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Mr X and the Commission for Public Service Appointments (FOI 2014)

Case Number: 160197

Whether the CPSA was justified in refusing access to certain records concerning particular complaints made to it regarding the Office of the Revenue Commissioners (the Revenue), and whether it had justified its effective position that it had taken reasonable steps to locate all records within the scope of the request

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

On 22 January 2016, the applicant made an FOI request to the CPSA for "records relating to, in connection to or arising out of Section 8 complaints made against the Revenue Commissioners". The CPSA's decision of 16 March 2016 released a number of records in full or in part to the applicant, while withholding the remaining information under sections 15(1)(d) (information already in the public domain), 31(1)(a) (information attracting legal professional privilege) and 37(1) (personal information of parties other than the applicant) of the FOI Act. The decision also said that it was not re-releasing records that the CPSA had recently provided to the applicant concerning his own section 8 complaint against the Revenue.

On 18 March 2016, the applicant sought an internal review of the CPSA's decision, saying that records concerning a section 8 complaint made by a named person had not been released. He also sought a review of the exemptions cited, saying that, for example, "meaningful public information can be released by redaction if privacy is a concern".

On 23 March 2016, the original decision maker released records concerning a further section 8 complaint made by a party other than the applicant. He withheld certain details under section 37 of the FOI Act. Referring to an email that the applicant had sent to the CPSA on 22 March 2016, the decision maker said that relevant elements of minutes and agendas of Commission meetings were also being withheld under section 37.

The CPSA's internal review decision of 3 May 2016 affirmed the refusal of access to further records, and said that it considered a full search for relevant records to have been carried out.

The applicant sought a review by this Office of the CPSA's decision on 3 May 2016, referring only to "[i]nadequate search and over/misapplication of exemptions".

I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; to correspondence between this Office and the CPSA and the applicant; and to copies of the records at issue, which were provided to this Office for the purposes of this review. I have had regard also to the provisions of the FOI Act.

 

Scope of the Review

This review is confined to whether or not the CPSA has justified its refusal to grant access to the remainder of the records it identified as relevant to the applicant's FOI request, as well as whether it has justified its effective position that it has taken reasonable steps to look for all relevant records.

In appropriate cases, I would list the individual records at issue. Due to the volume of records in this case, the fact that the applicant has been provided with schedules of records describing the records and the exemptions applied to each one, and the fact that I am not directing release of material that requires specific identification, I will deal with the records by reference to the exemptions claimed.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters.

This Office has no remit in a review conducted under section 22 of the FOI Act to examine, or make findings on, the adequacy of the CPSA's procedures generally, or how it handled any aspect of the FOI process in this case.

Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons for the request.

Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). While the CPSA has released details from certain records while redacting other parts, I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Findings

Section 15(1)(a) - Searches for Further Relevant Records

The CPSA, according to its internal review decision, is of the view that it has taken reasonable steps to look for all records of relevance to the applicant's FOI request. It is, effectively, relying on section 15(1)(a) in refusing to release further relevant records.

A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request, or that the requested records do not exist. I should explain that in any case involving section 15(1)(a) of the FOI Act, a decision from this Office may find that a public body has conducted reasonable searches, even where records that are known to exist cannot be found. In such circumstances, this Office is unlikely to require a public body to continue searching indefinitely for those records. It is not normally this Office's function to search for records (a position that was upheld by the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA)).

The CPSA provided this Office with details of the searches it says it carried out for records relevant to the applicant's request, which I do not intend to repeat in this decision. On 15 September 2016, the Investigator gave the applicant a general outline of the searches concerned. The applicant's reply of 27 September 2016 comments on the CPSA's initial failure to consider certain records for release. This is not relevant to the question of whether the CPSA has justified its position that reasonable searches have now been conducted.

The applicant also refers to a complaint made under equality legislation by a third party about the Revenue Commissioners, to a body other than the CPSA. The Secretary of the CPSA gave evidence at the relevant hearings regarding the complainant's section 8 complaint about the same underlying matter. The applicant maintains that records concerning the evidence given by the Secretary in that equality case fall within the scope of his FOI request.

