Whether the Department was justified in refusing to release records relating to inspections carried out on the contractors operating the JobPath scheme on the basis of sections 30, 35 and 36 of the FOI Act.

07/03/2019

Background

On 13 June 2018, the applicant submitted two separate requests to the Department for copies of inspection reports of the offices of two service providers engaged to operate the JobPath Scheme, namely Seetec and Turas Nua. 
The appointment of Seetec and Turas Nua to operate the JobPath scheme on behalf of the Department followed a procurement process which was launched in 2013. The roll-out of the scheme itself began on a phased basis in July 2015. The JobPath scheme aims to increase the activation of long-term unemployed jobseekers through the support and assistance of a personal adviser. The Department refers jobseekers to one of the JobPath service providers who undertake an initial 12 month engagement with the individual. Through the elaboration of a personal progression plan, the aim is that the jobseeker will be supported in finding employment. When the jobseeker enters employment the JobPath personal adviser continues to work with the individual for a period of 3-12 months to sustain this employment.  

On 10 July 2018 the Department issued a single decision in response to both requests. As part of its decision the Department identified 54 records as falling within the scope of the applicant-�s request -� 27 records relating to inspections of offices operated by Seetec and 27 records relating to inspections of offices operated by Turas Nua. It refused access to all of the records under section 30 (relating to the functions of the Department), section 35 (relating to information provided in confidence) and section 36 (relating to commercially sensitive information) of the FOI Act.  
The applicant sought an internal review of that decision following which the Department affirmed its original decision. On 31 July 2018 the applicant sought a review by this Office of the Department's decision.   

During the course of the review, Ms Connery of this Office informed Seetec and Turas Nua of the review and offered them an opportunity to make a submission on the matter. She informed both parties that any queries they had regarding the contents of the records should be directed to the Department. Both parties made submissions to this Office. 
I have now concluded my review of the Department's decision. In conducting the review I have had regard to the Department's correspondence with the applicant as outlined above and to the communications between this Office and the applicant, the Department, and the two JobPath service providers during the course of the review. I have also had regard to the contents of the records at issue.

Scope of Review

This review is solely concerned with whether the Department was justified in refusing to grant access to the inspection reports of the offices of two service providers engaged to operate the JobPath Scheme under sections 30, 35 and 36 of the FOI Act. 

Analysis and Findings

The records at issue comprise reports of inspections carried out by the Department of various offices of Seetec and Turas Nua. According to the reports, the inspections were carried out to verify aspects of compliance and to monitor performance at provider locations. Not all of the inspections were scheduled. Some were carried out without prior notification. The reports contain details of observations of the Department's inspectors and of the responses of Seetc and Turas Nua to those observations.

Section 30 

The Department has sought to rely on the provisions of both section 30(1)(a) and 30(1)(b) to refuse access to the relevant records. 

Section 30(1)(a)

Section 30(1)(a) provides for the refusal of a request if the FOI body considers that access to the records sought could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The provision envisages two potential types of "prejudice" or harm: (i) to the "effectiveness" of the investigations, etc. or (ii) to the procedures or methods employed for the conduct of such investigations, etc. Where an FOI body relies on section 30(1)(a), it should (i) identify the relevant function and the potential harm to that function that might arise from disclosure and (ii) show how release of the record could reasonably be expected to cause the harm envisaged.

In its decision letter of 10 July 2018, the Department argued that the release of the reports could prejudice the effectiveness of its investigations into the provision of the JobPath service. However, it did not explain how the release of the reports could cause such prejudice. In its submission of 7 September 2018 to this Office, it stated that the inspection reports are part of the ongoing management and governance of the contracts with Seetec and Turas Nua. It argued that the release of the reports prior to the completion of the contract offers each service provider an insight into the other's successes and failures and that the weight of any argument by the Department in favour of sanctioning a service provider for poor performance can then be offset by them, where it is perceived that the Department has not imposed a similar sanction on their competitor. It argued that, in effect, the Department's ability to determine the timing and severity of any sanction based on the individual circumstances of the service provider will be compromised by their knowledge of what was done in similar circumstances with the other.  

