Whether Sunbeam House Services was justified, under sections 15(1)(a) and 30(1)(b) of the FOI Act, in refusing the applicant's request for records containing references by the board of directors to five specified staff members

14 February 2024

Background

On 9 March 2023, the applicant and four of her colleagues made a joint request to SHS for a copy of emails, meeting minutes or any other relevant documentation to/from the Board of Directors which included references to the five individuals in their current roles, from 1 January 2022 to the date of the request. The request specified that they were seeking emails to/from the Board of Directors as a committee, as well as to/from individual board members, and that they were also seeking any communications with the HSE.

On 24 March 2023, SHS sent an acknowledgment of the request to the five requesters. It stated: "we can only provide you with personal information where you are identified as an individual. And then only the identified individual will receive a copy of that specific information." On 5 April 2023, a further letter issued to the requesters apologising for the delay and stating that due to the complexity of the request, an extended period was required and that the request would be completed by no later than 31 May 2023. On 25 May 2023, SHS issued separate decisions to each of the requesters. It refused the applicant's request under section 30(1)(b) of the FOI Act and the remaining requests under section 15(1)(a).

The applicant sought an internal review of that decision on 26 May 2023. SHS affirmed its decision on 24 July 2023. On 14 August 2023, the applicant applied to this Office for a review of SHS's decision. In the course of the review, some submissions were received by a solicitor acting on behalf of SHS; my references to SHS may be taken to also include references to the solicitor, as appropriate.

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 SHS and comments made by the applicant in her correspondence with the Investigator. I have also had regard to certain records provided to this Office. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

SHS provided this Office with copies of three records in which the applicant is named and which it refused to release under section 30(1)(b). These records are emails dated 11 February, 13 February, and 14 February 2023.  I will refer to them as records 1 to 3 respectively. The applicant confirmed to the Investigator that she was not interested in seeking access to any personal information relating to third parties contained in the records and that such information could be removed from the scope of the review. A small amount of this information is intertwined with the applicant's own personal information and constitutes joint personal information.

This review will therefore consider whether SHS was justified, under section 30(1), in refusing to release records 1 to 3, except for the following:

• Personal mobile phone numbers in each of the records;
• Record 2:
  • First email in chain, sent at 9.59pm, second two sentences (from "I" to "thorough"),
  • Third email in chain, sent at 15:47, first two sentences of body of email (from "Thanks" to "response");
• Record 3: entirety of second paragraph in body of email (from "Sorry" to "moment").

Furthermore, as noted above, the applicant's FOI request was made jointly with four of her colleagues, all of whom had their requests refused under section 15(1)(a). Those colleagues also sought reviews by this Office, and the decisions were subsequently annulled and remitted to SHS for a fresh decision making process. DecisionsOIC-141106,OIC-141105,

OIC-141074andOIC-141459refer. While SHS did not cite section 15(1)(a) in its refusal of the applicant's request, having taken the totality of the circumstances into account, it seems to me that SHS also effectively refused to release any further records to her under section 15(1)(a) and this review will also consider whether this effective decision was justified.

Preliminary Matters                                                                       

Section 14 of the FOI Act provides that, in certain limited circumstances, an FOI body may extend the four-week period for making a decision on a request by up to four weeks. The requester must be notified of such a decision and section 22(1)(e) of the Act provides that the requester may make an application for review by the Information Commissioner of such a decision. A requester does not have to go through the internal review process before making such an application for review.

In this case, SHS extended the timeline for processing the request by approximately seven weeks, stating that this was due to the complexity of the request. It made no reference to section 14, or the relevant sub-section that it was relying on, and did not inform the requesters of their right to review by the Commissioner. It appears to me that SHS erroneously extended the timeframe for making a decision on this request. Nevertheless, a review was not sought on this matter. For future requests, I direct SHS to theManual Part 1 -" Processing FOI Requests Including Sample Letters, produced by the Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform and available on itswebsite, which explains section 14 and provides useful template letters.

Analysis and Findings

Section 30(1)(b)

Section 30(1)(b) of the Act provides that an FOI body may refuse to grant a request if it 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).

Section 30(1)(b) is a 'harm based' exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. Furthermore, an FOI body seeking to rely on section 30(1)(b) should explain how, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under this provision must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the FOI Act). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.

Submissions on section 30(1)(b)

In its submissions, SHS said it was of the opinion that "the ability of the board to properly conduct the business of the company (and, in particular, to deal with matters in relation to the management of staff, employee relations and industrial relations) will inevitably be severely compromised if the company is compelled to release confidential communications between board members and records of such communications". It said that members of a board must be free to discuss matters that relate to the management of staff, employee relations and industrial relations without records of their said communications being subject to mandatory disclosure to those staff members under the Freedom of Information Acts. It said that, if that were not the case, then board members would inevitably be reluctant to voice their opinions at board meetings, and in communications with each other. It said that this would severely hamper their ability to make considered and appropriate decisions in the best interests of the company and other stakeholders. It said that this was presumably the logic behind section 30(1)(b) and that it was consistent with the fiduciary duties and duty of confidentiality that directors owe to the company as a matter of law. It said that to conclude otherwise would render section 30(1)(b) entirely hollow and meaningless. It would also expose board members (and potentially certain staff members) to potential actions for breach of confidence in circumstances where the relationship between the board members and the company is one that gives rise to an obligation of confidence and the information being imparted would properly be regarded as confidential (per the Supreme Court inHouse of Spring Gardens v Point Blank Limited,[1984] IR 611).