I do not agree with the applicant's contention. A reasonable interpretation of his request does not suggest such a broad scope. In this regard, it is relevant that one of the requirements on a person making an FOI request is that it contains sufficient particulars to enable the record to be identified by the taking of reasonable steps.

The applicant also takes issue with a view expressed by the CPSA in its submission to this Office that it did not initiate any audits of the Revenue on foot of section 8 complaints received. While I note that the applicant says that this may not in any event be relevant to his request, it seems to me that any audits carried out by the CPSA further to section 8 complaints could indeed be relevant to his request as framed. The applicant provided a link to a report on the CPSA's website as evidence of his contention that it did conduct an audit of the Revenue. However, while the report refers to complaints received about the recruitment process concerned, it is evident from a reading of the Background section of the report that the audit element thereof was done at the Revenue's request. The section 8 complaints were received subsequently. Thus, it is not the case that this audit was carried out on foot of any section 8 complaints. This was explained in the Investigator's email to the applicant of 15 September 2016. Accordingly, records relating to this audit are not covered by the scope of the request.

Having considered the CPSA's description of its searches in this case, I consider it to have justified its position that it has taken reasonable steps to look for relevant records. I find that section 15(1)(a) applies.

Section 15(1)(d) - Information Already in Public Domain
Section 15(1)(d) is a discretionary administrative provision that enables an FOI body to refuse a request where "the information is already in the public domain". The CPSA relied on section 15(1)(d) in refusing to release copies of a record, contained in various relevant complaint files at issue, entitled "Audit Report - Audit of the Office of the Revenue Commissioners in the Conduct of an internal Appointment Process for promotion to the position of Executive Officer in 2014". This is, in fact, the report the link to which the applicant copied to this Office on 27 September 2016. I am satisfied that the report concerned is in the public domain and that the CPSA has justified its refusal of the various copies of this report under section 15(1)(d).

Section 31(1)(a) - Records Considered to Attract Legal Professional Privilege
The CPSA refused access to a number of records under section 31(1)(a) of the FOI Act.

Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that 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 (legal advice privilege), and
confidential communications made between the client and a professional legal adviser or the 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).

According to its decision, the CPSA considers legal advice privilege to apply to the records concerned. Having examined them, I accept that they comprise requests for legal advice, and legal advice received, from the CPSA's professional legal adviser. Section 31(1)(a) is a mandatory provision and accordingly I uphold the CPSA's refusal of the records concerned under section 31(1)(a) of the FOI Act.

Section 37 - Personal Information

Section 37(1)
Section 37(1), subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person seeking the record.

"Personal information" is defined at 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 members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential"

Section 2 goes on to list 14 examples of personal information, including "information relating to the employment or employment history of the individual" and "the views or opinions of another person about the individual". Where information can be classified as one of these 14 examples, there is no need for the requirements at (a) or (b) of the definition to also be met.

I am constrained in the description I can give of the details that the CPSA withheld under section 37. They relate to complaints made by parties other than the applicant about the processes employed in public sector job competitions for which they applied. They clearly relate to the employment or employment history of the individuals concerned. The records also include details such as the complainants' views on how the alleged breaches of processes impacted on them personally. They also allude to possible failings on the parts of public servants involved in administering these competitions i.e. they essentially comment on the performance of these public servants in their role as public servants.

Having considered the information at issue, including that in the records to which I have found section 31(1)(a) to apply, I consider it to comprise personal information of parties other than the applicant. The applicant has not argued that the details at issue might fall within the exclusion to the definition of personal information where public servants are concerned (section 2 of the FOI Act refers), nor do I consider this to be the case.

I note that for information to come within the definition of personal information, it is not necessary that the person's name appears in the record. This is relevant here since some of the circumstances detailed in the records cause the information to be "about identifiable individuals".