The Department has not identified a relevant function that falls to be protected under section 30(1)(a) (i.e. the effectiveness of investigations etc. and/or the procedures employed for conducting such investigations) or how the release of the records might prejudice that function. I find, therefore, that the Department has not satisfactorily shown that release of the records could reasonably be expected to give rise to any of the harms identified in section 30(1)(a). I find, therefore, that section 30(1)(a) does not apply.
For the sake of completeness I should add that in the course of arguing that the release of the reports would involve a breach of a duty of confidence (section 35(1)(b)), Turas Nua argued that the release of the reports would seriously hinder future office inspections. In essence, it suggested that the disclosure of the reports would lead to a less than frank and free flow of constructive dialogue between the parties. Given the nature of the contract between the parties, I do not accept that argument. 

Section 30(1)(b)

Section 30(1)(b) provides for the refusal of a request if the FOI Body considers that access to the record concerned could 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. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing -�significant adverse effect-� requires stronger evidence of damage than the -�prejudice-� standard in section 30(1)(a). Having identified the significant adverse effect envisaged, the FOI body should then consider the reasonableness of its expectation that the harm will occur. In examining the merits of an FOI body's view that the harm could reasonably be expected, this Office does not have to be satisfied that such an outcome will definitely occur. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

In its decision letter of 10 July 2018, the Department argued that the release of the reports could prejudice the effectiveness of its investigations which, in turn, could have an adverse impact on its ability to manage the contracts currently in place, to negotiate discounts and retention fees as provided for under the Agreements, and to negotiate future contracts. In its submission to this Office, the Department argued that it requires absolute discretion in determining the processes and procedures applicable to the conduct of inspections. It stated that inspectors should be in a position to conduct and progress inspections in response to the particular service provider, location, volume of client base etc.  The Department has also argued that 'no organisation with responsibility for the oversight of multiple contracted service providers would reveal the details of their inspections, investigations, and penalties of an individual organisation, except perhaps when the contracts have come to an end'.  

It seems to me that the Department's argument in support of its reliance on section 30(1)(b) is based entirely on its assertion that the release of the reports would prejudice the effectiveness of its investigations, an assertion that I do not accept. As such, this is sufficient for me to find that the Department has not justified its refusal under section 30(1)(b). For the sake of completeness, however, I have considered whether the Department's argument in support of its reliance on section 30(1)(a) is of relevance when considering section 30(1)(b), namely whether release of the reports could compromise its ability to properly manage the contracts in terms of its ability to sanction a service provider for poor performance. I do not accept this argument. It is a matter for the Department to apply sanctions in accordance with the terms of each individual agreement. The fact that one service provider might feel that it is being treated less favourably than another does not negate the Department's ability to apply sanctions, where appropriate. I find, therefore, that the Department has not satisfactorily shown that release of the records could reasonably be expected to have a significant, adverse effect on the performance by the Department of any of its functions relating to management. I find, therefore, that section 30(1)(b) does not apply.                                                                                                
                   

Section 35 

The Department has sought to rely on the provisions of both section 35(1)(a) and 35(1)(b) to refuse access to the reports.
Section 35(1)(a) provides for the mandatory refusal of a request if the record sought contains information that was given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and where the body considers that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information should continue to be given to the body.

Section 35(1)(b) provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. 
However, section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a member of the staff of an FOI body in the course of the performance of his/her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or its staff or a service provider or its staff.
As the reports at issue in this case, I must consider the applicability of section 35(2) in the first instance. In essence, section 35(1) cannot apply in this case unless disclosure of the records would constitute a breach of a duty of confidence that is owed to a person other than the Department or its staff, or Seetec or Turas Nua or their staff.

The Department's arguments in support of its reliance on section 35 are based on its arguments that release of the reports would constitute a breach of a duty of confidence owed to the service providers. In its submission to this Office, Turas Nua argued that release of any part of the reports that would result in the disclosure of matters that it had identified during the request for tenders as confidential and/or commercially sensitive in the context of processing FOI requests would be a breach of confidentiality between it and the Department. On the question of whether or not disclosure would involve a breach of a duty of confidence owed to a person other than Turas Nua or the Department, it stated that it is an entity of a joint venture between two other parties, i.e. a private Irish company and a private UK based company. It argued that disclosure of the reports would breach the equitable duty of confidence which is owed under the existing Turas Nua agreements with each party, neither of whom are an FOI body or a direct service provider to the Department.
Turas Nua provided extracts of the services agreements with the two companies in question, relating to confidentiality and the Official Secrets Act. The extracts contain a confidentiality clause which aims to ensure that no confidential information disclosed by one of the parties to the other under the Agreement may be disclosed by the recipient to any person except in certain circumstances. I fail to see how this agreement is relevant to the records at issue. The reports contain details of the Department's observations following inspection of the various offices from which the JobPath service is delivered and Turas Nua's response to those observations. I do not accept that the disclosure of such information could possibly constitute a breach of a duty of confidence owed to the parent companies of Turas Nua under the agreements in question. 
Having carefully considered the matter, I find that section 35(2) applies and that section 35(1) cannot, therefore, apply to the records at issue.

