Decision
Mr. Y and Department of Education
From Office of the Information Commissioner (OIC)
Case number: OIC-145114-Q9M9Y5
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You are here: BAILII >> Databases >> Irish Information Commissioner's Decisions >> Mr. Y and Department of Education [2024] IEIC 145114 (26 November 2024)
URL: http://www.bailii.org/ie/cases/IEIC/2024/145114.html
Cite as: [2024] IEIC 145114
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Whether the Department was justified in refusing access to various records relating to the applicant and his employment as a teacher under sections 15(1)(a), 15(1)(d), 29, 31, 37 and 42 of the FOI Act
In a request dated 15 August 2022, the applicant made a 23-part request to the Department seeking access to records relating to his employment as a teacher and various events surrounding his employment from 2005 to 2019. The records sought vary from very specific correspondence on given dates between named parties, to broader categories referencing "all emails, all correspondence, notes, letters, memos etc" for certain time periods or between specified parties. The Department's decision on the request was subject to a review by this Office. On 25 August 2023, an Investigator varied the Department's decision, annulling the Department's decision on parts 1-3, 5-10, 17, elements of part 18 relating to Units other than the Inspectorate Unit, and parts 19-23. She directed a fresh decision to be made in respect of these parts of the request. Case OIC-134268-W5V8R7 refers.
On 21 November 2023, the Data Compliance & Support Section of the Department wrote to the applicant and said that due to an administrative error the remitted request was not processed until 25 October 2023. It advised that the School Governance Unit was dealing with parts 7, 17 and 19 of the request. In respect of records falling within the other parts of the request, it said that the Secretary General's Office had advised that it held no additional records. It said that regarding part 5 of the request, having searched Lotus Notes, the Secretary General's Office had found no record of a specific letter which the applicant had referred to or indeed anything at all for 2007. In relation to part 22 of the request, it said that it searched eCorr and Lotus Notes and found no record of the applicant during that period. The letter said that the Teacher/SNA Terms and Conditions Unit had advised that it held no additional records relating to the request. Specifically, in relation to part 21 of the request, the Section said that "all records held were provided in a decision letter and schedule on the 7/4/22 -“ Reference FOI-2022-0102. A full search was carried out of all electronic records at that time. The same information was later requested in FOI-2022-0265. The FOI unit were informed that we had no further documents to provide in relation to FOI-2022-0265". The Data Compliance & Support Section went on to say that it was still awaiting an update from the Parents & Learners/Child Protection Section with regard to any relevant records it might hold.
Also on 21 November 2023, the School Governance Unit of the Department issued a decision in respect of parts 7, 17 and 19 of the request. It identified seven records relevant to parts 17 and 19 which it released in full. It refused, under section 15(1)(a) of the FOI Act to release any records relevant to part 7 on the basis that no such records existed. The applicant sought an internal review of this decision on 11 December 2023, asking that further searches for relevant records be carried out, including in other units of the Department. On 5 January 2024, the Department affirmed its decision. It explained the role of the School Governance Unit and the types of relevant records it generally holds. It said that employment-related issues do not fall within its scope, and in this regard it does not hold further records relevant to the applicant's request. On 8 January 2024, the applicant sought a review by this Office of the Department's decision.
On 6 December 2023, the Data Compliance & Support Section of the Department issued its decision to the applicant. It reiterated the points made in its letter of 21 November in relation to the Secretary General's Office and the Teacher/SNA Terms and Conditions Unit. It explained that, given the nature of the records sought and the remit of the Parents & Learners/Child Protection Section, it wouldn't expect to hold relevant records. It said that nonetheless it conducted a thorough search and found no records. The Department said that it had exhausted searches relating to parts 1 to 3, 5 to 10, 17, 19, 21 and 22 of the request. In relation to part 18 (aside from the parts dealt with previously by the Inspectorate), 20 and 23 of the request, it said that it had been unable to locate any relevant records. It then referred to section 12(1)(b) of the FOI Act which provides that a person making an FOI request must provide sufficient particulars in relation to the records sought in order to enable them to be identified by the taking of reasonable steps.
