Whether the CSSO was justified in refusing access, under sections 30(1)(c) and 35(1)(a) of the FOI Act, to a report of a 2021 staff engagement survey

23 March 2023

Background

In a request dated 1 November 2022 the applicant sought access to any staff satisfaction surveys (or reports based on the findings of such surveys) at the CSSO or AGO, which were carried out in the period 1 Jan 2020 to the date of his request. In a decision dated 29 November 2022, the CSSO part-granted the request. Of the four records it identified as relevant to the request, it released two and refused access to a third under section 15(1)(d) on the basis that it was already in the public domain and the relevant internet link was provided. The fourth record, comprising a CSSO Staff Engagement Survey 2021, was refused under section 35(1)(a). The applicant sought an internal review of the CSSO-�s decision, referring to a previous decision by this Office (CaseOIC-53312). On 19 December 2022, the CSSO affirmed its decision to refuse to release the Staff Engagement Survey 2021 under section 35(1)(a). On 20 December 2022, the applicant applied to this Office for a review of the CSSO-�s decision.

In providing submissions to this Office, the CSSO also cited sections 30(1)(c) and 32(1)(c) of the FOI Act as additional reasons for refusing access to certain parts of the record. The applicant was informed of this and invited to comment.

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 CSSO and by the applicant. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

There is only one record to be considered in this review, a 55-page report on the CSSO Staff Engagement Survey submitted to the CSSO Management Board in October 2021 (-�the Report-�).

During the course of the review, the applicant confirmed to this Office that he was not seeking the release of the names of specific software or IT systems used by the CSSO contained in the record and that this information could be excluded from the scope of the review. As the CSSO-�s submissions on the applicability of section 32(1)(c) relate only to naming ICT software applications, I have given this exemption no further consideration.

This review is therefore concerned with whether the CSSO was justified in refusing access, under sections 30(1)(c) and 35(1)(a), to the Report.

Preliminary Matters

It is important to note as a preliminary matter that under section 22(12)(b) of the Act, a decision to refuse to grant a request shall be presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the refusal was justified. Thus, the CSSO carries the burden of satisfying this Office that the record at issue in this case should not be released.

Analysis and Findings

Section 35: Information given in confidence

Section 35(1)(a) provides for the mandatory refusal of a request if the record sought contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and the FOI body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body.

Section 35(2) provides that subsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), I will consider section 35(2) at the outset.

The CSSO said the Report was created by its Staff Engagement Team using an online survey tool, with the team made up of volunteers from across the Office representing various grades and areas of work. It said that the survey was undertaken to determine the personal views of staff on a range of issues, and that participation was not mandatory nor was it viewed as part of any staff member-�s role or tasks.

I accept the CSSO-�s arguments that the Report was not created by staff members in the course of the performance of their functions. I find it to be relevant that participation was voluntary and that staff were asked to give their personal views on a range of matters. I find that section 35(2) does not apply. Accordingly, I must proceed to consider the applicability of section 35(1)(a).

In order for section 35(1)(a) to apply, it is necessary to show the following:

• that the information was given to an FOI body in confidence, and
• that the information was given on the understanding that it would be treated by the body as confidential, and
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body.

All four of these requirements must be satisfied for section 35(1)(a) to apply. Even then, the section is subject a public interest balancing test set out in section 35(3).

Submissions from the CSSO

In its submissions to this Office, the CSSO said that at the time of circulating the survey the survey provider specifically emphasised its confidentiality to participants, stating -�Anonymity and trust are crucial to a survey-�s success-�. It said participants were told that the survey results would be reported to the CSSO Management Board and were assured that the survey would then be closed and deleted. It said no reference was made to results being disclosed outside the CSSO. It added that the survey is wide-ranging and none of it is written with an external focus. It said some of the survey questions are personal, considering issues such as mental health and the availability of necessary supports, personal career development, aspirations etc. It said others are granular and technical on topics such as IT and communications systems. It said it cannot imagine that staff would have reasonably had any expectations of wider interest or disclosure.

