Whether the Department was justified in refusing access to certain records related to the applicant’s employment with the Department under sections 30(1)(a), 30(1)(b), 32(1)(a), 32(1)(c), 33(1)(d) and 37(1)

21 April 2020

Background

In a request dated 14 January 2019 and clarified on 16 January 2019, the applicant sought access to all information related to his employment with the Department. In its decision of 6 February 2019, the Department informed the applicant that his personnel file was available for inspection. It refused access to certain records relating to matters such as his probation and his appeal of the recommendation to terminate his probationary appointment under section 15(1)(i) on the ground that he already had copies of those records. It refused access to certain other records under sections 30(1)(a), 30(1)(b), 35(1)(a), 35(1)(b), and 37(1).

On 13 February 2019, the applicant sought an internal review of that decision.  On 12 March 2019, the applicant sought a review by this Office of the deemed refusal of his application for internal review as he had not received a response within the statutory timeframe. On 14 March 2019, the Department issued a late internal review decision in which it affirmed its original decision. It noted that the applicant had viewed his personnel file on 20 February 2019. 

During the course of the review, the Department prepared a schedule of 80 records it identified as coming within the scope of the applicant’s request. It provided the applicant with a copy of the schedule, along with 21 records to which access had previously been refused. It also cited additional exemptions in support of its refusal of some records, namely sections 29(1), 32(1)(a), 32(1)(c), and 33(1)(d). Subsequently, it agreed to release a number of additional records, including records to which access had been refused under section 15(1)(i) and it withdrew its claim for exemption of certain records under sections 29 and 35.

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 correspondence between the applicant and the Department as described above, and to the correspondence between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue, I have adopted the numbering system used by the Department in the schedule of records it provided to the applicant.

Scope of the Review

Following the release of certain records during the course of the review, 25 records remain to be considered, namely records 14, 18, 19, 36, 41, 46 to 49, 56 to 61, 63, 64, 69 to 75, and 77. This review is concerned solely with whether the Department was justified in refusing access to those records under sections 30(1)(a), 30(1)(b), 32(1)(a), 32(1)(c), 33(1)(d) and 37(1) of the FOI Act.  

Analysis and Findings

According to the Department, the applicant was employed by it on a one year probationary contract. During the probationary period, some issues arose concerning his performance. The applicant was assessed as unsatisfactory at all stages of the probationary process and the Secretary General decided to terminate the probationary appointment. I understand the applicant unsuccessfully appealed the recommendation made to terminate his probationary appointment.

The records at issue comprise communications and records relating to issues arising concerning the applicant’s performance during the probationary period and relating to his appeal of the recommendation to terminate his appointment. I will deal with each of the exemptions cited by the Department in support of withholding the records separately below. While the Department provided submissions in respect of each exemption, some of its arguments more properly fall to be considered under one or more of the other exemptions cited. As such, I have considered the entirety of its submissions when considering each exemption.

Section 30(1)(a) and (b) - Functions and Negotiations of FOI Bodies

Section 30(1)(a) provides for the refusal of a request where the FOI body considers that access to the record concerned 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. Where a body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur. In examining the merits of a body’s view that the harm could be reasonably expected, I do not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. 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.

Section 30(1)(b) provides for the refusal of a request if the 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 body must make an assessment of the degree of significance attaching to the adverse effects claimed. Having identified the significant adverse effect envisaged, the body should then consider the reasonableness of its expectation that the harm will occur.

The Department made a number of arguments in the course of its submissions in support of its reliance on section 30. It argued that the release of the records at issue would give rise to a risk to the functioning of Human Resources if its officers cannot rely on Human Resources to retain a confidential approach in their dealings with colleagues. It said Human Resources is keenly aware that for many managers, reporting on and addressing issues of poor performance and misconduct can be intimidating and stressful. It argued that the release of the records could reasonably be expected to jeopardise and or prejudice the probation procedures if staff decide not to cooperate to the fullest extent possible.

As I have explained above, a body wishing to rely on section 30(1)(a) should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure of the records sought. It is not clear to me that the probationary process is captured by the description of the various matters the section seeks to protect. Even if it is, I do not accept that the release of records to individuals relating to their performance during the course of a probationary period could reasonably be expected to result in staff not cooperating in the process in the future to the extent that the effectiveness of either the human resource function or the probationary process might be prejudiced.