In a letter dated 4 January 2024, received by the Department on 8 January, the applicant sought an internal review of this decision. He provided further details of the records sought in order to assist the Department in locating relevant records. He also asked that a schedule be provided to him setting out the Department's response in relation to each part of his FOI request. The Department wrote to the applicant in response to this and said that a large volume of records had been located, and that these records needed to be scanned and checked and that this was taking longer than anticipated and would not be complete within the statutory timeframe for an internal review. It is unclear to me on what date this letter was sent. On 15 February 2024, the Department issued a letter to the applicant in which it varied its earlier decision. It referred to a Schedule of Records which listed 125 records relevant to the request. Most of the records were released in full or with small amounts of information redacted under section 37(1) (personal information relating to parties other than the applicant). It was noted on the Schedule that many of the records had previously been provided to the applicant on foot of voluntary discovery in 2013. The remaining records were refused under sections 15(1)(d), 15(1)(i), 29(1), 31(1)(b), and 31(1)(c)(i). The applicant also sought a review of this decision by this Office, both in relation to some of the records refused and on the grounds that further relevant records should have been identified and released.
Following communications between this Office and the applicant and the Department, it was agreed that while different divisions of the Department issued separate decisions on the remitted FOI request, it would be dealt with as a single composite review by this Office.
The applicant made a number of submissions to this Office (including those dated 2 February 2024, 15 February 2024, 18 March 2024). Following a request for submissions on 20 August 2024, the Department altered its position in relation to records 13, 14, 15, 19, 90 and 111 and released them to the applicant. The Department also provided further details of searches carried out, a summary of which I issued to the applicant on 24 September 2024. In that letter I also alerted the applicant to some mandatory exemptions that it appeared to me required consideration in respect of some of the records at issue, specifically sections 31(1)(a), 37(1) and 42(f). The applicant provided a written response on 8 October 2024. I sought clarification on some of the points raised in this letter, and the applicant responded in a letter received 31 October. He also wrote a further letter, received on 18 November 2024, further to having received the additional records released by the Department. Throughout the review, I sought clarification from the Department in respect of certain matters, and responses were provided.
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 Department and by the applicant and to the correspondence between the parties and with this Office. 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.
This review is concerned with whether the Department was justified, under section 15(1)(a) in refusing to release further records relevant to parts 1-3, 5-10, 17, 18 (other than records held by the Inspectorate Unit) and 19-23 of his request. Furthermore, the applicant sought a review of the Department's decision to refuse, in full or in part, certain records listed in the Schedule provided by the Teacher/SNA Terms and Conditions Unit, specifically records 2, 3, 6, 7, 8, 20, 30 and 107, under various exemptions. The review will consider whether the Department was justified in refusing these records.
It is important to note at this point that the review will not consider records falling within the scope of the request that are held or potentially held by the Inspectorate Unit. The previous decision by this Office (OIC-134268-W5V8R7) already addressed this.
In his application for review, the applicant stated that some of the records released contained handwritten notes that he was unable to decipher (12, 22, 23, 27, 33, 34, 36, 89 and 11), and that some of the records were in light print and difficult to read (2 and 30). It is open to the applicant to engage with the Department and to see if it is possible for a transcript or clearer copy of the records to be provided. This will not form part of the review.
Before I address the substantive issues arising, I wish to address some preliminary matters.
In communication with this Office in response to the update I sent to him on 24 September 2024, including the details of searches carried out, the applicant noted that the Department did not explicitly reference section 15(1)(a) in the Schedule of Records issued to him. Firstly, I note that the purpose of a Schedule of Records is to list the relevant records that have been found by an FOI body and to set out its decision in respect of each record, and the relevant exemption if that record has been refused. It therefore does not follow that the Schedule would include records that have not been found. Secondly, whether explicitly stated or not, if it is a requester's position that further records exist while it is the FOI body's position that they do not, this is effectively a refusal to release records under section 15(1)(a).
The applicant also expressed dissatisfaction that the Department, in its internal review decision of 15 February 2024 did not make reference to parts 2, 3, 5, 6, 9, 10, part of 18, and parts of part 20, 21, 22 and 23 of his FOI request and said that therefore the decision should be annulled on the basis that it was not clear which parts of the request it was referring to. Similarly, he said that in my letter of 24 September 2024, I referred to parts 1 and 8 of the request but that a response from the Department dealing with two parts was not satisfactory. He said that this was a fair procedures issue. Having carefully considered the matter, I do not believe that there is a fair procedures issue here. First of all, I am satisfied that it is evident from the decision of 6 December 2023 which parts of the request were being dealt with by which sections of the Department. Second of all, in circumstances where the applicant has made a 23-part FOI request for records stretching over a fourteen-year period, and where many of the records appear to be already in his possession further to previous FOI requests and a discovery process, I do not consider it necessary for the Department to give details of which searches were carried out in respect of each individual part of the request, or indeed to identify on the Schedule which records correspond to which part of the request. I believe this to go beyond the taking of reasonable steps, which will be examined in more detail under section 15(1)(a) below. The applicant is familiar with his own case, and it was open to him to point to records that he believed to be missing and to make reference to a specific part of his request; indeed, he did this in respect of specific records falling within parts 1 and 8 of the request. I do not believe that the applicant has been disadvantaged by the approach taken and will proceed with the review on the substantive matters.
