30 November 2018

Whether Revenue was justified in refusing the applicant-�s request for access to records concerning a workplace related complaint

Background

On 15 June 2017, the applicant made a lengthy and detailed request for access to records held by Revenue relating to a grievance issue in the workplace, from 1 January 2011 to the date of his request. In the request the applicant included reference to a number of specific emails to and from named members of staff and other correspondence but also referred to "all notes", "all exchanges" and "all correspondence".

The background to this review is complex. From information provided, it seems the applicant made a number of FOI requests about matters related to a workplace grievance, and it is evident that Revenue considered that the subject matter of those requests overlapped. In this review the applicant's original request referred to access to records "relating to [him]".  In such cases an FOI body might seek clarification from a requester on the scope of the request. I can see nothing in the decision making records to suggest that Revenue adopted this approach, although some clarification was sought about search issues. The applicant stated that, in particular, his request "included all information relating to [his] grievance" with Revenue. In addition, in his application and submission to this Office the applicant stated that he considered he was entitled to access records "relating to [his] case". Due to the number of other FOI requests made by the applicant, this Office confirmed with him that this review relates to his request referenced by Revenue [...] and that the subject matter of his request is his grievance case with Revenue.

Revenue forwarded the request to three Divisions (Corporate Affairs and Customs Division, Corporate Services Division-Human Resources and Corporate Services Division-Information Management Branch), each of which responded separately. In its decision (involving all three relevant divisions) to the applicant, Revenue released a large number of records and refused access in full and in part to others on the basis of sections 15(1)(a), 30(1)(c), 33(3)(c), 35(1)(a) and (b), 36(1) and 37(1) of the FOI Act. Following a request for an internal review, Revenue released a number of additional records and affirmed its decision on the remaining records. In addition, in a separate letter dated 24 April 2018, the applicant was advised that additional records had been found and were being considered for release by Revenue. On 15 May 2018, this Office accepted an application for a review of Revenue's decision from the applicant.

During the review Revenue confirmed that the additional records discovered (re: letter of 24 April 2018 as referenced above) were released in full to the applicant. In addition, Revenue referred to records which it previously refused in part and in full on the basis of a number of exemptions. Revenue said that it had since revised its position such that the following exemptions now applied to certain records; sections 15(1)(a); 30(1)(a) & (c); 33(3)(c); 35(1)(a) and (b); 36(1(b) and 37(1) of the FOI Act. Revenue said it also considered that information in some records is outside the scope of the FOI request as made, on the basis that the withheld information in the records does not relate to the applicant or his grievance. This Office informed the applicant of Revenue's new position on the records.

In conducting this review I have had regard to the submissions of Revenue and the applicant, and to correspondence between the applicant, Revenue and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.

Preliminary Matters

In his application for review, the applicant questioned the approach adopted by Revenue in considering what he regards as "the entirety of [his] request". The applicant questioned why, following a number of further communications from him, Revenue treated the additional information in those communications as new and separate FOI requests. The matters raised by the applicant in those additional communications were not included in his original request. Consequently, Revenue regarded them as new FOI requests. It is important to note that in the FOI request to which this review relates the applicant requested records up to the date of the request, i.e. 15 June 2017.  It is not possible to broaden an FOI request to seek further records beyond those covered by the original request. As such, my remit is confined to reviewing the decision on the records identified as falling within the FOI request as originally made.

The applicant raised a concern about a potential conflict of interest in relation to the decision making process applied by Revenue to his request. It is not unusual for FOI decision makers to be involved in decisions concerning records in their own area of responsibility within a public body. I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of the review decision. I stress that the findings which follow are confined to the applicant's right to access records under the FOI Act and do not extend to other matters related to other issues the applicant may have in his dealings with Revenue over which the Commissioner does not have jurisdiction.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records in my analysis is limited.

Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews 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 Revenue to satisfy the Commissioner that its decision is justified.

Scope of Review

This review is solely concerned with whether the decision of Revenue to refuse the applicant's request under sections 15(1)(a), 30(1)(a) & (c), 33(3)(c), 35(1)(a) and (b), 36(1(b) and 37(1) of the FOI Act was justified.

Analysis and Findings

Withheld Information - Outside scope of request and review
In addition to the records which Revenue identified as not within the scope of the original FOI request as made, I have considered whether a number of other records, either in full or in part, are within scope of the request as made. As referred to above, this is a de novo review. Consequently, I must consider whether the content of the records at issue relate to the applicant and his case and whether any are outside the scope of this review.
The records considered here are as follows:

• Corporate Services Division-Human Resources - record described in File 2 as 'Dignity at Work E24/17', and record 25 in File 8.
• Corporate Affairs and Customs Division - information withheld in record 7
• Corporate Services Division-Information Management Branch - information withheld in records B, C, D, J, Q, U and V.

In response to this Office's question of the scope of the request, the applicant very helpfully confirmed that he was seeking access only to records that related to him and the grievance he had with Revenue. In a telephone conversation with the Investigator, the applicant accepted that certain information withheld in records of email threads related to his role as a former employee of Revenue and not to his grievance.

After careful examination, I am of the view that the information in the records identified above concerns other matters (e.g. emails to and from the applicant purely in his capacity as an officer of Revenue and concerning the business of the unit in which he worked) which do not come within the scope of the applicant's request as made. In addition, a small amount of redacted information in some records were stated to have been refused under section 37. The redacted information seems to relate to third party companies or cases connected with the business of Revenue and the applicant's duties. As such, I am of the view that the redacted information related to those third parties does not come within the scope of the applicant's request since it cannot be said to relate to his grievance.

