Whether the Service was justified in refusing access to records relating to an internal audit report on overtime and salaries
24 February 2022
Background
On 15 April 2021, the applicant made an FOI request to the Service for emails between three named staff during the period 1 April 2020 -“ 1 May 2020 which reference overtime and "the IA report" updated 29 April 2020; the email dated 30 April 2020 between those three named staff; and the report on overtime recommendations for Parliamentary ushers updated 29 April 2020. On 14 May 2021, the Service granted access to some information and refused access to the remaining records on the grounds that they were exempt under sections 29, 30 and 37 of the FOI Act. On 17 May 2021, the applicant applied for an internal review. On 9 June, the Service issued its internal review decision, in which it affirmed its original decision. On 18 June 2021, the applicant applied to this Office for a review of the Service's decision.
In conducting my review, I have had regard to the correspondence between the applicant and the Service as outlined above and to the correspondence between this Office and both parties, as well as to the content of the withheld records that were provided to this Office by the Service for the purposes of this review.
Scope of the Review
Record 25 is titled "Internal Audit Report of the Houses of the Oireachtas Staff Salaries & Overtime Payments April 2020". In submissions to this Office, the Service says that the applicant's FOI request is to be treated as being for the audit report only so far as it relates to overtime recommendations for parliamentary ushers and alternatively, that the applicant has sought a document that does not exist and under section 15(1)(a) does not fall for release. Having regard to the wording of the applicant's FOI request as a whole, which refers to "the IA report", I do not view this as a fair or reasonable interpretation of his FOI request. I consider that Record 25 falls within the scope of the FOI request and therefore this review.
The scope of this review is confined to whether or not the Service was justified in refusing access to the withheld records within the scope of this review under sections 29, 30 and 37 of the FOI Act. They are scheduled as Records 1-25.
Preliminary Matters
Before considering the exemptions claimed, I would like to note the following. First, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.
Secondly and regarding the application of exemptions, I note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57s, the Supreme Court said that "any refusal to disclose must be fully reasoned and sufficiently coherent, fact specific, and logically connected to the document or record such that the justification is sufficient."
Thirdly and subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request. This means that I cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the FOI Act requires a consideration of the public interest.
Fourthly and with certain limited exceptions (e.g. section 37(2), which I consider below), the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner[2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.
Analysis and Findings
Having examined the records and considered the submissions, I believe it is appropriate to address section 30(1)(c) of the FOI Act first.
Section 30 -“ Functions and Negotiations of FOI Bodies
Section 30(1)(c)
The Service claims that the records are exempt under section 30(1)(c) of the FOI Act. Section 30(1)(c) allows an FOI body to refuse to grant an FOI request if access to the record could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. Section 30(1) is subject to a public interest test under section 30(2).
It is important to note that this exemption does not contain a harm test. It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc. An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not. However, such a distinction should be made in applying the public interest test in section 30(2) to records which disclose positions taken etc. for the purposes of negotiations. The Commissioner has also distinguished between disclosing the existence of a fact and disclosing a position or plan used for the purposes of negotiations.
The Service says that most key proposals in the audit report require negotiation between management and staff representatives. It says that it has appointed a working group from management, staff and the relevant union to secure implementation and is also engaging with a contractor. The Service says that one particular rostering matter is the subject of a consultative process which commenced in April 2021 and will result in an interim report, on which management and staff will have an opportunity to make submissions before final recommendations. It says that if the final report does not lead to recommendations acceptable to both the Service and staff, recourse would be open to further industrial relations procedures. It says that further consultation processes will be devised in respect of other staff.
The Service says that the records set out its positions, criteria and instructions for the purpose of the existing consultative process or future negotiations.
The records comprise an internal audit report on salaries and overtime in two units of the Service, as well as emails between staff of the Service about that report. Record 25 is the report. It discloses findings, recommendations and comments from management and others on some recommendations. Records 1-24 comprise emails, which disclose discussions about the report, its recommendations, and the timing of their implementation. Many of these records duplicate content as they comprise email threads.
