Whether the CPSA was justified in refusing access to additional records sought relating to a competition held by An Garda Síochána for appointments to the Armed Support Unit under sections 15(1)(a) and 37(1) of the FOI Act

20 November 2020

Background

The applicant in this case raised concerns with the CPSA regarding a competition held by An Garda Síochána (AGS) for appointments to the Armed Support Unit (ASU) that resulted in allegations of breaches of the Code of Practice because of actions taken during the selection process and afterwards in relation to a certain unsuccessful candidate. In a request to the CPSA dated 5 February 2020, and subsequently clarified on 3 March 2020, the applicant sought access to records relating to the ASU competition.

In a decision dated 11 March 2020, the CPSA granted the requested in part and refused it in part under section 37(1) of the FOI Act on the basis that the records concerned contained personal information relating to an identifiable individual. On 13 March 2020, the application applied for an internal review of the CPSA’s decision. On 20 March 2020, the CPSA affirmed its original decision. The applicant applied to this Office for a review of the CPSA’s decision on 28 August 2020.

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 submissions made by the CPSA. I have also examined the contents of the records forwarded to this Office for the purposes of the review. I note that upon accepting the application for review on 28 August 2020, this Office invited the applicant to make submissions in relation to any matter relevant to the review.

On 15 October 2020, the applicant was given an opportunity to comment on the CPSA’s updated position on the matter, including the details relevant to the search issue raised by the applicant in his application for review. On 21 October 2020, the applicant requested and was granted an extension of the deadline in which to make further comments.

Subsequently, on 11 November 2020, the applicant emailed the Office to say that he was keen to make a submission but that he needed to see the “relevant documents”. He also asked about his right to make an FOI request in the circumstances. The Investigator assigned to the matter explained, as she had done previously, that it is the policy of this Office that submissions are not exchanged as a general rule. She also noted that, while it was open to the applicant to make an FOI request for any record held by an FOI body, he had been notified of the relevant issues arising for consideration and therefore there was no basis for any further delay in this case. I consider that it is now appropriate to bring this review to conclusion  by way of a formal, binding decision.

Scope of the Review

The applicant has been furnished with a schedule of the records that the CPSA has identified as relevant to his request. He has also been informed, however, that records 1, 4, 5, and 6 as set out in the schedule are only partially relevant to his request. I note that the relevant parts of these records have been released to the applicant in full.

The applicant challenges the decision to refuse his request in part under section 37(1) of the Act. He also considers that additional relevant records should exist, as outlined in his application for review. The CPSA contends that the additional records sought by the applicant do not exist because they were not created.

Accordingly, my review in this case is concerned with the question of whether the CPSA was justified in refusing access to the following:

• Records 2, 3, 7, 8, 33a, 33b, 33c, 33g, 33h, and 33k in part under section 37(1);
• Records 23, 24, 25, 33d, 33e, 33i, and 33j in full under section 37(1); and
• Additional records relating to the ASU competition under section 15(1)(a).

Preliminary Matters

There are a number of preliminary matters that I wish to address at the outset.

First, I should point that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.

Secondly, section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 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.

Lastly, it is also important to note the release of records under the FOI Act is regarded, in effect, as release to the world at large given that the Act places no restrictions on the uses to which records released under FOI may be put.

Analysis and Findings

Section 37

Section 37(1) provides for the mandatory refusal of a request where access to the record concerned would involve the disclosure of personal information. Personal information is defined in section 2 of the FOI Act 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 which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual"; “(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”; and "(xiv) the views or opinions of another person about the individual".

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of staff of a public body, the definition does not include his or her name, or information relating to the office or 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 of the definition 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 will not be used to exempt the identity of a public servant in the context of the particular position held, any records created by the public servant while carrying out his or her official functions, or information relating to the terms and functions of any position. However, the exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. Thus, previous decisions of this Office have accepted that the exclusions do not apply to references involving allegations of inappropriate behaviour, whether proven or otherwise, and that they do not apply to information of a type that would generally be found in personnel records of public servants.

