Whether the Council was justified in refusing access, under sections 30(1)(b), 35(1) and 37(1) of the FOI Act, to records of complaints made about the applicant

2 November 2022

Background

The applicant is a longstanding member of a named public swimming pool run by the Council (the facility). Staff of the facility filled out a number of incident reports and a member of the public made a complaint about the applicant-�s behaviour. It appears that following this, the swimming pool management froze the applicant-�s membership. The applicant engaged with the management and his membership was subsequently re-instated.

On 2 November 2021, the applicant sought from the Council a copy of all recorded complaints made about him. On 30 November 2021, the Council refused the request on the basis that the information was provided in confidence and is personal information relating to third parties. On 17 January 2022, the applicant sought an internal review of the Council-�s decision, following which the Council affirmed its refusal of the request. The applicant sought a review by this Office of that decision on 11 July 2022. 

I have now completed my review in this case. In conducting the review, I have had regard to the contents of the records at issue. I have also had regard to the correspondence between the applicant and the Council on the matter, and between this Office and both the Council and the applicant in relation to this review.

Scope of Review

During the course of the review, the Council made submissions in support of its decision to refuse access to the records sought pursuant to sections 30(1)(b), 35(1) and 37(1) of the FOI Act. It also provided this Office with a copy of records at issue. I note that some of those records post-date the applicant-�s request and they do not, therefore, fall within the scope of either the applicant-�s request or this review. The FOI Act provides for a right of access that are held by the FOI body at the date of a request.

Accordingly, the review is concerned solely with whether the Council was justified in refusing access, under sections 30(1)(b), 35(1), and/or 37(1) of the Act, to records created on or before 2 November 2021 of complaints made about the applicant.

Analysis and Findings

Section 30(1)(b)

Section 30(1)(b) of the Act provides for the refusal of a request where 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). Where an FOI body relies on section 30(1)(b), it should identify the function relating to management concerned and it should identify the significant adverse effect on the performance of that function which is envisaged. 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.

A claim for exemption under section 30(1)(b) must be made on its merits and in light of the contents of the particular record concerned and the relevant facts and circumstances of the case. In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.

In its submissions to this Office, the Council explained that in order to carry out its functions, the facility requires its staff to report any incident or accident that occurs during their hours of work. It argued that the release of such records to the individuals concerned would be likely to have a significant adverse effect on the facility-�s ability to carry out its functions. It argued that junior staff who do not expect to have the contents of their incident/complaint forms released to the individuals in question may become reticent to report such matters for fear of repercussions. It said this possibility could only have a detrimental effect on the running of the facility and the environment provided for its customers.

The records at issue in this case comprise incident report forms. They contain details of incidents recorded by various staff members of the facility. I accept that it is important to the facility that its staff would continue to record and report incidents arising so that it can carry out its functions relating to the management of the facility. If staff were to withhold such details for fear of repercussions, I am satisfied that this would have a significant adverse effect on the ability of the facility to properly manage the facility and to ensure a safe environment for both its customers and its staff. Having carefully considered the contents of the records at issue and the details of the Council-�s submissions, I find that section 30(1)(b) applies to the records in question.

However, this is not the end of the matter as section 30(2) provides that section 30(1)(b) does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request.

In its submissions, the Council argued that the public interest would not, on balance be better served by the release of the records at issue in light of, amongst other things, the impact the disclosure could have on future management of the facility. I note that during the course of the review, the Investigating Officer invited the applicant to make a submission in response to the Council-�s submissions. In his response, the applicant said he wanted his rebuttal of the complaints made.

It is important to note that the role of this Office is confined to considering whether the Council was justified in its decision to refuse access to the records at issue. We have no role to play in examining the validity of the complaints made against the applicant or the appropriateness of the actions of the Council regarding how it handled those complaints. I note that the applicant was provided with the general details of the complaints made during his engagements with the facility regarding the freezing and subsequent re-instatement of his membership. As such, I am satisfied that he was provided with an opportunity to present his version of the alleged incidents. Having carefully considered the matter, and having regard to the adverse effect that the Council reasonably expects to occur if the records are released, I am satisfied that public interest would, on balance, be better served by refusing than by granting the request in this case. Accordingly, I find that the Council was justified in refusing access, under section 30(1)(b) of the Act, to the records at issue.

Having found section 30(1)(b) to apply, I do not need to consider the applicability of the other exemptions cited by the Council in support of its refusal of the request in this case.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision to refuse access, under section 30(1)(b) of the cat, to records of complaints made about the applicant.

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