Whether the FSAI was justified in refusing access to records concerning a survey involving FSAI staff, under sections 35(1) and 37(1) of the FOI Act

21 February 2020

Background

On 13 November 2018, the applicant submitted a request to the FSAI for copies of the anonymised electronic responses submitted by FSAI staff to a staff survey in 2018 and copies of the consultancy report that was prepared on foot of the survey.

On 11 January 2019, the FSAI refused the request under sections 35(1)(a) (information obtained in confidence) and 37(1) (personal information) of the FOI Act. On 18 January 2019, the applicant sought an internal review of that decision.

In its internal review decision of 13 February 2019, the FSAI cited sections 35(1)(a) and 37(1) in refusing to grant access to the records at issue. On 16 February 2019, the applicant sought a review by this Office of that decision.

During the course of the review, both parties made submissions to this Office in support of their respective positions. The FSAI claimed exemption for the records at issue, under sections 35(1)(a) and (b), and 37(1).  

I have decided to conclude this review by way of a formal, binding decision. In conducting the review, I have had regard to the communications between the parties as outlined above and to those between this Office and each party on the matter.  

Scope of the Review

During the course of the review, this Office sought copies of the records at issue. In response, the FSAI provided a copy of a spreadsheet and a copy of a slideshow presentation containing 120 slides. The slideshow is, in essence, the consultancy report prepared by the external consultant that was sought by the applicant.

The spreadsheet comprises 65 separate tabs, one for each of the survey questions. Each tab contains collated figures of the number of staff who selected a particular survey response for the question asked and collated details of any free text comments made in respect of the question. The spreadsheet is not what the applicant sought. He sought copies of the individual responses. As such, the spreadsheet does not come within the scope of this review. However, it provides a clear indication of the type of information that is contained within the individual responses sought. It is clear that each response would contain the specific response selected by an individual from a list of options in respect of each question to which a response was given, and details of the specific comments made, if any, where certain questions allowed for the provision of such comment.

The FSAI refused access to the individual survey responses and to the slideshow. Accordingly, this review is concerned solely with whether the FSAI was justified, under sections 35(1) and 37(1) of the FOI Act, in refusing access to the survey responses and the slideshow.

Analysis and Findings

According to the FSAI, the survey in question was undertaken to assess the inner workings of the organisation and to determine the personal views of staff members in relation to the organisation’s culture, to understand the strengths and weaknesses in how staff work together, and to identify areas for improvement to enable the organisation to provide a better service to the public. In an email that issued to staff in advance of the survey, the FSAI stated that the survey was the start of a process and that it would “be followed by focus groups and outputs from these will form the basis of workstreams”.

Individual Survey Responses

Survey participants submitted their responses anonymously through an online application and the external consultant collated the answers provided. According to the FSAI, neither it nor the consultant has ever had access to the identities of the respondents in connection with their respective responses. The FSAI refused access to the individual responses under sections 35(1) and 37(1) of the FOI Act. In my view, section 35(1)(b) of the Act is of most relevance to these records.

That section provides for the mandatory refusal of a request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by agreement, enactment or otherwise by law. A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).

Before I consider the applicability of section 35(1)(b), I must consider whether 35(2) applies. That section provides that subsection (1) does not apply to a record prepared by a member of the staff of an FOI public body or a service provider in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than an FOI body or a member of the staff of an FOI body or of such a service provider.

While the FSAI acknowledged that the records at issue were created by its staff, it argued that they were not created by those staff members in the course of the performance of their functions. It argued that the survey was undertaken to determine the personal views of its staff on a range of issues. On the other hand, the applicant argued that the idea that the responses were not created by the staff in the course of the performance of their functions is tenuous at best and should be disregarded. He argued that the survey was completed during work hours and is a standard part of the feedback process that occurs in any public body.

I accept the FSAI’s argument that the records were not created by the staff members in the course of the performance of their functions. It is relevant that participation in the survey was voluntary and staff were being asked to give their personal views on a range of matters. I find that section 35(2) does not apply in this case.

On the question of the applicability of section 35(1)(b) to the records, the FSAI argued that participants were given assurances of anonymity and confidentiality. An email that the external consultant issued to all staff at the launch of the survey expressly stated that the survey was anonymous and completely confidential and would be viewed only be the external consultant. The FSAI argued that the release of the individual responses would constitute a breach of a duty of an agreement made between the external consultant and the survey participants and a breach of an equitable duty of confidence owed to those participants.

