Whether Fingal County Council was justified in refusing access to records relating an investigation and disciplinary process undertaken by the Council in respect of the applicant

27 January 2023

Background

In a request dated 19 July 2021, the applicant sought access to the following records:

1. All records relating to grievance complaints made against him by another member of staff, which were to include the original complaint and any records of phone conversations, texts emails and records in relation to the recommendation to proceed to investigation.

A further four categories were identified by the applicant under this heading which were categorised from 1(a) -1(d).

2. All records relating to the how the appointment of an individual to carry out the investigation was made.

A further six categories were identified by the applicant under this heading which were categorised from 2(a) -� 2(f).

3. All records relating to the decision to reassign the applicant, pending the outcome of the investigation.

A further seven categories were identified by the applicant under this heading which were categorised from 3(a) -� 3(g).

Further details on the additional parts to the request are set out below, where relevant.

In a decision dated 7 September 2021, the applicant-�s request was part-granted. Records were refused under section 37(1) of the FOI Act, on the basis that the records contained third party personal information, and records were also refused under section 15(1)(a) on the basis that the records requested did not exist.

The applicant sought an internal review of this decision on 28 September 2021. On 19 October 2021, the Council issued its internal review decision affirming its original decision. On 26 November 2021 the applicant applied to this Office for a review of the Council-�s decision. The applicant expressed his dissatisfaction with the Council-�s handling and consideration of the matter, and stated that only three of the 17 categories outlined in the original application were addressed by the Council.

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 relevant parties, the applicant-�s comments in his application for review and to the submissions made by the FOI body in support of its decision.  I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

While a number of records relating to the complaint, bullying and grievance files were provided as part of this appeal, during the course of the applicant-�s engagement with this Office-�s Support Unit, it was clarified that he is specifically concerned with receiving access to minutes of two meetings. The meetings in question took place between a named union and members of the Council on dates provided to the Council. In the Council-�s original decision the minutes in question were refused based on section 37(1) of the FOI Act. In later submissions provided by the Council, it contended that the minutes in question would be exempt from release to the world at large under sections 30 and 35 of the FOI Act.

The applicant has further contended that 14 out of 17 categories of requested records have not been adequately addressed in the schedule, and that the Council should make a decision either refusing access or stating that these records do not exist. Accordingly, I will also address whether section 15(1)(a) of the FOI Act applies.

Taking the above into consideration, the scope of this review is concerned with whether the Council was justified in its decision to refuse access to records, under sections 15(1)(a) and 37 of the FOI Act. 

Preliminary Matters                                                                        

Before considering the exemptions claimed, I wish to note the following points.

First, 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.

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act 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. In such cases, the role of this Office is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

In the original application to this office, the applicant expressed his dissatisfaction with the Council-�s response in relation to his original request. The applicant had sought all records related to the Grievance complaint made against him, all records related to the appointment of an investigator, and all records related to the Council-�s decision to re-assign him to a different operational area -�pending the outcome of the investigation-�. Under each of the three headings set out, the applicant further detailed specific criteria of records such as phone calls, emails, records as to how determinations were made etc. In its response, the Council had provided three different files; namely the original complaint documents, the bullying complaint file and the grievance file. In addressing the specific records requested by the applicant, the following was noted:

• Records specifically requested by the applicant under part 3(e) of his request (the specific meeting minutes) were refused on the basis of section 37.
• The Council further refused part 3(c) of the request, which sought any risk assessment or medical advice underpinning the Council-�s decision to reassign the application to a different business area, on the basis of section 15(1)(a) of the FOI Act.

As I mentioned above, the applicant contended that only three out of the 17 categories of his request had been specifically addressed. Upon seeking clarification from the decision maker as part of the internal review, alongside each specific heading, the Council also stated, the location of records in the schedule and for a number of them further stated; -�No further record identified-�. The applicant has expressed his frustration at the manner in which this aspect of the request has been handled. He contends that the Council neither confirms nor denies the existence of further records sought.

From my examination of the schedule and files, it appears to me that, with the exception of 2f and 3c, the Council has identified where the information sought is located across the three files. When this Office-�s investigator first contacted the Council for submissions on the matter, it confirmed that, where the schedule stated -�no further record identified-�, no additional records existed, bearing in mind those already referenced. The Council did not provide any further details of searches carried out, or address any further questions under section 15(1)(a) of the FOI Act.

When seeking final submissions from the applicant, the investigator set out the Council-�s position, and asked the applicant whether he had further arguments to make, or whether he was aware of additional records, which had not been disclosed. In response, the applicant referenced part 1(b) of his request which requested-�all records of phone conversations, text messages, emails or any other communication between the complainant and staff in the HR department prior to or subsequent to his complaint being made in relation to this matter-�. He stated that the monthly phone bills had not been released in response to this aspect of his request. He stated that it was likely that these had been omitted from consideration in the decision making process.

On consideration of the wording of the applicant-�s original request, it is my view that the monthly phone bills sought by the applicant are outside the scope of the request, as they were not specifically identified as part of his original request. I believe that it was reasonable for the Council to have reached the conclusion that this part of the request sought written records of the substance of conversations, rather than a record of an interaction having taken place. As such, I do not consider that there is an obligation on the Council-�s part to provide the phone bills to the applicant as part of this request.

The applicant also referenced part 2(d) of the request, which sought -�records of all phone conversations, emails or any other communications between the Investigator and the HR department.-� The applicant stated that the investigator had confirmed that all records in his possession had been forwarded to Fingal County Council. The applicant has argued that these records and other correspondence which he is aware of between the investigator and the HR Department have not been released.