Accordingly, I find that these records are not within the scope of this review and I will not consider them further. The effect of my finding is that the exemptions relied on by Revenue, sections 30(1)(a) & (c), 33(3)(c), 35(1)(a) & (b) and 36(1(b) to withhold information in those records no longer apply.

Section 15(1)(a)
Section 15(1)(a) of the FOI Act 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. The role of this Office in cases such as this 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

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 the steps taken to search for records were reasonable. 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. However, it is not normally the function of this Office to search for records that a requester believes are in existence.

The applicant provided very detailed descriptions of a number of emails to which he sought access. The applicant also sought access to contemporaneous notes which he said were made by a named individual within Revenue at a meeting on 17 February 2014. However, during the review the applicant informed the Investigator that he accepts that no contemporaneous records exist of the meeting.

Revenue stated that in searching for records, it wrote to the applicant on 11 September 2017 and asked if he could provide further details in relation to a number of specific records of emails he had listed in his request. Revenue said that while the applicant subsequently contacted the body, he did not provide any further information that might assist in the search process for the records as referenced

Revenue stated that in addition to searches conducted within the three named divisions, it conducted further searches for records held by staff currently working in other divisions. Revenue said it also made searches in the names of staff who had retired and for records held in the Chairman's Office and the Revenue Solicitors Office. It said that in relation to records of retired members of staff, searches were conducted by the Revenue IT Division, Information Technology and Logistics (ICT&L). The applicant is a former member of Revenue staff. Revenue said that ICT&L conducted searches based on several criteria in both email inboxes and archives. It said that ICT&L clarified that usually if records cannot be located it is because the owner of the record has deleted the document. The deleted folder purges itself after 40 days and as such, it is permanently deleted. Revenue said that in other cases the owner of an email can manually force the system to delete an email which also results in permanent deletion.

The applicant also referred to a 'Chairman's Report'. It is not clear to me whether this reference was included in the applicant's original FOI request or if the Report formed part of a subsequent request. However, in its submission Revenue confirmed that the narrative of what was reported to the Chairman in a Report was released in full to the applicant in record 54 held by the Corporate Services Division-Human Resources. Revenue said that it would extract all relevant records from the monthly Chairman's Report and send these to the applicant.

The position of Revenue is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct Revenue to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, I consider that Revenue has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 37 - Personal information
Revenue refused access in part to information in a number of records on the basis of section 37(1) of the FOI Act. Those records are:

• Corporate Services Division-Information Management Branch - records L, N, P, Q1, R and S
• Corporate Affairs and Customs Division - record numbers 9-15 and 20-28 inclusive
• Corporate Services Division-Human Resources - File 9(b), record number 29 and File 9(c), record numbers 60, 63, 64, 65, 72, 73 and 74.

Section 37(1)
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information.  Section 2 of the FOI 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 the body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).

Paragraph I of section 2 of the Act excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot 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. In this case, the type of workplace dispute involved has resulted in the creation of records containing personal information of identifiable staff members which does not relate to their positions or terms and conditions. In this case redacting names of individuals would not be appropriate since they would still be identifiable from the context and content of the workplace records.

Revenue refused access to the information in the records under section 37(1) of the Act, on the basis they contained the personal information of persons other than the applicant. It is clear from my examination that release of the withheld information in the records would disclose the personal information of parties other than the applicant.

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.

Having carefully examined the records, I am satisfied that the withheld information is either personal information relating to individuals other than the applicant, or otherwise does not relate to the applicant or to the matter of his grievance. Accordingly, I find that section 37(1) of the FOI Act applies to those records.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2)
Section 37(2) of the FOI Act provides for a number of circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2)(a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:
(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or
(b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of any of the individuals concerned and that section 37(5)(b) does not apply. 
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

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 have regard to 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] IESC 26 ("the Rotunda case"). It is noted that 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.

Furthermore, McDermott J. in his December 2016 judgment in the case of F.P. and the Information Commissioner[2014 No. 114 MCA] ("the F.P. case"), said that private as opposed to public interests were not a sufficient basis upon which to exercise the discretion in favour of the appellant under the relevant public interest test in that case. He also said that "the -�public interest-� in granting access is not to be determined on the basis of the appellant-�s personal circumstances or desire to explore or pursue civil proceedings or criminal complaints.-�

It is clear from the Rotunda and F.P. cases that I cannot take into account the applicant's private interests in the grant of access to the withheld information. It is not appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis that the information may relate to decisions that might have impinged on the applicant. Neither is it appropriate for me to direct Revenue to grant access to the records on the basis of views - however strongly held - that the applicant holds on the inadequacy of its processes or procedures.  As the Commissioner said in his composite decision in cases 090261/090262/090263, "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."

In this case, there is a public interest, recognised by the FOI Act, in establishing that Revenue carried out its functions in relation to the applicant in a way that was consistent with the principles of natural and constitutional justice. It is entitled to significant weight in this case. While this public interest has been served to some extent by the material granted to date, I accept that it would be further served if access to the remaining withheld records or parts of records was granted. The FOI Act itself recognises the public interest in 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. 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.

On balance, I find that the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

I am satisfied that all of the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of Revenue to refuse to release records to the applicant under section 15(1)(a) of the FOI Act on the ground that no further relevant records within the revised scope of the request exist. I affirm the decision of Revenue to withhold information in other records under section 37(1) on the basis that they contain the personal information of individuals other than the applicant. I find that the public interest in granting the request in relation to those records does not outweigh the public interest in upholding the privacy rights of other individuals.

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