Case number: 050338
Case 050338. Request to the Department of Community, Rural and Gaeltacht Affairs for access to the report of an investigation into allegations made by the requester against the Chief Executive Officer of Waterways Ireland - whether such release could reasonably be expected to affect adversely matters relating to Northern Ireland - section 24(1)(d) - whether such release contained information communicated in confidence to any person in or outside the State from any person in or outside the Sate and relating to a matter relating to Northern Ireland and expressed by the latter person to be confidential or to be communicated in confidence - section 24(2)(d) - whether such release would amount to a breach of a duty of confidence - section 26(1)(b) - whether such release would involve the disclosure of personal information - section 28(1) - whether the public interest was better served by the release of any personal information rather than by it being withheld - section 28(5)(a) - whether such release could reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, etc conducted by or on behalf of the Department or the procedures or methods employed for the conduct thereof - section 21(1)(a).
The requester made a number of allegations against the Chief Executive Officer (CEO) of Waterways Ireland, as well as some other staff members of that organisation. The allegations against the Chief Executive were then investigated by two former civil servants appointed by the sponsor Departments of Waterways Ireland - the NI Department of Culture, Arts and Leisure (DCAL) and the Department of Community, Rural and Gaeltacht Affairs (the Department). Some of the allegations were upheld; others were not. DCAL and the Department subsequently issued a press statement outlining the allegations and the findings thereon. The requester then sought access to a report of the investigation as held by the Department. The Department refused access to the report on the basis that it was exempt under sections 24, 26, 28 and 21 of the FOI Act.
The Commissioner did not accept that section 24 applied to the report.
In considering section 26, the Commissioner noted that, although Waterways Ireland is a public sector organisation, it is not listed in the First Schedule to the FOI Act, and therefore is not covered by the FOI Act. She found that, accordingly, it was possible for the investigators to owe a duty of confidence to all those members of staff within Waterways Ireland whom it had interviewed in relation to the allegations. She found the contributions of all staff members to be exempt under section 26(1)(b).
In considering section 28, the Commissioner found that any references to individuals, as contained in the press statement issued by the Department and DCAL, no longer met the definition of personal information for the purposes of the FOI Act and thus, such information was not exempt under section 28(1). She found that references to individuals in the report, that went beyond what was contained in the press statement, to amount to the personal information of those individuals and that such references were exempt under section 28(1). Such personal information included references to allegations made against individuals other than the CEO - those allegations were not the subject of the investigation or, therefore, the report at issue.
Having considered the public interest of section 28(5)(a), she found that the personal information should be withheld. The Commissioner commented that she had considered if the right to privacy of the Chief Executive should be breached in the public interest, in the particular context of that person having overall responsibility for the general culture and ethos of the organisation. She ultimately decided that the issuing by the sponsor departments of the press release meant that such action would not be warranted in this case but said that the release of such personal information may be an issue for another case.
The Commissioner was not satisfied that section 21 applied to the remainder of the report and directed that the those elements she had not found to be exempt under sections 26 or 28 be released.
Our Reference: 050338
Dear Mr. X
I refer to your application to this Office under the Freedom of Information Act, 1997 (the FOI Act) for a review of the decision of the Department of Community, Rural and Gaeltacht Affairs (the Department) on your request, the date on which appears to contain a typographical error. The letter was dated 14 April 2004 but it was actually was submitted in April 2005.
Your request sought a copy of the report of the "Investigation into Complaints made by [name deleted] against the Chief Executive of Waterways Ireland" (the report) which was completed in November 2004. You also sought copies of any earlier versions or drafts of the report that the Department held. The Department decided, on 18 May 2005, to withhold the final investigation report on the grounds that sections 24 and 26 of the FOI Act applied to it. It said that it held no earlier drafts of this report that might exist.
On 15 June 2005, you sought an internal review of that decision, which the Department upheld on 26 July 2005. On 2 November 2005, you made your appeal to this Office.
