Whether the LGMA was justified in its decision to refuse to grant access to records concerning the applicant under sections 15(1)(a), 30(1)(b), 32(1)(a)(iv) and 37(1) of the FOI Act

13 May 2020

Background

On 13 June 2019, the applicant requested access to records of correspondence created between 2013 and 2015 and held by the LGMA in relation to him. The LGMA granted access to a number of records in full and in part and refused access to the remaining records in full and in part under section 15(1)(a) (Records do not exist), section 30(1)(b) (Functions and negotiations of FOI bodies) and section 32(1)(a)(iv) (Law enforcement and public safety) of the FOI Act. Following a request for an internal review, the LGMA affirmed its decision but stated that it was relying on sections 15(1)(a) and 30(1)(a) and (b) of the Act. The internal review decision did not refer to section 32(1)(a)(iv).

On 21 August 2019, this Office received an application for review from the applicant.

During the course of the review, the Investigator wrote to the LGMA to clarify what exemptions it had applied to each of the records. In response, the LGMA stated that it is refusing access to records 1, 6, 7 (attachment (2)) and 8 under section 30(1)(b) and section 32(1)(a)(iv).  The LGMA said that the reference to section 30(1)(a) in its internal review decision and schedule may have been made in error. The LGMA also said that it does not know why section 32(1)(a)(iv) was not referred to in its internal review decision. The applicant was informed of the LGMA’s clarification.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to submissions received from the LGMA and the applicant, and to correspondence between the applicant, the LGMA and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

During the review the Investigator informed the LGMA and the applicant of his view that following an examination of the records, the mandatory section 37(1) exemption (personal information of individuals other than the applicant) applied to some of the information in the records. I agree that this is a relevant consideration.

The LGMA refused access to information in an attachment in record 2 on the basis that it is not within the scope of the FOI request. I agree that it concerns matters to do with individuals other than the applicant that do not fall within the scope of the request and I will not deal with it further in this review.

This review is concerned solely with whether the LGMA was justified in deciding to refuse access to the withheld records 1, 6, 7 – attachment (2) and 8 on the basis of sections 15(1)(a), 30(1)(b), 32(1)(a)(iv) and 37(1) of the FOI Act. Also, during the review, the LGMA said that it would release attachment 3 of record 7. If this has not already been done, I expect the LGMA to send a copy of that record to the applicant and I see no reason to consider it further.  

Preliminary Matters

Section 18(1) 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. However, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. The Commissioner takes the view that the provisions of section 18 do not 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) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records and relevant circumstances in my analysis is limited.

When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.

Analysis and Findings

Section 15(1)(a) - Adequacy of search
Section 15(1)(a) of the FOI Act 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.

Effectively, the LGMA is saying that it holds no further records falling within the scope of what the applicant is seeking in his FOI request. The role of the Commissioner in cases such as this is to review the decision of the FOI body and to decide whether that decision was 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, I form a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence or ought to have been held.

In his submission to this Office the applicant said that he would like to know whether all records within the scope of his FOI request have been released to him. The investigator raised some queries with the LGMA about its searches for the records.

The LGMA said it made an extensive search of its email storage system and hardcopy files and that the records referred to by the applicant at points 1, 2 and 4 of his request do not exist. It said that as the search involved two former employees, it made the search through its ‘Mailmeter’ storage system. The LGMA said that it applied certain parameters in conducting the search; to include email correspondence between the LGMA and a County Council relating to the applicant, from 1 January 2013 to the date of the applicant’s FOI request. It said that additional search enquiries were made by speaking to individuals about the existence of other documentation, correspondences, notes and/or telephone conversations relating to the applicant.

In light of the LGMA’s account of the steps taken to look for the records and the extent of the records already identified and scheduled, I do not consider that I would be justified under section 15(1)(a) in requiring the LGMA to take further search steps on the basis of the applicant's belief that further records might be or ought to be held.

