Whether the Council was justified, under sections 30(1)(a), 30(1)(b) and 37(1) of the FOI Act, in refusing access to a report relating to a workplace investigation  

8 August 2023

Background

On 10 January 2023, the applicant made an FOI request to the Council for a report of a specified external investigation completed in April 2022. He said that he believed his name was mentioned in the report at least once. On 3 February 2023, the Council refused the request under section 30(1)(a) of the FOI Act. The applicant applied to this Office for a review. The application was not accepted as he had not yet applied to the Council for an internal review of its decision. On 13 February 2023, he made an application for such an internal review. On 3 March 2023 the Council effectively affirmed its original decision. It said that there was one record relevant to the request (a document entitled -�Workplace Investigation -� Review & Assessment Report-�, dated 22 April 2022) and that the applicant was mentioned in it seven times. It described these references as -�incidental-� and noted that the applicant was neither the complainant nor the respondent and that release of the record could prejudice the current case and future cases. It quoted sections 30(1)(a) and (b) of the FOI Act. On 21 March 2023, this Office accepted an application for review of the Council-�s decision.

During the course of the review, a letter was issued by this Office to the Chief Executive of the Council, outlining our view that the original and internal review decisions fell short of the requirements under the FOI Act. The Council was asked to furnish the applicant and this Office with a statement of reasons for its decision pursuant to section 23 of the Act. Further to this statutory notice being issued, the Council wrote to the applicant on 8 June 2023, providing a more detailed explanation of why it considered the record to be exempt from release under sections 30(1)(a) and 30(1)(b) of the FOI Act. It said that the record related to a workplace investigation arising from allegations made by a number of parties within a specified workforce. It said that the applicant was not a party to the investigation, that is, the allegations were not made about him, or by him. It said that the matters were not yet resolved and that release of the record could be prejudicial to the Council bringing it to a resolution. Furthermore, it said that release would -�have an adverse impact on the Council-�s ability to implement its responsibilities under its own grievance procedure, Dignity at Work procedure and further the Safety, Health and Welfare at Work Act, 2005, SI 146/2000 and SI 17/2002-�. Following receipt of this letter from the Council, the applicant confirmed to this Office that he remained dissatisfied with its decision and wished the review by this Office to continue.

In the course of the review, in requesting focused submissions from the Council in respect of its reliance on section 30, I noted that the record contained references to several third parties in the context of a workplace dispute, and that section 37(1), a mandatory exemption that protects personal information, might also be relevant. The Council made submissions on section 37 and confirmed that while it still considered section 30 to be relevant, it was also relying on section 37 for the purposes of this review. The Council also released to the applicant a document containing extracts from the record at issue, wherever the applicant was named. The applicant was invited to make submissions on section 37. He said that there was nothing secret about the report, that it had been previously read out to him over the phone, and that he believed he was entitled to a copy of the report in full. He said that access to the report in its entirety was particularly important to him in the context of an ongoing case he has in the Workplace Relations Commission (WRC).

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 Council and by the applicant, to the correspondence set out above, and to the contents of the record concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned only with whether the Council was justified in refusing the applicant-�s request for access to the record entitled -�Workplace Investigation -� Review & Assessment Report-� dated 22 April 2022.

Preliminary Matters

Before addressing the substantive matters in this case, I wish to make some preliminary comments.

Firstly, in his correspondence with this Office, the applicant explained that he required access to the record for a case that he has before the WRC. Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. -�-�

Secondly, the applicant said that he understood that this Office could instruct the Council to give him a copy of the record, for his attention only. While it is true that this Office can direct the release of records, it is important to note that release of a document under FOI is generally understood to have the same effect as publishing it "to the world at large". This is because there are no restrictions placed on its use.

Thirdly, while the Council did not refer to section 37 until making submissions to this Office, it is a mandatory exemption that serves to protect the interests of third parties. As such, I believe it to be appropriate to consider its applicability. This is in keeping with thede novonature of a review by this Office, which means that that it is based on the circumstances and the law as they pertain at the time of the decision.

