Case number: 000180
Request for access to a report on the audit of working practices in one section of the Council - whether such release would have a significant adverse effect on the performance of any of the Council's functions relating to staff management, in particular its ability to deal with workplace problems - section 21(1)(b) - public interest - section 21(2)
The requester sought a copy of a report on the audit carried out by an external company of the working practices in one area within the Council. The request was refused, inter alia, on the grounds that such release would have a significant adverse effect on the performance by the body of its staff management functions. The Council said that release would undermine trust between employer and employee, because staff had been invited to participate in the audit on the clear understanding that their contributions would be treated in confidence. It contended that if the report were released, it would not be able to give assurances of confidentiality in the future, should a similar investigation be conducted. It also said that staff in a vulnerable position would not be willing to talk to management about their workplace problems, which would inhibit the Council's ability to deal with these problems.
The Commissioner was satisfied that the staff who attended for interview did so on the understanding that their statements would be treated as confidential. He said that an examination of the content of the report showed that a significant number of employees would have great difficulty in discussing their employment in an open manner, were they not assured of the confidentiality of the process. The Commissioner accepted that release could be seen by staff as a breach of trust by management and that this could hamper future investigations which would require co-operation of staff. He was therefore satisfied that this could reasonably be expected to have a significant adverse effect on the performance of the Council's function of dealing with complaints relating to staff, and that section 21(1)(b) applied. He found that the public interest in withholding the report (one aspect of which included a body being able to investigate complaints and examine the work practices of staff in an effective manner) outweighed the public interest in release (one aspect of which included employees of public bodies being in a position to establish that legitimate grievances are properly investigated by their employer). He noted that, in this case, the audit was undertaken in consultation with the relevant trade unions and it would appear that release of the report was not necessary in order to establish that the complaints made were properly investigated.
Our Reference: 000180
Dear Mr Y,
Your Client: Mr XI refer to your application on behalf of Mr. X, under the Freedom of Information Act, 1997 (the FOI Act), for a review of the decision of Dún Laoghaire-Rathdown County Council (the Council) on his FOI request of November 1999 I apologise for the delay in dealing with your case.
On 10 November 1999 Mr. X requested a copy of a report on the audit of working practices at [name of particular depot] carried out by a company called Resolve. He also made mention of the interview which he had with Mr Z of that company on 24 May 1999 but did not specifically request a copy of the record of the interview. The decision of the Council was to refuse access to the report and this decision was upheld following internal review. On 18 April 2000 you applied to my Office for a review of the Council's decision.
I note that Ms. Doyle of my Office wrote to you on 17 September 2001 setting out her preliminary views on your case. I have now decided to conclude my review by means of a formal decision and in doing so, I am taking into account your reply to Ms. Doyle's letter, the submissions made by the Council, the contents of the record sought and the terms of the FOI Act generally.
My review is concerned solely with the question of whether the decision of the Council, to refuse to release the Resolve report, is justified in accordance with the provisions of the FOI Act. I am not concerned here with records relating to the background material used to compile the report, including interview(s) held with Mr. X, as I do not consider such records to come within the terms of his request. In any event, I understand that none of the records relating to the actual compilation of the Resolve report are held by the Council.
Mr. X's request for the report was originally refused by the Council on the grounds that it is exempt from release under section 26(1)(a), section 21(1)(b) and section 21(1)(c) of the FOI Act. In a submission to this Office, the County Council provided detailed arguments in support of the exemption claimed under section 21(1)(b). I do not consider section 26(1)(a) to be applicable in this case as the record concerned is one created by Resolve, acting under a contract for services. Nor do I consider that section 21(1)(c) is applicable to the record in this case as there is no evidence to suggest that the report would disclose "positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or a public body".
However, it is necessary to consider the case made by the Council in relation to section 21(1)(b).
Section 21(1)(b) allows a head, subject to consideration of the public interest, to refuse to grant a request for information 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 the body of any of its functions relating to management (including industrial relations and management of its staff) ..."
I consider that in order to apply this exemption it is necessary (1) to identify the potential harm to the functions, covered by the exemption, which might arise from disclosure and (2) having identified that harm, consider the reasonableness of any expectation that the harm will occur.
In invoking this exemption, the Council claims that release of the Resolve report would have a 'serious adverse effect' on the performance of its functions in relation to management. In particular, it would undermine trust between employer and employee. The key consideration here, according to the Council, is that staff were invited to participate in the audit of work practices on the clear understanding that their contributions would be treated in confidence. If the Resolve report were to be released, the Council says it would not be in a position in future to give assurances of confidentiality in a similar investigation. In such circumstances, the Council contends that staff in a vulnerable position would not feel secure about approaching management to discuss their problems. This, in turn, would inhibit the Council in its ability to deal with workplace problems and this is one of the aspects of staff management which the exemption at section 21(1)(b) is intended to protect.