In submissions, the applicant said that as the records concerned his role as a primary school teacher and were about him and his employment, he believed that "the threshold for refusal of records is far higher". He referred to a reference to case 98017 in the Guidance Note on section 15(1)(c) as support for this. The applicant also highlighted the anxiety and stress that he said the delay in bringing his FOI request to a conclusion has caused him. While it is of course regrettable that it has taken so long, it is important to note that section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office 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 Act requires a consideration of the public interest. Furthermore, the case referenced by the applicant concerns section 15(1)(c) and voluminous requests which is not under consideration in this review. Notwithstanding that, when it comes to what constitutes 'reasonable' in the context of reasonable searches, I do accept that the circumstances of the case and the nature of the records sought should be taken into account and I address this in my consideration of section 15(1)(a) below.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Department to satisfy this Office that its decision to refuse access to certain records, either in whole or in part, was justified. I must also have regard to the findings of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet Case"). In that case, the Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
In this case, while the Department provided submissions in respect of section 15(1)(a) and the searches it said it conducted, it made no submissions in respect of the exemptions cited for the refusal of specific records. I sought clarification on this, assuming it was an oversight, but again no explanation of any substance as to the basis for its reliance on the various exemptions was provided. While clarifications may be required, this does not mean that this Office must, or will, continue to ask a body for sufficient details and arguments until the threshold for an exemption is met. Neither do I believe that I am required to construct arguments to support an FOI body's broad assertions. In the absence of meaningful submissions from the Department on these exemptions, I have had to base my decision on the contents of the relevant records.
Section 42 provides that the FOI Act does not apply to various specified categories of records. In other words, such records are excluded from the scope of the Act. There is no public interest provision in section 42. If the record is captured by one or more of the categories of records described in section 42, that is the end of the matter.
Section 42(f) provides that, with the exception of a record relating to general administration, the FOI Act does not apply to a record held or created by the Attorney General or the Office of the Attorney General (AGO). The Chief State Solicitors Office (CSSO) is a constituent office of the AGO. While the Act is silent on the meaning of general administration, this Office considers that it refers to records which have to do with the management of the AGO such as records relating to personnel, pay matters, recruitment, accounts, information technology, accommodation, internal organisation, office procedures and the like. I am satisfied that it does not refer to records relating to matters concerning the core business of the Office, which includes, but is not limited to, advising on legislation and litigation.
Record 30 was released in part to the applicant. The body of the email at the bottom of page 2 was redacted, with the Department claiming section 31(1)(c)(ii)(I). This exemption applies to records containing opinions, advice, recommendations or the results of consultations considered by either House of the Oireachtas or the Chairman/Deputy Chairman or any other member of the Oireachtas, or a member of staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a sitting of either House. The Department did not explain how this exemption applied and nor is it apparent to me from an examination of the information at issue which is an email from a solicitor in the CSSO to the Department. It may be the case that the Department meant to refer to section 31(1)(a) (legal professional privilege) but while this specific point was raised in the request for submissions, the Department did not address it.
Nonetheless, section 42(f) is a mandatory exemption and I am satisfied that the relevant part of the record was created by the CSSO in the course of its role as legal advisor to the Department. I am satisfied that it does not come within the realm of general administration. I find, therefore, that the email at the bottom of page 2 of record 30 is exempt under section 42(f). For completeness, I note that the name and role of the person in the CSSO who wrote the email was released, while their phone number was redacted. The Department did not explain the basis for this but I think it can be reasonably assumed that the phone number was redacted on the basis of section 37, i.e. that it disclosed personal information. Notwithstanding that the Department released the end of the email with the sender's name and role, I find that the email in its entirety from the CSSO is exempt under section 42(f) and there is no need to consider the phone number further.
Record 6 was refused under section 15(1)(d) on the basis that the record is already in the public domain. This record contains two parliamentary questions which are published on the Oireachtas website. During the review, the applicant was provided with the relevant links to access this information. In response, the applicant argued that he was not just seeking the parliamentary questions themselves, but also briefing notes and correspondence from the deputies in asking the questions and correspondence created in the Department before and after the questions were asked. While I accept from the wording of part 22 of the FOI request that the applicant was seeking records beyond the text of the parliamentary questions themselves, this is essentially an argument that further records exist and have not been released, and will be dealt with under the section 15(1)(a) analysis below.