Finally, 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 record is limited.

Analysis and Findings

Section 37 -� Personal Information

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (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 that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information, including (iii) information relating to the employment or employment history of the individual, (v) information relating to the individual in a record falling within section 11(6)(a) i.e. personnel records of staff of FOI bodies, and (xiv) the views or opinions of another person about the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the definition does not include his or her name, or information relating to the position, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph I refers). The exclusion at Paragraph I does not exclude all information relating to staff members. The exclusion 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 particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms, conditions and functions of positions. The exclusion does not deprive public servants of the right to privacy generally.

In its submissions, the Council said that the record relates to a review conducted of a workplace investigation which had deviated from its original terms of reference. It said that the investigation examined workplace issues at a specified Council location between a number of named employees and complaints made about a named manager. The Council acknowledged that, in general, matters relating to staff members of public bodies and their functions and roles are not considered personal information, but it said that, that in this case, the information at issue directly relates to the competence or ability of staff members and that the record therefore falls within the meaning of a personnel record under section 11(6)(a) of the FOI Act.

Having carefully examined the record, I am satisfied that it can reasonably be described as a personnel record as defined in section 11(6)(a) and that it is therefore captured by category (v) of the definition of personal information and is not captured by the exclusion at Paragraph (I) of that definition. I also find that information contained within the record falls within categories (iii) and (xiv) of the definition of personal information. It may well be the case that a considerable amount of the information contained in the record is generally known to the applicant and indeed he said that the report was previously read out to him over the phone. I note also that the parts of the record that mention the applicant specifically were extracted and released to him. However, as the majority of the information in the record relates to identifiable individuals other than the applicant, I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large. In these circumstances, I am satisfied that release of the record would involve the disclosure of personal information relating to a number of named individuals and that section 37(1) applies to the records. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section.

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (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 information would benefit the person to whom the information relates. I see no basis for finding that the release of the record would benefit the individuals to whom the information within it relates and I am satisfied that section 37(5)(b) does not apply in this case.

On the matter of whether the public interest in granting access to the record at issue would, on balance, outweigh the privacy rights of the individuals concerned, I have had regard to the comments of the Supreme Court in The 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 true public interest should be distinguished from a private interest.

On the matter of the type of public interest factors that might be considered in support of the release of the record at issue in this case, I have had regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors[2020] IESC 57 (-�the eNet Case-�). In her judgment, Baker J. indicated that the public interest in favour of disclosure cannot be the same public interest as that broadly stated in the Act. She said that the public interest in disclosure must be something more than the general public interest in disclosure and the reason must be found from the scrutiny of the contents of the record. She said there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure.

While the comments of the Supreme Court in both judgments cited above were made in relation to provisions of the FOI Act other than section 37, 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). 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. The right to privacy has a constitutional dimension having been recognised as an unenumerated right under the Constitution. 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.

In considering where the balance of the public interest lies, I have had regard to the fact that the release of records under FOI is regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act may be put. I also note that the record, which examines certain allegations made within a workplace setting, contains personal information of an inherently private nature. I have had regard to the fact that the applicant, while mentioned in the report, is neither the subject of the allegations nor one of the persons who made a complaint. I note also that the parts of the record that make direct reference to the applicant were released to him, with the names of other third parties redacted.  It is the applicant-�s position that he requires a full and unredacted copy of the record to assist him with a WRC case, but it is not apparent to me that this reflects a true public interest in favour of release that outweighs the privacy rights of the other parties. On balance, having carefully examined the record at issue, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting access to the record outweighs the right to privacy of the individuals to whom the personal information in the record relates. I find, therefore, that section 37(5)(a) does not apply.

Accordingly, I find that the Council was justified in refusing access to the record under section 37(1) of the Act. In these circumstances, there is no need for me to consider section 30.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Council-�s decision. I find that it was justified, under section 37(1), in refusing to release the record at issue.

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.

Emer Butler
Investigator