Having examined the records, I accept that certain information could reasonably be expected to disclose positions taken or plans, procedures, etc. to be used for the purpose of management negotiations with staff or trade unions. I find that section 30(1)(c) applies to the comments from management and others in the right-hand column of the text-box on pages 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29 and 30 of Record 25. I find that it also applies to the emails in Records 1-8 and 10-24, which disclose management comments and discussions. I have applied section 18 in reaching this conclusion.
However, I am not satisfied that the rest of Record 25 could reasonably be expected to disclose positions taken or plans, procedures, etc. to be used for the purpose of negotiations by the Service. I believe that it discloses the report's background, findings and recommendations rather than the Service's positions or plans for the purposes of negotiations. Record 9 is an email exchange which discloses salary and overtime information rather than positions or plans for negotiations. I do not accept that section 30(1)(c) applies to the remaining information. I find that the Service was not justified in refusing access to it under section 30(1)(c).
Section 30(2)
I am then required to consider section 30(2) in relation to the information to which section 30(1)(c) applies. Section 30(2) of the FOI Act provides that section 30(1) shall not apply if the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.
On the one hand, section 30(1)(c) itself reflects the public interest in protecting positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. In this case, I accept that there is a public interest in protecting positions taken by the Service for the purpose of negotiations with staff or staff representatives.
On the other hand, I must consider whether there is a public interest in disclosing the specific content of the records. As noted above, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. However, it is important to note that inThe Minister for Communications, 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".
I also have regard to the comments of the Supreme Court inThe Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 IR 729, [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 applicant says that staff are entitled to clarity on management's motives and intentions on overtime and rumours are circulating on the issue. As noted earlier, I cannot have regard to the applicant's motives for seeking access to the information, except insofar as those motives reflect what might be regarded as public interest factors in favour of release of the information. However, the applicant's submissions relate to his own employment and seem to me to reflect a private interest in obtaining access to the records.
On balance, I consider that at this time, the public interest would be better served by protecting the Service's positions for negotiations. I do not consider that there is a public interest in disclosing this specific content at this time. I therefore find that the Service was justified in refusing access to this information under section 30(1)(c).
I will now consider the other exemptions claimed in relation to the remaining records.
Section 30(1)(a)
The Service claims that the records are exempt under section 30(1)(a). Section 30(1)(a) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. The Commissioner accepts that section 30(1)(a) is not aimed solely at investigations, inspections or evaluations now in progress but may also cover similar exercises conducted in the future. Section 30(1) is subject to a public interest test under section 30(2).
The Service says that if possible staff efficiencies and management observations are made available to inform union claims, they will be omitted from future reports and details will be discussed orally, which will reduce the effectiveness of the process. It also says that certain issues could be used by staff in disciplinary proceedings.
As noted above, the remaining records comprise parts of an internal audit report. I am therefore satisfied that they relate to an investigation or audit for the purposes of section 30(1)(a). However, I am not satisfied that their disclosure could reasonably be expected to prejudice investigations or audits or the procedures or methods employed for the conduct thereof. I have found the comments of management and others to be exempt under section 30(1)(c). I do not find it credible that disclosing the remaining information would lead auditors to omit their findings and recommendations from future reports, because of the way in which the Service believes that some of the information may or may not be used.
Neither is it apparent to me on my own examination of the remaining records how their disclosure could reasonably be expected to prejudice investigations or audits or their procedures. I find that section 30(1)(a) does not apply. Given this finding, I am not required to consider the public interest test under section 30(2). I find that the Service was not justified in refusing access to the remaining records under section 30(1)(a) of the FOI Act.
Section 30(1)(b)
The Service also claims that the records are exempt under section 30(1)(b). Section 30(1)(b) allows an FOI body to 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) is subject to a public interest test under section 30(2).