I am satisfied that the information at issue is in the public domain and that the Department was justified in refusing access to record 6 under section 15(1)(d).
The Department refused to release two sentences from record 30 under section 29(1)(a).
Section 29(1) provides that an FOI body may refuse to grant access to a record if (a) the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and (b) the granting of the request would, in the opinion of the body, be contrary to the public interest. Without prejudice to the generality of paragraph (b), the FOI body is required, in determining whether to grant or refuse to grant the request, to consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
Thus, the exemption at section 29(1) has two requirements: the record must contain matter relating to the deliberative process, and its disclosure must be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of this Office that both requirements have been met.
The Department made no submissions explaining its rationale for refusing to release this information under section 29.
I have examined the sentences at issue, which are contained in one email in a chain of emails, the majority of which was released. Attachments to the emails were also released. I have considered the other redacted parts of record 30 under sections 37 and 42(f). The email at issue here was sent in July 2011 by a staff member of the Department of Education to a legal advisor in the CSSO and copied to another staff member in the Department. As is evident from the parts of the record that were released, and as the applicant is aware, the record overall concerns the applicant's employment status and a complex situation that arose, including litigation. While the email at issue was sent to a legal advisor, the Department has not claimed legal privilege and given that the remainder of the email was released, it would appear that the Department does not consider it to be privileged. In any event, I am satisfied that it does not contain legal advice or a request for legal advice, and it seems to me that any claim of litigation privilege would likely long since have expired given the passage of time.
This Office considers that a deliberative process may reasonably be described as a thinking process which informs decision making in FOI bodies, involving the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. Having carefully considered the sentences at issue here, while they set out some steps to be taken by the Department, it is not apparent to me that they can reasonably be characterised as relating to a deliberative process. Even if I were to accept that the process by which the Department was considering to address the various matters related to the applicant's employment, and associated litigation, was a deliberative process, it would still need to be shown that release would be contrary to the public interest. As noted, the Department made no submissions on this. Having carefully considered the sentences, it is simply not evident to me that release of the information contained within them, which dates from more than fourteen years ago, could cause any harm to the public interest. I find that section 29 does not apply to the information at issue and the Department has not justified its refusal.
The Department refused to release record 7 under section 31(1)(b), and record 8 under section 31(1)(c)(i). The Department was asked to make submissions explaining the basis for refusing these records under these sub-sections of section 31. No submissions were made or arguments advanced apart from a clarification that record 8 should be refused under sub-section (ii) rather than (i) of section 31(1)(c). Therefore, I am left to make a determination on the matter from an examination of the content of the records.
Record 7
Record 7 contains a determination from the Employment Appeals Tribunal from 2014. Section 31(1)(b) provides for the mandatory exemption from release of a record or information in a record of which the FOI Body knows or ought reasonably to have known that its disclosure would constitute contempt of court. As indicated above, the Department provided no explanation as to why release of this record could constitute contempt of court. The Schedule of Records says "does not relate to requester". There is nothing in the record that leads me to believe that its release could constitute contempt of a court. From a cursory online search, it appears that this determination, which relates to a third party, was published and reported on in the media, including naming the third party to whom it relates. I find that this record is not exempt under section 31(1)(b) and that the Department has not justified its refusal.
Record 8
Record 8 is described in the Schedule of Records as being a letter from a named senior counsel to the then Chief State Solicitor. As noted above, the Department refused it under section 31(1)(c)(i) and then amended its basis of refusal to section 31(1)(c)(ii). For completeness I will consider both.
Section 31(1)(c)(i) provides for the mandatory refusal of the private papers of a member of the European Parliament or a member of a local authority. The record does not appear to, nor has the Department claimed, that it contains any private papers of a member of the European Parliament or a member of a local authority. I find that section 31(1)(c)(i) does not apply.
Section 31(1)(c)(ii) is a mandatory exemption for records containing opinions, advice, recommendations or the results of consultations considered by (I) either House of the Oireachtas or the Chairman/Deputy Chairman or any other member of the Oireachtas, or a member of staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a sitting of either House, or (II) a committee appointed by either such House or jointly by both such Houses and consisting of members of either or both of such Houses or a member of such a committee or a member of the staff of the Houses of the Oireachtas Service for the purposes of the proceedings at a meeting of such a committee. Having regard to the content of the record, which contains legal advice from a senior counsel, I find that the advice was provided to the CSSO rather than to either House of the Oireachtas, or any relevant committees, or any of the individuals specified in (I) or (II). I find that section 31(1)(c)(ii) does not apply.
