Whether the Department was justified in its decision to refuse access to records which relate to the applicant, including records sent or received by nineteen named members of staff, under sections 15, 29, 30, 31, 35, and 37 of the FOI Act

04 April 2018

Background

On 8 December 2016, the applicant made an FOI request to the Department for access to:

"Copies of any information/data that the Department as my employer keeps about me on computer and in manual form, i.e. emails, letters, personnel notes, notes of meetings, recordings, personnel file(s)/notes, photographs etc. I am interested in records related to me in the [named] section and in the human resources section. I am interested in records related to me from January 2016 until present... I am interested in any records which were sent to, forwarded to, copied to, received by, written by and replied to by the following 19 [named] members of staff. "

On 16 January 2017, the Department granted the applicant's request in part. The Department identified 111 records that fall within the scope of the applicant's request. It granted access to 55 records and it refused access to the remaining 56 records. In her internal review request of 13 February 2017, the applicant argued that the Department ought to hold further records that fall within the scope of her request. On 7 March 2017, the Department affirmed its original decision to refuse 56 records; however, it varied the basis for refusing access to these records. The Department also located one additional record following further searches and it refused access to this record. On 4 September 2017, the applicant applied to this Office for a review of the Department's decision.

During the course of the review, the Department informed this Office that it was unable to locate six of the refused records. The Department stated that when FOI requests are made, hard copies of the records are typically maintained in the business unit to which the request relates. It stated that in this case the request covered sensitive records of 19 individual officers and it was decided to return the records to these officers for secure filing. According to the Department, soft copies of records were deleted in the belief that hard copies had been retained and when it searched for the records a number of the hard copies could not be located. The Department stated that in an effort to locate missing records, it restored an officer's mailbox and it retrieved all but six of the records (96, 101, 102, 107, 109 and 110). The Department also stated during the review that it wished to extend its reliance on sections 31(1)(a) and 37(1) to further records and it released four of the records to the applicant (38, 39, 40, and 91).

This Office informed the applicant of the Department's updated position as outlined above. The applicant confirmed that she did not wish to add to her original submissions.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the contents of the records at issue and to the provisions of the FOI Act.

Scope of the review

The Department failed to locate records 96, 101, 102, 107, 109 and 110 and believes that they are missing. I deal with them below under section 15(1)(a). It released records 38, 39, 40 and 91 during the course of the review. Therefore, these records are excluded from the scope of this review. The scope of this review is confined to the following issues:

• Whether the Department has justified its decision that section 15(1)(a) of the FOI Act applies to the applicant's request as no further records exist or can be found after all reasonable steps to locate them have been taken;
• Whether the Department has justified its decision to refuse access to the following records on the basis of sections 29, 30, 31, 35, 37 or 42 of the Act: 1, 2, 3, 5, 7, 8, 9, 15, 19, 20, 21, 23, 24, 25, 29, 41, 42, 45, 47, 59, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 78, 80, 82, 83, 88, 89, 90, 92, 93, 94, 95, 106, 108, 111, 112;

Preliminary matters

I take this opportunity to make some comments for the guidance of both the applicant and the Department given the background to this case and the nature of the request.  I note that the Department has already brought to the attention of the applicant the provisions of Section 15(1)(c) which  allows FOI bodies, subject to section 15(4), to refuse a request where the nature or number of records sought would cause a substantial and unreasonable interference with or disruption to their work. Section 22(9)(a)(vii) gives the Commissioner a similar power. I am not suggesting that the Department should have applied section 15(1)(c) in this case.  Rather, I am simply bringing this to the attention of FOI bodies generally, and indeed to the applicant. I consider that the section 15 provisions generally are indications that, given the administrative burden that FOI places on public bodies, it was not the intention of the Oireachtas that requesters could behave unreasonably in exercising their rights to access records.