Section 36

In its decision letter of 10 July 2018, the Department sought to rely on the provisions of subsections (a), (b), and (c) of section 36(1) to refuse access to the relevant records. 

Section 36(1)(a) 

Section 36(1)(a) provides for the refusal of a request where the record sought contains trade secrets of a person other than the requester. While the Department argued in its decision letter that the release of the reports would involve the disclosure of trade secrets of the service providers on the ground that they contain details of the business models of the service providers and intellectual property, it did not make any such arguments in its submission to this Office. Seetec did not argue that section 36(1)(a) applied. Turas Nua argued that its trade secrets include internal policy and procedures, strategy and business decisions, IT systems development, implementations and IT issues, internal audit information, business continuity management information, engagement with third parties and other service providers, staff turnover and staffing issues, provision of equipment and conditions in certain specific office locations
This Office accepts that a trade secret is information used in the trade or business which, if disclosed to a competitor, would be liable to cause real (or significant) harm to the owner of the secret and that the owner must limit the dissemination of it or at least not encourage or permit wide-spread publication. 

This Office also accepts that an exact definition of a trade secret is not possible, but that the some factors that are considered relevant to the determination are as follows:  
(1) the extent to which the information is known outside of the business concerned; 
(2) the extent to which it is known by employees and others involved in the business; 
(3) the extent of measures taken by the business to guard the secrecy of the information; 
(4) the value of the information to the business and to its competitors; 
(5) the amount of effort or money expended by the business in developing the information; 
(6) the ease or difficulty with which the information could be properly acquired or duplicated by others.  
It seems to me that much of the very broad range of information Turas Nua has attempted to categorise as comprising trade secrets simply does not have the requisite qualities. For example, I do not accept that all of Turas Nua's engagements with third parties and other service providers could possibly constitute trade secrets. I note that none of the parties identified any specific information contained in the records at issue which they consider to be captured by section 36(1)(a), nor am I aware of any such information. In the circumstances, I find that section 36(1)(a) does not apply.

Section 36(1)(b)

Section 36(1)(b) provides for the refusal of a request where the record sought 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. 
While the Department relied on section 36(1)(b) to refuse the request, it did not include any specific arguments on the applicability of the exemption in its submission to this Office. However, it seems to me that the argument it included in its submission in support of its claim for exemption under section 36(1)(c) is more appropriately an argument for refusal under section 36(1)(b). 

The Department explained that JobPath is a payment by results model, which means that companies will not be able to fully recover their cost until they place sufficient numbers of jobseekers into sustainable jobs. It stated that payments are subject to penalties in the event that service providers do not meet their service quality commitments or achieve the target levels of performance. It stated that the reports at issue are extremely condensed and are not representative of the matters observed or discussed and would be misleading as they would not afford any measure of the relative importance of the matters at issue and the degree of concern they would engender in both parties. In essence, its argument is that the public disclosure of deficiencies identified in the reports, in the absence of context, and the consequent imposition of financial penalties would entail reputational damage to the service providers and that any such reputational damage would have an adverse impact on the current business and future business prospects of the service providers.

Turas Nua made similar arguments. It argued that public disclosure of any deficiencies identified within the inspection reports, if taken out of context, would only serve to unfairly and/or inaccurately cast it in a false light which could result in an adverse impact to its current and possibly future business. 
Seetec argued that the inspection reports contain commercially sensitive information, including references to particular caseloads of employment advisers at Seetec, employment advisers ratios per business location, the performance of particular employment advisers, job sustainment fee evidence classifications, and operation processes for personal progression plans for Seetec clients. It argued that the release of such information might provide Seetec's competitors, both domestically and internationally, with insight into how Seetec conducts and structures its business as well as providing valuable insight into the business management processes it operates in the discharge of its duties as a service provider to the Department. It argued that this could prejudice its ability to compete into the future both at a domestic and international level.