However, that is not the end of the matter. As I have found that the record contains legal advice, I must examine whether section 31(1)(a) applies which is mandatory exemption for records to which legal professional privilege applies. Again, the Department was asked to consider this exemption in the request for submissions, but did not provide any comment or submission in this regard.
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest. Legal professional privilege enables the client to maintain the confidentiality of two types of communication:
-¢ Confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege), and
-¢ Confidential communications made between the client and a professional legal adviser or the professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).
Having examined the record, I am satisfied that its release would disclose confidential communications between the CSSO (as client) and a professional legal advisor for the purposes of giving legal advice. I find that legal advice privilege applies and that the record is exempt under section 31(1)(a).
The Department refused to release records 20 and 107 in full, and made some redactions to records 2, 3 and 30, under section 37(1).
Section 37(1) provides for the mandatory refusal of a request where access to the record sought would involve the disclosure of third party personal information. Section 2 of the FOI Act defines the term "personal information" as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. Furthermore, the Act details 14 specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual.
Having carefully examined the records, I am satisfied that releasing the redacted information from records 2 and 3 would involve the disclosure of personal information relating to an identifiable individual other than the requester and that section 37(1) applies to this information.
I am not, however, satisfied that record 20 discloses such information. The Department made no arguments in respect of this record apart from saying that the "information is not personal to the requester". The record is an internal departmental email, noting a phone call with a named third party who provided an update in respect of a decision made that would impact more broadly on school governance in Ireland. I am aware that this decision was made public shortly afterwards. While I accept the phone number of the third party to be personal information, I do not accept that the rest of the email or the attachment falls within the definition of personal information at section 2 of the FOI Act. Apart from the phone number of the third party, I am not satisfied that section 37(1) applies to record 20.
Record 30 has two redactions potentially made under section 37(1). The first is a name of a school in an email from July 2011. It is not the school that the applicant was employed in but rather it is referenced in the context of suggesting that a letter be drafted to the applicant's school "in similar terms to the one to [named school]". No explanation has been provided by the Department as to how release of this school's name could disclose personal information. It seems to me that at most it discloses that a letter was sent to this school at some unknown point in time (but at least 14 years ago) and that some wording in that letter may have referred to a teacher being on administrative leave at some point. I find that it simply too much of a stretch to accept that the release of this information discloses personal information of an identifiable individual and I find that section 37(1) does not apply. The second redaction was referenced earlier under section 42(f); this was the phone number of a staff member of the CSSO. As I already found that this was exempt pursuant to section 42(f), there is no need to examine it under section 37(1).
Record 107 was also refused in full under section 37(1). This record consists of a fax transmission report from 2008 and appears to me to contain no information of any substance. No explanation has been given by the Department as to what personal information would be disclosed by releasing this record and it is not apparent to me. I find that section 37(1) does not apply.
I therefore find that section 37(1) applies only to the redactions in records 2 and 3 and to the phone number in record 20. This is not the end of the matter, however, as section 37(1) is subject to the other provisions of section 37.
Section 37(2) provides that section 37(1) does not apply in certain circumstances. In particular, subsection (a) provides that section 37(1) does not apply if the information concerned relates to the requester concerned. While the information at issue is contained in records which also relate to the requester, I am also satisfied that it relates to other individuals and that it can be sufficiently separated from the information in the records which relates to the applicant. I am therefore satisfied that section 37(2)(a) does not disapply section 37(1). I am further satisfied that no circumstances arise such that any of the other subsections of section 37(2) apply.
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 be to the benefit of the person to whom the information relates. There is no evidence to suggest that the individuals to whom the information relates would benefit from its release and I find that section 37(5)(b) does not apply in this case.
Before I consider the applicability of section 37(5)(a), I wish to note a number of points. Firstly, section 13(4) 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect what might be regarded as true public interest factors in favour of release of the records, for example where matters raised in relation to the request may also be regarded as matters of general concern to the wider public.
Secondly, as noted previously, release of records under the FOI Act must be 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 can be put. With certain limited exceptions provided for under the Act, which do not apply in this case, records are not released under FOI for any limited or restricted purpose. All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.
On the matter of whether the public interest in granting access to the information 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"). In this regard, I note that a public interest should be distinguished from a private interest.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure". 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 Department made no submissions to this Office in relation to the balancing of the public interest. Neither did it make any reference to the public interest in the decision letters that issued to the applicant.