The CSSO went on to say that in recent years, its staff have been asked to participate in two distinct surveys, a Civil Service-wide staff survey and the internal CSSO-specific survey. It said that in this context, the natural understanding for the Civil Service-wide survey was that the results would be disclosed outside the CSSO whereas the internal survey results would be for its own purposes only. It said that it was conscious of its obligations around confidentiality and compliance with data protection principles and that when the CSSO seeks contributions or feedback, it communicates clearly the purposes for which such contributions are sought, what they will be used for, and how they will be retained etc. It said that if it had anticipated a copy of the survey being disseminated outside the Office, it would have indicated this to staff in advance.

On the matter of disclosure of the record prejudicing the giving to the CSSO of further similar information in the future, the CSSO said that completion of the survey was entirely voluntary with no statutory obligation or incentives to complete it. It noted that it can be a challenge to motivate busy people to take the time to complete a survey and that it was pleased with the level of participation. However, it said that to release survey information, which it said was given in confidence, would be a breach of trust, would undermine its credibility with staff and, in its view, would materially prejudice both the level of survey participation in the future, as well as the quality and reliability of the information provided.

Finally, the CSSO said it was committed to staff engagement and that an anonymous survey is a critically important element of this. It said that the 2021 survey was undertaken during a particularly complex and uncertain time for staff as they adapted to blended working. It said that without the ability for staff to deliver feedback to management in good faith, on a confidential and anonymous basis, it would not have the benefit of an unvarnished and honest picture of its staff-�s experiences in their work. It said that some staff may give feedback through other channels and be happy for this to be attributed to them but said that others will not. It said that without an anonymous, confidential option, the CSSO would not have the benefit of the full picture. It said that if the results of the survey were known to be for external consideration, this would change the context entirely and that the survey would then add little or no value to the type of feedback received directly at staff meetings, through email etc.

Submissions from the applicant

The applicant referred to a previous decision by this Office (OIC-53312) which similarly dealt with a staff survey and referred to points made in that case that while the individual responses submitted by staff members were clearly provided in confidence, aggregated findings based on those responses were an entirely different matter. He said that staff members of the CSSO could have no expectation of confidence over the findings of the survey, nor was it clear that they would even want that to be the case, given that there was no way to disaggregate their identity and individual responses from the survey results. He said that the fact that CSSO staff members were not specifically told that the survey results might be communicated outside the organisation was an irrelevant consideration given that every staff member of every public body should know that anything they do in their job has the potential to be subject to a request under the FOI Act.

The applicant said that much of the reasoning given in the internal review decision was irrelevant as he was seeking aggregated findings from the survey rather than individual responses. He referred to a line in the internal review decision which said that some of the survey questions were granular and technical and which used terms specific to the CSSO which it said -�would not seem suitable for or relevant to an external audience-�. The applicant submitted that this showed a fundamental misunderstanding of the purpose and operation of the FOI Act and that it was not for the CSSO to decide what was -�suitable or relevant-� and such matters should play no part in an internal reviewer-�s considerations.

He went on to say that the CSSO-�s predictions, that release of the Report could reduce the level of survey participation in the future and could undermine the quality and reliability of information provided, were speculative. He said rather that there was an argument to be made that disclosure of issues arising in a workplace could actually encourage more staff members to take part in similar surveys in the future, particularly where staff are dissatisfied or feel that their concerns or suggestions are not acted upon.

My Analysis

I have carefully examined the Report at issue in this case in light of the submissions made by both parties as described above. I note that the first 15 pages of the Report summarise the results of the staff engagement survey, setting out the level of participation across the organisation and the key findings, themes emerging etc. It also summarises the responses given to the open, non-multiple choice questions. The remainder of the Report consists of graphs and percentages showing how the multiple choice questions in the survey were answered. Nowhere in the report are individual staff members named and it is not apparent to me that any individual response can be connected with a particular staff member. Indeed, the Report Overview says that;

• To ensure confidentiality of responses, no rules were applied to filter results so as to identify any individual by name, grade, category or other.
• To assuage any anonymity concerns, the cover emails to all staff reassured staff that they could not be linked to particular answers and that as a further step the categories of staff had been widened. As can be seen from the analysis report, it is not possible to match an individual with a response. 