I note also that the Department's position on section 37 of the Act and access to personal information of persons other than the requester, including in some circumstances, the personal information of the Department's staff was upheld by the Commissioner in the applicant's previous review application ( Case No. 160421) on 10 February 2017). This would not have been notified to the applicant before she made the request which gave rise to this review. However, she would probably have had notification of the decision in Case 160421 before she made her internal review application in this case and definitely before she made this application for review in September 2017. I would ask the applicant to take particular note of the findings above under section 37 of the FOI Act in relation to personal information.

While there is no limit as to the number of FOI requests or other access requests that can be made by an individual, applicants should be aware of section 15 of the FOI Act, especially section 15(1)(g) that provides for refusal of what are referred to as "frivolous or vexatious" requests.

While section 13(4) of the FOI Act generally requires public bodies to disregard any reasons for the request, one's motive for making an FOI request is relevant when considering the application of section 15(1)(g). Factors relevant when considering if a request is frivolous or vexatious include whether it is intended to accomplish some objective unrelated to the access process, and whether the request was made in bad faith.

It should also be noted that section 22(9)(a)(i) enables this Office to discontinue a review where the application for review is frivolous or vexatious. The Commissioner has, in other cases, examined whether there was a pattern of behaviour, including using FOI to revisit long running grievances or applications deliberately intended to increase the administrative burden on a public body, to see if a request might have been made in bad faith. In this case, the matter has been complicated by the issue of whether additional records might be held and by the failure by the FOI body to locate certain records which had originally been held. Nonetheless, the number and extent of the various complaints, meetings and investigations at issue and the number of staff members and witnesses appears to have given rise to very large number of records and consequent difficulties in the area of records management and identification of all records falling within the scope of the various requests.

I must make it clear that the above comments are not to be seen as pre-judging any further applications that the applicant may make to the Department or to this Office. Each one will be treated on their own merits.

Section 18(1) provides, that "if it is practicable to do so", 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.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. Under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues

Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner [2002 No. 18 M.C.A.] available on this Office's website atwww.oic.ie).

In submissions to this Office, the applicant states that the Department ought to hold further relevant records including notes taken in November 2016 during the investigation of a complaint made by the applicant and records relating to her medical condition.

Following the applicant's submissions, this Office wrote to the Department and requested that it provide replies to detailed queries in relation to searches undertaken to locate the records specifically mentioned by the applicant and searches to locate any other relevant records.

In its reply, the Department states that in November 2016, meetings took place as part of local informal efforts to resolve the applicant's complaints. It states that these meetings were attended by the respondents to the complaints and by witnesses. It states that an officer of the Department took handwritten notes at the meetings for her own use and information. According to the Department, informal efforts to resolve the complaints were unsuccessful and a formal investigation commenced in April 2017. The Department states that in June 2017, the officer who took the handwritten notes reported to the Department's Investigator that despite extensive searches, it had not been possible to locate the relevant notebook. In August 2017, the Department's Investigator reported this to the applicant. According to the Department, the applicant received reports of interviews with the respondents which took place as part of the formal investigation; however, the handwritten notes of the informal meetings have not been located. The Department states that the applicant's medical records are contained on her personnel file and she has accessed this file on many occasions.

The Department also outlined the steps that it says it has taken to search for any other relevant records. According to the Department, the responding officer sent an email to all named officers requesting relevant records. Additionally, hard copy files retained in offices in the two relevant business units were searched. The Department states that searches were carried out manually, by computer, by name and by key words. According to the Department, at the internal review stage, the reviewing officer spoke to all officers named in the request by telephone or in person to ensure all relevant records were located. The Department explained in detail how the soft copies of the "missing" six records discussed above were deleted and its efforts to retrieve the hard copies. I accept that the six records which it had originally considered cannot now be found. The Department has apologised for its failure to retain the copies and undertakes to improve its procedures.

