Whether Revenue was justified in refusing access to certain information contained in the applicant’s staff records under sections 30(1)(b) and/or 37(1) of the FOI Act
29 October 2021
Background
On 28 October 2020, the applicant made an FOI request to Revenue for all his staff (HR and work areas) records. Following a subsequent phone call on 29 October 2020, the applicant narrowed the scope of his request to records created during the previous 11 years. Revenue located records coming within the scope of the applicant’s request in three separate divisions. On 24 and 25 November 2020, the Chairman’s Office, the Corporate Services Division and the Information, Communications and Logistics Division (ICT&L) each issued separate decisions. Revenue located a total of 199 records, it granted access to 108 records in full and it refused access to the remaining records in full or in part under sections 15(1)(a)/(i), 29(1), 30(1)(b), 31(1)(a) or 37(1) of the Act.
On 9 December 2020, the applicant applied for an internal review. The applicant said he was dissatisfied with the decision issued by the ICT&L Division, which he said was incomplete as searches of hard copy records had not been conducted. The applicant also raised questions about the content of six records released to him by ICT&L.
On 24 December 2020, Revenue issued its internal review decision from the ICT&L Division. Revenue said its original search for ICT&L records was confined to electronic records, as staff were unable to access hardcopy files in the office because of restrictions relating to the Covid 19 emergency. Revenue said staff were able to attend the office and search hardcopy records as part of its internal review and 83 further records were located. Revenue granted access to five of these records in full and it refused access in full or in part to the remaining records under sections 15(1)(i), 30(1)(b) or 37(1) of the Act. Revenue also stated that as the FOI Act provides a right of access to records held by public bodies rather than a mechanism for answering questions about the content of such records, it was not replying to the applicant’s questions in relation to the content of six of the records. On 26 April 2021, the applicant applied to this Office for a review of Revenue's decision.
I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and Revenue, to correspondence between the applicant and this Office, to correspondence between Revenue and this Office, to the contents of the records at issue and to the provisions of the FOI Act.
Scope of the Review
During the course of the review, Revenue said that it had reviewed its use of section 15(1)(i) of the FOI Act to refuse access to a number of records on the basis that they were already released to the applicant. It said following this review, it had decided to release additional records to the applicant and it issued these records to him by registered post between 14 and 18 May 2021. Revenue said that the records released are those dated on or after 21 April 2010. It said the records created prior to this date were correctly exempted under section 15(1)(i) of the FOI Act as they were previously released following a similar FOI request by applicant on 21 April 2010.
Following receipt of Revenue’s letter, this Office’s Investigator wrote to the applicant to confirm whether he had previously made a similar FOI request to Revenue on 21 April 2010, and if so whether he objected to confining the scope of this review to records created after the date of that FOI request. In reply, the applicant confirmed that he had previous made a similar FOI request to Revenue on 21 April 2010. He did not object to confining the scope of this review to records created after that date.
As the applicant’s internal review request and Revenue’s internal review decision were in respect of ICT&L records only, the scope of this review is confined to ICT&L records. Revenue’s ICT&L Division identified 25 records in its original decision. It granted access to records 2, 4-18, 20-24 in full and it refused access to parts of records 1, 3, 19 and 25. Record 1 falls outside the scope of this review as it was created before 21 April 2010. Revenue released records 3 and 19 to the applicant during the course of the review. Record 25 falls within the scope of this review. Revenue refused access in part to this record under sections 30(1)(b) and/or 37(1) of the Act.
Revenue’s ICT&L Division identified a further 83 records in its internal review decision. It granted access to records 1, 76, 77, 79, 81 and 83 in full. It refused access in full or in part to records 2-75, 78, 80 and 82. Records 2-75 fall outside the scope of this review as they were created before 21 April 2010. Record 78 was created for the purposes of processing the applicant’s previous FOI request. Record 80 is an undated handwritten note, which does not contain any reference to the applicant. In its submissions to this Office, Revenue states that on a further review of records 78 and 80, the decision maker now takes the view that they do not contain the applicant’s staff records and they fall outside the scope of the request. I accept that records 78 and 80 fall outside the scope of the applicant’s request for his staff (HR and work areas) records and I find accordingly. Record 82 falls within the scope of this review. Revenue refused access in part to this record under section 30(1)(b) of the Act.
The scope of this review is therefore confined to the question of whether Revenue was justified in refusing access in part to records 25 and 82 under sections 30(1)(b) or 37(1) of the FOI Act.
Preliminary matters
Requests for information, as opposed to requests for records, are not valid requests under the Act. On a related note, the FOI Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or containing the information sought.
It is important to note that this Office has no role in the investigation of complaints regarding the manner in which FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.
While I am required to give reasons for my decisions, this is subject to the requirement, under section 25(3), that I take all reasonable precautions in the course of a review to prevent the disclosure of exempt material. This means that the reasons I can give for my decision are necessarily somewhat limited.