In conducting my review, I have had regard to correspondence between yourself and Ms Anne Moran of this Office, correspondence between Ms Moran and the Department, as well as to correspondence between Ms Moran and a number of other parties referred to in the report. Finally, in making my decision, I have considered the provisions of the FOI Act (as amended by the Freedom of Information (Amendment) Act, 2003). Accordingly, all references in this letter to particular sections of the FOI Act, except where otherwise stated, refer to the FOI Act, 1997 as amended.
Firstly, I note that you have not taken issue with the Department's statement that it holds no earlier drafts of the report. I take it that you accept the Department's position on this and, accordingly, my review has not addressed this issue.
The report is a 60 page document, containing 140 paragraphs. I understand that it resulted from an investigation by two retired civil servants, appointed by the Department of Culture, Arts and Leisure of Northern Ireland (DCAL) and the Department, who conducted their work independently of both departments, and to which they presented their report in November 2004.
Some of the report has been released to you by DCAL under UK Data Protection Legislation. I note, from your letter to this Office dated 31 January 2006, that you agree to this Office eliminating from the review those elements of the report that have been made available to you by DCAL so long as this "does not preclude the release of the entire report in the ROI under Freedom of Information". I am taking it that you are limiting the scope of my review to those parts of the report that are not already in your possession. Therefore, I have proceeded on the basis that those paragraphs of the report, released to you by DCAL, are outside the scope of my review.
Before I go further, I think I should explain my approach to the granting of access to parts of records. Section 2 of the Act defines "record" as including "anything that is a part or a copy" of a record. Section 13(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed, where it is practicable to do so.
However, section 13(2) provides that subsection (1) shall not apply in relation to a record if the copy provided for thereby would be misleading. In the light of the approach set out in the following paragraph, I have decided that section 13(1) applies in this case but that 13(2) does not.
In this case, as you will see subsequently throughout this letter, I have found that some paragraphs of the report contain information that is:-
In some instances, various combinations of the above findings apply to particular sentences. Given this level of detail and complexity in considering proper application of the exemption provisions of the FOI Act, I have decided in this instance to set out the detail of what is and what is not exempt in a Schedule attached to this decision. The rationale leading to the decisions summarised in the Schedule is set out in the body of this letter.
I would like to stress, however, that this approach is because of the particular circumstances of this case, and in deciding not to apply section 13(2) and to Schedule the details of the decision, I am neither committing nor confining myself to taking a similar approach in future cases
The portions of the report that are, therefore, excluded from my review are set out in column one of the Schedule to this Decision. However, I wish to draw your attention to page 47 of the report, which contains paragraphs 107, 108, 109 and 110. This page appeared to have been released to you in full by DCAL. However, I note further text in paragraph 109 of the report as held by the Department, compared to that in paragraph 109 in the report as held by DCAL (the redacted copy of which both yourself and the Department have supplied me with). My Office has made enquiries of the Department and I am satisfied that, notwithstanding this discrepancy, the Department holds no other versions of the report. Thus, the text in paragraph 109 in the report as held by the Department (and which was not released to you by DCAL), will be covered by the scope of my review, and will be referred to as paragraph 109.
My review is concerned with the sole issue of whether or not the Department's refusal of those elements of the report not already in your possession is in accordance with the FOI Act. It is not part of my role to comment on any aspect of the investigation into the complaints you made. The portions of the report covered by the scope of my review are set out in column two of the Schedule to this Decision.
Secondly, I note that the report supplied to this Office refers to a number of appendices that were not attached to it. When Ms Moran queried this with the Department, she was told that it had received a copy of the report from the Southern-based Investigator, without the appendices concerned. The Department states that, while the appendices were available in the DCAL, they were not "at the time, nor have they since become, part of the record comprising the investigator's report in the possession of this Department". It said, however, that a number of the documents referred to as appendices are in the possession of the Department as records in their own right received at the time of their creation/issue".
The documents that are in the possession of the Department are referred to in the report as Appendices 1, 2, 3, 4, 8, 9, 10, 11, 12 and 19. I consider such documents to be covered by the scope of your request, and thus by my review. I have also presumed that you do not wish for access to those Appendices that are copies of letters you had submitted to either the Department or DCAL (i.e. Appendices 1, 3 and 4). Thus, along with those paragraphs of the report which I have set out in the Schedule to this Decision as being covered by the scope of my review, the review will also encompass:
Appendices 2, 8, 9, 10, 11, 12 and 19.