The main argument that the applicant makes in his email to this Office of 27 September is that "heavy redacting hides information that is useful in terms of public accountability". Essentially he argues that further information could be released from the records at issue without disclosing the personal information of any parties referred to therein.

My views on the application of section 18 and the redaction of records are stated above. Even if I were to direct release of further extracts from the records, it is possible that the resulting copies would be misleading, for example due to absence of context. In particular, I do not consider that such a direction would comply with the requirements of section 18 in that it would not be practicable owing to the number and nature of redactions necessary.

The CPSA's decision to examine all the records, and to partially release many of them with redactions was probably in keeping with the spirit of the FOI Act. However, I do not consider that this was appropriate in this case. While I accept that the complaints partly concerned appointment processes in the Revenue, the reality is that, of their nature, they also contain significant amounts of personal information of a number of individuals other than the applicant. The impracticability of redacting these records seems to me to be illustrated by the fact that in doing so, the CPSA (albeit in the case of a very small number of records), withheld details from some records that it had released from others. The fact that the CPSA told this Office that it now considers it should have refused the request under section 15(1)(c) - a provision that may be relied on to refuse voluminous requests - seems to me to be further evidence of how impracticable the partial release of the records turned out to be.

I find all of the withheld records be exempt under section 37(1) of the FOI Act.

Section 37(2)
There are some circumstances, provided for at section 37(2), in which the exemption at section 37(1) does not apply. The applicant has not argued that section 37(2) of the FOI Act is relevant in this case.

In any event, having examined the withheld details, I am satisfied that none of the circumstances identified at section 37(2) arise in this case; that is to say, (a) that the details concerned do not relate solely to the applicant; (b) that the third parties have not consented to the release of their personal information; (c) that the information is not of a kind that is available to the general public; (d) that the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) that 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)

Section 37(5) provides that a record, which is otherwise exempt under section 37(1), may be released if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of an individual to whom the information relates should be upheld or (b) the grant of the request would benefit the individual. I do not consider that the release of the information at issue would benefit the third parties, as envisaged by section 37(5)(b) of the FOI Act, nor has the applicant made any argument in this respect.

Section 37(5)(a) - The Public Interest

The Supreme Court judgment in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] 1 I.R. 729, [2011] IESC 26 (known as "the Rotunda judgment"), outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. The Supreme Court has made it clear that, in considering section 37(5)(a), I must distinguish private interests from "true public interest[s] recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. "

I accept that in this case, there is a public interest in establishing that the CPSA carried out its functions in dealing with the various complaints made to it in a way that was consistent with the principles of natural and constitutional justice, as well as the right to privacy. This public interest has been served to some extent by the material released to date.

While the applicant has not specifically argued that I should direct the release of the material at issue because of his apparent dissatisfaction with how the CPSA conducts its examinations generally, I will address such an argument for the sake of completeness. As already noted, I have no remit to consider, or make findings on, the adequacy of the CPSA's procedures nor would it be appropriate for me to direct the release of third party personal information in the public interest, effectively to the world at large, on the basis of assertions to the effect that an FOI body's processes may have been inadequate. As the Commissioner said in his composite decision in cases 090261/090262/090263, "I believe that the recognition of a public interest in promoting procedural fairness through FOI is more properly understood as an acknowledgement that the public interest in openness and accountability is entitled to significant weight when the constitutional rights of individuals may be affected by the actions of public bodies. It does not mean that it is for me as the Information Commissioner to determine the precise scope of what fair procedures would have required of a public body in a certain set of circumstances."

Both the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy (which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution).

When considering section 37(5)(a), privacy rights will 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. I accept that release of the details concerned would further enhance the public interest in openness and accountability in respect of the CPSA's processes for examining complaints. However, I find that the public interest in granting the request for the details concerned is not such that it outweighs the public interest that the right to privacy of the third parties should be upheld.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the CPSA's' decision. I affirm its effective decision under section 15(1)(a) to refuse access to any further records. I affirm the CPSA's application of sections 15(1)(d), 31(1)(a) and 37(1) to the records, or parts of records, it withheld under these provisions.

 

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