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Ms X and Department of Foreign Affairs and Trade (FOI Act 2014)

Case Number: 160421

Whether the Department was justified in its decision to refuse access to records concerning the applicant under sections 15(1)(a), 30(1)(b), 35(1)(a), 37(1) and 37(7) 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 18 February 2016, the applicant made an FOI request to the Department for access to the following records:

"Copies of any records that the Department keeps about me on computer and in manual form, i.e. emails, letters, personnel notes, notes of meetings, recordings, personnel file(s) etc. I am interested in records related to me in the Corporate Services Division including [a named Section], Human Resources Section, ICT, Coordination & Compliance Unit and Security Section from December 2014 until present. I would also like to have included in this request the copies of emails refused in full or in part in my previous access request FOI/2014/116."

On 16 March 2016, the Department granted the applicant's request in part. The Department identified 38 records as relevant to the applicant's request. It refused access in full or in part to 23 of the records on the basis that the information concerned is exempt under section 30(1)(b) and/or 35(1)(a) of the Act. The Department also upheld its decision in relation to records refused in full or in part following the applicant's previous request FOI/2014/116. On 15 April 2016, the applicant requested an internal review of the Department's decision. On 6 May 2016, the Department affirmed its original decision. On 3 September 2016, the applicant applied to this Office for a review of the Department's decision.

I took the view that the applicant had not been provided with an adequate notification of the reasons for refusal of her request in accordance with the requirements of the Act. In particular, the Department's decision omitted the mandatory consideration of the public interest. On 5 December 2016, I served a notice on the Secretary General of the Department under section 23 of the Act requiring the Department to provide a statement of the reasons for its decision, including findings on any relevant material issues and consideration of the public interest. On 23 December 2016, the Department provided this Office and the applicant with a statement of the reasons for its decision.

Both the applicant and the Department made submissions in the course of this review. In its submissions, the Department stated that in cases where it had relied on section 30(1)(b) and 35(1)(a) of the Act, it now also relied on section 37(1) and or 37(7) of the Act. The Department stated that it had located eight additional records and it would release one record, part release six records and refuse to release the final record.

This Office provided the applicant with an opportunity to make submissions in relation to the Department's reliance on section 37 of the Act and in relation to the grounds relied on by the Department in part releasing or refusing additional records. In her submissions, the applicant argued that section 37(1) and or 37(7) do not apply to the records refused in full or in part and she argued that the additional records should be released in full.

I have decided to conclude this review by way of a formal binding decision. In conducting my review, I have had regard to correspondence between the applicant and the Department, to correspondence between the applicant and this Office, to correspondence between the Department and this Office, to the records at issue and to the provisions of the FOI Act.

Scope of the review

There are three groups of records which fall within the scope of this review. The first group consists of 23 records refused in full or in part by the Department following this request. The second group consists of the 7 additional records refused in full or in part by the Department. The third group consists of 26 records refused in full or in part by the Department following the applicant's previous request (FOI 2014/116). The scope of this review is confined to the following issues:

Whether the Department has justified its decision that section 15(1)(a) of the FOI Act applies as no further records exist or can be found after all reasonable steps to locate them have been taken;

Whether the Department has justified its decision to refuse in full or in part the following records on the basis of sections 30(1)(b) or 35(1)(a) or 37(1) or 37(7) of the Act:

- Records 1, 2, 4, 5, 6, 8, 9, 10, 11, 16, 21, 22, 23, 24, 25, 27, 29, 31, 34, 35, 36, 37, 38 (FOI2016/021);
- Additional Records 1, 2, 3, 4, 5, 6, 8 (FOI2016/021);
- Records 13, 25, 46, 47, 54, 58, 62, 63, 66, 69, 70, 71, 75, 77, 80, 83, 84, 86, 87, 88, 89, 91, 94, 95, 96, 97 (FOI 2014/116).

Preliminary matters

The background to this case was difficult and I must stress that this Office has no remit to examine the many complaints and grievances included in the applicant's correspondence. However, I wish to draw attention to the shortcomings in the Department's FOI decision making process. Apart from the deficiencies in the reasons given for the decision, the lack of clarity around the processing of the request caused difficulty for this Office e.g. confusion around what exactly was redacted from records, whether additional records were held and fell within the scope of the request and apparent failure to deal initially with certain records held. I strongly recommend that the Department ensures that the advice and guidelines on FOI, including sample letters and training resources of the Central Policy Unit of the Department of Public Expenditure and Reform are followed. This Office's website also provides Guidance Notes on the application of the exemptions.