The applicant did not make any submissions.

My analysis

I have carefully considered the submissions made by SHS as well as the content of the three records at issue, all of which are emails between board members. The main argument, it seems to me, is that communications between board members should not be released under FOI as to do so would hamper the board's ability to carry out its role and to discuss relevant matters frankly and freely, particularly in relation to staff management, employee relations and industrial relations. This appears to be a class-based argument for all records containing communications between board members, without having regard to the specific contents of the three records under consideration. SHS has been subject to the FOI Act for more than twenty years and there is no such exemption for all board records. Section 30(1)(b) is a harm-based exemption and it must be shown how the harm could result from the release of the actual records at issue; no specific arguments have been made in this regard.

I note also the argument that release of the records could potentially breach a duty of confidence; these are arguments more appropriate to section 35 of the FOI Act, which contains a mandatory exemption for information obtained in confidence. In any event, I note that section 35(2) provides that this exemption does not apply if the record has been prepared by a member of staff or board member of an FOI body in the course of the performance of his/her functions, unless disclosure would involve a breach of a duty of confidence that is owed to a personother thanan FOI body or a director/staff member of an FOI body, or a service provider.

Having considered the actual contents of the records at issue, it is evident that there have been some tensions and difficulties between the board and the applicant and her co-requesters. I understand from the submissions that discussions between the parties are ongoing in an effort to resolve them. On balance, while it seems to me that while some of the parties involved may not be happy for the records to be released to the applicant, it is not evident that release could reasonably be expected to cause harm at the level of a 'significant adverse effect' on the industrial relations or staff management by SHS. I have reached this conclusion because SHS has not demonstrated how it envisages release leading to a significant adverse effect, and nor is it evident to me from an examination of the records. I find that section 30(1)(b) does not apply.

Section 15(1)(a)

Section 15(1)(a) of the 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. The Commissioner's role in a case such as this 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 also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where the records are lost or simply cannot be found. Furthermore, this Office can find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist have not been located.

In a submission to this Office, SHS described the searches that it undertook for relevant records. It said that it searched the MailMeter for emails sent by, or to, each individually named member of the board using a range of search terms: the first names of the five requesters, the surnames of the five requesters, and then the job titles of the requesters in various iterations (e.g. the full job title, a shorter version of it, an acronym, the name of the team that they're on, the acronym for that team etc), for the period 1 January 2022 to 9 March 2023. SHS said that this initial search brought up 2064 emails which were then reviewed to determine whether they might contain personal data, for example, where performance was discussed. It said that following this review it determined that 58 emails contained such personal data. Three of these records contained the applicant's name, and these were refused under section 30 (as considered above). It said that having considered the rest of the records that, having sought legal advice, it was determined that no other records existed. In reaching this conclusion, it said that while it understood that references were made to certain staff members as a group, it determined that as they were not mentioned by name, they could not be uniquely identified as specific individuals. It noted that the requesters, all of whom have the same job title, are part of a bigger team which includes other individuals.

SHS provided copies of the 58 emails to this Office. In seeking focused submissions from SHS, I noted that on an initial review of the records, it seemed to me that at least some of them contained references to the requesters in a way that was identifiable. I noted that I appreciated that there was some difficulty in interpreting what exactly falls within the scope of the request, when the requesters formed part of, but did not constitute the entirety of, a team within the organisation. In this context, I asked SHS to provide a full explanation as to the basis for concluding that no records existed, but no further explanation was received.

Having carefully examined the records, I simply cannot find that SHS was justified in effectively refusing access to any further records on the basis that no such records exist. The fact that a person isn't explicitly named does not, in my view, mean that they are not identifiable, particularly given that it is a relatively small group of individuals who form part of a team that is also relatively small. I note that the applicant and the other four requesters made the FOI request jointly and in such circumstances it seems to me that they were not only seeking references to themselves as individuals, but as a group. If there was any doubt as to the precise nature of what they were looking for, it was of course open to SHS to seek clarification rather than to take a narrow interpretation of the request. I also note that in circumstances where a joint request is made, and where relevant records could potentially contain personal information relating to one of the requesters, it is open to the FOI body to confirm whether or not the requesters consent to their personal information being released to the other requesters. Section 37(2) refers.

While I have concluded that SHS was not justified in effectively refusing the applicant's request for further records, it is not the role of this Office to act as a first instance decision-maker on the records that potentially do fall within the scope of the request. I consider that the most appropriate course of action is to annul this part of SHS's decision and to direct it to make a new decision on the request, having regard to the contents of the individual records and in accordance with the provisions of the FOI Act. The applicant will have a right to an internal review and a review by this Office if she is not satisfied with the new decision.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the decision of SHS. I find that it was not justified, under section 30(1)(a), in refusing to release the parts of the three records that fall within the scope of the review. I direct release of these records, apart from personal information relating to third parties. For the avoidance of doubt, the following should not be released:

• Personal mobile phone numbers in each of the records;
• Record 2:
  • First email in chain, sent at 9.59pm, second two sentences (from "I" to "thorough"),
  • Third email in chain, sent at 15:47, first two sentences of body of email (from "Thanks" to "response");
• Record 3: entirety of second paragraph in body of email (from "Sorry" to "moment").

Furthermore, I find that it was not justified, under section 15(1)(a), in effectively refusing access to any further relevant records and I direct it to make a fresh decision on the request, excluding the three records considered above.  

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