Whether the Department was justified in refusing access to records relating to salary sanctions for senior public service posts, on the ground that the records are exempt under section 29 and 30(1)(c) of the FOI Act

9 August 2019

Background

On 12 November 2018, the applicant made an FOI request for records relating to: (a) applications to the Department for salaries exceeding agreed rates and (b) the appointment of new special advisers where not at the lowest point of the agreed rate. By letter dated 11 December 2018, the Department refused access to the records, on the grounds that they were exempt under sections 29 and 30(1)(c) of the FOI Act. On 17 December 2018, the applicant applied for an internal review. The Department issued an internal review decision by letter dated 11 January 2019. It upheld the majority of its original decision and varied its decision on Records 27-31 by only applying section 30(1)(c) to those records. On 19 January 2019, the applicant applied to this Office for a review of the Department's decision.

In conducting my review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by the Department for the purposes of this review.

Scope of this Review

During the review process, the Department granted access to the records in Part 2 of its schedule, which concerned part (b) of the applicant’s FOI request. That part of his FOI request therefore falls outside the scope of this review.

The question for me is whether the Department was justified in refusing access to the records in Part 1 of its schedule, under sections 29 or 30(1)(c) of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I wish to note the following points. First, the Department's decision-making in this case fell short of what the FOI Act requires. It did not provide the applicant with a proper statement of reasons in either its original or internal review decision. Accordingly, on 14 February 2019, this Office exercised its power under section 23 of the FOI Act to direct the Department to provide a statement of reasons. I would remind FOI bodies of their obligation under section 13 of the FOI Act to provide reasoned decisions, including on the public interest balancing test, where that arises. I encourage decision-makers to use the FOI resources available to assist them in their decision-making process. This includes guidance and templates published by the Department’s own Central Policy Unit and guidance notes by this Office, which are available on www.oic.ie.

Secondly, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.

Fourthly, 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.

Finally, these records relate to salary sanctions for senior public service posts. The Department submits that releasing “this class of information” (my emphasis) could prejudice its functions and negotiations, management of personnel and industrial relations matters, conduct of pay negotiations, and ability to manage pay policy in a way that is consistent with prudent management of the public service pay bill. I should emphasise that, as the Department is well aware, the FOI Act does not provide any class exemption for records relating to salary sanctions for people paid from the public purse. I must therefore consider the content and context of each record when deciding whether the exemptions claimed apply.

Analysis and Findings

Section 30 - Functions and negotiations

Section 30(1)(c)

Section 30(1)(c) provides that an FOI body may refuse to grant an FOI request if the record could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. There is no requirement to take a view on the consequences of the disclosure of those positions or that disclosure would have an adverse effect on conduct by the Government or the FOI body of its negotiations. However, this matter may be relevant to the public interest test in section 30(2). An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Records relating to past, present or future negotiations may be protected under section 30(1)(c).

The records relate to negotiations about remuneration packages and grading between the Department and relevant parent departments and/or agencies, as well as to negotiations with prospective candidates. Having regard to their content, I accept that they could reasonably be expected to disclose negotiating positions taken by an FOI body. I am therefore satisfied that section 30(1)(c) applies to the records. In view of this finding, I am required to apply the public interest balancing test under section 30(2).

Section 30(2)

Section 30(2) of the FOI Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

On the one hand, section 30(1)(c) itself reflects the public interest in FOI bodies being able to negotiate effectively. I consider that there is a public interest in maintaining this capacity in order for the Department to manage the public service pay bill and for departments and State agencies to recruit effectively. On the other hand, there is a public interest in transparency around the way in which the Department and other FOI bodies carry out their functions. The way in which salary sanctions are sought and approved or refused is a process which concerns the expenditure of public funds. I consider that there is a public interest in transparency around this process, to demonstrate that the Department is fulfilling its functions, including managing the public service pay bill. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making. I must balance these public interests against one another.

I will consider the records in turn, having regard to the Department’s submissions. Each group of records relates to a particular post. My approach to section 30(2), as set out above, has been applied to the public interest balancing test. In respect of each record, I weighed the various public interest factors having carefully examined the context and content of the material. It is fair to say that the positions taken and the arguments made for the purpose of seeking sanction and considering the individual applications are quite detailed in all cases. In some instances, directing the release of records arising from the finalisation of the process in particular applications satisfies to some extent the public interest in transparency around the process.

Records 1-12

The Department says that releasing the records will make candidates aware of the approved salary range and remuneration package relating to this post, which could undermine the ability to effectively negotiate the contract. It also says that disclosing the negotiating position adopted in this campaign could potentially compromise future negotiations for other public service appointments and the ability to manage recruitment processes.

These records relate to a recruitment process which has now been completed. Records 3, 5, 7, 8, 11 and 12 contain detailed business cases for seeking and approving salary sanctions, which include comparisons with other senior posts. I accept that disclosing these details could undermine negotiating positions for the management of future pay claims and/or similar recruitment processes. I find that on balance, the public interest would not be better served by granting access to these records and the Department was justified in refusing access to them under section 30(1)(c).

However, Records 1, 2, 4, 6, 9 and 10 disclose a request for a salary sanction (without the detail of the business case); the Department’s decisions as communicated to the relevant parent department; and material on Revenue relief for relocation expenses. I do not accept that releasing this particular information could undermine negotiation positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would be better served by granting access to these records and the Department was not justified in refusing access to them under section 30(1)(c). For the avoidance of doubt, even if I had accepted the possibility of harm, I would have reached the same conclusion on the public interest.

