Whether AGS was justified in refusing access to records relating to the applicant’s absence on sick leave under sections 15(1)(a), 37(1) or Schedule 1, Part 1 (n) of the FOI Act

16 August 2019

Background

On 14 August 2018, the applicant made an FOI request to AGS for access to: “All documents, reports and emails pertaining to my certified absence on sick leave between [specific dates in 2017] together with all documents, reports and emails pertaining to that period since my return to duty until the present day. This is to include all reports, documents and emails which have been forwarded to HRM which are included in my medical file at GDA H.Q.”

In its decision of 13 September 2018, AGS granted the applicant’s request in part. AGS provided the applicant with two schedules of records from Garda HRM and the Divisional/District Offices. AGS refused access to information contained in records 9-12, 19, 47, 59-60, 97-99 and 248 on the basis that it is exempt from release under section 37 of the Act or falls within the exclusion for AGS in Schedule 1 Part 1(n) of the Act. In his internal review request of 5 October 2018, the applicant argued that AGS ought to hold further records which are relevant to his request. In its internal review decision of 24 October 2018, AGS affirmed its original decision; however, it did not address the applicant’s point that it ought to hold further records within the scope of the request. 

In his application to this Office of 11 February 2019, the applicant again argued that AGS ought to hold further relevant records. Following communications with this Office, AGS outlined the searches it had undertaken to locate all relevant records. It said that it had been unable to locate additional records and it wished to rely on section 15(1)(a) of the Act. This Office provided the applicant with an outline of the searches as described by AGS and informed him of the section 15(1)(a) claim. In reply, the applicant confirmed that he would like a written decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made to date. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the review

During the course of the review, the applicant said that he held WhatsApp messages regarding his absence on sick leave sent by Inspector B which were not provided by AGS. The applicant argued that these messages should be included in the scope of the review, as should any other messages sent by WhatsApp which concern the subject of his request. I accept that such messages used for official business of a public body can fall within the definition of a record for FOI purposes. The applicant’s FOI request was very specific in listing documents, reports and emails within a separate period and also referencing reports, documents and emails forwarded to HRM and included in his medical file at Garda HQ. I am not satisfied in the circumstances of this case that WhatsApp messages are covered in “documents, reports or emails.” I note also that neither the internal review request from which this review arises nor the review application itself made reference to WhatsApp messages. The Commissioner does not have jurisdiction to expand the scope of the FOI request at review stage. I find that WhatsApp messages fall outside the scope of the applicant’s request.

The scope of this review is confined to whether AGS was justified in its decision that section 15(1)(a) of the FOI Act applies to the applicant’s request insofar as it relates to additional documents, reports or emails and whether AGS was justified in its decision to refuse access to parts of records 9-12, 19, 47, 59-60, 97-99 and 248 on the basis that the information concerned is exempt from release under section 37 of the Act or on the basis that it falls within the exclusion in Schedule 1 Part 1(n) of the Act.

Should the applicant wish to pursue the issue of whether WhatsApp messages concerning him are held by AGS, it is open to him to make an FOI request for them, giving, where possible, details to help identify the records that he is seeking e.g. date, by whom sent etc. (section 12(1)(b) of the FOI Act refers).

Preliminary matters

Section 13(4) of the FOI Act provides that the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner, (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act).

Section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.  However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

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. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues

Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner  [2002 No. 18 M.C.A.] (available on this Office’s website at www.oic.ie).

In his application to this Office, the applicant states that “there seems be a huge void in what I have been provided thus far. For example, there are emails from Sergeant A to Inspector B but none of the Inspectors replies or initiating emails have been included. Also there are no emails from Superintendent C to Inspector B or Sergeant A.” Following the applicant’s submissions, this Office requested AGS to respond to detailed queries in relation to searches undertaken to locate all records within the scope of the request as made, including those specifically mentioned by the applicant. It also sought information on AGS’s record management practices.

In its detailed submissions to this Office, AGS states that when a member reports unfit for duty, it is the responsibility of immediate local management i.e. the member’s Sergeant to monitor the absence and initiate a referral to the Chief Medical Officer (CMO) once the absence exceeds 28 days as it is then deemed to be considered long term. According to AGS, this process is conducted up through the rank structure and does not necessarily require a reply down the rank structure with the exception that the member is to be advised of an appointment or advices from attendance with the CMO.

AGS gave detailed accounts of its internal procedures concerning referral of members to the CMO, its filing systems and the various sections and named individuals who searched manually and electronically for records and took responsibility for the adequacy of search in the various areas.  It says that all documents pertaining to the member’s sickness absence are held and are not at any time destroyed. I will not set out the full details of AGS’s submissions here but the search details have been explained to the applicant.