I am satisfied that staff who attended for interview by Resolve did so in the expectation that their statements at interview would be treated as confidential. I note that your client accepts this to be the case.
In your submission of 18 October 2001 you suggest that a large number of the participants in the audit would be interested in gaining access to the Resolve report. As I understand it, this suggests that the Council does not have good grounds for its expectation that release of the Report would have a negative effect on its management of staff and on future investigations of this nature An examination of the contents of the Report, however, makes it clear that a significant number of interviewees would have had great difficulty in discussing their employment in an open manner, were they not assured of the confidentiality of the interview process. I accept, therefore, that the release of the report could reasonably be expected to be viewed by staff of the Council as a breach of trust by the management and as such could hamper future investigations which would require the co-operation of staff. I am satisfied that such an outcome can reasonably be expected to have a significant adverse effect on the performance of the Council's function of attending to complaints from or about members of staff and that the exemption allowed for in section 21(1)(b) is therefore applicable to the record in this case.
Section 21(2) provides that the exemptions set out in section 21(1) shall not apply in a case in which, in the opinion of the head of the public body, the public interest would on balance be better served by granting than by refusing to grant the request.
There is a clear public interest in a public body being able to carry out investigations into complaints and examine the work practices of staff in an effective manner. The Council argues that release of the Resolve report would serve to undermine this public interest. It seems to me that there are situations where the best method of dealing with sensitive issues involving working relationships will be for a public body to conduct an enquiry with, where necessary, appropriate assurances of confidentiality to the parties concerned. The choice of the most suitable procedures in individual cases rests with the public body. I accept that assurances of confidentiality would not be warranted in every case, although they appear to have been necessary in this case.
There is also a public interest in promoting each individual's right of access to records as provided for in the FOI Act. However, this FOI right is not an absolute one and is subject to a number of conditions. There is a public interest in employees of public bodies being in a position to establish that legitimate grievances and complaints are properly investigated and considered by their employer. However, in this present case I am satisfied that the audit of work practices was undertaken in consultation with the relevant trade unions and it would appear that release of the Resolve report is not necessary in order to establish that the complaints made were properly investigated.
When a record is released under the FOI Act this, in effect, amounts to disclosure to "the world at large" as the Act places no restrictions on the subsequent uses to which the record may be put. This is a factor which must be taken into account in balancing the various public interest arguments. I accept that there could be a public interest in an individual gaining access to a record which concerns him and that this public interest might outweigh the public interest in preventing any detriment which might ensue from the release of the record to the public. However, as Ms. Doyle suggested in her letter of 17 September 2001, this is not a strong argument in this particular case as the Report does not contain any statements which could be identified as having been made by Mr. X. However, statements made by some other staff members are capable of being identified from a reading of the Report. Apart from any other considerations, these statements are likely to be protected from release by section 28 of the FOI Act and this protection of the privacy of other staff would be likely to be overturned only for very strong public interest reasons.
On balance, and having considered the various arguments carefully, I do not believe that the public interest in Mr. X's obtaining access to the Report outweighs the public interest in the Council honouring the guarantees of confidentiality given to staff involved and preserving a relationship of trust between management and staff in such matters. Accordingly, I find that in this case the public interest is best served by the withholding of the Resolve report.
Because of my finding that the exemption in section 21(1)(b) applies in this case, it is not necessary to consider in detail whether other exemptions may also apply to the record. However, it is worth noting that section 21(1)(a) may also serve to protect the record in question and section 28(1) may also be relevant in so far as the release of the Report would involve the disclosure of personal information about third parties, i.e. colleagues of Mr. X.
In your submission of 18 October you suggest that when your client took part in the investigation he had an understanding that the resultant findings would be released to the individuals involved. I am unclear as to whether you are suggesting that the conclusions/findings of the report be released as opposed to the report in full. I have, in any case, examined the contents of the Resolve report with a view to establishing whether excerpts from it could be released without breach of the exemption claimed by the Council. However, I do not find that the report is amenable to such editing. Any edited version of the report which might be released on the basis of such an approach would, I believe, be misleading and accordingly I do not propose to direct the Council to take this course of action. This aspect of my decision is in accordance with section 13(2) of the FOI Act.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of Dún Laoghaire-Rathdown County Council to refuse your application on behalf of Mr X for access to the record described in the "Scope" section of this decision letter.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from that decision. Such an appeal must be initiated not later than four weeks from the date of this letter.