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Annual Report 2008 - Text
Refusal to Confirm or Deny Existence of Records
The FOI Amendment Act 2003 inserted a new provision (section 28(5A)) into the personal information exemption of the 1997 Act which effectively introduces a "neither confirm nor deny" element. In other words, a public body may refuse to disclose whether or not records of the type sought actually exist. This provision is not invoked very often but is an important exemption in situations where, even if access to the records is refused, confirmation that they exist could be damaging to the person to whom the records relate. One of the complications of the provision is that, in giving my decision, I must present the analysis in a way which does not reveal whether or not the records are actually held. This limits the extent to which I can explain my reasoning. Nonetheless, the following case illustrates the application of section 28(5A) and the protection of personal information. It also presents a useful summary of the Act's provisions on information about staff of public bodies.
RTÉ and a County Council (Case 080050)
Background and Records sought
In this case Philip Boucher- Hayes of RTÉ's Radio Investigative Unit sought access to records from a County Council relating to "disciplinary hearings or internal inquiries" involving a named Council employee.
Submissions of the Parties
The Council's submissions indicated that the primary basis for the refusal of access to the records was section 28(5A) of the FOI Act which provides for such refusal where the records contain personal information of a person other than the requester, where none of the exceptions contained in section 28 apply and where the head of the public body forms the opinion that to state whether or not relevant records exist would, in itself, be to disclose the personal information of a third party.
Among the arguments put forward by the Applicant was that the records sought did not disclose personal information and were not, therefore, exempted from disclosure by section 28 of the FOI Act. He said that the issue involved the conduct of a public official in the execution of public duties. The Applicant said that the fact that An Garda Síochána had made written enquiries of the Council in respect of the particular employee was in the public domain. He accepted that certain information held by the Council about the employee (for example, medical information) would be "personal information", however, in the Applicant's opinion, information about how the employee performed work functions was not "personal information" for purposes of the FOI Act.
The Investigation
In assessing whether the Council was justified in its reliance on the section 28(5A) exemption in this case, my Office carefully examined the requirements of that exemption in order to establish whether they were met in the context of the records at issue.
Would the Records Constitute "Personal Information"?
"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"
The definition goes on to list 12 specific categories of information which, without prejudice to the generality of (a) and (b) above, are "included" in the definition. Of these, the following categories are relevant to the matters under review:
"(iii) information relating to the employment or employment history of the individual,
(iv) information relating to the individual in a record failing within section 6 (6) (a),
[...]
(xii) the views or opinions of another person about the individual,"
The effect of category (iv) above is to include the personnel record of a public body employee within the definition of "personal information". Section 6(6)(a) defines a personnel record as:
"a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member"
However, section 2 of the FOI Act also provides that certain types of information about an individual public body employee are excluded from the definition of "personal information"; viz.
"(I) in a case where the individual holds or held office as a director, or occupies or occupied a position as a member of the staff, of a public body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,"
It was clear that that the following information was not "personal information": the name of the individual who was an employee of the Council; information regarding the office or functions of that employee within the Council; the terms upon which that employee held that office or performed a function; any records created by that employee in the course, of and for the purpose of, the performance of the assigned functions.
On the other hand, the records sought by the requester (if they exist) would presuppose misconduct or a breach of discipline at work, would suggest the likelihood of complaints having been made, an investigative process and action within the terms of the Council's Grievance and Disciplinary Procedures. If this were the case, it would not be possible to accept that any such misconduct could be characterised as a performance of the employee's functions. While misconduct may occur while at work and may 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 assigned work functions. My Office considered that the qualification of the definition of "personal information" cited above does not, therefore, apply to the type of information sought by the Applicant.
My Office was also satisfied that the information sought would, if it is held in records, constitute information held by the Council on the understanding that it would be treated as confidential and that this would be the case even if there was some public knowledge of allegations having been made or of a disciplinary process having been initiated. It would be unconscionable for a public body, engaged in a process of dealing with allegations of misconduct, not to treat information relating to the process as confidential. While confidential information may, in certain instances, be disclosed in the public interest, this would not change the fact that the information was held in confidence.
On the basis of both over-arching tests of "personal information", my Office was satisfied that information of the type sought by the requester would constitute the personal information of a person other than the requester and, on the face of it, would be exempt from disclosure under section 28(1) of the FOI Act. Furthermore, it was considered that the records sought would fall into categorised (iii), (iv) and (xii) of the definition of personal information described above.
Do any of the exceptions to Section 28(1) apply?
The Public Interest
Section 28(1) is not an absolute exemption, there are exceptions to the basic provision that access to the personal information of persons other than the requester will not be granted. My Office was satisfied that the only exception with potential to apply in the circumstances of this case was that at section 28(5)(a) which allows for the release of personal information where the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld.
The Applicant argued that the public interest warranted the disclosure of the records sought. As many of my Office's decisions have pointed out over the years, the public interest in protecting privacy rights is strong. This is reflected in the language both of section 28 and of the Long Title to the FOI Act (which makes clear that access to records under FOI must be consistent with "THE RIGHT TO PRIVACY"). Furthermore, the right to privacy is an unenumerated personal rights under the Constitution.
- My Office considered the Applicant's arguments in favour of granting access in the public interest:
- transparency in relation to how public bodies, and individual public servants, perform their functions;
- the promotion of public confidence in how public bodies perform their functions (for example, the public should be satisfied, where allegations of misconduct are made against an employee, that the public body concerned has investigated the allegations and has not engaged in a "cover up");
- ensuring accountability by public bodies in how they spend public money;
- ensuring the media are not inhibited in pursuing legitimate enquiries.
These were considered to be substantial and relevant public interest arguments. However, based on all of the information available, my Office found that if records of the type sought by the requester exist, the public interest served by their disclosure would not outweigh the public interest in upholding the right to privacy of the employee concerned.
Would disclosure of existence or non-existence of records amount to disclosure of Personal Information?
Two possibilities were considered and decided upon:
(i) if the Council did, in fact, hold records of the type sought, I was satisfied that a disclosure that records of this type existed would be a disclosure of personal information, and
(ii) if the Council did not hold records of the type sought, disclosure of the non-existence of records would equally be a disclosure of personal information, being information regarding the employee's "employment or employment history" and the "views or opinions of another person about the individual" (section 2 of the FOI Act, definition of "personal information" refers, as discussed above ). It would also be a disclosure, in a general sense, of the content of what is contained in a personnel file (section 6(6)(a) of the FOI Act refers).
Review Decision
My Office concluded that disclosure of the existence, or non-existence, of records of the type sought by the requester would be a disclosure of personal information. I was satisfied that the exemption at section 28(5)(A) applied and I found that the Council was justified on this occasion in its reliance on the exemption.