Firstly, I note that you say that you were previously told that the report would be released to you. Whether or not it was proposed at any stage that the report be released to you (outside of the terms of the FOI Act) is irrelevant to my consideration of whether or not the provisions of the FOI Act apply to it or to the Appendices.
While the FOI Act requires me to give reasons for my decisions, it also provides that I take steps not to reveal, in the course of a review, information as contained in a withheld record, so as to preserve the rights of appeal of other parties. Thus, the description I can give of the withheld paragraphs of the report, and the Appendices, are somewhat limited.
The Department's decision making process relied on sections 24 and 26 of the FOI Act in refusing you access to the remainder of the report. In correspondence with this Office, the Department relied on these provisions, as well as on sections 21 and 28 of the FOI Act. By extension, I take it that it contends that these four provisions also apply to the Appendices. The third parties with whom I consulted in the course of my review (in relation to the public interest in the release of their personal information) suggested that release of the report could affect the fairness of civil proceedings in a tribunal and that section 23(1)(a)(iv) of the FOI Act was also applicable. My Office asked the Department for its views on the possible application of this provision. However, the Department did not provide such a view. Having regard to section 34(12)(b) of the FOI Act, I find that, as the Department did not justify, or attempt to justify, the application of section 23(1)(a)(iv), I need not consider the application of this provision further.
While sections 21, 26 and 28 may be applicable to portions of the report and/or the Appendices, I consider that none of them are applicable to the records as a whole. The Department argues that the report is exempt in its entirety under section 24, however. As section 24 does not require the consideration of the public interest, should this provision apply to the report, the remaining exemptions referred to above are not required to be considered. Accordingly, I will deal with the application of this provision first.
Section 24(1)(d) provides that:
"A head may refuse to grant a request....if in the opinion of the head, access to it could reasonably be expected to affect adversely."
(d) matters relating to Northern Ireland
Section 24(2)(d) provides that:
"A head shall refuse to grant a request if the record contains information communicated in confidence to any person in or outside the State form any person in or outside the State and relating to a matter referred to in subsection (1) or to the protection of human rights and expressed by the latter person to be confidential or to be communicated in confidence."
Section 24 does not require the consideration of the public interest.
While the Department contends that section 24(1)(d) applies to the report, it should be noted that this is a discretionary exemption. It follows that, even if section 24(1)(d) applies to the report, this Office must be satisfied that the Department was justified in exercising its discretion to refuse to release the record.
Firstly, in order for me to accept that section 24(1)(d) applies, the Department must demonstrate that release of such a report could reasonably be expected to affect adversely (my emphasis) matters relating to Northern Ireland.
The Department draws my attention to the fact that Waterways Ireland is one of the all-island Implementation Bodies established under the British-Irish Agreement Act 1999. It contends that the release of any sensitive records pertaining to Implementation Bodies, or their activities, or to the interaction between Departments North and South in regard to the Implementation Bodies, would be likely to have an adverse impact on their successful operation and, by extension, on matters relating to Northern Ireland.
I do not accept that all records held by the Department pertaining to Waterways Ireland warrant protection, merely because it is an all-island Implementation Body. The report is focused on matters internal to Waterways Ireland and it does not touch on any activities with which Waterways Ireland might be charged under the British-Irish agreement. It is a matter of public record that the report was jointly commissioned by DCAL and the Department, which, on conclusion of the investigation leading to the production of the report, issued a joint press statement summarising the investigator's main conclusions on the allegations made. Accordingly, I cannot see how release of the report under FOI could further reveal the nature, or level of interactions, between the two departments in relation to Waterways Ireland.
The Department has drawn my attention to "ongoing divisive public debate" in Northern Ireland about both the subject matter of the report and wider associated issues in relation to Waterways Ireland. I accept that there has been much media and political comment about the investigation the subject of the report. While I understand that portions of the report concerning two of the allegations you had made were withheld from you under the Data Protection legislation in Northern Ireland, the press statement concerning the investigation and its findings was issued by the Department and DCAL on 4 April 2005, which listed each of the allegations you had made and set out the conclusions arrived at in respect of those allegations.