In the course of this review, the Department informed this Office that the original versions of records 1, 6, 10 and 27 which were refused in part, were destroyed after the internal review decision, in the mistaken belief that they were copies. The Department stated that the original decision maker reviewed records 1, 6, 10 and 27 and attempted to accurately gauge where the redactions had been made before the records were supplied to this Office for review. The applicant provided this Office with her copies of these records which were, in turn, forwarded to the Department. There are differences in the information redacted in the records provided by the Department and those provided by the applicant. As the Department has destroyed its copies of records 1, 6, 10 and 27, the decision in relation to these records will be based on the copies provided by the applicant.

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Section 22(12)(b) of the FOI Act provides that a decision to refuse a request shall be presumed not to have been justified unless the head of the FOI body shows to the Commissioner's satisfaction that its decision was justified. This means that the onus is on the Department to satisfy the Commissioner that its decision to refuse access to the records 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. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited. The release of a record under the FOI Act is considered, effectively, as release to the world at large.

Analysis and Findings

Section 15(1)(a) - "Search" issues
The applicant argues that further relevant records ought to exist; therefore, section 15(1)(a) of the Act is relevant in this case. Section 15(1)(a) provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision than no further records exist is 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. The evidence in "search" cases consists of the steps actually taken to search for records along with miscellaneous other evidence about the record management practices of the public body on the basis of which the public body concluded that the steps taken to search for records was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. in the High Court case of Matthew Ryan and Kathleen Ryan v. the Information Commissioner[2002 No. 18 M.C.A.] available on this Office's website at www.oic.ie).

The applicant states that she did not receive any emails or records of meetings between the Department and certain officers in relation to issues raised. According to the applicant, an Investigator was appointed to examine and report on these issues. The applicant states that while she did receive reports which relate to her, she understands that the Department commissioned an additional report which was not provided to her. The applicant states that she was not provided with her overtime claim forms held by the finance section. Finally, the applicant states that she does not have copies of emails sent between herself and corporate services up to 2015. She states that she has current emails but older emails were deleted by accident and she requested these emails.

The Department states that, following queries from this Office, it carried out further searches for relevant records, including records specifically mentioned by the applicant. Following these searches, it states that it located eight additional records. These records include communications between the Department and certain officers, the additional Investigator's report referred to by the applicant and the applicant's overtime claim forms. Access was granted to the latter (record 7). The Department also states that it offered to provide the applicant with access to her personnel records through contacting its HR section.

In cases where an FOI body locates additional records during the course of a review, it is the general practice of this Office to bring the review to a close without a determination on the question of access to those records. In exceptional cases the records may be considered as part of a current review. In this case, the Investigator sought copies of the records and having examined the records I have decided, having regard to their content, that it is best to consider the records as part of this review. The Department's decision to part release or refuse access to seven of the additional records is dealt with under the relevant exemption provisions below.

The Department states that it investigated the possibility of restoring deleted emails with its IT section. It states that this is a time consuming process as the more time that has passed since deletion the greater the number of tapes containing back up email that will be required. According to the Department, this would cause a significant administrative burden to facilitate. The Department states that pre 2015 emails of enduring value between the applicant and corporate services are likely to have been put on the applicant's file and reviewed under the applicant's previous request (FOI/2014/116).

The Department outlined the steps taken to search for records in its submissions to this Office. According to the Department, the original decision maker sent an email to each manager of the separate business units requesting relevant records. It states that searches were carried out manually, by computer, by name and by key word. The Department also states that extensive searches were carried out at the time of the applicant's previous request. It states that following these searches 97 records were identified, 71 records were released in full and 26 records were refused in full or in part.

