Whether AGS was justified in its decision to refuse the applicant’s request for access to his personnel records, and in particular to records relating to job competitions, allocation on HQ bulletins, transfer and promotion lists, created on or after 1 January 2016, on the ground that the records sought are exempt under sections 15, 37 and 42 of the FOI Act or excluded from the scope of the FOI Act, pursuant to Schedule 1, Part 1(n)

1 July 2019

Background

On 9 January 2018 the applicant submitted a request to AGS for access to all records created on or after 1 January 2016 held by the Human Resources and People Development Section of AGS and related offices relating to himself, to include records relating to job competitions, allocation on HQ bulletins, and amendments to any transfer and promotion lists.

On 5 March 2018 AGS issued its decision in respect of 40 records it identified as coming within the scope of the applicant's request. It granted partial access to all 40 records with the redaction of certain information under sections 37 and 42 of the FOI Act and in accordance with Part 1(n) of Schedule 1. On 28 March 2018 the applicant sought an internal review of that decision, following which AGS affirmed its original decision. On 24 October 2018 the applicant sought a review by this Office of that decision. 

I have decided to conclude this review by way of a formal binding decision on the matter. In conducting my review, I have had regard to the correspondence between AGS and the applicant as outlined above and to correspondence between this Office and both AGS and the applicant on the matter. I have also had regard to the contents of the records at issue. In referring to the records at issue, I have adopted the numbering system used by AGS in the schedule of records it prepared when processing the request.

Scope of Review

During the course of the review, AGS sought to refuse access to a number of the records at issue under section 15(1)(i) on the ground that the applicant had previously received copies of the records in question. It argued that records 12, 14, 15, 22, 23, 37, 38 and 39 were available in their entirety to the applicant as were pages numbered 86-97 in record 10, pages 118-130 in record 16, pages 251-261 in record 33, and pages 276-277 in record 35.

The applicant confirmed that he is in possession of the records or parts of records in question and that they could be excluded from the review. Accordingly, 12, 14, 15, 22, 23, 37, 38 and 39 are excluded from the scope of this review. As there are no redactions from the remaining pages of records 33 and 35, I have also excluded these records from the scope of the review. In relation to records 10 and 16, the redactions made to page 100 in record 10 and page 134 in record 16 remain to be considered.

Accordingly, this review is concerned solely with whether AGS was justified, in accordance with Schedule 1, Part 1(n) of the Act and under sections 37(1) and 42(b), in redacting certain information from the records at issue, apart from those records or parts or records I have identified above as excluded from the scope of the review

Preliminary Matters

There are a number of preliminary matters I wish to address at the outset.

First, section 25(3) of the FOI act requires the Information Commissioner to take all reasonable precautions in the performance of his functions to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of some of the records and of the reasons for my decision are somewhat limited in this case.

Secondly, it is important to note the release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

The records at issue in this case relate to a number of promotion competitions the applicant had applied for and include his application forms for various competitions, lists of candidates scheduled for interview, interview notes of various boards, results of various rounds of interviews and subsequent placements on panels. In addition a number of records relate to correspondence with the applicant informing him of the outcome of various interviews and assessments which he had undergone. Finally some of the records relate to the allocation of the applicant to a new position in AGS following his success in a particular competition. 

In refusing access in part to the relevant records AGS has relied on sections 37(1) and 42(b) of the FOI Act as well as Part 1(n) of Schedule 1 which limits the applicability of the Act to administrative records relating to human resources, or finance or procurement matters of AGS.

As the reliance on Part 1(n) relates to whether or not certain records fall within the scope of the FOI Act, I propose to deal with that exclusion first. 

Schedule 1, Part 1(n)

Of the records remaining within the scope of this review, AGS indicated that it was refusing access to parts of records 10, 11, 13, 16, 17, and 34 - on the basis of Part 1(n).

Section 6(2)(a) provides that an entity specified in Schedule 1, Part 1 of the Act shall, subject to the provisions of that Part, be a public body for the purposes of the Act. Schedule 1, Part 1 contains details of bodies that are partially included for the purposes of the Act and also details of the certain specified records that are excluded. If the records sought come within the descriptions of the exclusions in Part 1, then the Act does not apply and no right of access exists to such records held by the body.

Schedule 1, Part 1(n) provides that AGS is not a public body for the purposes of the FOI Act other than in relation to administrative records relating to human resources, or finance or procurement matters.  The term "administrative records" is commonly understood to mean records relating to the processes of running/managing a business or organisation. It seems to me that the purpose of Part 1(n) is to restrict the right of access to records relating to those functions or processes of AGS that relate to the administration or management of the organisation, and only in relation to matters concerning human resources, or finance or procurement matters.

