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Dr X and Royal College of Surgeons in Ireland (FOI Act 2014)

Case Number: 170060

Whether the RCSI was justified in refusing partial access under sections 30(1)(a), (b), and 37(1) of the FOI Act to a report of an investigation relating to an email allegedly sent by the applicant regarding "Slander and Defamation of Character"

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

In a request dated 17 June 2016, the applicant sought access to a report of an investigation relating to an email allegedly sent by the applicant on 21 December 2015. The RCSI granted access to a redacted version of the report. Its decision to refuse access to the redacted parts was based on sections 30(1)(a), (b), and 37(1) of the FOI Act. On 7 February 2017, the applicant applied to this Office for a review of the RCSI's decision.

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 contents of the record at issue and to the submissions made by the parties. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In its submissions dated 4 April 2017, the RCSI reconsidered its decision to redact the name and position of the Investigating Officer, the Director of Human Resources, and the note-taker from the investigation report at issue. It accepted that these particular redactions fell within the exclusions to the definition of personal information and should be removed.

This review is concerned solely with the question of whether the RCSI's decision to refuse access to the remaining redactions made from the investigation report was justified under the FOI Act.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified." However, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put. In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation for the request cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.

In this case, I consider that the RCSI has made a strong case for exemption under sections 30(1)(a) and (b) of the FOI Act on the basis of the harm to its investigative and management functions that could reasonably be expected to arise from the release of the report in full under FOI. The investigation report concerns a sensitive matter involving the applicant and a colleague whom he accused of slander and defamation of character. By his own account, the applicant sent an email regarding the alleged slander and defamation, and the RCSI consequently carried out an investigation into the matter. The email was addressed directly to the colleague against whom the applicant made the allegations, but it was copied to two other recipients. As the applicant is aware, the investigation involved interviewing the applicant, the colleague against whom he made the allegations, and two other witnesses; all of the interviews were expressly stated to be strictly private and confidential. The Terms of Reference for the investigation, which apparently were made available to the applicant, also state that confidentiality will be respected at all times. The RCSI explains:

"When RCSI receives a complaint from a member of staff against another member of staff, it will usually conduct a confidential investigation into the allegations. In order to conduct effective investigations, it is essential that the participants in the investigation provide honest and uninhibited evidence in relation to the subject matter of the investigation. In circumstances where RCSI cannot preserve the confidentiality of an investigation, employees are unlikely to participate fully or at all in such investigations, which would seriously undermine RCSI's ability to manage its staff and employment matters. This would be hugely detrimental to the health and safety of staff and negatively impact the working environment for staff. This, in turn, would undoubtedly impact the standard of education and training provided to students."

However, I consider that section 37 of the FOI Act is the more applicable exemption in the circumstances of this case. Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual). Section 37(7) clarifies that 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 referred to as joint personal information.

Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act details twelve specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual"; and "(xiv) the views or opinions of another person about the individual".

I further note that section 2 excludes certain information from the definition of personal information, such that the definition does not include, in pertinent part, in a case where an individual occupies or occupied a position as a member of staff of a public body, the name of the individual or information relating to the office or position or its functions or anything written or recorded by the individual in the course of and for the purpose of the performance of his or her functions. This exclusion to the definition of personal information is intended, in essence, to ensure that section 37 will not be used to exempt the identity of a public servant in the context of the particular position held or any records created by the public servant while carrying out his or her official functions. However, the exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. Thus, previous decisions of this Office have accepted that the exclusions do not apply to references involving allegations of inappropriate or illegal behaviour, whether proven or otherwise (see, e.g., Case 120236 (Messrs T.E.A. Co. Solicitors and the Health Service Executive), available at www.oic.ie (noting in relation to an investigation of alleged inappropriate behaviour by a staff member that "[t]his Office takes the general view that references to public servants which allege inappropriate or illegal behaviour constitute their personal information for the purposes of the FOI Act")).

In this case, the applicant made serious allegations against his colleague in the email that was the subject of the investigation. Although the investigation concerned the email, the Terms of Reference for the investigation included the objective to review and establish the truth or otherwise of the allegations in the email/incident. The applicant describes the investigation process and the Terms of Reference as very biased against him, though he also acknowledges that the final, formal investigation was "very professional" and it is apparent that he was informed of the outcome. The applicant states that he was "completely cleared of any misconduct whatsoever".

The smaller redactions made from the investigation report consist of identifying information about the recipients of the email and other witnesses (including an individual mentioned in the email), the partners of those involved, and the individuals who accompanied the witnesses to the interviews. In addition, the interview of the colleague against whom the applicant made the allegations has been redacted in full. I accept that the redacted information concerns private and confidential matters and that it does not fall within any of the exclusions to the definition of personal information. I therefore find that the redacted information qualifies for exemption under section 37(1) of the FOI Act.

Section 37(2) of the FOI Act sets out certain circumstances in which 37(1) does not apply. However, I am satisfied that none of those circumstances arises in this case. That is to say, (a) the information does not relate solely to the applicant; (b) the individuals to whom the information relates have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

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.

As I find no basis for concluding that the release of the information concerned would be to the benefit of the third party individuals to whom it relates, I find that section 37(5)(b) does not apply. In considering the public interest test contained in section 37(5)(a), it is important to have 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] IESC 26 ("the Rotunda Hospital case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. In this case, I accept that there is a strong public interest in openness and accountability in relation to the manner in which the RCSI carried out its investigation. However, I find that the public interest in openness and accountability has been met to a large extent by the release of the redacted report to the applicant. In the circumstances, I find that the public interest in granting access to the redacted information does not, on balance, outweigh the public interest in upholding the right to privacy of the individuals concerned. Accordingly, I am satisfied that the RCSI's decision to refuse access to the redacted information was justified under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the RCSI in this case.

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.

Elizabeth Dolan
Senior Investigator