I am satisfied, on the basis of the information provided by AGS, that it has taken reasonable steps to locate all records within the scope of the applicant’s request. I find, therefore, that section 15(1)(a) of the Act applies to the applicant’s request insofar as it relates to reports, documents and emails held.

Section 37 - Personal Information  

AGS refused access to information contained in records 9-12, 47, 59-60, 97-99 and 248 on the basis that the information concerned is exempt under section 37(1) or 37(7) of the FOI Act. Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This 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. Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

Section 2 of the Act defines "personal information" as information about an identifiable individual that, either - (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual and (xiv) the views or opinions of another person about the individual.

While records 9-12, 47, 59-60, 97-99 and 248 are contained in the applicant’s sick leave file, they also contain a small amount of personal information in relation to third parties including names, addresses, dates of birth and income details. However, that is not the end of the matter as paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. The exclusion at (I) does not provide for the exclusion of all information relating to staff members of FOI bodies. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The Commissioner takes the view that it does not exclude personnel records relating to the "competence or ability of the individual in his or her capacity as a member of staff of an FOI body".

Records 10-12 and 60 contain allegations about a member of staff which are intertwined with the personal information of the applicant. I do not accept that any alleged misconduct could be characterised as being for the purpose of the performance of the staff member's functions. Accordingly, the qualification on the definition of "personal information" cited above does not apply to the information withheld from these records. Having regard to the content of the records, it seems to me that it is not feasible to separate the personal information of the applicant from that of the staff member concerned. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I am satisfied extracting the occasional word or sentence is not practicable and would result in records which are misleading.  I find, therefore, that certain information withheld from 9-12, 47, 59-60, 97-99 and 248 is exempt on the basis of section 37(1) of the Act subject to the provisions of section 37(2) and section 37(5) which I examine below.

Section 37(2)

There are some circumstances, provided for at section 37(2) of the FOI Act, in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2) (a), (b), (c), (d), or (e) arise in this case.

Section 37(5)

Section 37(5) of the FOI Act provides that a request which 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals concerned. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is important to take note of the obiter 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"). Fennelly J. distinguished between a request made by a "private individual for a private purpose" and a request "made in the public interest." Macken J. in the same case stated that in her view a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." Thus, 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 itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights in the language of section 37. It is also worth noting that the right to privacy also 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

Aside from a small amount of third party personal information such as names, addresses, dates of birth etc. most of the withheld information concerns an allegation about a member of staff other than the applicant. It appears from the records that the applicant is aware of the nature of the allegation and the identity of the staff member concerned. It is difficult to see how granting access under FOI (effectively to the world at large) to the identity of the staff member would add anything further to the general understanding of how AGS dealt with the matter. On the other hand, I accept that the grant of access to the withheld information would result in a significant invasion of the individual staff member’s privacy. I find that, in the circumstances of this case, the right to privacy of the third parties whose personal information is in the records outweighs the public interest in granting the applicant’s request.

In summary, I find that certain information withheld from 9-12, 47, 59-60, 97-99 and 248 is exempt from release on the basis of section 37(1) of the Act and that none of the exceptions under section 37 apply.

Schedule 1, Part 1(n) of the FOI Act

AGS has refused access to the remaining information withheld from records 9-12, 19, 59 on the grounds that this information is excluded from the scope of the FOI Act under Schedule 1, Part 1(n) of the Act. Section 6(2)(a) of the FOI Act 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 description 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. In other words, the only records held by AGS that are subject to the FOI Act are those that relate to administrative matters concerning human resources, finance, or procurement. In accordance with Part 1(n), all other records held by AGS are excluded.

AGS has refused access to information contained in records 9-12, 19 and 59 on the basis that the information concerned does not relate to administrative matters. While the records at issue are located in the applicant’s sick leave file, I am satisfied that they contain a small amount of information concerning Garda operational matters. The definition of a record in the FOI Act includes part of a record. I find that the remaining information withheld from records 9-12, 19, 59 is excluded from the scope of the FOI Act by Schedule 1, Part 1(n) of the Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of AGS in this case. I find that section 15(1)(a) of the FOI Act applies to the applicant’s request insofar as it relates to additional records. I find that the personal information withheld from the records 9-12, 47, 59-60, 97-99 and 248 is exempt under section 37(1) of the FOI Act and that none of the exceptions under section 37 apply. Finally, I find that AGS was justified in its decision to refuse access to the remaining information withheld from records 9-12, 19 and 59 on the grounds that this information is excluded from the scope of the Act by Schedule 1 Part 1 (n) of the Act.

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