In its submission to this Office, AGS stated that information contained in the relevant records means that they cannot be described as administrative records relating to human resources, or finance or procurement matters. More specifically it argued that as records 10 and 16 are the application forms submitted by the applicant for various competency-based competitions, some of the information contained in the examples provided by the applicant relate to operational matters and therefore do not meet the criteria of administrative records as defined in the Act.

Equally with regard to records 11, 13, 17 and 34; which are the handwritten notes of the panel which interviewed the applicant for various positions, AGS argued that some of the information contained in these records was documented from the examples provided by the applicant during the course of his interviews and as this information relates to operational policing matters it therefore falls outside the scope of the FOI Act.  

The information redacted from page 100 in record 10 and from page 134 in record 16 that remains to be considered in this review comprises details of courses the applicant completed. In its submissions to this Office, AGS argued that such information was exempt under section 37. As such, there is no redacted information contained in the relevant pages that AGS has sought to withhold pursuant to Part 1(n) of Schedule 1. In any event, as will be clear form my findings below, I am satisfied that AGS would not have been justified in redacting the information pursuant to Part 1(n) of Schedule 1.

In relation to the remaining records at issue, I do not accept the argument of AGS that they cannot be described as administrative records relating to human resources, or finance or procurement matters, simply because the contain information relating to operational matters.

I fully accept that there will be occasions where a record contains information relating to both administrative and non-administrative matters and that part of the record may be excluded from the Act in accordance with Part 1 of Schedule 1. In this case, however, I am satisfied that the record at issue are, in their entirety, administrative records relating to human resources. They relate to a competition for promotion within AGS. The fact that the applicant has included examples relating to operational matters in his applications for promotion and that the notes of the interview panels contain comments relating to those examples given does not, in my view, alter the nature of the records.

In the circumstances, I find that AGS was not justified in redacting information from the records pursuant to Part 1(n) of Schedule 1.

Section 42(b)

Of the records remaining within the scope of this review, AGS indicated that it wished to refuse access to records 1, 2, 3, 4, 8, 10, 25, 26, 27, 28, 29, 30, 31, and 32 under section 42(b).

Section 42(b) provides that the Act does not apply to a record held or created by AGS that relates to any of ten specified matters, including specific units of AGS such as (iii) the Special Detective Unit (SDU) and (v) the Security and Intelligence Section. If the records relate to any of the ten matters, then the Act does not apply to those records or parts of records and no right of access exists, regardless of whether or not they are also administrative records relating to human resources, or finance or procurement matters.

In its submission to this Office, AGS argued that records 1, 2, 3, 4, 8, 10 and 25 relate to personnel that may potentially be placed within SDU and that they are captured by subsection (iii) of section 42(b).  It further argued that records 26 to 32 relate to personnel that may potentially be placed in the Armed Support Unit (ASU) and that they are captured by subsection (v), namely records relating to the Security and Intelligence Section. It stated that ASU is governed by the Special Tactics and Operations Command (STOC) which is headed up by the Assistant Commissioner for Security and Intelligence.

The vast majority of the redactions from the records comprise information relating to applicants for promotion apart from the applicant. Indeed, in a number of instances, the only information redacted from the record is information relating to those other applicants. AGS released those parts of the records that contained information relating to the applicant. 

In essence, the position of AGS is that it is sufficient for the records to relate to SDU and the Security and Intelligence Section for subsections (b)(iii) and (b)(v) of section 42 to apply.

In EH v. the Information Commissioner [1999] 107 MCA the High Court considered the meaning of “relate to” in the context of whether the FOI Act 1997 conferred a right of access to records created before its commencement where such records relate to personal information about the person seeking access to them. In his decision, O’Neill J. held as follows:

“In my view the test to be applied to determine whether or not a record “relates to” is … whether there is a sufficiently substantial link between the requesters personal information (as defined in the act) and the record in question.”

He added:

“A requester has a right of access to “records”. The record will generally speak for itself. Where a doubt or ambiguity exists, as to the connection of the record to the requester, a consideration of factors such as the circumstances in which the record was created, the purpose for which the record was created and whether it was created with the affairs of a particular individual in mind, may inter alia, assist in determining “whether there is a sufficiently substantial link between the requesters personal information (as defined in the Act) and the record in question.”

I consider it appropriate to apply a similar test to determine whether the records at issue in this case can be said to relate to SDU and the Security and Intelligence Section, i.e. is there a sufficiently substantial link between SDU/Security and Intelligence Section and the records?

