decision in cases 090261/090262/090263, which was upheld by the High Court in FP v The Information Commissioner [2016] IEHC 771:

"I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the records relate. 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 TII is justified in refusing access to the above-numbered records, under section 37(1) of the FOI Act.

In view of the findings above, which cover all the records under review, it is not necessary for me to consider sections 30 or 35 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm TII's decision, under sections 31(1)(a), 36 and 37 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