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. The test to be applied is whether the decision maker's expectation of the identified harm arising 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). 

On the matter of the arguments advanced by the Department and Tura Nua, this Office has previously found that the possibility of the public misunderstanding information is, generally speaking, not a good cause for refusing access to the records of public bodies. In Case 98078 - Mr Martin Wall and the Department of Health and Children, the then Commissioner considered that, apart from anything else, such an argument seems to be based on an assumption, which he did not accept, that public bodies are incapable of explaining their records to the public and are unable to present information to the public in a way which will allow any objective observer to draw accurate and balanced conclusions.

Having examined the reports at issue, I fully accept that they contain details of issues or 'deficiencies" identified by the Department. However, I find it difficult to accept that the issues in question are such that they would entail reputational damage to the service providers to the extent that it would impact on the current business and future business prospects of the service providers. Indeed, I note that Turas Nua described the reports as being "merely reflective of mundane and operational issues which have arisen throughout the 'day-to-day' operations of its various regional offices''. It added that "[w]ithout internal knowledge and the proper context in which ... inspections are carried out, the release of this information would be meaningless to the 'lay-reader' ''.

I also consider that Seetec's description of the type and nature of the commercially sensitive information that would be disclosed if the reports were to be released and that usefulness of that information to its competitors is rather overstated. I agree with Turas Nua's description of the reports as relating to day-to-day operational issues. In the High Court case of Westwood Club v The Information Commissioner [2014] IEHC 375 (the Westwood case), Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive. A party opposing release should explain why disclosure of the particular records could prejudice their financial position. 

Having reviewed the contents of the relevant records I cannot accept that they contain information which could be deemed to be commercially sensitive within the meaning of section 36(1)(b) nor, has Seetec specifically identified any such information in the records. The reports concern issues such as personal progression plans, the number of clients referred to employment, signage issues, accessibility issues and the provision of Irish language services. I do not accept release of the reports would provide meaningful insight into the business affairs of the companies concerned or could be used by competitors to undercut the companies in future transactions.     

In particular I do not consider that references in the relevant records to the PA (Personal Adviser) ratios, which essentially relates to the number of clients currently being managed by an individual Personal Adviser, is commercially sensitive information. Having reviewed the records it is clear that while the contract between the Department and the two Contractors indicates that the PA ratio should be maintained at a certain level, it appears that on occasion the inspection reports reveal that the PA ratio of certain case-workers exceeded this agreed level. Neither the Department nor the Contractors have explained precisely how the release of such information could be commercially damaging to either company and I fail to see how it could.  
In the circumstances, I find that section 36(1)(b) does not apply to the records. 

Section 36(1)(c)

This section provides for the refusal of a request where the record sought contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. This Office takes the view that a party seeking to rely on section 36(1)(c) should be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and to explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.    

As with section 36(1)(b), both the Department and Turas Nua essentially argued that the reports are exempt from release under section 36(1)(c) on the ground that their disclosure would be misleading. For the same reasons as I have outlined above, I do not accept this argument. Seetec did not make any specific arguments in its submission in relation to the applicability of section 36(1)(c). As none of the parties have identified any particular contractual or other negotiations that were in train or were reasonably foreseen which might be affected by the disclosure and as no explanation was given as to how exactly the disclosure of the reports could prejudice the conduct or the outcome of such negotiations, I find that section 36(1)(c) does not apply.

The Public Interest

While it is not strictly necessary for me to do so, I should add that even if I had found one or more of the provisions of sections 30(1) or 36(1) to apply, the public interest balancing test contained in both sections would remain to be considered. In both cases, the relevant subsection does not apply where the body considers that the public interest would, on balance, be better served by granting than by refusing the request.
While the Department acknowledged that there is a public interest in enhancing openness, transparency and accountability in relation to the use of public funds, it argued that there are a number of countervailing factors against release, including the efficient and effective management of the JobPath service by the Department, the protection of the State's ability to secure best value through a public tender process, the need to preserve confidentiality, the need to protect the privacy rights of the JobPath Contractors and the need to avoid conferring a competitive advantage or disadvantage in a similar/future tendering process.  

