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Mr X and the HSE (FOI Act 2014)

Case Number: 160093

Whether the refusal of access by the HSE to records relating to human resources is justified under sections 30(1)(a) and (b) of the FOI Act

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 6 January 2016 the applicant made an FOI request to the HSE for certain records held by the National Ambulance Service which relate to human resources and budgets. Having received no original decision, the applicant requested an internal review by letter dated 5 February 2016. By letter dated 25 February 2016, the HSE issued an internal review decision, in which it granted access to certain records and withheld access to the remaining records, on the basis that they were exempt under sections 15(1)(a), 30(1)(a) and (b) and 37(1) of the FOI Act. On 29 February 2016, the applicant applied to this Office for a review of the HSE's decision.

In conducting this review I have had regard to the HSE's decision on the matter; the HSE's communications with the applicant and with this Office; the applicant's communications with the HSE and with this Office; the submissions of the HSE; the content of the withheld records, provided to this Office by the HSE for the purposes of this review; and to the provisions of the FOI Act.

Preliminary Matters

Before I consider the exemptions claimed, I wish to make the following points.

First, it is important to note that 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 HSE to satisfy me that its decision is justified.

Secondly, subject to the other provisions of the FOI Act, section 13(4) of the FOI Act requires FOI bodies and this Office to disregard an applicant's reasons for an FOI request.

Finally, 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.

Scope of the Review

Following correspondence with this Office, the HSE released further records to the applicant during this review. In addition, the applicant confirmed to this Office that personal information was not being sought.

Having regard to the above, the scope of my review is confined to the records or parts of records which remain withheld from the applicant and which do not contain personal information. These are records 2 (except for pages 11, 15 and 16) and 7. Page 11 of record 2 is a file-note about staff members. Page 15 of record 2 is a job offer. Page 16 of record 2 is a list of job applicants and interview times. Record 6 is an invoice with pay details of a staff member. All of these contain personal information and therefore fall outside the scope of the applicant's FOI request.

Accordingly, the question for this review is whether the HSE is justified in withholding access to record 2 (except for the pages referred to above) and 7 under sections 30(1)(a) and (b) of the FOI Act.

Analysis and Findings

Section 15(1)(d) - Information in the public domain

Section 15(1)(d) of the FOI Act provides that FOI bodies may refuse to grant a request where the information is already in the public domain. For completeness, I have considered whether this applies to certain parts of record 2. Specifically, pages 3, 4, 12, 13, 14, 17, 18, 19, 20, 21 and 22 of record 2 are job advertisements which have already been publicly advertised. However, I understand from correspondence with the HSE that they are no longer in the public domain. I therefore find that section 15(1)(d) of the FOI Act does not apply in the circumstances, as these parts of record 2 cannot be said to be in the public domain now.

Section 30 - Functions and negotiations

Section 30(1) of the FOI Act provides, among other things:

"A head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to -

(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof,

(b) 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)...".

The HSE invokes section 30(1)(a) and (b) in this case. Record 2 consists of the following: final job advertisements; a draft job advertisement; job descriptions for internal transfers; a request to hire form; and a blank interview board note. Record 7 is a draft job advertisement which appears to be the same as the draft job advertisement in Record 2.

Section 30(1)(a)

When a public body relies on section 30(1)(a), it should first identify the potential harm to the relevant function specified in paragraph (a) which might arise from disclosure and secondly consider the reasonableness of the expectation that the harm will occur. The FOI body must show that there are adequate grounds for its expectation. It should identify the potential harm or prejudice to the relevant test, examination etc and show how releasing the record could reasonably be expected to prejudice the effectiveness of tests or examinations etc. It should then go on to consider the public interest test under section 30(2).

The HSE submits that the applicant could use the records adversely against the National Ambulance Service in the course of an ongoing grievance procedure. It says that one of the job advertisements is draft and has never been used and could give the applicant an unfair advantage over other job applicants in any future recruitment process.

I accept that the HSE's handling of its grievance procedures is a function for the purposes of section 30(1)(a), in that it involves the investigation or inquiry into a grievance. However, the HSE has merely asserted a potential harm. It has not demonstrated exactly how releasing any of these particular records could adversely affect the National Ambulance Service in its handling of the grievance procedure. Neither is it possible for me to discern such a harm on the face of the records. I therefore find that the HSE is not justified in withholding access to the records under section 30(1)(a).

I do not accept that the HSE's recruitment process falls into the class of functions identified under section 30(1)(a), but I consider this function below under section 30(1)(b).

Section 30(1)(b)

When a public body relies on section 30(1)(b), it should first identify the potential harm to the performance of its any of its functions relating to management and secondly consider the reasonableness of the expectation that the harm will occur. In identifying the harm, it should identify the significant adverse effect on its management functions. To satisfy the Commissioner, the public body must show that there are adequate grounds for its expectation. Establishing "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). Not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under section 30(1)(a).

Grievance Procedure

The HSE submits that the applicant could use the records adversely against the National Ambulance Service in the course of an ongoing grievance procedure. I accept that the HSE's handling of its grievance procedures can be classified as a management function for the purposes of section 30(1)(b). However, and as noted above, the HSE has merely asserted a potential harm to its handling of the grievance procedure. It has not demonstrated exactly how releasing any of these particular records could reasonably be expected to cause the alleged harm. Neither is it possible for me to discern such a harm on the face of the records. I therefore find that the HSE is not justified in withholding access to the records on this basis under section 30(1)(b).

Recruitment Procedure

I consider that the HSE's recruitment procedure is a management function for the purposes of section 30(1)(b). Having regard to the similarity of the HSE's arguments under sections 30(1)(a) and (b), I have considered whether section 30(1)(b) could apply to any of the records, in relation to the HSE's recruitment procedure.

Draft Job Advertisement

In general terms, I would accept that releasing draft job advertisements could reasonably be expected to prejudice the effectiveness of an FOI body's recruitment process. As employers, FOI bodies formulate draft job descriptions. They may change their mind about the content of such documents at different stages of that process. Arguably, releasing draft versions which differ materially from the final job description could raise questions about the role being advertised, thereby prejudicing the recruitment procedure. However, the HSE has not demonstrated to me how, in the circumstances of this case, releasing the draft job advertisement in Records 2 and 7 could reasonably be expected to have a "serious, adverse effect" on its recruitment process.

The HSE says that releasing the draft job advertisement could give the applicant an unfair advantage. However, as noted above, release under the FOI Act is taken to be release to the world at large. The HSE is required to publish a disclosure log of FOI requests. Therefore I can take it that anyone - not just the applicant - could access any records which may be released pursuant to this decision. Accordingly, I do not believe that there is a question of the applicant having an advantage over anyone else as a result of releasing the records.

Final Job Advertisements

The final job advertisements have previously been published. Accordingly, I do not accept that releasing them could reasonably be expected to have a serious, adverse effect on the HSE's recruitment process.

Remaining Records

Having examined the content of the request to hire form, internal transfer job descriptions and blank interview form, it is not apparent to me how releasing them could reasonably be expected to have a serious, adverse effect on the HSE's recruitment process. Neither has anything in the HSE's decision or submissions satisfied me that this is the case.

Finding

I find that the HSE is not justified in refusing access to the records within the scope of this review under section 30(1)(a) or (b) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul the HSE's decision to refuse access to the records within the scope of this review and direct the release of records 2 (except for pages 11, 15 and 16) and 7.

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