The records at issue in his case relate to the unsuccessful candidate for appointment to the ASU who is at the centre of the alleged breaches of the Code of Practice during the selection process and afterwards. There were related investigations by AGS and the Garda Síochána Ombudsman Commission (GSOC). The applicant’s correspondence with the CPSA reflects that he is knowledgeable about the ASU competition and at least some of the circumstances relating to the candidate concerned. It is also apparent from the records that other AGS members would be aware of some of the circumstances relating to the alleged breaches. I accept that the candidate and other individuals involved would be identifiable even if the names were redacted. I also note that other miscellaneous details of a generally personal nature have been redacted such as mobile telephone numbers. I am satisfied that the information contained in the withheld records is personal information that does not fall within any of the exclusions to the definition of personal information and that section 37(1) applies, subject to consideration of sections 37(2) and 37(5) of the Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that the relevant circumstances do not arise in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) 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 individual to whom the information relates, or

(b) the grant of the information would benefit the person to whom the information relates.

I find no basis for concluding that the release of the information concerned would benefit the third party individuals to whom it relates. I therefore find that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

In this case, the CPSA granted access to a number of records which provide meaningful insight into how it responded to the disclosures made about the alleged breaches to the Codes of Practice and the decision-making process involved in determining whether and when to carry out an audit into the potentially flawed selection process. The release of the records at issue would provide further insight into the considerations involved, which I accept would serve the public interest to some degree. However, the records contain sensitive personal information about an unsuccessful candidate for appointment to the ASU and allegations made regarding the handling of an appeal arising from the competition. I do not consider, on balance, that the public interest in granting access to the information concerned outweighs the public interest in upholding the right to privacy of the individuals to whom the information relates. Accordingly, I am satisfied that section 37(1) applies as claimed.

Section 15(1)(a)

Section 15(1)(a) provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in a case involving section 15(1)(a) is to decide whether the decision maker has had regard to all the relevant evidence and, if so, whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found.  The evidence in such cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body insofar as those practices relate to the records in question.

In this case, the applicant outlined the additional records that he seeks in his application for review. They include:

• Records relating to the “preliminary examination” referred to in letters to him dated 14 March 2018 and 12 November 2018, respectively;
• Records relating to the “investigation” that was being informed by the Codes of Practice, again as referenced in the letter dated 14 March 2018;
• Records regarding safeguards relevant to the investigation of allegations;
• Records relating to a meeting held in January 2018, as referred to in a particular record;
• Notes of telephone conversations referred to in the record 12;
• Details/records of the Section 8 appeal referred to in the records;
• Records of actions taken on foot of his correspondence with the CPSA.

In its submissions, the CPSA has explained the steps it took to search for relevant records in response to the applicant’s request, such as searching its case management system, document storage system, and the personal files and emails of the CPSA personnel involved in dealing with the relevant complaint and any interactions with the applicant. However, the CPSA maintains that, while the applicant may consider that additional records ought to have been created in relation to the actions referred to, particularly in the letters of 14 March 2018 and 12 November 2018, no such records were in fact created. In other words, it is the CPSA’s position that the additional records that the applicant seeks do not exist.  It states:  “[T]he matter of searches for such records does not realistically arise as such records were never created to begin with.”

In particular, the CPSA states:

• No records were created in relation to the “preliminary examination”, as this simply referred to the initial states of the examination by the case worker who reviewed the information received from both the complainant and the public body.
• The term “investigations” is used to describe the practice of administratively analysing the information received to determine if a breach of the Code of Practice occurred. No records were created during this phase of the examination of the complaint.
• No records were created on the phase of examination regarding safeguards relevant to the investigation.
• The meeting referred to was offsite and informal. No minutes were taken. The meeting was followed up by correspondence outlining the substance of the meeting which was released.
• Records were not kept of any telephone calls.
• The CPSA Section 8 appeal has not concluded and therefore no relevant record exists.
• Other than responding to the applicant’s correspondence, no actions were taken on foot of his correspondence with the CPSA. As no actions were taken, there are no records of such actions.

I note that in fact two records of telephone calls have been withheld in full (record 23) or in part (record 8) under section 37(1) of the Act but these are not the calls referred to in record 12. Based on the information before me, I otherwise find no basis for disputing the CPSA’s position that the additional records sought by the applicant do not exist. I am therefore satisfied that section 15(1)(a) applies.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the CPSA in this case.

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