I note that in her internal review request, the applicant identified four records which in her view, the Department ought to hold. In its internal review decision, the Department confirmed that three of these records were actually listed on the schedule provided to the applicant and it stated that following further searches, it had located the fourth record. I accept that the Department took reasonable steps to locate the handwritten notes mentioned by the applicant and I accept that the applicant can access her medical records on her personnel file. It seems to me, that most if not all of the records specifically identified by the applicant have been located by the Department. I am satisfied that the Department has taken reasonable steps to locate relevant records. I find, therefore, that section 15(1)(a) of the Act applies to the applicant's request insofar as it relates to any further records which in the applicant's view the Department ought to hold.

Sections 31(1)(a) and 42(f) - Legal communications

The Department relies on section 31(1)(a) of the Act in refusing access to records 15, 24, 25, 78, 80, 82, and 95. Section 31(1)(a) provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). 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).

Advice Privilege

Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The concept of "once privileged always privileged" applies where privilege is based on advice privilege, and thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely. The Commissioner also takes the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice. With some limited exceptions, disclosure of a record to a third party generally amounts to a waiver of privilege.

Section 42(f)

Section 42(f) of the FOI Act provides that the Act does not apply to a record held or created by the Attorney General (AG) or the Office of the Attorney General, other than a record relating to general administration. It is generally accepted that the Chief State Solicitor's Office (CSSO) is part of the AG's Office.

The Department states that in 2016, it was served with papers in relation to two cases taken against it. It states that the CSSO represented the Department in one case and this case has concluded. It states that the second case was referred to external legal advisers and is ongoing. The Department argues that the records contain communications with the CSSO in relation to the first case or with the external legal advisers in relation to the second case.

Having examined the records, I am satisfied that records 24, 25, 78 and 80 include correspondence from the CSSO to the Department containing legal advice. The records do not relate to general administration. I find that these records are not subject to FOI under section 42(f).

I am satisfied that record 15 contains confidential communications between the Department and its professional legal advisers for the purpose of obtaining and/or giving legal advice.  I find that Department has justified refusal of record 15 under section 31(1)(a) of the Act on the basis of legal advice privilege.

Record 82 is a communication between officers of the Department, I am satisfied that it is more appropriate to consider record 82 under section 37 of the Act.

Section 37 Personal Information

The Department has relied on section 37 of the FOI Act in refusing access to the remaining records: 1, 2, 3, 5, 7, 8, 9, 19, 20, 21, 23, 29, 41, 42, 45, 47, 59, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 82, 83, 88, 89, 90, 92, 93, 94, 106, 108, 111, 112.

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

Section 2 of the Act defines "personal information" as information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (iii) information relating to the employment or employment history of the individual; (v) information relating to the individual in a record falling within section 11(6)(a) - a personnel record, that is to say, a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of staff of an FOI Body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member; (xii) The name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would be likely to establish that any personal information held by the FOI Body concerned relates to the individual.

Section 2 part (I) of the Act provides that the definition of personal information does not include certain information relating to an individual who holds or held a position as a member of staff of an FOI body. The information excluded includes the name of the individual, information relating to the position or its functions, the terms upon or subject to which the individual holds/held that position, or anything written or recorded in any form by the individual in the course of or for the purpose of the performance of the functions of the position.

Section 2 part (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her functions. In case number 140157 (Mr. X and Cork County Council) (available at www.oic.ie), the Commissioner considered that the request sought access to specified records that confirmed if a named employee was the subject of an internal investigation. The Commissioner found that, while misconduct might sometimes occur while at work and might be facilitated by virtue of the work position held by an individual, it could not be said to be something done for the purposes of performing one's work functions.

The Records

With the exception of record 73 which I consider below, each of the records concerns allegations of misconduct and includes emails between staff members and the HR section, notes of meetings between staff members and HR and reports by an independent investigator. The records confirm whether identified staff members were the subject of internal or external investigation. I am satisfied that the records contain personal information of identified staff members. I am also satisfied that the alleged misconduct could not be said to be something done for the purpose of the performance of the staff members functions and the qualification on the definition of personal information contained in section 2 part (I) does not apply to the records at issue.