On the matter of whether the first two requirements for section 35(1)(a) to apply are met in this case, it seems to me that, in circumstances where the participants were informed in advance that the survey results would be reported to the CSSO Management Board, the assurance of confidentiality given in respect of the survey responses extended only to an assurance that participants would not be identifiable from the responses given, and not to the actual responses given.

The Report at issue indicates that the survey covered themes such as communication, the role of staff and management and leadership. As such, it is entirely understandable that the CSSO would have sought to assure staff that they would not be identifiable from the responses given. I appreciate that without such an assurance, CSSO staff would, indeed, be reluctant to participate or, at least, be less inclined to be as open and frank in their responses as CSSO would like for the survey to be effective, if they thought they would be identifiable to CSSO management.

Nevertheless, it also seems to me that participants in the survey would have had no expectation that the assurance of confidentiality would extend to the anonymous responses given. Indeed, they would, in my view, have a reasonable expectation that their responses would be considered and acted upon by the CSSO Management Board. Moreover, while I accept that the CSSO said that the participants in the survey had been told that the results would be given to the CSSO Management Board only, I do not believe that this means that CSSO staff understood that their responses to the survey were given in confidence. Rather, it seems to me that this assurance was simply a reinforcement of the assurance concerning the confidentiality of their identities.

On the matter of whether disclosure of the Report would be likely to prejudice the giving to the body of further similar information from the same person or other persons, I find it difficult to accept that the release of the Report could prejudice participation by CSSO staff in similar surveys in the future in circumstances where the Report contains only collated and anonymised responses and where it is not possible to attribute the responses to any particular individuals. It seems to me that if staff were willing to participate in the Survey based on the assurances that their identities would be protected, I fail to see how the release of the Report at issue would be likely to prejudice their future participation given that its release would not undermine that protection.

As I am not satisfied that all four requirements for section 35(1)(a) to apply have been met in this case, I find that the CSSO has not justified its decision to refuse access to the Report under section 35(1)(a).

Section 30: Functions and negotiations of FOI bodies

In its submissions, the CSSO said that it also considered information relating to one question on the survey to be exempt under section 30(1)(c). Section 30(1)(c) of the FOI Act provides that an FOI request may be refused if access to the record concerned could 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(2) provides that section 30(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.

An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. The Oxford English Dictionary defines "negotiation" as "the action or business of negotiating or making terms with others". It goes on to define the verb "negotiate" as "to hold communication or conference (with another) for the purpose of arranging some matter by mutual agreement; to discuss a matter with a view to some settlement or compromise".

Relevant factors in considering whether there is, or was, a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. This Office also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would be exempt under section 30(1)(c). In deciding whether there are negotiations for the purpose of section 30(1)(c), factors to consider include, for example, whether there is any proposal for settlement or compromise, any indications of 'fall-back' positions, information created for the purpose of negotiations, the FOI body-�s negotiating strategy, or an opening position with a view to further negotiation.

The CSSO said that Question 30 of the survey related to a proposed move by the CSSO to a single building and that the responses from staff identify areas of priority in relation to talks with the OPW and other public sector bodies. The question asked staff to list the three priority areas they feel the Office should focus on if a proposed move to another building takes place. I have examined the information in the Report relating the responses received.

It seems to me that there is a small amount of very general information about what survey respondents see as priorities in terms of a new building. While I accept the possibility that some or all of those priorities could form part of the CSSO-�s position in terms of the features or characteristics that it would like any new building to have, I do not accept that the release of the information would involve the disclosure of a position 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 to be carried on, nor has the CSSO argued that it would. Rather, it appears to have sought to apply the exemption on the basis that it comprises proposal type information.

I find that the CSSO has not justified its reliance on section 30(1)(c) as a basis to refuse access to information relating to Question 30 in the Report. As I have not found section 30(1)(c) to apply to the record, there is no need to consider the public interest test at section 30(2).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the CSSO-�s decision. I find that it was not justified in refusing to release the Report under sections 35(1)(a) or 30(1)(c), and I direct its release subject to the redaction of the names of any specific software/ IT systems used by the CSSO.

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