The position of the LGMA is that it has taken all reasonable steps to look for records of relevance to the applicant's request.  In view of the information provided by it relating to the searches undertaken, I consider that the LGMA has taken all reasonable steps to ascertain the whereabouts of any further records within the scope of the request.

I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 30(1)(b) – Functions and negotiations of FOI bodies
Section 30(1)(b) provides for the refusal, subject to a public interest test, of a request if the FOI 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 relying on section 30(1)(b) the Commissioner expects the FOI body to identify the potential harm to the performance of a public body’s functions relating to management etc. that might result from disclosure of these records. The FOI body must then make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a) and other sections of the Act.

Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular information in the records could cause the harm and consider the reasonableness of its expectation that the harm will occur.

In its submission, the LGMA said that the exemption provided for in section 30(1)(b) applies because the effect on the Council’s ability to perform its “IR and management of staff function alone justifies refusal to release the records”.  According to the LGMA, the Council said that the subject matter of the records created between 2013 and 2015 is central to understanding the involvement of the Council in an ongoing matter involving the applicant. The LGMA said that a number of attempts have been made to resolve the current matter and that release of the information in the records would undermine that process.

Record 1 is a thread of several emails some of which were sent to or from the applicant. The LGMA refused access to the record in full so I will deal with the entire record. However, in its decision schedule and submission the LGMA referred to one email only (dated 11 October 2013 – 9:37am). The LGMA said that from the content of the email it was reasonable for it make an assumption about how the applicant would interpret the Council‘s position at that time and how this could affect the outcome of the current matter.

The LGMA said that releasing information in record 7 could allow the applicant to put forward certain claims before the current matter has concluded.

The LGMA said that releasing information in record 8 would allow the applicant to question the Council’s handling of the first matter (related to records created between 2013 and 2015) and the current matter. It said that the significant adverse effect would be to thwart the Council’s ability to decide on a particular outcome. It also questioned whether the LGMA and the Council might be misrepresented in any future industrial relations tribunal.

The applicant stated that the records created between 2013 and 2015 are “irrelevant” to the current matter involving him and that they were created for a purpose other than the current matter. He stated that the two matters are unrelated and noted that the current matter in which he is involved occurred some three and a half years after the creation of the records the subject of this review.

I appreciate that the LGMA has concerns about what it sees as the relevance of incidents in previous years to separate issues now apparently ongoing. It seems to me that the LGMA is arguing that a harm might arise because of how it predicts the applicant might interpret information contained in some of the records. The Commissioner has indicated in previous decisions that the possible misinterpretation of a record is not, of itself, a sufficient basis for refusing to grant access to that record under FOI.  It seems to me that the situation might be different if the information at issue related to a current or closely related dispute or revealed, for instance, the body’s management or industrial relations strategy.  I do not see how the applicant becoming aware of these exchanges about a past incident involving the Council could reasonably be expected to undermine the Council’s position to such an extent that a significant adverse effect would be likely to be caused to the performance of its management functions.

The Commissioner’s role in cases such as this is to decide, having examined the content of the records and the submissions of the parties, including the public body’s arguments in support of its decision under the Act, whether the terms of any exemption relied upon have been met.

Having examined the withheld information, I am of the view that the LGMA has not demonstrated how section 30(1)(b) applies to the information in the records. While the LGMA has identified a harm, it has not explained how it would reasonably be expected to arise as a result of the release of the particular information in those records.

Accordingly, I find that section 30(1)(b) does not apply to the records. I will deal below with whether some of the same records might contain personal information about individuals other than the applicant.

Section 32(1)(a)(iv) – Law enforcement and public safety

Section 32(1)(a)(iv) provides that a public body may refuse access to a record if it considers that access could reasonably be expected to prejudice or impair the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal. 

Under section 32(1)(a)(iv), it is necessary for the LGMA first to identify the potential harm to the fairness of the criminal or civil proceedings concerned that could arise as a result of the disclosure of the record at issue.  Having identified the potential harm, the LGMA is then required to show that its expectation of such harm arising is reasonable.