Ms Moran asked the Department to explain how, in the light of what is known about the investigation, the release to you of the report could be reasonably expected to have an adverse impact on matters relating to Northern Ireland. She suggested that release of the report might serve to dampen public speculation about the investigation, and increase public confidence in Waterways Ireland.
The Department replied that it is not open to this Office to speculate as to the relative damage of withholding, versus releasing, records. It contends that the nature and scale of the potential adverse impact is not specified in law and that it is not open to this Office to impose a test as to the nature and scale of that impact. It says that, having regard to the way in which the matter has been played out to date in the public arena, release of the report would not counter public speculation and that it would be used selectively to further damage Waterways Ireland and the North South co-operation process. It says that this view is shared by its counterparts in DCAL, which has apparently indicated that release of the report would be most unhelpful to working relationships with the Department.
Having considered the Department's views, I note that most of the detail contained in the report (that was not also contained in the press statement) or in the Appendices can be said, in general terms, to illustrate how the investigators formed their publicly known conclusions on the publicly known allegations. It is not clear to me how the release of the material concerned could be reasonably expected to have an impact on matters relating to Northern Ireland, much less have an adverse impact on such matters.
Furthermore, I also consider that, in so far as it might be possible for any information in the report to be used selectively to further damage Waterways Ireland and the North South co-operation process, it would be within the remit of Waterways Ireland or the sponsoring Departments to counter any such selective commentary that might materialise.
Finally, the Department contends that to release the confidential and sensitive information shared between it and DCAL "could undermine the trust and confidence that exists between Departments, North and South, regarding information that [they] chose to share with one another on the premise that [such information, presumably] will be adequately protected from disclosure." It suggests that this would damage the relationship between the Department and DCAL, and in turn have "adverse implications for the implementation of Government policy in relation to Northern Ireland."
I cannot accept that proper working relationships between two civil service bodies are dependant on confidentiality applying to whatever information they must share in order to perform their statutory functions. In any event, the information that was shared here was information compiled by two investigators who were requested to do so by both Departments. This is an entirely different proposition to one Department in either jurisdiction providing information to the other that the receiving department would not have had in its possession under normal circumstances. (This latter comment is not to be taken as a blanket acceptance that confidentiality would apply to the sharing of such information, however).
Having regard to the report, to the Department's arguments, and to section 34(12)(b) of the FOI Act, I am not satisfied that the Department has justified its application of section 24(1)(d) to it. Accordingly, I cannot accept the Department's reliance on this provision, and for the same reasons, I also find the appendices not to be exempt under this provision of the FOI Act.
The Department also contends that section 24(2)(d) applies, which is a mandatory exemption. Given that the report deals with matters internal to Waterways Ireland, I find that it cannot be described as directly "relating to a matter referred to in subsection (1)", specifically, "matters relating to Northern Ireland", nor has it been shown to my satisfaction that its release could reasonably be expected to have an indirect adverse effect on matters relating to Northern Ireland. I find therefore, that section 24(2)(d) does not apply to the report.
Accordingly, the other provisions relied on by the Department must now be considered. Please note that any reference in the remainder of this letter to a "paragraph" includes references to any such paragraph that may already have been partially withheld from you.
Section 26(1)(a) provides that a record shall not be released pursuant to the FOI Act where record containing the information was:
Section 26(1)(b) provides that a request for access to a record shall be refused "if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment ...or otherwise by law". That duty of confidence must be owed by the public body concerned to a person other than to any member of its staff, and in order for an equitable duty of confidence to exist, this Office considers that three conditions must be met, viz.
Section 26(2) provides that:
" [s]ubsection (1) shall not apply to a record which is prepared by a head or any other person (being a director, or member of the staff of, a public body or a person who is providing a service for a public body under a contract for services) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than a public body or head or a director, or member of the staff of, a public body or a person who is providing or provided a service for a public body under a contract for services."