In addition the Department argued that the information contained in the inspection reports does not enhance public information concerning the operation of the JobPath service other than to confirm that inspections take place. It argued that during the lifetime of the contracts it 'must be in a position to oversee them without interference or influence being brought to bear and thereby opening the way for legal challenges from the contractors'. It also stated that the Comptroller and Auditor General is due to publish a report into the JobPath service in the near future and this will 'provide the type of information that the public are entitled to in relation to the expenditure of public monies'.  

Turas Nua argued that 'anyone having sight of the [inspection] reports .... would glean no information which would prove either useful or beneficial or which would in any way satisfy the 'openness and transparency' element of the public interest test'.  In addition Turas Nua argued that the inspection reports are merely reflective of mundane and operational issues which have arisen and without internal knowledge and proper context would be meaningless to the lay-reader. It argued that the balance of public interest favours the refusal of access to the relevant records as release of the records would disclose information to competitors, discourage Turas Nua regarding its planned future business development and impede the State's tender process.    
Turas Nua further argued that there are potential financial penalties for it where underperformance is an issue and that as long as the contract is running, it has an opportunity to rectify the deficiency, but once it is in the public domain the reputational damage will be done and it will have no recourse.  
On the matter of public interest factors favouring release, it is important to note the long title to the Act which provides for a right of access "to the greatest extent possible consistent with the public interest". There is a strong public interest in the enhancement of openness, transparency and accountability in FOI bodies.

These principles are recognised by section 11(3) of the Act which provides that an FOI body, in performing any function under the Act, shall have regard to -� 
(a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs,
(b) the need to strengthen the accountability and improve the quality of decision-making of FOI bodies, and
(c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.
This Office considers that section 11(3) of the Act is relevant to the consideration of the public interest. There is a significant public interest in openness, transparency and accountability in public bodies, particularly where the use of public funds is concerned. The release of information relating to the expenditure of public funds by FOI bodies acts as a significant aid in ensuring the effective oversight of public expenditure and bringing transparency to the principle of ensuring value for money.

On the matter of the public interest factors against release, there is a public interest in protecting against the harms set out in sections 30 and 36 from arising, such as prejudice to the effectiveness of investigations, significant adverse effect on the performance by public bodies of their functions relating to management, the disclosure of trade secrets, prejudice to the competitive position of third parties etc. Nevertheless, the public interest balancing tests in sections 30 and 36 expressly acknowledge the potential for harm arising from the release of a record. Therefore, the fact that release of the record might give rise to one or more of the harms identified in the relevant sections does not, of itself, provide a sufficient basis for concluding that the public interest would be better served by refusing the request. The public interest test involves a balancing exercise between the public interest served by granting the request and the public interest served by refusing it. The FOI body must consider or assess the competing interests that must be weighed in that balancing exercise and explain the basis on which it has decided where the balance of the public interest lies.

The public interest factors against release as identified by the Department and Turas Nua are based on their arguments that the release of the reports could give rise to certain harms, arguments I do not accept for the reasons outlined above. I should add that the fact that the enhancement of transparency and accountability relating to the Job Path scheme will be served to some extent by the intended publication of a report by the Office of the Comptroller and Auditor General on the scheme does not mean that there is no public interest in further enhancing that transparency and accountability. As I have outlined above, the Act provides for a right of access to the greatest extent possible. 

In this case, I am satisfied that there is a clear public interest in transparency around the operation of the JobPath scheme, not least due to the fact that this case relates to expenditure of significant sums by a public body. Such transparency is a significant aid to ensuring effective oversight of public expenditure, in ensuring that the public obtains value for money and in preventing waste and misuse of public funds. Accordingly, even if I had accepted that the records at issue fell within one or other of the subsections of sections 30 or 36, I would have directed release in light of the particularly strong public interest. 

Section 37(1) 

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information relating to individuals other than the requester. While the Department did not rely on the provisions of section 37(1) to refuse access to the relevant records, both Seetec and Turas Nua argued that the records contain references to their respective staff members which is their personal information. 
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 falling within section 11(6)(a) (i.e. personnel records).

Certain information is excluded from the definition of personal information. Where the individual is or was a service provider, the definition does not include his or her name or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service (Paragraph II refers).
Having regard to the exclusion at Paragraph II, I am satisfied that the names of staff members of Seetec and Turas Nua is not personal information for the purposes of the FOI Act and that section 37 of the Act does not, therefore, apply. However records 16 and 19 of the Seetec records contain information relating to the performance of individual employees and I am satisfied that this is personal information relating to those individuals.  I am also satisfied that none of the other provisions serve to disapply section 37(1).  