It appears that following its further searches, the Department located many, if not all, of the records which the applicant identified. The applicant states that she does not have access to emails between herself and corporate services in the period up to 2015. I note that the applicant's request is from December 2014 to the present, although she does refer to her previous request. I accept the Department's submission that older emails of importance would have been placed on the applicant's file and reviewed under the applicant's previous request. In any event, the applicant has not identified any specific emails which she is missing. I consider that it would be unreasonable to require the Department to trawl through a large number of deleted emails involving various officers in an attempt to retrieve messages that might be covered by the applicant's request. On the basis of the information provided by the Department, I am satisfied that it has taken reasonable steps to search for records relevant to the applicant's request. I find, therefore, that section 15(1)(a) applies to the applicant's request.

Section 37 Personal Information
The Department has sought to rely on section 37(1) or 37(7) of the Act in relation to records released in full or in part with the exception of the seven additional records. As section 37 is a mandatory exemption, it is appropriate to consider it before considering the Department's reliance on section 30(1)(b) of the Act. Having examined the records closely, I am satisfied that they fall into two categories:

Category (i) records concerning allegations of misconduct:
Records 2, 4, 5, 8, 9, 11, 16, 22, 23, 24, 25, 29, 31, 34, 35, 36, 37, 38 (FOI 2016/021);
Records 13, 25, 46, 47, 54, 58, 62, 63, 66, 69, 70, 88, 89, 94, 95, 96, (FOI 2014/116).

Category (ii) records concerning investigations into allegations of misconduct:
Records 1, 6, 10, 21, 27, (FOI 2016/021):
Records 71, 75, 77, 80, 83, 84, 86, 87, 91, 97 (FOI 2014/116)
Additional records 1, 2, 3, 4, 5, 6, 8.

Section 37(1) provides that an FOI body shall refuse to grant a request if access to the record concerned would involve the disclosure of personal information relating to an individual other than the requester. Section 37(7) provides 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.

Section 2 of the Act defines personal information as information about an identifiable individual that, either - (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 an FOI body on the understanding that it would be treated by that body as confidential. Section 2 part (I) of the Act provides that the definition of personal information does not include certain information relating to an individual who holds or held a position as a member of staff of an FOI body. The information excluded includes the name of the individual, information relating to the position or its functions, the terms upon or subject to which the individual holds /held that position, or anything written or recorded in any form by the individual in the course of or for the purpose of the performance of the functions of the position.

The Department argues that records which contain information in relation to allegations of misconduct or investigations into these allegations should not be released. According to the Department, a number of the allegations are the subject of ongoing internal investigation and the allegations are strenuously denied by those accused. It argues that release of this information could be extremely damaging to the reputations of the individuals accused and it should not be released in order to protect their privacy.

The exclusion at section 2 part (I) does not provide for the exclusion of all information relating to staff of an FOI body. The Commissioner takes the view that this exclusion is intended 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 functions. However, the exclusion to the definition of personal information at (I) does not deprive public servants of the right to privacy generally.

In case number 140157 (Mr. X and Cork County Council) (available at www.oic.ie), the Commissioner considered that the request sought access to specified records that confirmed if a named employee was the subject of an internal investigation. The Commissioner found that, while misconduct might sometimes occur while at work and might be facilitated by virtue of the work position held by an individual, it could not be said to be something done for the purposes of performing one's work functions.

The records listed in category (i) above, contain allegations of certain behaviour that could be deemed to be misconduct and identify certain named employees. The alleged misconduct occurred in the work place. I accept, however, that the misconduct could not be said to be something done for the purpose of the performance of the employees functions. I am satisfied that the qualification on the definition of personal information contained in section 2 part (I) does not apply to the records listed in category (i) above. I find that the Department was justified in refusing access in full or in part to these records on the basis that the information withheld is exempt under sections 37(1) or 37(7) of the Act. I consider the public interest in relation to these records below.

The records in category (ii) concern investigations into allegations of misconduct. Many of these records have been part released to the applicant. I am limited in the description that I can give of the information withheld from these records by section 25(3) of the Act. I am not satisfied, owing to their content, that the records listed under category (ii) are exempt under section 37(1) or 37(7) of the Act, and I find that they are not. I consider whether these records are exempt under section 30(1)(b) of the Act below.

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, I am satisfied that none of the circumstances set out in section 37(2) apply to the records in category (i).

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act 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. I do not consider that the release of the information at issue would benefit the third parties to whom it relates, as envisaged by section 37(5)(b) of the Act.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] IESC 26 ("The Rotunda Judgment") (available at www.oic.ie). In its judgment, the Supreme Court 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. Following the approach of the Supreme Court, "a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law" must be distinguished from a private interest for the purpose of section 37(5)(a).

