Whether EI's refusal of access to records concerning its 2017 Staff Survey is justified under sections 30, 35, or 37 of the FOI Act
30/04/2019
Background
On 8 February 2018, the applicants made an FOI request to EI for the full set of anonymised results of EI's 2017 Staff Survey including but not limited to free text comments, all results seen by EI's Staff team who managed the survey as well as "the available characterisation and prioritisation of the issues raised."
EI's decision of 12 March 2018 part granted the request. It granted access to 11 documents comprising the "key findings" of various departments. It refused access to the raw data and analysis underpinning the staff survey on the basis of sections 30 (functions and negotiations of an FOI body), 35 (information received in confidence) and 37 (personal information). I note that EI's decision was expressed in terms of the provisions of the FOI Act 1997, which was repealed in 2014. The later internal review decision correctly referred to the 2014 Act.
The applicants sought an internal review on 27 March 2018, in which they also said that EI's decision making process should have considered further records.
EI's internal review decision of 10 April 2018 affirmed its refusal to grant the "raw data and analysis" records under sections 30(1)(a) and (b), 35 and 37. It also identified further records covered by the request, some of which it released and the rest it withheld under sections 30(1)(b) and/or 37 of the FOI Act. On 20 September 2018, the applicants sought a review by this Office of EI's decision.
I have now decided to conclude my review by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and to correspondence between this Office, EI, and the applicants. I have had regard also to the records considered by EI and to the provisions of the FOI Act.
Scope of Review
This review is confined to whether the refusal of access to records 1a, 1b, 1c, 1m, 2a to 2j, 2l, 2m and 2x is justified under the exemptions claimed. I will also address the arguments made by the applicants at both internal review stage and during this review that certain additional records should have been identified and released.
This Office has no role in considering EI's administration of this or earlier surveys.
Preliminary Matters
At the outset, it should be noted that the grant of access to a record is generally understood to be equivalent to its disclosure to the world at large. Therefore it is not relevant that the applicants are acting on behalf of unions within EI.
Furthermore, it is necessary in this case to outline this Office's approach to granting partial access to records. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers).
In so far as the Commissioner's position on granting partial access to records is concerned, he takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Findings
EI relied on sections 30(1)(a) and/or (b) in relation to all of the refused records and on sections 35(1)(a), 35(1)(b) and 37 in relation to some of them. I will consider section 37 at the outset, however.
Section 37 - personal information
Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information.
"Personal information" is defined at section 2 of the FOI Act, which also lists 14 examples of what must be considered to be personal information. Where information can be classified as one of these 14 examples, there is no need for the requirements of the definition to also be met. The examples include (iii) "information relating to the employment or employment history of the individual", "(v) information relating to the individual falling within section 11(6)(a)" and (xiv) "the views or opinions of another person about the individual". Section 11(6)(a) is concerned with personnel records of staff members of FOI bodies.
Section 2 also sets out a number of exclusions to what can be considered to be personal information where public servants are concerned. Generally speaking, the exclusions are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members in the course of their work, or to refuse to grant access to details in records that would identify the public servants who dealt with the matters the subject of those records. However, they do not deprive public servants of the right to privacy generally.
Arguments made
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. Accordingly, the extent to which I can describe the records in my analysis and reasoning is limited.
The applicants say that they sought anonymised results and that accordingly no breaches of privacy should arise from disclosure of the records.
EI's decision says that the records relate to the views or opinions of another about an individual, and that it is in the public interest to protect privacy. Its internal review decision says that the records contain information that is clearly identifiable to individuals and that none of the exceptions to section 37(1) apply in this instance. On 10 October 2018, in a cover email with the records it was sending to this Office, EI said that even though the survey was anonymous, the responses still identify respondents and others (such as in the context of their role) and comprise personal information.
On 1 November 2018, this Office invited EI to make submissions regarding its refusal of the records. It did not do so.
Having considered the mandatory nature of section 37, the contents of the records and EI's brief arguments summarised above, I find as follows:
Records 1a and 1b
Record 1a is an Excel spreadsheet, consisting of 16 sheets. The cells in the first two sheets contain all comments made by over 500 staff relating to what seems to be 28 questions/matters. The cells in the remaining sheets contain comments made by staff members by reference to the individual areas of the organisation. Record 1b is also an Excel spreadsheet and contains one sheet of comments made by all staff in relation to 28 questions. While the comments in the spreadsheets are not attributed to staff by name, I note that some contain sufficient detail and context to enable identification of the particular respondent and others within EI in the context of their performance and other employment related matters.
Records 1c, 1m, 2a to 2j, 2l to 2m and 2x
Records 1m and 2a to 2f comprise key findings for certain identifiable parts of EI. The applicants acknowledge that the CEO is identifiable from these records but contend that no other persons are identifiable. Having examined these records, I note that certain details comprise views given by the respondents in specific parts of EI on their colleagues, department managers, line managers, divisional teams and management as well as on the CEO in the context of their performance and other employment related matters.
Record 1c is an appendix to the survey, which EI refused under provisions other than section 37. Records 2g, 2h, 2i, 2j, 2l and 2m are overviews of results in various identifiable areas of the organisation. Record 2x is a summary of the findings in record 1m. The applicants contend that these records contain information that is aggregated or summarised at sufficiently high level so as not to disclose personal information. However, for the same reasons set out in respect of records 1a and 1b, I am satisfied that some details in these records disclose views given by respondents in specific parts of EI about colleagues, departmental and line managers, divisional teams and management and the CEO, again in the context of their performance and other employment related matters.