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 it clear that the release of records under Freedom of Information 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).
The applicant made no specific submissions to this Office in respect of the public interest at section 37, or why he believed that the public interest in favour of release outweighed the right to privacy of the other individuals whose personal information is contained in the records. In the context of the search issue he did, however, make the point that a teacher ought to be allowed access to personal records from the Department regarding his/her employment. It seems to me that while the applicant has a private interest in accessing records relating to himself, this private interest is arguably reflective of a wider public interest in employees being able to access records concerning their employment particularly where difficulties may have arisen, in the context of ensuring that they are treated fairly and are afforded natural justice and fair procedures. However, this does not mean that there should be no protection of the privacy rights of third-parties. Having regard to the volume of information already released, it seems to me that the Department has, in essence, attempted to strike a balance between providing the applicant with as much information as it can in respect of the matters that are the subject of the records at issue whilst seeking to protect the privacy rights of the third-parties concerned. While I accept that the release of the entirety of the records would further enhance the transparency of the Department in relation to its dealings with the applicant, having regard to the specific information at issue it seems to me that this additional transparency would be minimal and I am not persuaded that the public interest in release is sufficient to outweigh, on balance, the privacy rights of the third-parties concerned. I find, therefore, that section 37(5)(a) does not apply.
I find that the Department was justified in refusing to release: parts of records 2, 3, and 20 (phone number of third party only) under section 37(1). However, I find that it was not justified in refusing to release the rest of record 20, the name of the school in record 30, or record 107 under section 37(1).
As noted above, the Department has effectively refused to release further records relevant to parts 1-3, 5-10, 17, 18 (other than records held by the Inspectorate Unit) and 19-23 of the applicant's request under section 15(1)(a).
Section 15(1)(a) 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.
Submissions from the Department
The Department said that searches were conducted by the Secretary General's Office, the Inspectorate, School Governance Unit, Parental Complaint/Child Protection Unit and the Teacher/SNA Terms and Conditions Unit. It said that:
-¢ The Secretary General's Office advised that they had no records and that any correspondence that they may have received would have been sent to the relevant unit.
-¢ The Inspectorate Unit advised that they had previously part-answered the original request and had nothing further to add.
-¢ The School Governance Unit carried out a further extensive search of their unit. It identified and releasd seven records relevant to parts 17 and 19 of the request and refused part 7 under section 15(1)(a) of the act as the record could not be located/didn't exist.
-¢ The Parental Complaint/Child Protection Unit said that it held no relevant records, and that if it had at any stage received records relating to the applicant, they would have been sent to Teacher SNA/Terms and Conditions Unit where the file was centrally stored.
-¢ It said that as the applicant was a teacher, all records relating to him should have been sent to the Teacher/SNA Terms and Conditions Unit to be centrally filed.
-¢ Teacher/SNA Terms and Conditions advised that it held a single hard copy file containing 125 records (all listed on the Schedule of Records).
In explaining why the decision of 6 December 2023 said that there were no records, and then on internal review a file containing 125 records was identified, the Department said that the Teacher/SNA Terms and Conditions Unit had initially advised that it had released all relevant documents in a previous discovery request in respect of court proceedings. However, it said that on further examination (at internal review stage) it found that this was not the case as the request encompassed both documents that had previously been released as well as other documents and, at that point, it decided to release the file in full apart from the records it considered exempt.
In his application for review, the applicant referred to part 1 of the request and said that documents and correspondence attached to a letter dated 26 January 2006 sent from the school to the Department were not provided. The Department referred to a previous request for these records, that was also reviewed by this Office (references: DES-FOI-0102-2022 and OIC-125303-VIR2V7), where the adequacy of searches was also at issue. It noted that the decision in respect of this record was ultimately affirmed by the Senior Investigator. Notwithstanding that, it said that the Teacher/SNA Terms and Conditions Unit examined the file again and said that no such letter exists on the file. Furthermore, it said that the Inspectorate Unit also searched its records again, and could find no such record.
In the application for review, the applicant also referred to part 8 of the request which refers to a specific letter dated 18 May 2011 and any other documents/notes regarding this letter. The applicant said that only a few paragraphs of this letter were provided as part of record 35, not the full letter, and that a letter of 1 June 2011 from a specified party should have been provided also. The Department said that Teacher/SNA Terms and Conditions Unit examined the file again and that what was provided in record 35 is what is on the file. It said that it could find no trace of any additional paragraphs or the letter of 1 June 2011 referenced by the applicant.