In relation to section 37(5)(a), the FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, however, 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. Accordingly, privacy rights will be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy. While the applicant argues that her own privacy has not been respected, this is not something that I can take account of in weighing up the public interest in protecting the privacy rights of other individuals.

While there is a public interest in openness and transparency in the manner in which the Department performs its functions, I am of the opinion that this has been met to a large degree by the release of information under this request and under the applicant's previous FOI request. I do not consider that the public interest in the release of information withheld from the records in category (i) outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply to these records.

Section 30(1)(b) Functions and Negotiations of FOI Bodies
The records which fall to be considered under section 30(1)(b) are the records listed in category (ii) above. Section 30(1)(b) provides that 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 have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). Section 30(2) provides that the exemption does not apply where the public interest would, on balance, be better served by granting the FOI request.

Where an FOI body relies on section 30(1)(b) it should identify the potential harm to the performance by the body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. When invoking section 30(1)(b), the FOI Body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 30(1)(a). Having identified the significant adverse effect envisaged, the FOI body should explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.

The applicant submits that records partially withheld or refused under FOI 2014/116, were refused on the basis that mediation was ongoing at that time. The applicant states that the mediation has finished. She argues, therefore, that section 30(1)(b) cannot apply to the records previously refused or to records refused under the present review.

The Department states that while the mediation process is now over, wider industrial relations issues related to certain staff remain unresolved, According to the Department, there have been persistent and numerous allegations, claims and counterclaims amongst the staff involved which has resulted in a challenging working environment for all concerned. The Department states that it is currently conducting investigations into these claims and counterclaims. It states that while the mediation process can be said to be completed, the underlying issues which were the subject of the process, very much remain. It states that releasing the records in relation to the investigations would likely reverse progress made by management and staff to address enduring issues.

The applicant acknowledges that interpersonal relationships continue to be strained. I note that, in her application to this Office, the applicant provides a detailed account of the difficulties experienced and her views on the need for reform. The information withheld dates from a period when interpersonal relationships were particularly strained. I note that the Department has taken steps, including appointing external parties, to investigate and mediate in relation to complaints. I accept that the Department is seeking to repair damage caused to interpersonal relationships by the raising of claims and counterclaims. I am satisfied that release of the category (ii) records listed above could reasonably be expected to have a significant, adverse effect on it functions relating to management of industrial relations and staff management, in particular on management's ability to improve working relationships and morale. I find, therefore, that these records are exempt under section 30(1)(b) of the Act. I considered whether partial release of some of the information would be possible but decided that any such release would result in the information being misleading (section 18 of the FOI Act 2014 refers).

Section 30(2) public interest
There is a public interest in openness and transparency in the manner in which the Department performs its functions. There is also a public interest in preventing harm to public bodies through release of information which could adversely effect staff management. I accept that release of the records at issue would facilitate scrutiny of the human resources procedures adopted by the Department in this case. However, I accept that the Department is currently taking measures to resolve industrial relations difficulties. Having considered the records and the submissions of both parties, I am satisfied that, on balance, the public interest would be better served by refusing rather than by releasing these records and I find accordingly.

As I have found that all of the records withheld in full or in part are exempt under either sections 37(1) or 37(7) or 30(1)(b), it is not necessary to consider whether section 35(1)(a) applies to the withheld records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I affirm the Department's decision. I find that section 15(1)(a) applies to the applicant's request insofar as it relates to further records. I find that section 37(1) and/or 37(7) applies to exempt the following records:

- Records 2, 4, 5, 8, 9, 11, 16, 22, 23, 24, 25, 29, 31, 34, 35, 36, 37, 38 (FOI2016/021),
- Records 13, 25, 46, 47, 54, 58, 62, 63, 66, 69, 70, 88, 89, 94, 95, 96, (FOI 2014/116).

I find that section 30(1)(b) applies to exempt the following records:

- Records 1, 6, 10, 21, 27, (FOI2016/021),
- Records 71, 75, 77, 80, 83, 84, 86, 87, 91, 97 (FOI 2014/116),
- Additional records 1, 2, 3, 4, 5, 6, 8.

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