Analysis and Findings
Section 37 Personal Information
Revenue refused access to parts of record 25 under sections 30(1)(b) and/or 37(1) of the FOI Act. Having regard to the content of this record, I am satisfied that section 37(1) is the more appropriate exemption provision to consider. Section 37(1) of the FOI Act 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 applicant. In the case of record 25, information relating to identified staff members, their ability to work remotely during office closures and the reasons for not being able to work remotely has been redacted.
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 members of the 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”.
Certain information is excluded from the definition of personal information, as set out in section 2 of the FOI Act. Paragraph I of the definition provides that where the individual is or was a staff member, the definition does not exclude 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 those functions.
Section 2 part (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that the exclusion is intended 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 or any records created by the public servant while carrying out his or her functions. The exclusion to the definition of personal information at (I) does not deprive staff members in FOI bodies of the right to privacy generally.
In record 25, the names of staff members appear in the context of their ability to work remotely during office closures and the reasons for not being able to do so where relevant. Revenue states that at the start of the pandemic, information was gathered on the ability of each staff member in a particular functional area to work remotely so that contingency arrangements could be put in place for each individual according to their personal circumstances. Revenue states that this information relates to the employment of the individuals and as such is covered under the definition of personal information in section 2(1). It states that while the named individuals are members of staff, their personal information in record 25 does not relate to the office or position of the FOI Body or its functions.
In my view, the ability of individual staff members to work remotely can derive from their personal circumstances. I note that record 25 contains an internal Revenue communication which states “If people aren’t working can we get individual reasons why please...If the reason is childcare or illness can we get some more detail so that we can follow up from a HR /certs point of view.” I accept that a staff member’s unique personal circumstances which impacts on their ability to work remotely, is personal information and that section 37(1) of the FOI Act applies to this information.
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, I am satisfied that none of the circumstances set out in section 37(2) apply to the record at issue.
Section 37(5) The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may 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. It has not been argued that releasing the records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I will therefore consider section 37(5)(a).
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. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. It is important to note that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (the Enet judgment), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
I cannot identify any relevant public interest in granting access to the relevant information to which I have found section 37(1) to apply that, on balance, outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing the information. In the circumstances, I find that section 37(5)(a) does not apply.
I find, therefore, that Revenue was justified in refusing access, under section 37(1) of the Act, to the information redacted from record 25.
Section 30(1)(b) - Management Functions of FOI Bodies
Revenue refused access to parts of record 82 under section 30(1)(b) of the FOI Act. Section 30(1)(b) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, 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). Section 30(1)(b) is subject to a public interest balancing test.
Where an FOI body relies on section 30(1)(b) it should identify the potential harm to the performance by the body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. When invoking section 30(1)(b), the FOI Body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard of section 30(1)(a). Having identified the significant adverse effect envisaged, the FOI body should explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.
Revenue states that record 82 relates to its management of staff and how it processes disciplinary cases. It contends that disclosure of this record could reasonably be expected to prejudice the effectiveness of its functions in the management of staff, dealing with IR issues and implementing disciplinary procedures.
I am limited in what I can say about the content of the information redacted from record 82 as a result of section 25(3) of the FOI Act. I can say that record 82 relates to Revenue’s processing of a disciplinary case, actions under consideration and strategies for addressing these issues. Although record 82 is several years old, it is evident from information provided in Revenue’s submissions and from more recent records, that some of the issues contained in record 82 continue to be proactively managed on an ongoing basis. I accept that the issues referred to in record 82 are still very much “live issues” in the management of the division concerned. I am satisfied that release of record 82 could reasonably be expected to have a significant, adverse effect on Revenue’s functions relating to management of industrial relations and staff management. I find, therefore, that this record is exempt under section 30(1)(b) of the Act.
Section 30(2) - The Public Interest
Section 30(2) provides that section 30(1)(b) shall not apply where the public interest would, on balance, be better served by granting than by refusing to grant access to the requested record. In its judgment in the Enet case, the Supreme Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, this did not disturb the guidance that it previously gave 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 Hospital case"), where the Court drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions.
There is a public interest in understanding the manner in which a public body, such as Revenue, performs its functions, including its functions in relation to staff management. I accept that release of record 82 would facilitate, to some degree, scrutiny of the human resources and disciplinary procedures adopted by Revenue in this particular case. However, I accept that the Revenue is taking ongoing measures to prevent industrial relations difficulties and that there is a public interest in safeguarding such measures. Having carefully considered the specific content of the withheld parts of record 82, I am satisfied that, on balance, the public interest would be better served by refusing rather than by releasing this record and I find accordingly.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Revenue’s decision to refuse to grant full access to records 25 and 82 under section 30(1)(b) or 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 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.