Response from the applicant
In response to the above submissions from the Department, the applicant said that he was very dissatisfied and that sufficient cognisance had not been taken of matters raised by him in submissions to this Office dated 2 February and 18 March 2024. He said that in his view further records existed and that adequate searches had not been carried out. He referred to the previous review of the same request when the Department had said that processing the 23-part request would involve the engagement of multiple personnel across multiple units and said that this statement indicated that there are many records in the Department concerning him [case OIC-134268-W5V8R7 where the Department had refused the request under section 15(1)(c)]. He pointed to the fact that the Teacher/SNA Terms and Conditions Unit had initially said that it held no additional records and then later said that it held a single hard copy file containing 125 records.
The applicant referred to the Guidance Note prepared by this Office on section 15(1)(a). He asked for a full investigation and said that it was not satisfactory for the Department to simply say that no records can be found. He asked for greater detail regarding the searches carried out, steps taken to find the records, and details of records management practices. He said that insufficient detail had been provided regarding electronic searches and which individuals were consulted in relation to the searches. He asked that the Department's decision be annulled and that the Inspectorate, School Governance Unit, Parental Complaint/Child Protection Unit and Teacher/SNA Terms and Conditions Unit be directed to conduct search new searches and make a fresh decision. He also asked that the Primary Administration Section and Primary Payments Section of the Department be searched for all correspondence referred to in his request. He said that he believed the Department's response in respect of records falling within parts 1 and 8 of his request not to be satisfactory.
The applicant went on to say that because the records being sought concerned him in his role as a Primary Teacher and were about his employment, he believed that the threshold for refusal of records is "far higher". He referred to the Guidance Note on section 15(1)(c) in support of this and said that he believed a teacher ought to be allowed access to personal records from the Department of Education regarding his/her employment. He referred to section 11 of the FOI Act and to the General Data Protection Regulations (GDPR).
The applicant then described five different records, giving dates and a high level description, which he said were examples of records not released to him. I asked for a further explanation in respect of these records, including clarification as to whether his position was that they had been refused for release under a specific exemption, or whether he meant that they had not been identified in the course of processing this request, and listed on the Schedule. In response, the applicant provided a copy of a Schedule of Records he received in 2017 in response to another FOI request (FOI 2017/375). It lists 57 records, the vast majority of which were refused on the grounds of legal privilege. The applicant made the point that none of the 57 records listed on this 2017 Schedule appear to have been listed on the Schedule prepared in response to this current FOI request, and that therefore, in his view, this indicated that adequate searches weren't carried out.
Analysis
I have carefully considered the submissions made by the parties in this case. The question before me is whether, at this point, the Department has taken all reasonable steps to find records falling within the scope of the applicant's request. It seems to me that what constitutes 'reasonable steps' in the context of section 15(1)(a) will be dependent on the circumstance of the case. Where searches should be focused, and the form that such searches should take, will be dependent on the nature of the records sought and the broader circumstances.
In this case, the applicant made a 23-part FOI request for records stretching over a fourteen-year period. This review is limited to its decision on parts 1-3, 5-10, 17, 18 (other than records held by the Inspectorate Unit) and 19-23. As previously noted, while some parts of the request were for quite specific records, many other parts were extremely broad in scope (e.g. part 18 was for "any other emails, notes, letters, memos, correspondence etc. created and written by any employees in the Department of Education within the timeframe January 2005 to December 2019 concerning me or relating to me"). I accept that the records sought which relate to the applicant's employment are very important to him, however I also note that the Department said that the applicant had made approximately eight previous FOI requests for related records, and I note that he has also been provided with records further to a discovery process in 2013.
It is regrettable that the Teacher/SNA Terms and Conditions Unit initially told the applicant it held no additional records, particularly in circumstances where the Department was dealing with a decision already remitted by this Office. However, it appears that this was due to confusion or miscommunication and given that reviews by this Office are de novo, and that the full file of 125 records that this Section says it holds has since been listed on a Schedule, with the majority released to the applicant, there is no need for me to give this earlier statement any further consideration.
The applicant's position is that further searches should be carried out, specifically in the Inspectorate, School Governance Unit, Parental Complaint/Child Protection Unit, Teacher/SNA Terms and Conditions Unit, Primary Administration Section and Primary Payments Section.