On the other hand, the applicant argued that the assertion of confidentiality was designed only so that responses could not be tracked back to the person who made them. He argued that it was not a guarantee that the responses would not be processed to gather insights on the FSAI or, indeed, to help to effect change in the organisation.

I accept the applicant’s argument that survey participants could not reasonably have expected that their responses would not be further processed. However, given the nature of the assurances given, I am satisfied that they were fully entitled to expect that any such further processing would be carried out without the need for the disclosure of individual responses to the FSAI. The fact remains that they were given explicit assurances in advance of participation that their individual responses would be treated as confidential and would be viewed only by the external consultant.

In the circumstances, I accept that the survey participants had a legitimate expectation that the FSAI would not have access to those survey responses. I am satisfied, therefore, that the disclosure of the records at issue would involve a breach of a duty of confidence owed by an agreement and that section 35(1)(b) applies.

Section 35(1)(b) is not subject to the general public interest balancing test provided for at section 35(3). However, it is established that the action for breach of confidence is itself subject to a public interest defence. The public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public. In my view, no such public interest grounds arise in this case.

Given my finding that section 35(1)(b) to the individual responses, I do not consider it necessary to examine whether section 37(1) also applies.

Slideshow

The slideshow comprises 120 slides containing information relating to the 59 multiple choice questions contained within the 65 question survey. The six questions not included required free text responses. In respect of each of the 59 questions, they contain details of the number of participants who answered the question, and the number and percentage of recipients that chose each particular answer.

In its decisions on the request, the FSAI relied upon section 35(1)(a) to refuse access to the slideshow. In its submissions of 29 March 2019, it argued that section 35(1)(b) also applied. Section 35(1)(a) provides for the mandatory refusal of a request where the record sought contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential, and where the body considers that the disclosure of the record would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information should continue to be given to it.

It seems to me that the essential thrust of the FSAI’s argument is that no records relating to the survey should be released in light of the assurances of anonymity and confidentiality afforded to its staff in advance of participation in the survey. It also argued that the release of any information about the survey would prejudice the giving of further similar information in the future and thereby hamper the FASI, and potentially other public bodies, from carrying out such surveys with their staff.

As I have stated above, I do not accept that the survey participants could reasonably have expected that their responses would not be further processed. They cannot have expected that their responses would be treated as confidential such that the responses would not be made available to the FASI for consideration, even in an anonymised format. It seems to me that the assurances given extended only to assuring staff that individual comments and responses would not be attributed to any identifiable individuals and that they did not extend to prohibiting the release and further use of the collated, anonymised, results.

The FSAI also argued that while the survey participants were likely aware that the high level responses would be shared with the senior management team, there was no expectation that the records would be released into the public domain. I do not accept that argument. It seems to me that if it was accepted that the collated anonymised responses would be provided to the FSAI for consideration, then there could have been no reasonable expectation that the assurances given would serve to limiting the use of the information in the manner suggested.

As such, I do not accept that the disclosure of the collated responses to the multiple choice questions would constitute a breach of a duty of confidence owed to the staff in circumstances where none of the responses can be attributed to any particular participants. I find, therefore, that section 35(2) applies and that the FSAI cannot rely on section 35(1) to refuse access to the record in question.

Furthermore, I do not accept that the release of the slideshow would be likely to prejudice the giving of further similar information to the FSAI or any other public body in the future, given my views as to the expectations survey participants would have had in relation to the treatment of the information provided. Therefore, even if I had found section 35(2) not to apply, I would have found that section 35(1)(a) did not apply. In conclusion, therefore, I find the FSAI was not justified in refusing access to the slideshow under section 35(1).

I note that the FSAI also cited section 37(1) in support of its refusal of the request. 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 individuals other than the requester. However, it cited the exemption in respect of the individual responses only and did not cite the exemption in support of its refusal of the slideshow. In its submission of 25 March 2019, it referred only to the free text comments made by the survey participants as comprising personal information. No such comments are included in the slideshow. Following receipt of the FSAI’s submission, Mr Flood of this Office asked the FSAI’s representative to clarify if the FSAI wished to rely on section 37 as a ground for withholding the slideshow. In response, the FSAI’s representative stated that the record was refused under section 35(1). In the circumstances, I do not propose to consider the applicability of section 37(1) to the record.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the FSAI’s decision. I find the FSAI was justified in refusing to grant access to the anonymised survey responses under section 35(1)(b). I find the FSAI was not justified in refusing to grant access to the slideshow under section 35(1) and I direct its release in full.

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