The Service says that releasing the records prematurely would significantly and adversely affect its management functions relating to industrial relations, as they would give the union an unfair insight into management thinking and deliberations. The Service says it would be incongruous if management proposals in industrial relations were carried out in public. The Service also refers to previous decisions by this Office in support of its position: Cases 150320 and 180466. It says that similar considerations arise regarding the need for further negotiations and the ongoing work of the working group to implement recommendations.
Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a).
I note the Service's references to previous OIC decisions under section 30(1)(b). I should emphasise that my task is to examine the content of the particular records in this case and consider whether section 30(1)(b) applies in the circumstances.
I have noted the content of the remaining records above. I am satisfied from their content and the Service's submission that the relevant management function is staff management and industrial relations. However, I am not satisfied that disclosing them could have a significant adverse effect on the performance of those functions. I have found the comments of management and others to be exempt under section 30(1)(c). Accordingly, I do not see how disclosure of the remaining information would give an unfair insight into management thinking and deliberations. I have acknowledged that consultation and negotiations are ongoing. However, even if staff were to have questions about the findings and recommendations throughout these processes, I am not satisfied that this possibility amounts to a reasonable expectation of a "significant, adverse effect" on the performance of the Service's management functions. I find that section 30(1)(b) does not apply. Given this finding, I am not required to consider the public interest test under section 30(2). I find that the Service was not justified in refusing access to the remaining records under section 30(1)(b) of the FOI Act.
Section 29 -“ Deliberations of FOI bodies
Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release.
The Service says that the deliberative processes are the observations of the various units on the audit recommendations and their suggested means of giving effect to them. It says that release would be contrary to the public interest, as staff and their representatives should not learn of potential management engagement under FOI, when the timing and means of that engagement have not been finalised. The Service says that it would be contrary to the public interest for a perceived need for negotiations to be flagged in advance of a final decision. It says that it repeats its arguments under section 30(1)(a).
Section 29(2)(b) provides that the exemption at section 29(1) does not apply to a record insofar as it contains factual information. Section 2 of the FOI Act states that "factual information" includes information of a statistical, financial, econometric or empirical nature, together with any analysis thereof. The Commissioner regards factual information as including material presented to provide a factual background to the central topic in a record, and that factual information is distinguishable from information in the form of a proposal, opinion or recommendation.
Having examined the records, I consider that they contain factual information, e.g. background facts as opposed to proposals or recommendations. However, given my conclusion on section 29(1) below, I do not consider it necessary to separate out the factual information from the deliberative material for the purposes of this decision.
A deliberative process may be described as a thinking process which informs decision-making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Having examined the records and considered the Service's submissions, I accept that they relate to a deliberative process about implementing the report's recommendations. I therefore find that section 29(1)(a) applies to the records. I am then required to consider section 29(1)(b).
The Commissioner has found that the FOI Act envisaged that there will be cases in which disclosing the details of an FOI body's deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release. The Commissioner does not accept that the purpose of section 29 is to protect the deliberative process until its completion. If it were, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines.
The remaining records disclose the report's findings and recommendations and one staff email about salary and overtime information. Although the Service says it would be contrary to the public interest for a perceived need for negotiations to be flagged, the internal review decision which it issued to the applicant refers to current negotiations. I have addressed the Service's arguments on section 30(1)(a) above. Once again, I have found the comments of management and others to be exempt under section 30(1)(c). I am not persuaded that the Service's arguments are credible in relation to the remaining records and have no basis on which to find that disclosing them would be contrary to the public interest.
I find that section 29(1)(b) does not apply and the Service was not justified in refusing access to the remaining records under section 29.
Section 37 - Personal information
Section 37(1)
The Service claims that certain information in Record 25 is exempt under section 37(1) of the FOI Act. Section 37(1) provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition, including "(ii) information relating to the financial affairs of the individual" and "(iii) information relating to the employment or employment history of the individual". Information which comes within any of the fourteen categories specified at paragraphs (i) to (xiv) is personal information - there is no requirement for it to also meet the requirements of paragraphs (a) or (b).
Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, the exclusion at Paragraph I does not exclude all information relating to staff members. It 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 position held while carrying out his or her official functions. It does not deprive public servants of the right to privacy generally.
The Service says that certain parts of Record 25 disclose personal information relating to the employment history and financial affairs of staff of the Service, which falls outside the exclusion in Paragraph I of section 2. It says that the definition of personal information should extend to small classes where it would be practicable to connect particular pieces of information with individuals, even if they are not named or specifically identified.
The Commissioner accepts that an individual may not be named in a record, yet may still be identifiable. That said, section 37 provides for the refusal of a request where access to the record concerned would involve the disclosure of personal information (my emphasis). It seems to me that the mere possibility of such disclosure occurring, no matter how remote, is insufficient for section 37 to apply. The question I must consider is whether the disclosure of the record would involve the disclosure of personal information about an identifiable individual.
I have examined the content of Record 25 and considered the Service's submission. I have also had regard to section 18 of the FOI Act. I accept that certain information relates to the employment history and financial affairs of particular staff members of the Service, which is an FOI body.
Having regard to the nature of its content, which relates to matters such as disputed overtime and time-recording, I do not believe it is captured by the exclusion at Paragraph I of section 2.
However, I believe that it would be practicable to redact small pieces of identifying information, so that access to Record 25 would not involve the disclosure of personal information. I am also satisfied that it would be practicable to provide a redacted copy of Record 25 which would not be misleading. I consider that this would be a reasonable and proportionate approach in the circumstances. The pieces of information are as follows:
- Job title on page 13
- Job title on page 14
- Job titles on page 15
- Job titles on pages 21-33
- Paragraph regarding "one staff member" on page 28
Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate to the applicant; (b) the third parties 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) - 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).
On the matter of the type of public interest factors that might be considered in support of the release of the information at issue in this case, I have had regard to the findings of the Supreme Court inThe Minister for Communications. As noted above, the Supreme Court said 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.
Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Also, the strong protection afforded to privacy rights under FOI is consistent with Article 8 of the European Convention on Human Rights. Unlike other public interest tests provided for in the FOI Act, there is also 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. It is also relevant to note that the release of records under FOI is, in effect, regarded as release to the world at large given that the FOI Act places no constraints on the uses to which the information contained in those records may be put.
I find no relevant public interest in granting access to the information concerned that, on balance, outweighs the public interest in upholding the privacy rights of the individuals whose personal information would be disclosed by releasing it. In the circumstances, I find that section 37(5)(a) does not apply. I find that the Service was justified in refusing access to the information listed above in bullet points, under section 37(1) of the FOI Act.
However, I am not satisfied that access to the remaining records would involve the disclosure of personal information about identifiable individuals. As I observed earlier, the mere possibility of such disclosure occurring, no matter how remote, is insufficient for section 37 to apply. I am also mindful that certain information relating to staff or service providers to FOI bodies is excluded from the definition of personal information. I find that section 37(1) does not apply to the remaining records. I am therefore not required to consider sections 37(2) or (5) of the FOI Act. I find that the Service was not justified in refusing access to the records concerned under section 37.
Decision
Having carried out a review under section 22(2) of the FOI Act, I vary the Service's decision as follows. I affirm its decision on certain information under sections 30(1)(c) and 37, as outlined above. I annul its decision on the remaining information and direct its release. For the avoidance of doubt, the records which fall to be withheld are as follows:
- Records 1-8 and 10-24
- Job titles on pages 13, 14, 15, 21-33 of Record 25
- Paragraph regarding "one staff member" on page 28 of Record 25
- The right-hand column of the text-box on pages 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 26, 27, 28, 29 and 30 of Record 25
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.
Deirdre McGoldrick
Senior Investigator