In respect of the five records identified by the applicant from a Schedule of Records provided further to an earlier FOI request (2017/375), and his point that none of the 57 records listed on this Schedule appeared to have been identified as part of this current request, I sought further clarification from the Department on this 2017 request. The Department provided further documentation in respect of the decision made on this 2017 request which I note was also appealed to this Office although it was ultimately withdrawn by the applicant before a binding decision was made. The request concerned various records that were held by the Inspectorate Unit and the decision was issued by the Inspectorate. As already noted, records held or potentially held by the Inspectorate fall outside the scope of this review. Therefore, I do not accept the applicant's position that the absence of records referenced in FOI 2017/375 in the current Schedule of Records is indicative of inadequate searches being carried out.
The Department said that the Parental Complaint/Child Protection Unit's position was that if at some point it held relevant records, these would have been passed on to the Teacher/SNA Terms and Conditions Unit. The Department furthermore said that this Unit processed an earlier FOI request from the applicant for similar records (FOI 2017/148), issuing a decision in May 2017 in which it identified 33 relevant records all of which were released to him in full. In processing this request it said that it had required searches to be carried out by the Primary Payments and Primary Administration sections. It said that Primary Payments/Primary Payroll (this is the same section) provided all records it had at that time. The applicant also sought a review by this Office on the Department's decision on that request, on the basis that he believed further records to exist, but again withdrew the application prior to a binding decision being made. The Department also noted that of the 33 records in this 2017 case, 30 of these records are also listed on the current schedule. As all 33 of these records have been released anyway, making further inquiries on these other 3 records would not seem to me to serve any reasonable purpose. The Department said that there has been a restructuring of some sections over the years and that files relating to individual teachers which would have been held in what was the Primary Administration Section (now the School Governance Unit) were transferred to Teacher/SNA Terms and Conditions Unit. For all of the above reasons, I see no basis for expecting the Parental Complaint/Child Protection Unit, Primary Administration/School Governance Unit or Primary Payments Section to carry out further speculative searches for further records falling within the scope of the relevant parts of the applicant's request.
In relation to the Teacher/SNA Terms and Conditions Unit, I note the Department's explanation that it now holds a single hard copy file relating to the applicant and that it has included on the Schedule all 125 records contained in this folder. With reference to specific records the applicant said were missing, I note that the Department said it checked the file again and they were not on it. I have no reason not to accept the Department's position on this.
When additional records were released in the course of the review, the applicant wrote to this Office to say that attachments were missing from one of the records, specifically record 13. This record contains a chain of emails originally from August 2011, and then picked up again in July 2012. One of the emails, from 2 August 2011, had nine attachments to it. On examining the record, they appear to be documents that were likely sent to the then-Minister by post and then scanned in by her advisor, with non-specific file names "scan 007.jpg" etc. I queried these records with the Department and asked whether they were on the hard copy file as part of record 13. It said that the Teacher/SNA Terms and Conditions Unit checked record 13 again and that these attachments were not on the file. Furthermore, it said that given the way that they were named and the age of the email, at this juncture it is not possible to identify what these scanned documents were. I find this to be a reasonable response and in these circumstances I cannot see what further reasonable steps could be undertaken to ascertain the identity or whereabouts of these attachments.
In respect of parliamentary questions and further records relating to them, as referenced under section 15(1)(d) earlier, it is also relevant to note that this matter was dealt with in an earlier review by this Office where it was found that the Department was justified, under section 15(1)(a), in refusing the applicant with access to further records relating to these same parliamentary questions on the ground that no further records exist or could be found. Case OIC-125303- V1R2V7 refers, and I do not intend to revisit this matter.
While the applicant wants further searches, including electronic searches, to be carried out, it seems to me that such additional searches would be speculative and non-specific at this point. It is well established that this Office does not expect FOI bodies to carry out indefinite general searches because an applicant asserts that more records should or might exist, or rejects an FOI body's explanation of why a record does not exist. Having regard to all of the above reasons which encompass the Department's explanation of where it would expect to find relevant records and the searches undertaken, it seems to me that it has taken reasonable steps to ascertain the whereabouts of any further records. On this basis, I am satisfied that the Department is justified under section 15(1)(a) in refusing to release further records on the basis that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision.
I find that it was justified in refusing to release, under section 15(1)(a), further records on the basis that no more records exist or can be found after all reasonable searches have been varied out.
I find that it was justified in refusing to release: parts of records 2, 3, and 20 (phone number of third party only) under section 37; record 6 under section 15(1)(d); record 8 under section 31(1)(a); and part of record 30 (email send 27 July 2011 at 16:30) under section 42(f).
I find that it was not justified in refusing to release records 7, 20 (apart from the phone number), the redactions in record 30 (apart from the email to which section 42(f) applies), or record 107, and I direct their release.
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.
Emer Butler
Investigator