Whether the IPS was justified in its decision to refuse the applicant’s request for access to personnel file records under section 15(1)(i) of the FOI Act on the ground that the records sought were previously released to her

6 April 2020

Background

On 19 March 2018, the applicant submitted a request to the IPS for access to her to personnel file records from May 2007 to the date of her request. She noted that she had received some of the contents of her file in November 2016.

On 23 May 2018, the IPS issued a decision in which it granted the request in part. It refused access to records from the period 2007 to 27 January 2016 under section 15(1)(i) on the ground that they had already been released. It granted access to records contained in the applicant’s personnel files from 28 January 2016 onwards, with the redaction of certain information from a number of records under section 37(1) on the ground that the redacted information comprised personal information relating to third parties.

The applicant sought an internal review of that decision on 1 June 2018 on the ground that she had not received all relevant records. On 10 July 2018, the IPS issued its internal review decision, wherein it varied its original decision, releasing some information that had been redacted under section 37(1) and affirming its refusal of records created before 28 January 2016 under section 15(1)(i).  On 13 July 2018, the applicant sought a review by this Office of the decision of the IPS based on her view that there were additional records held by the IPS she had not received. On the same day, the applicant also wrote to the IPS and stated that she did not accept that she had received all records up to 27 January 2016.

On 9 August 2018, the IPS wrote to the applicant and enclosed copies of additional relevant records that had not originally been placed on her personnel files. It again redacted certain information under section 37(1). It offered the applicant an opportunity to apply for an internal review of that ‘decision’. She did so on 22 August 2018. Among other things she argued that records relating to an alleged sexual assault incident in 2016 and records relating to the period she had spent working in the Midlands Prison were missing. She also stated that she wished to receive her correct file from May 2007.

The IPS subsequently released additional records, on 22 October 2018 and 16 November 2018, with the redaction of certain information under section 37(1).  On 12 June 2019, the applicant informed this Office that she wanted the review by this Office to proceed.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In conducting my review, I have had regard to the correspondence between the IPS and the applicant as outlined above and to correspondence between this Office and both the IPS and the applicant on the matter.

Scope of the Review

During the course of the review, the applicant informed this Office that she was not seeking access to the personal information relating to third parties that was redacted from the records released to her, nor was she seeking access to records created after 27 January 2016.   She confirmed that she was seeking access to records from the period 2007 to 27 January 2016 that had not already been released to her.   The IPS refused the applicant’s request for access to records from that period under section 15(1)(i) on the ground that they had previously been released to her on foot of an earlier request. 

Accordingly, the scope of this review is concerned solely with whether the IPS was justified in refusing the applicant’s request for access to records created before 28 January 2016 under section 15(1)(i).

Preliminary Matter

From the outset, the IPS’s handling of the applicant’s request fell significantly below the required standards.  Significant delays have arisen for the applicant in her efforts to obtain her personnel records. I note that the IPS has accepted that it has fallen short in the manner in which it processed the applicant’s request and that it has taken steps to improve its processing of FOI requests to ensure that similar issues do not arise in the future.

Analysis and Findings

Section 15(1)(i) of the FOI Act provides for the discretionary refusal of a request where the request relates to records already released, either to the same or a previous requester where the records are available to the requester concerned.  For the section to apply, I would expect the public body to be in a position to show that (i) the records sought were already released and (ii) they are available to the requester.

In its submissions to this Office, the IPS explained that it has 16 Human Resources (HR) teams nationwide, with one team based in each of its institutions, headed by an HR Governor and a HR Unit (i.e. the HR Directorate) based at headquarters. It noted that, as such, each employee has two personnel files, one in the prison where they work (prison personnel file) and one in headquarters (headquarters personnel file). It stated that if an employee transfers from one prison to another, their prison personnel file transfers with them to the new location.

The IPS stated that not every incident occurring in a prison and the subsequent documents generated in respect of same would be held on the headquarters personnel file, however, the documents or a reference to them, should be kept on the prison personnel file. It acknowledged that due to lack of resources or more urgent priorities filing may not occur in a timely manner.

In relation to the records released to the applicant in 2016, the IPS said she received a copy of her personnel file that included records from 2007 to 27 January 2016.  It argued that the applicant considers that the records she received were not in chronological order. While I note that the applicant referred to the number of duplicate records she had received, she also confirmed to this Office that she was not seeking records previously released and it was her view that there could be records missing from what she had received in 2016.

The question I must consider is whether the IPS was justified in refusing access to records created before 28 January 2016 on the ground that all relevant records have already been released.  In response to queries from this Office regarding the records released in 2016, the IPS could not locate a copy of the schedule of records released.  It was also unable to confirm whether it had released the applicant’s prison personnel file at that time and explained that prior to March 2019, the prison personnel file may not have been automatically requested in response to requests for access to personnel records.  Furthermore, it did not identify whether searches were carried out in relation to personnel file records from 2007 to 27 January 2016 specifically when processing the request at issue.

In all of the circumstances, I cannot find that the IPS was justified in refusing access to all relevant personnel file records created before 28 January 2018 under section 15(1)(i) ground that the records sought were previously released to the applicant. 

I consider that the most appropriate course of action to take at this stage is to annul the decision of the IPS, the effect of which is that the IPS must consider the applicant’s request for access to additional personnel file records created before 28 January 2016 afresh and made a new, first instance decision in accordance with the provisions of the FOI Act.  In doing so, however, it may be useful for the IPS to engage further with the applicant in the first instance to clarify the precise nature of the records sought apart from those already released.  The IPS should also bear in mind that it is responsible for ensuring that any subsequent searches for relevant records extend to all parts of the IPS that might hold relevant records.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of the IPS in this case.  I direct the IPS to conduct a new decision-making process on the applicant’s request for access to additional personnel file records created before 28 January 2016.

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.

 

 

Stephen Rafferty

Senior Investigator