In this case, I do not accept that there is a sufficiently substantial link between SDU/Security and Intelligence Section and the records at issue for section 42(b) to apply. The records relate to internal promotion competitions. They are of a type that one would expect to find in any such internal competition, regardless of where in the organisation the vacancies arose, namely candidate listings, interview time and date schedules, and listings of candidate results.

It is noteworthy that section 42(b) can apply to records that were created by AGS but are held by other bodies. As such, it seems to me the provision serves to protect records relating to the functional or operational matters of AGS where they relate to one or more of the ten matters listed in section 42(b).

The disclosure of the records at issue would disclose nothing of any significance relating to SDU or Security and Intelligence Section. They were created solely for the purpose of administering internal promotion competitions. The fact that the vacancies happen to arise in DSU and Security and Intelligence section does not, in my view, mean that they relate to those units. In the circumstances, I find that section 42(b) does not apply to the records at issue.

Section 37(1)

Of the records remaining with the scope of this review, AGS indicated that it was refusing access to parts of records 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 (page 100), 11, 13, 16 (page 134), 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 36, and 40 under section 37(1) of the FOI Act.

Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to a person other than the requester. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it 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, (v) information relating to the individual falling within section 11(6)(a) (i.e. personnel records) and (vi) information relation to any criminal history of, or the commission of alleged commission of any offence by, the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions (Paragraph I refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

Section 37(1) does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

The information redacted from records 1 to 9, 18 to 21, 24 to 29, 31 and 32 that AGS sought to exempt under section 37(1) comprises lists of candidates for the promotion competitions and includes details relating to their applications, interviews, scores, placings etc. The names of other candidates have also been redacted from record 30.

I am satisfied that the release of these details would involve the disclosure of personal information relating to individuals other than the applicant and the section 37(1) applies.

The information redacted from records 10, 16 and 40 comprises details of courses the applicant completed. AGS stated that the courses listed are not individual training courses and relate not just to the applicant but also to everyone else who attended the courses. That may be the case but the question I must consider is whether the release of the details of those courses would involve the disclosure of personal information relating to those other individuals. Clearly, it would not. I find that section 37(1) does not apply to the relevant redactions from record 10 and 16

Records 11, 13, 17, and 34 comprise the interview panel notes prepared relating to the applicant’s interviews. AGS argued that notes contain personal information in relation to specific incidences and individuals the applicant interacted with in the course of his duties as a member of AGS. 

For information to quality as personal information, it must be information about an identifiable individual. Having examined the records in question, I do not accept that their disclosure would involve the disclosure of personal information relating to identifiable individuals. In my view, the information is of too general a nature to allow for the identification of the individuals the applicant interacted with. I find that section 37(1) does not apply to records 11, 13, 17 or 34.

Record 36 comprises an email exchange relating to the allocation of Garda personnel to a specific unit of AGS from a panel set up to fill such vacancies. Having examined the record, I find that section 37(1) applies to the following information only:

Page 279: The first sentence of the redacted paragraph

Page 280: the candidate numbers contained in the email

Page 281: The candidate numbers contained in the letter

Page 282: Details of all individuals contained within the list

I find that the disclosure of the remainder of the information redacted under section 37(1) would not involve the disclosure of personal information relating to identifiable individuals. This includes the names of members of AGS redacted from the records who received the various correspondence and were not candidates themselves. Such information is not personal information by virtue of the exclusion in paragraph (I) of the definition.

The Public Interest

Having found that section 37(1) applies to certain information, I must go on to consider if any of the other provisions of section 37 serve to disapply that exemption.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 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 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.

In considering the public interest test at section 37(5)(a), 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.

The FOI Act recognises the public interest in the protection of the right to privacy.  This is evident both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy).  It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore 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.

The question I must consider, therefore, is whether the public interest in enhancing transparency and accountability outweighs, on balance, the significant public interest in protecting the privacy rights of the third parties concerned. In my view, it does not. In forming this view, I am conscious of the fact that under FOI, records are released without any restriction as to how they may be used and, thus, release under FOI is regarded, in effect, as release to the world at large. I find, therefore, that section 37(5)(a) does not apply. 

In conclusion I am therefore satisfied that AGS was justified in refusing access to the information to which I have found section 37(1) to apply.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of AGS in this case.  I find that AGS was not justified in refusing access to the information redacted from the records coming within the scope of this review apart from the following information that I have found to be exempt from release under section 37(1):

• Details relating to candidates for promotion other than the applicant as contained in records 1 to 9, 18 to 21, 24 to 29, 30 to 32, and
• Record 36

- The first sentence of the redacted paragraph on page 279,

- the candidate numbers contained in the email on page 280,

- The candidate numbers contained in the letter on page 281, and

- Details of all individuals contained within the list on page 282.

- I direct the release of the remainder of the records.

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