Whether the Department was justified, under section 37(1) of the Act, in refusing access to the names of the other individuals, apart from the applicant, on the order of merit in connection with an internal competition for promotion to Area Superintendent

28 February 2020

Background

In a request dated 29 November 2019, the applicant sought access to the order of merit for the Department’s 2019 Area Superintendent Competition, in which he was a candidate. In a decision dated 2 December 2019, the Department part-granted the request, providing a copy of the applicant’s place on the order of merit and refusing access to the names of the other placed candidates under section 37(1) of the FOI Act. On 11 December 2019, the applicant sought an internal review of that decision, following which the Department affirmed its original decision. On 8 January 2020, the applicant sought a review by this Office of the Department’s 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 correspondence between the Department and the applicant as set out above, as well as to the communications between this Office and both the applicant and the Department on the matter. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Department was justified, under section 37(1) of the Act, in refusing access to the names of the other individuals, apart from the applicant, on the order of merit in connection with an internal competition for promotion to Area Superintendent.

Analysis and Findings

Section 37(1)

Section 37(1) of the FOI Act provides that, subject to other provisions of the section, an FOI body shall refuse to grant 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. 

Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual in a record falling within section 11(6)(a) of the Act, i.e. personnel records of staff of FOI bodies.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph (I) refers). Similar information relating to service providers is also excluded (Paragraph (II) refers).

The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

I note that in his application for review to this Office, the applicant referenced a decision I made in case 160341 wherein I found that the names of panellists from the Temporary Veterinary Inspector panel listings was not personal information for the purposes of the Act on the ground that the exclusion at Paragraph (II) applied. It is important to note, however, that I found that the disclosure of the names of the panellists in that case disclosed nothing more than the fact that the individuals in question were service providers.

On the other hand, the disclosure of the names of the individuals on the order of merit in this case would not merely involve the disclosure of their names as staff members. It would also disclose the fact that the individuals in question were candidates in the relevant competition and were placed on the order of merit. It would also reveal each individual’s position on the order of merit relative to other candidates. I am satisfied that the disclosure of the names of the individuals concerned would involve the disclosure of personal information relating to those individuals and that the exclusion does not apply in this case. I find, therefore, that section 37(1) applies to the information at issue.

Section 37(2)

Section 37(2) provides that section 37(1) does not apply in certain circumstances, namely;

(a) the information at issue relates solely to the applicant,

(b) the individual to whom the information relates consents to its disclosure to the requester,

(c) information of the same kind as that at issue in respect of individuals generally, or a class of individuals of significant size, is available to the general public,

(d) the information at issue was given to the FOI body concerned by the individual to whom the information relates and the individual was informed on behalf of the body, before giving the information, that it belongs to a class of information that would or might be made available to the general public, or

(e) the disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

In his application for internal review, the applicant argued that subsection 2(c) applied. He said similar information was made available on the Department’s intranet relating to a recent internal District Superintendent Panel and that a recent Supervisory Veterinary Inspector order of merit was also published. He noted that the relevant documents had since been removed from the site. In his application for review to this Office, he said the competition circular and application form did not indicate that there would be any change from custom and practice of publishing the order of merit. He said all promotion panels and orders of merit were removed from the Department’s intranet site subsequent to the application date for the Area Superintendent competition. He also said the opportunity to give or deny consent to publication of the order of merit was not afforded to applicants.

In its submission to this Office, the Department accepted that it has been its custom and practice to publish the panels produced as a result of internal competitions on its intranet for some years. It said that as part of its ongoing commitments under data protection legislation, the practice was reviewed. It said that arising from legal advice received, it suspended the practice of publishing such information and decided to remove all existing panels from the intranet. It said it subsequently entered into discussion with the various staff representative organisations with a view to producing an alternative format that will respect both the principles of data protection and transparency. It said this process should be concluded in the near future.

The Department added that the class of information at issue was never made available by the Department to the general public. It argued that to do so would require publication on its public website.

It is important to note at this stage that this Office has no role in examining the actions of the Department in the performance of its administrative functions or the appropriateness of the processes it adopts in relation to promotion competitions such as the one at issue. The question I must consider is whether information of the same kind as that at issue in respect of individuals generally, or a class of individuals of significant size, is available to the general public. I am satisfied that it is not. I accept the Department’s assertion that the class of information at issue was never made available by the Department to the general public. I find that subsection 2(c) does not apply.

For the avoidance of doubt, I am also satisfied that none of the other parts of subsection (2) apply.

Section 37(5)

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the request would benefit the person to whom the information relates.

In considering where the balance of the public interest lies, I have had regard to the 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). It is noted that 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 acknowledges that there is a public interest in promoting the transparency and accountability of public bodies in the manner in which they perform their functions (section 11(3) refers). However, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy 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.

The applicant argued that all transparency and openness attached to the competition will be lost if the order of merit is not published. Among other things, he argued that candidates will not be aware of even the number of successful candidates until after their appointment at which stage it would be too late to rectify any errors in appointment.

It seems to me that a certain degree of transparency currently exists in relation to the order of merit, notwithstanding that the Department had suspended publication of the order of merit. For example, the Department confirmed that the appointment process arising from the Area Superintendent competition and all internal competitions is governed by the Codes of Practice of the Commission for Public Service Appointments. It said the codes ensure that all appointments are undertaken fairly and that any candidate has the option to request a review of appointments. I also note that that each successful candidate is made aware of his/her inclusion in the order of merit and of his/her particular placing.

I accept that the publication of the order of merit would serve to further enhance the transparency and accountability of the Department’s internal promotion process. The question I must consider is whether the public interest in further enhancing that transparency and accountability is sufficient to outweigh, on balance, the privacy rights of the third parties concerned. In my view, it is not. In holding this view, I have had regard to the fact that the release of a record on foot of a request made under the FOI Act is, in effect, regarded as release to the world at large, given that the Act places no constraints on the potential uses to which released records may be put. I find, therefore, that section 37(5)(a) does not apply.

On the matter of whether the grant of the request would benefit the person to whom the information relates as provided for in section 37(5)(b), the applicant presented arguments as to why it he considers it to be in the interests of candidates to be aware of information relating to the other candidates. It seems to me that the applicant has misunderstood the provision. In essence, for section 37(5)(b) to apply, I would have to be satisfied that the disclosure to the applicant and, potentially, to the world at large, of personal information relating to candidate A would benefit candidate A. I am satisfied that it would not and that section 37(5)(b) does not apply.

In conclusion, therefore, I find that the Department was justified, under section 37(1) of the Act, in refusing access to the names of the other individuals, apart from the applicant, on the order of merit in connection with an internal competition for promotion to Area Superintendent.

Decision

Having carried out a review under Section 22(2) of the FOI Act, I hereby affirm the decision of the Department to refuse to access to the names of the other individuals, apart from the applicant, on the order of merit in connection with an internal competition for promotion to Area Superintendent, under section 37(1) 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.

 

 

Stephen Rafferty

Senior Investigator