Records 13-14

These records relate to a process which is ongoing. I accept that disclosing the details of the parent department’s business case and the Department’s position on it could undermine negotiation positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would not be better served by granting access to these records and the Department was justified in refusing access to them under section 30(1)(c).

Records 15-16

These records relate to a recruitment process which has concluded. I accept that disclosing the details of the agency’s business case and the Department’s position on it could undermine negotiation positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would not be better served by granting access to these records and the Department was justified in refusing access to them under section 30(1)(c).

Records 17-21

These records relate to a recruitment process which has concluded. I accept that disclosing the details of the parent department’s business case and the Department’s position on it could undermine negotiation positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would not be better served by granting access to Records 17-20 and the Department was justified in refusing access to them under section 30(1)(c).

However, Record 21 discloses the Department’s final decision on the salary sanction sought, as communicated to the relevant parent department. I do not accept that releasing this particular information could undermine negotiating positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would be better served by granting access to Record 21 and the Department was not justified in refusing access to it under section 30(1)(c). For the avoidance of doubt, even if I had accepted the possibility of harm, I would have reached the same conclusion on the public interest.

Records 22-26

These records relate to a recruitment process which has now concluded. I accept that disclosing the details of the agency’s business case (which includes comparisons with other similar agencies) and the Department’s position on it could undermine negotiation positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would not be better served by granting access to Records 22-25 and the third paragraph of Record 26 and the Department was justified in refusing access to them under section 30(1)(c).

However, Record 26 discloses the Department’s final decision on the salary sanction sought, as communicated to the relevant parent department. I do not accept that releasing this particular information (except the third paragraph) could undermine negotiation positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would be better served by granting access to Record 26 (except the third paragraph) and the Department was not justified in refusing access to it under section 30(1)(c). For the avoidance of doubt, even if I had accepted the possibility of harm, I would have reached the same conclusion on the public interest.

Records 27-31

These records relate to an interim recruitment process which has concluded and the substantive recruitment process, which is ongoing. I accept that disclosing the details of the relevant parent department’s business case and the Department’s position on it could undermine negotiation positions for the management of future pay claims and the ongoing substantive or future similar recruitment process. I find that on balance, the public interest would not be better served by granting access to the records and the Department was justified in refusing access to them under section 30(1)(c).

Record 32

This record relates to a recruitment process which has concluded. I accept that disclosing the details of the relevant parent department’s business case, which includes comparisons with other senior posts, could undermine that department’s negotiating position for future similar recruitment processes. I find that on balance, the public interest would not be better served by granting access to this record and the Department was justified in refusing access to it under section 30(1)(c).

Records 33-34

These records relate to a recruitment process which has concluded. I accept that disclosing the details of the agency’s business case and the Department’s position on it could undermine negotiation positions for the management of future pay claims and future similar recruitment processes. I find that on balance, the public interest would not be better served by granting access to the records and the Department was justified in refusing access to them under section 30(1)(c).

However, the first page of Record 34 discloses the Department’s final decision on the salary sanction sought, as communicated to the relevant agency. I do not accept that releasing this particular information could undermine negotiation positions for the management of future pay claims and/or future similar recruitment processes. I find that on balance, the public interest would be better served by granting access to the first page of Record 34 and the Department was not justified in refusing access to it under section 30(1)(c). For the avoidance of doubt, even if I had accepted the possibility of harm, I would have reached the same conclusion on the public interest.

Section 29 - Deliberations of FOI Bodies

Given my findings above, I am only required to consider the Department’s claim under section 29 in relation to Records 1, 2, 4, 6, 9, 10, 21, 26 (except the third paragraph) and the first page of Record 34 (the remaining records).

Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records.

Moreover, as noted earlier, section 11(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant to my assessment as to whether it would be contrary to the public interest to release the records.

Sections 29(1)(a) & (b) - Deliberative Process and the Public Interest

The Department says that the remaining records relate to deliberative processes in relation to recruitment processes. I accept that the remaining records contain matter relating to the deliberative process surrounding these recruitment processes. I therefore find that section 29(1)(a) applies to the remaining records. I am then required to consider section 29(1)(b).

The Commissioner has found that the FOI Act clearly envisaged that there will be cases in which disclosing the details of an FOI body’s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

The Department says that releasing the records could undermine or negatively impact on the recruitment process. It says that releasing the records would, by exposing the process to public debate, limit the ability of the parties to consider sensitive information, and conduct an informed examination of the matters informing determination of the terms and conditions of a proposed appointment.

The Department’s basis for its claim that releasing the records would be contrary to the public interest under section 29(1)(b) is that it would undermine the recruitment process itself. I cannot accept this in relation to the remaining records, as the recruitment processes which they concern have already completed. I am required to be satisfied that both sections 29(1)(a) and (b) apply. In the circumstances, I am not satisfied that section 29(1)(b) applies to the remaining records. Accordingly, I find that the Department was not justified in refusing access to them under section 29.

For completeness, I note that I have addressed the Department’s submissions on the effect of disclosure on future processes in my decision on section 30(1)(c) above.

Finally, I should say that in my view, the records which I have found to be exempt contain small pieces of personal information within the meaning of section 2 of the FOI Act. However, I have not found it necessary to consider that separately under section 37 of the FOI Act, given my findings under section 30 above.

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary the Department's decision as follows. I affirm its decision to withhold certain records under section 30(1)(c) of the FOI Act, as outlined above. I annul its decision to withhold the remaining information and direct its release. For the avoidance of doubt, the information which falls for release is as follows: Records 1, 2, 4, 6, 9, 10, 21, 26 (except the third paragraph) and the first page of Record 34.

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.

 

 

 

Elizabeth Dolan

Senior Investigator