The LGMA’s argument in relation to the applicability of section 32(1)(a)(iv) is similar to its argument about section 30(1)(b) outlined above.

The LGMA stated that release of the records “could reasonably be expected to prejudice or impair [the Council’s] ability to prosecute or defend any anticipated legal proceedings that will arise from a legal challenge to the outcome of the disciplinary process, thus impacting on the fairness of any proceedings in the WRC or other such for a [sic] where the future legal proceedings will be brought”. The LGMA confirmed to this Office that the internal process “has not yet concluded” and that “legal proceedings have not yet commenced”.

The mere anticipation of related court proceedings is not sufficient to show that any harm could arise from the release of records of the type at issue. Arguably, it is open to any party to take some sort of legal action if it is not satisfied with the outcome of a process.  In my view, given the content and context of the records at issue, the LGMA has not shown how it expects the release of these records to prejudice or impair any proceedings; neither has it shown that any such expectation of harm is reasonable within the terms of the exemption.

I find that section 32(1)(a)(iv) does not apply to the records. 

Section 37- Personal Information
Section 37(1) of the FOI Act provides for the 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.

For the purposes of the Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including "(xii) the name of the individual where it appears with other personal information relating to the individual or where disclosure of the name would, or would be likely to, establish that any personal information held by the public body concerned relates to the individual".

Section 2 of the Act includes an exclusion to the definition of personal information that relates to members of staff of an FOI body. It states that in a case where the individual holds or held a position as a member of staff of an FOI body, personal information does not include the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied 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 the functions aforesaid.

Generally speaking, the exclusions contained in the definition of personal information are intended to prevent FOI bodies from relying on section 37 to refuse to grant access to records created by individual staff members or service providers in the course of their work. They do not deprive public servants, or individual contractors, of the right to privacy generally.

Having examined the records, I am satisfied that parts of them contain personal information relating to persons other than the applicant. Given that release under FOI must be taken as release to the world at large, the fact that some of the information may already be in the possession of the applicant does not change this position under FOI.  I find, therefore, that section 37(1) of the Act applies to the following withheld information:

• Record 6
• Record 7 – attachment 2

the second sentence of the first paragraph in the email dated 11 October 2013 (9:37:43)

the second sentence of the first paragraph in the email dated 10 October 2013 (13:38)

• Record 8

the information in the email of Tuesday, July 14, 2015, (11:46:51PM) after the sentence ending “…revisit them.”

Section 37(2)
There are some further circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. I am satisfied that none of these are relevant in this case.

Section 37(5) – the Public interest
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 individuals to whom the information relates, or (b) the grant of the information would be to the benefit of the persons 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 considering the public interest test in section 37(5)(a), I must have regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), available at www.oic.ie.  In its judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, “a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law” must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act itself reflects a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Thus, in this case, I find that there is a general public interest in openness and accountability as to the manner in which the LGMA carried out its functions. On the other hand, the FOI Act 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.

I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the information in the records relate. As regards section 37(5)(a), as mentioned earlier, the public interest in openness and transparency in how the LGMA dealt with the applicant has been served to some extent by the release of some information in the records to him. I therefore find that the public interest in granting the request does not override the public interest in upholding the privacy rights of other individuals involved.

Accordingly, I find that section 37(1) of the Act applies to the withheld information which I have identified in this decision.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the LGMA as follows:

• I affirm its decision in relation to any further records under section 15(1)(a)
• I affirm its decision to refuse access to record 6 but under section 37 of the Act
• I annul its decision under section 30(1)(b) and 32(1)(a)(iv) in relation to records 1, attachment 2 of record 7 and record 8 except for those parts that I have identified as being exempt under section 37.

If it has not already done so, I direct the LGMA to release attachment (3) in record 7 to the applicant as it agreed to do during this review.

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.

Elizabeth Dolan
Senior Investigator