Whether the HSE was justified in refusing to release records relating to the regularisation of two staff members on the basis of sections 15(1)(a) and 37(1) of the FOI Act

23/08/2018

Background

On 31 May 2017, the applicant sought access to (a) all records relating to the appointment of two named individuals to a specific grade within the HSE under a regularisation process and (b) copies of correspondence between the National Director of Human Resources (HR) and Consumer Services Managers relating to the designation of one of these individuals to a post in an acting capacity at a particular time.

On 30 June, the HSE refused the request, part (a) under section 37(1) of the FOI Act and part (b) under section 15(1)(a). The applicant sought an internal review of that decision, following which the HSE affirmed its original decision.  On 6 February 2018 the applicant sought a review by this Office of the HSE's decision.

In correspondence with this Office the HSE indicated that it had identified 36 pages of records falling within the scope of the first part of the applicant's request but that no records could be found falling within the second part of the applicant's request. 

During the course of the review by this Office, Ms Connery, Investigator, contacted the two named individuals concerned and sought their views in relation to the possible release of the contracts they had both signed following the completion of the regularisation processes (pages 7-11 and pages 17-20 respectively of the relevant records). In both cases the individuals were agreeable to the release of their employment contracts, on the understanding that certain personal information would be redacted. Subsequently, the HSE released the two contracts to the applicant on 14 August 2018, with the exception of the home addresses, personnel numbers, signatures and employment commencement dates of the two individuals. 

I have decided to bring this review to a close by way of a formal binding decision. In conducting the review I have had regard to the HSE's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the records identified by the HSE as coming within part (a) of the applicant's request.

Scope of Review

This review is concerned solely with whether the HSE was justified (i) in refusing to grant access, either in whole or in part, to the remaining records it identified as falling within the scope of part (a) of the applicant's request under section 37(1) of the FOI Act and (ii) in refusing part (b) of the applicant's request under section 15(1)(a) on the ground that no relevant records exist or can be found.

Analysis and Findings

Section 37(1) 

Section 37(1) of the FOI Act provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester.

For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (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), i.e. personnel records of staff of FOI bodies.
Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).
The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

The applicant argues that the information sought relates merely to the official functions of the posts in question as it is the post that is regularised. She also argues that the records are not of a type to which section 11(6) applies as they are not records that relate wholly or mainly to the competence or ability of the individuals in their capacity as staff members. HSE HR Circular 17/2003 provided for the regularisation of acting posts in conjunction with the introduction of new arrangements for the short term filling of posts within the HSE. The records at issue relate to the application of the provisions of that Circular in respect of two named individuals. It is noteworthy that the definition of personnel records as set out at section 11(6) also includes records relating wholly or mainly to the employment or employment history of staff members of FOI bodies.

Having examined the records at issue, I am satisfied that they can reasonably be described as personnel records of the staff members concerned as defined in section 11(6)(a) and as such, that they are captured by category (v) of the definition of personal information and are not captured by the exclusion at Paragraph (I) of that definition. I am satisfied that the release of the records sought would involve the disclosure of personal information relating to the two named individuals and that section 37(1) applies to the records.  I am also satisfied that the information redacted from the two contracts subsequently released to the applicant is personal information within the meaning of section 37(1).

Section 37(5) - Public Interest

Section 37(1) is subject to other provisions of the section. In my view, only section 37(5)(a) is of relevance in this case. That section provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance, the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates.
I must therefore consider whether the public interest in releasing the records at issue, on balance, outweighs the right to privacy of the individuals concerned.  In considering the public interest test at section 37(5)(a), I have had regard to the the comments of the Supreme Court in 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''). In that judgment, the Supreme Court 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. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).
In relation to where the balance of the public interest lies, 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.

In my view, release of the information sought would involve a significant breach of the two individuals' privacy rights. I am particularly conscious of the fact that the applicant's original request had named the two individuals. In light of this I cannot see any way that HSE could anonymise the personnel records and yet still maintain the privacy of the individuals concerned.  I find, therefore, that the public interest in granting access to the records at issue does not, on balance, outweigh the privacy rights of the individuals concerned, and that section 37(5)(a) does not apply in the circumstances.
In conclusion I find that the HSE was justified in refusing access to the relevant records on the basis of section 37(1). 

Section 15

As outlined above, the HSE's position is that following searches, no records coming within the scope of part (b) of the applicant's request exist. Section 15(1)(a) of the FOI Act provides that a request may be refused if the records sought do not exist, or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken.

The Commissioner's role in such cases is to review the decision of the FOI body and to decide whether that decision was 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 FOI body, on the basis of which the FOI body concluded that it has taken all reasonable steps to locate the relevant records.   Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. 

At the internal review stage, the HSE provided the applicant with details of the various searches undertaken to identify records falling within the scope of part (b) of her request. In particular it provided details of the search terms used to search the database in the Office of the National Director of HR as well as physical searches of filing cabinets. Following these searches the position of the HSE is that it has taken all reasonable steps to look for records of relevance to part (b) of the applicant's request within the Office of the National Director of HR.
 
In correspondence with this Office the HSE have reiterated its position that no further records falling within the scope of the second part of the applicant's request can be found within the Office of the National Director of HR. In here application for review, the applicant stated that her colleagues were advised by the Director of HR in 2011 that he had referred their concerns relating to the assignment of one of the individuals in question to the individual's line manager. In its submission to this Office, the HSE suggested that the records in question may be held by another HSE Directorate.

While I have no reason to dispute the HSE's contention that no further records relating to part (b) of the applicant's request exist within the Office of the National Director of HR it seems to me that the HSE has interpreted the applicant's request too narrowly. While she sought copies of correspondence between the National Director of HR and/or his staff and consumer services managers, she did not limit her request to records held by the Office of the National Director. In my view the HSE should at least have consulted with those managers and/or their respective Directorates to determine if any relevant records are held. In the circumstances, I find that the HSE was not justified in refusing part (b) of the applicant's request under section 15(1)(a) as it did not, in my view, take all reasonable steps to ascertain the whereabouts of the records sought. I consider it appropriate to annul the HSE's decision on part (b) of the applicant's request and to remit the matter for fresh consideration. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE in this case. While I affirm its decision relation to part (a) of the applicant's request to refuse access to the relevant records, in whole or in part, under section 37 of the FOI Act, I annul its decision with regard to part (b) of the request and direct that a fresh decision making process be undertaken in relation to part (b). Furthermore, for clarity, I specify that, subject to sections 24 and 26 of the FOI Act, the statutory time limit for the making of the decision begins on 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. It is open to the Department to contact the applicant to establish that she wishes to proceed with a fresh decision.

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.

Stephen Rafferty
Senior Investigator