The Guidelines on the management of probation in the Civil Service provide that equity, effectiveness and accountability underpin the probationary process and that the probationary process should be operated in an open, clear and supportive manner. Among other things, they provide for the following:

• A line manager should make sure that each probationer is aware of the standards of conduct, performance and attendance required; and where necessary, provide appropriate supports to help probationers achieve these standards.
• If the probationer does not meet the required standard(s) during the probationary period, the line manager is responsible for recommending, through the HR Unit, to the appropriate authority that his or her appointment be terminated, either at any time during or at the end of the probationary period.
• Formal reviews of probation are generally conducted by the probationer’s line manager, but may be conducted by a higher level of manager, if appropriate. In the periods between these formal reviews, ongoing monitoring of performance and feedback is recommended. Records of these discussions should be kept.
• Where a probationer fails to meet the standards required, he or she should be clearly advised of the situation and that failure to improve could result in his or her appointment being terminated. The line manager should bear in mind that the record of discussions of all performance review meetings are very important.

It is also noteworthy that the Guidelines provide for the making of an appeal by a probationer of a recommendation that his or her appointment should be terminated. The Appeals Process for new entrant probationers provides that the review undertaken following receipt of an appeal is an assessment of whether or not the probationary process was conducted fairly and comprehensively. The Process provides that an Internal Appeals Officer should consider the line manager’s assessment of the actual performance, attendance and conduct of the probationer.

Having regard to their responsibilities under the probationary process, it seems to me that managers cannot reasonably expect that any information they record in relation to the performance or behaviour of individuals on probationary contracts will be withheld from the individuals concerned. If nothing else, the principles of natural justice would require that the individuals would be given a right to respond where evidence was being relied upon to support a recommendation that their employment be terminated. As such, I do not accept that the release of the records to the applicant in this case could reasonably be expected to prejudice the effectiveness of the human resources function or the probationary process, nor do I accept that release could reasonably be expected to have a significant, adverse effect on the performance by the Department of any of its functions relating to management.

The Department also expressed concerns about releasing certain records relating to the appeal that took place in this case. It specifically referred to records 14, 18, 19, and 46. It said while the Internal Appeals Officer (IAO) is a member of its staff, Human Resources does not have access to communications or documentation shared between an IAO and the parties to an appeal at any stage of the process to ensure that the process is conducted independently, fairly, and impartially. It said that while the principles of natural justice apply, IAOs can apply some discretion in what is shared. Given the nature of the probationary process and the related appeal process as described above, I fail to see how the release of the records at issue to the applicant could reasonably be expected to prejudice the effectiveness of the appeals process, nor has the Department explained how such harm might arise.

The Department further argued that section 30 serves to protect some of the records that contain details of security procedures in place to protect the Department and the State and in particular, the integrity of the passport system. Having regard to the nature of the Department’s arguments, it seems to me that they more appropriately fall to be considered under sections 32 and 33. Nevertheless, I accept that the release of records that could reasonably be expected to prejudice the effectiveness of the Department’s procedures for establishing the validity of passport applications may appropriately be considered to be exempt under section 30(1)(a).

The Department did not identify any specific records in its submissions on section 30 whose release it deemed could reasonably be expected to prejudice its ability to protect the integrity of the passport system. In its submissions on sections 32 and 33, the Department identified records 18, 36, 46, 47, 49, 56, 57, 58, 59, 60, 61, 63, 64, 70, 71, 72, 74 and 75 as containing information relating to the passport processing system. Accordingly, I have considered the applicability of section 30(1) to each of those records based on the arguments cited in respect of the integrity of the passport system.

In its submissions, the Department provided background information to stress the importance of passports and the dangers of compromised passports. It argued that to reveal publicly the technicalities of the passport system would be to put the passport, Irish citizens, and its staff at risk. It argued that the release of the records would involve the release of information that could facilitate circumvention or manipulation of the system.

The Department said record 18 references a specific term used by its Integrity Unit. It said records 36 and 46 relate to an ICT security check, record 47 references fraud awareness training, record 56 references applications of concern, record 58 references revocation of passports, record 59 references an internal safeguard with passport processes, while records 49, 57, 60, 61, 63, 64, 70, 71, 72, 74 and 75 reference confidential passport processes and procedures.

It is not sufficient for an FOI body wishing to rely on section 30(1)(a) to exempt records to simply identify the potential harm or prejudice to the effectiveness of the relevant test, examination etc. It must also explain how release of the record could reasonably be expected to give rise to that harm.

I accept that the records at issue contain references to the passport system. The question I must consider, however, is how the release of that information could reasonably be expected to prejudice the integrity of the system. While the Department argued that the release of the records could facilitate circumvention or manipulation of the system, its submissions contain no information on how the harm it identified might arise. Furthermore, having carefully examined each records, it is not apparent to me how such harm might arise. The mere fact that the information relates to the passport system and/or the related processes does not, of itself, mean that its disclosure could reasonably be expected to facilitate circumvention or manipulation of the system to the extent that it could prejudice the integrity of the system.