I should say here that if the survey information had been presented in a more generalised format, it might be possible to find that some of the information was sufficiently global or organisational not to be linked to identifiable individuals. However, the relatively small numbers identified in the different business units resulted in much of the detail in the records being linked to unnamed but identifiable individuals.
I consider these details to fall into a number of the examples of what comprises personal information and that they are not of a type of information that is excluded from the definition of personal information where public servants are concerned.
I considered whether the remaining parts of the records (i.e. those parts of the spreadsheets and summaries which would not lead to identification of individuals) could be released. Having regard to the Commissioner's position on section 18 outlined above, I consider that it is not practicable to direct that partial access be granted to the spreadsheets. While it would be practicable to direct that partial access be granted to the summary records, I consider that the resulting records would be misleading in relation to the survey as a whole. Therefore, I do not propose to direct the release of redacted versions in the circumstances of this case.
I find that section 37(1) applies to all of the withheld records.
Section 37(5) - The Public Interest
Subsection (1) is subject to other provisions of section 37 (sections 37(2) and (5)). 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 public interest that the right to privacy of the individuals to whom the information relates should be upheld.
On the matter of where the public interest lies, I have had 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] 1 IR 729, [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. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
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.-
The applicants take issue with how EI has changed its approach to disseminating results of staff surveys. It is clear from the Rotunda and F.P. cases that I cannot take into account any private interests that the unions may have 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 organisation should have conducted or administered the survey differently.
It is also the applicants' position that staff will be de-motivated by the non-disclosure of the records, especially those concerning a particular matter which they say has been a key organisational focus in recent years. They say the insight that the union and its members will get from the records will enable them to perform their work better. I am taking these comments as saying that there is a public interest in enabling a public service body to carry out its statutory functions effectively.
I accept that, in this case, the FOI Act recognises a public interest in establishing whether EI is carrying out its statutory functions effectively, which is entitled to particular weight when one considers that the costs of the organisation are borne by the public purse. This public interest has been served to some extent by the material released to date and I accept that it would be further served if access to the remaining withheld records or parts of records was granted.
In this regard, and leaving aside my finding above on section 18, arguably more weight attaches to the public interest in the disclosure of information in the records about the CEO, who as head of EI is responsible for its overall performance. However, I consider it relevant that the records do not concern, for instance, the views of an independent external third party regarding EI's overall performance.
As regards the issue of feedback from the survey to the staff and their representatives, it seems to me that there are other mechanisms through which this would be achieved and without the breaches of privacy that would result from the release to the world at large under FOI.
On the other hand, both 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). It is also relevant that the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. The applicants say that questions asked in the survey about the CEO, such as whether he or she leads by example, are not contentious. However, I am satisfied that in the circumstances including the context in which the records were created, placing the withheld information in the public domain would significantly breach the rights to privacy of the CEO and the other third parties.
On balance, I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld.
Additional Records
In both their internal review application and their application to this Office, the applicants argue that EI has not considered all records covered by their request. For instance, they say that they should have been granted access to records showing the aggregation and analysis of freeform comments to a level that further anonymised them, the methodology for analysing the responses and the weightings used and notes of meetings at HR or management level that discussed the freeform comments.
As this Office has told the applicants, this review cannot extend to records not included in the scope of the initial request. The applicants clearly did not seek records concerning the analysis methodology or about which of EI's staff had seen or discussed the results. Furthermore, this review can generally only consider records that exist and are held. Thus, generally, I have no powers under the Act to direct EI to create records containing information that the applicants think it should hold.
This Office asked EI to identify which (if any) of the records covered by this review comprised the further aggregation and analysis of free form comments and also whether it considers such records to be covered by the request. It did not reply.
While EI's position must be presumed to be that it has taken all reasonable steps to look for records covered by the request and/or that further records do not exist (section 15(1)(a), I am unable to determine whether it has justified that position. The only option open to me is to annul EI's effective application of section 15(1)(a) and to direct it to make a fresh decision on this matter in accordance with the provisions of the FOI Act. I should make it clear that in making this direction I have not adopted any position on whether records comprising the further aggregation and analysis of free form comments are covered by the applicants' request in the first instance, or whether such records in fact exist or are exempt. Part of the difficulty is that I do not know what the phrase "available characterisation and prioritisation of the issues raised" means in the context of the records requested. In addition, EI made no submissions and did not respond to queries posed by the Investigator in this case.
As part of the fresh decision making process, I direct EI, at the outset, to invite the applicants to describe the records covered by their request that they say are missing from those considered by EI to date. In this regard, I would draw the applicants' attention to section 12(1)(b) of the FOI Act, which requires that a request shall contain "sufficient particulars in relation to the information concerned to enable the record to be identified by the taking of reasonable steps". Thus, I would expect the applicants' reply to describe as clearly and succinctly as possible any other records or types of records covered by their request that they consider to be missing. EI's decision should say whether it considers such records to be covered by the original request. If it does, it should then go on to explain whether such records exist and, if not, why this is the case.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby vary EI's decision. I affirm its refusal to grant access to records 1a, 1b, 1c, 1m, 2a to 2j, 2l to 2m and 2x on the basis that section 37 of the FOI Act applies. I find that the public interest in favour of granting access to the withheld information does not outweigh the public interest that the right to privacy of the third parties should be upheld.
I am unable to determine whether EI has justified its effective refusal of further records covered by the request on the basis that it has taken all reasonable steps to search for such records or that such records do not exist. I annul its effective application of section 15(1)(a) and I direct it to make a fresh decision on that part of the request in accordance with the provisions of the FOI Act.
I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by EI to my decision within five working days of 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. In making this fresh decision, I direct EI, at the outset, to invite the applicants to describe the records covered by their request that they say are missing from those records already identified by EI and dealt with in this review.
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