The records also include information in relation to the applicant; however, none of the records contain information which is personal information relating solely to the applicant. In each record, the applicant's personal information is intertwined with the personal information of other members of staff. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. However, having regard to the content of the records, it seems to me that it is not practicable to separate the personal information of the applicant from that of the third party staff member.

I find, therefore, that records are exempt from release on the basis of section 37(1) of the Act subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, I am satisfied that none of the circumstances set out in section 37(2) apply to the records at issue.

Section 37(5)

Section 37(5)(b) of the FOI Act provides that a request which would fall to be refused under section 37(1), may still be granted where the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals concerned. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is important to take note of the   obiter comments of the Supreme Court in the Rotunda case. Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest." Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Thus, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also has a Constitutional dimension as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.

While there is a public interest in openness and transparency in the manner in which the Department performs its functions, I am of the opinion that this has been met to some degree by the release of information under this request and under the applicant's previous FOI request. There is also a public interest in public bodies being able to manage and conduct investigations in the context of staff management and dispute resolution. This is particularly so when disputes are about sensitive issues and are ongoing. I do not consider that the public interest in the release of the records at issue outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I am satisfied, therefore, that section 37(5)(a) does not apply to these records and I find that they are exempt under section 37(1) of the Act.

Record 73 contains an email from the HR section to an independent investigator. This email does not contain the personal information of identified staff members. Having regard to the content of record 73, I am satisfied that it is more appropriate to consider it under section 30(1)(b) of the Act.

Section 30(1)(b) Management Functions of FOI Bodies

Section 30(1)(b) provides that 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 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). Section 30(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting the FOI request.

Where an FOI body relies on section 30(1)(b) it should identify the potential harm to the performance by the body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. When invoking section 30(1)(b), the FOI Body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). Having identified the significant adverse effect envisaged, the FOI body should explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.

According to the Department, there have been numerous claims and counterclaims amongst the staff referred to in the applicant's FOI request. It states that this has resulted in a challenging working environment for all concerned. The Department states there are two internal investigations into claims that are currently ongoing and it argues that releasing record 73 could undermine management attempts to address ongoing internal relations issues.

I note that record 73 is approximately two years old.  However, I accept that the issues referred to in the record are ongoing. The Department has taken steps, including appointing external parties, to investigate and mediate in relation to complaints. I accept that the Department is seeking to repair damage caused to interpersonal relationships by the raising of claims and counterclaims. I am satisfied that release of record 73 could reasonably be expected to have a significant, adverse effect on its functions relating to management of industrial relations and staff management, in particular on management's ability to improve working relationships and morale. I find, therefore, that this record is exempt under section 30(1)(b) of the Act.

Section 30(2) - The Public Interest

There is a public interest in openness and transparency in the manner in which the Department performs its functions including its functions in relation to staff management. I accept that release of record 73 would facilitate scrutiny of the human resources procedures adopted by the Department in this case. However, I accept that the Department is currently taking measures to resolve industrial relations difficulties. Having considered record 73, I am satisfied that, on balance, the public interest would be better served by refusing rather than by releasing this record and I find accordingly.

As I have found that all of the withheld records are exempt under either sections 15(1)(a), 30(1)(b), 31(1)(a), 37(1) or 42(f) of the Act, it is not necessary to consider whether sections 29 or 35 apply to any of the refused records.

Decision

• Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Department's decision.
• I find that section 15(1)(a) applies to the applicant's request insofar as it relates to further records;
• I find that section 30(1)(b) applies to exempt record 73;
• I find that section 31(1)(a) applies to exempt record 15;
• I find that section 37(1) applies to exempt records 1, 2, 3, 5, 7, 8, 9, 19, 20, 21, 23, 29, 41, 42, 45, 47, 59, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 82, 83, 88, 89, 90, 92, 93, 94, 106, 108, 111, 112;
• I find that section 42(f) applies so that records 24, 25, 78, 80, 95 are not covered by 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