In conclusion therefore, I find that the Department was not justified in refusing access to any of the records at issue under section 30 of the FOI Act.

Section 32 - Law enforcement and public safety

The Department claims that sections 32(1)(a) and 32(1)(c) apply to records 18, 36, 46, 47, 49, 56, 57, 58, 59, 60, 61, 63, 64, 70, 71, 72, 74 and 75.

Section 32(1)(a) provides that a request may be refused if access to the record sought could reasonably be expected to prejudice or impair ten specified matters. While the Department did not specifically identify which of those ten matters it deemed to be of relevance to which record, it argued in its submissions that subsections (i), (ii), (iii) and (iv) “may apply to all passport service records”. Those subsections provide for the refusal of a request where the FOI body considers that the record sought could reasonably be expected to prejudice or impair;

1. the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of such matters.
2. the enforcement of, compliance with or administration of any law. 
3. lawful methods, systems, plans or procedures for ensuring the safety of the public and the safety or security of persons and property.
4. the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal

The Department also argued that section 32(1)(c) applied. That section 32(1)(c) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to facilitate the commission of an offence.

As I explained above, while the Department argued that the release of the records would involve the release of information that could facilitate circumvention or manipulation of the system, it failed to identify how the harm it identified might arise, nor is it apparent to me how such harm might arise. In the circumstances, I find that section 32 does not apply to the records in question.

Section 33(1)(d) - International relations

The Department also claimed that section 33(1)(d) applied to the same records for which it claimed exemption under section 32. Section 33(1)(d) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to affect adversely the international relations of the State.

The Department argued that any compromising of the passport would be a compromise of the international relations of the State. As I have outlined above in relation to the Department’s arguments under section 30 and 32, the Department has not explained how the release of the records at issue could reasonably be expected to compromise the integrity of the passport system. For the same reasons, therefore, I find that section 33(1)(d) does not apply.

The Department argued that section 33(2)(b)(ii) also applies. Section 33(2) includes specific examples of the types of records which may be covered by the exemption at section 33(1).

Records listed in section 33(2) may qualify for exemption as follows:

• records falling within section 33(2), with the exception of those referred to at subsection (2)(b)(i) and (ii), may be refused under subsection (1) provided that the harm test at subsection (1) is met,
• records falling within subsection (2)(b)(i) must be refused and there is no harm test,
• records falling within subsection (2)(b)(ii) must be refused where they meet the harm test within that provision, i.e. release could reasonably be expected to affect adversely the international relations of the State.

Section 33(2)(b)(ii) provides that a request must be refused for a record containing analysis, opinions, advice, recommendations and the results of consultations or information the release of which could, in the opinion of the FOI body, could reasonably be expected to affect adversely the international relations of the State. It is not clear to me that any of the records at issue contain information of the type identified at section 33(2)(b)(ii). Even if they do, the Department has relied on the same arguments as outlined above. I find that section 33(2)(b)(ii) does not apply

Section 37 - Personal Information

The Department claimed that section 37(1) applies to information in records 46, 56, 57, 58, 59, 60, 63 and 72.  That section provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester.

All of the records identified, apart from record 57, contain details of individuals who applied for passports.  Record 49 also contains details of individuals who applied for passports.  I am satisfied that the information contained in the records relating to those individuals is personal information for the purposes of the FOI Act and that section 37(1) applies. I see no information in record 57 that qualifies for protection under section 37(1) and I find that section 37(1) does not apply to that record. 

Section 37 contains other provisions that serve to disapply section 37(1), namely subsections (2) and (5). I am satisfied that none of the circumstances identified at section 37(2) or 37(5)(b) arise in this case. Section 37(5(a) provides for the release of information to which section 37(1) applies where the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned. I am satisfied that the public interest in protecting the privacy rights of the individuals concerned outweighs the public interest in granting access to that information.

For the avoidance of doubt, I find that section 37(1) applies to the following information:

Record 46: the names and passport application numbers

Record 49: passport application numbers on page 6

Record 56: the entirety of the search results returned in respect of the various passport applications

Record 58: the passport application number and the search results returned in respect of the passport application

Record 59: the passport application number

Record 60: the passport application number

Record 63: the search results returned in respect of the various passport applications

Record 72: the search results returned in respect of the various passport applications

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 that the Department was not justified in refusing access to the records at issue, apart from third party personal information as identified in the decision above in records 46, 49, 56, 58, 59, 60, 63 and 72.

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