This Office contacted the Council again for final clarification in respect of the records in relation to parts 2(d) 2(f) and 3(c) of the applicant-�s request. In relation to parts 2(f) and 3(c), the Council was specifically asked to address whether it was the Council-�s position that no further records existed, and if that was its position, to explain why this was the case. This Office-�s investigator also provided further guidance on the level of detail required in the Council-�s response. This Office further requested that the Council address the applicant-�s argument that part 2(d) of his request was not adequately addressed.

In the response provided, the Council identified a number of additional records, which had not been included as part of its original response. These records, appear to be relevant to the third request for records made by the applicant, and specifically category G within that request. The Council did not provide any details on why these records had only been recovered at this juncture, nor did it provide any detail as to what searches were carried out to retrieve these records. It has also failed to answer any of the specific questions set out this Office-�s request for further submissions.

On the basis that the Council has not provided a satisfactory response to this Office-�s request for further submissions and, notwithstanding the Council-�s statements in its schedule summary that no further records have been identified, I cannot find that it has undertaken reasonable steps to locate the relevant records at issue in this case. As such, I find that the Council was not justified in refusing to grant access to additional relevant records under section 15(1)(a) of the FOI Act as it has not taken all reasonable steps to ascertain the existence or whereabouts of relevant records. 

On the basis that the applicant only requested further information in relation to items 2(d), 2(f) and 3(c), and that the Council has identified further records in relation to category 3(g) but failed to specify how, I consider that the most appropriate course of action for this case is to annul the decision of the Council in respect of these categories, which the Council must consider afresh and make a new, first instance, decision in accordance with the provisions of the FOI Act. The applicant will have a right to internal review by this Office if he is not satisfied with the Council-�s decision.

I will now turn to the application of section 37 to the records at issue.

Section 37 -� Personal Information

Section 37(1) and (2)

Section 37(1), subject to other provisions of section 37, requires the refusal of access to a record containing personal information. For the purposes of the FOI Act, personal information is defined as information about an identifiable individual that (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by a public body on the understanding that it would be treated by it as confidential. The definition also includes a list of 14 non-exhaustive examples of what must be considered to be personal information, including (iii) information relating to the employment or employment history of the individual and (v) information relating to the individual falling within section 11(6)(a) (i.e. personnel records). Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

Before I go into detailed consideration of the records and whether they are exempt under this section, I would like to note that in the original decision and on internal review, the Council withheld the relevant records on the basis it considered them to be exempt under section 37(1). Although the Council did not reference section 37 in its submissions, it appears to me that it is the most relevant consideration on the basis that the negotiations took place with union representatives and contain details of grievance issues, which are outside of the relevant day-to-day business of the Council. I note that the applicant has argued that he was in attendance at the meetings in question and as such is largely aware of the contents of the minutes sought; however, in this regard it is important to note that release of a record under FOI effectively amounts to -�release to the world at large.-� On consideration of the records themselves I note that the only personal information contained in the records are the names of attendees at the meeting, and the opinions of council members and Union representatives.

As mentioned above, section 2 of the FOI Act defines -�personal information-� and goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information. I must also consider the applicability of section 37(7) which provides that notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the request concerned would, in addition, to involving disclosure of personal information relation to the requester, disclose personal information relating to an individual or individuals other than the requester (commonly known as joint personal information.)

This means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, any such personal information that is inextricably linked to personal information relating to parties other than the applicant, is exempt. However, it is important to note that section 37(1) is subject to the other provisions of section 37, and those provisions must be considered before the request can be refused.

While I must be circumspect when describing withheld records, I can say that the records at issue in this case contain the names of attendees at the meetings, Council staff and Union representatives. They also reveal discussions of grievance issues and internal reporting processes within the Council. Having considered the contents of the records at issue, I am satisfied that the release of these records would constitute disclosure of personal information of third parties and that section 37(1) applies to the records.

I would like to add that while this information may already be known to the applicant, I must have regard to the fact that, as set out above, a record released under the FOI Act effectively amounts to disclosure to the world at large.

With regard to the information to which I have found section 37(1) to apply, I must now consider whether any of the other provisions of section 37 serve to disapply this exemption.   Section 37(2) 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 in this case.

Public Interest

Section 37(5) 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.  I see no basis for finding that the release of the relevant information would benefit the third parties to whom the information relates and I am satisfied that section 37(5)(b) does not apply in the circumstances.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

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 summary, 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 and the Information Commissioner & Ors, 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-�.

Moreover, while the 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-�, it 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") in which it 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. 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.

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. 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 Act places no constraints on the uses to which the information contained in those records may be put.

Having carefully considered the matter, I find no relevant public interest in granting access to the withheld information in this case that, on balance, outweighs the public interest in upholding the right to privacy of the third parties concerned. I find that section 37(5)(a) does not apply.

In conclusion, therefore, I find that the records concerned, should not be released in accordance with section 37(1) of the Act. On the basis, that I have found the remaining records to be exempt under section 37, I will not consider the applicability of the other exemptions.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council-�s decision. I find that the Council did not provide sufficient information in relation to searches carried out for items 2(d), 3(f), 3(c) and 3(g) of the applicant-�s request and direct it to re -� consider the matter afresh.

In relation to the records withheld on the basis of section 37 of the FOI Act, I find that the records in question, are exempt from release under section 37(1) of the Act and that the Council were justified in its decision to refuse access under this exemption.

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