In addition, Turas Nua has also argued that the relevant records contain the personal information of clients of the JobPath service. Having examined the records I acknowledge that the records contain a number of references to individuals' PPS Numbers and I accept that this is personal information within the meaning of section 37 of the Act. I am also satisfied that none of the other provisions of section 37 serve to disapply section 37(1). 
In addition to the PPS numbers of individuals, there are considerable references throughout the records to individual client referral numbers. The Department indicated that a client's referral ID number is unique to a client for a specific referral. It stated that each referred client is allocated a referral ID by the Department's system which is recognisable to the service providers' systems as a particular client and a particular referral. The Department further indicated that a client who is referred more than once will have multiple referral ID numbers. Having considered the matter, and in light of the Department's explanations, I am satisfied that the disclosure of these client referral numbers would not involve the disclosure of personal information about identifiable individuals. I am therefore satisfied that section 37(1) does not apply to such referral ID numbers.   

However I have identified a number of instances where the personal information of clients of the service is contained in the relevant records. Record 17 in the Seetec batch of records contains a reference to the specific circumstances of an individual client. In addition Record 27 in the Turas Nua batch of records contains references to individual clients and their specific personal circumstances. While none of these individuals are named I am satisfied that sufficient identifying information is provided and therefore that such information is protected under section 37(1). I am also satisfied that none of the other provisions of section 37 serve to disapply section 37(1).  

I have also identified a small number of instances where employers of clients of the JobPath service are identified.  Records 16, 20, 24 and 26 in the Seetec batch of records contain references to specific employers. Records 15, 22, 23, 24 and 26 in the Turas Nua batch of records contains references to specific employers. In addition Record 1 in the Seetec batch of records contains references to a named individual, their job title and their email address and Record 24 in the Seetec batch of records also includes a personal email address of an employer of a JobPath client. Separately record 6 of the Seetec records contains a reference to a named safety consultant who provided advice to the company. In all cases I am satisfied that such information is personal information and that section 37(1) applies.  I am also satisfied that no other provisions of section 37 serve to disapply section 37(1).  

In summary, therefore, I find that section 37(1) applies to the following information contained in the records at issue:
Seetec records
Record 1 - individual's name, job title and email address in sixth bullet-point on
  page 2 
- the same details in the 'Observation' section on the top of page 4
Record 6 - individual name of safety consultant and company in the last bullet
  point of page 2
- the same details in the 'Observation' section on page 4
Record 16 - three named employers in third bullet-point on page 2
- the first paragraph in Seetec's response on page 6 (sentence beginning
  'In this case ...')
Record 17 - reference to individual and their tax status in second paragraph on page
  3 (second part of sentence in brackets under 'Job Sustainment Fee Evidence
Types, beginning 'was a self-employed ...' and ending 'Revenue data)'.  
Record 19 - third paragraph in 'Seetec response' on page 6
Record 20 - reference to employer in second bullet-point on page 3 and same
  employer on page 6
Record 24 - email address contained in the third sentence of the fourth bullet-point
  on page 2
- reference to employer in final bullet-point on page 3 
Record 26 - five references to specific employers in second bullet-point on page 3
Turas Nua records
Record 15 - employer mentioned on the top of page 3 and the description of the
  business (sentence beginning 'In this case ...')
Record 22 - third bullet point on page 3 and two named employers in second
  bullet-point on page 4 
Record 23 - named employer in sixth bullet-point on page 3, and the same employer
  referenced twice on page 8, (in paragraph beginning 'Job Sustainment
  Fee Evidence Types' and again in 'Turas Nua Response') 
Record 24 - four named employers on page 8 (sentence beginning 'The Employer
  Services Consultant ...') 
Record 26 - named employer on bottom of page 2, 
Record 27 - all text in the box marked 'Turas Nua response' on page 8 

Decision

 
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the Department. I find it was not justified in refusing access to the records at issue under sections 30, 35 or 36 of the FOI Act and I direct that the records be released with the exception of (i) all references to individual client PPS numbers throughout the records and (ii) the information I have identified above in the individual records as exempt from release under section 37(1).

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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.

Stephen Rafferty
Senior Investigator