Section 26(3) requires that the public interest must be considered where section 26(1)(a) has been found to apply to a record i.e. whether the public interest would on balance be better served by granting than by refusing the request. Section 26(1)(b), however, does not require the consideration of the public interest - therefore, should a record be found to be exempt under that provision, it cannot fall to be released.
As you will have noted, section 26(2), which I have set out above, provides that a duty of confidence cannot be owed to a member of staff of a public body. The FOI Act requires that the phrase "public body" shall be construed in accordance with the First Schedule, which lists the bodies subject to the FOI Act. However, although Waterways Ireland is a public sector organisation, it is not listed in the First Schedule, and is not covered by the FOI Act. Thus I must construe section 26(2) in accordance with this definition and accept that Waterways Ireland is not a public body for the purposes of the FOI Act. Thus, it is possible for the investigators to owe a duty of confidence to the staff members of Waterways Ireland. I must now determine whether or not such a duty exists in this case.
I consider that the release to you of information concerning the allegations made by you would not amount to a breach of any duty of confidence that might be owed to you as the person who made the allegations, nor do I accept that such release would be likely to prevent you from providing similar information in future. Thus, I do not accept that section 26 applies in relation to any information you provided when making the allegations, or in the course of the investigation itself. (Of course, such information may be exempt under section 28 of the FOI Act, with which I deal later in this letter).
Although the Department's submission of 17 January 2006 relied explicitly on section 26(1)(a) of the FOI Act, subsequent correspondence subsequently simply referred to section 26(1), and to duties of confidence. It says that it regards the investigators appointed to assess your claims as de facto representing it as a public body and has clarified that it contends section 26 applies to the material that the investigators received from third parties. Thus, it contends that there exists a "relationship and duty of confidence", between the investigators and the parties concerned.
Given these comments, it seems to me that this is a claim that section 26(1)(b), in particular, applies to information provided by the third parties to the investigators. Some of the persons who gave the information are clearly identifiable. While there is also information provided by unnamed individuals, I am satisfied that, given the relatively small size of Waterways Ireland, it could be possible to identify the persons concerned. Thus, I consider that should a duty of confidence be owed to the persons concerned, an action for breach of duty of confidence could in turn arise by the release of the information in these paragraphs.
In respect of the first test that must be met in order for section 26(1)(b) to apply, I accept that the information at issue -which contains the responses of third parties to particular comments and allegations you had made about certain staff within Waterways Ireland - has the necessary quality of confidence about it.
In respect of the second test, the Department has not provided me with any documentary evidence that the investigators explicitly gave assurances of confidentiality to those it interviewed. However, the Department states that it understands "a commitment of confidentiality was given verbally by the investigators to each interviewee prior to their individual interview." The third parties with whom my Office consulted drew my attention to the Terms of Reference of the investigation, which, according to the report, state that "[t]he investigation will be conducted on a confidential basis and those interviewed must be informed that they are not to discuss the matter with any other person". The third parties also say that they were reminded of the confidential nature of the investigation in letters from the investigators appointed by the Departments.
I think it reasonable to expect that sponsors of an investigation into serious allegations, as in this case, would require that all appropriate procedural steps were taken to ensure that the investigation would be conducted in line with best practice. In this regard, the fact that the Department has not provided documentary evidence of the assurances of confidentiality is a failing of some concern.
However, in the circumstances, I accept that the investigators who conducted an investigation into your allegations, on behalf of DCAL and the Department, gave verbal assurances of confidentiality to the persons who provided it with information. Thus, I accept that the information was imparted in circumstances ultimately imposing an obligation of confidence on the Department.
However, your internal review application stated that there was "no understanding or guarantee that the report would not be made public." You said it had been made clear to you that "witnesses would have to stand over their evidence and that their evidence could well be referred back to the alleged offenders; and their identities become known." You also point out that you have already received what could be perceived to be the most sensitive sections of the report and that there could be no breach of confidence in making the remainder of the report known to you.
I accept your point that the Terms of Reference of the report do not mention whether or not such confidentiality applies once the investigation has concluded and the report issued. Again, I regard the absence of documentary evidence of such assurances of confidentiality as a failing on the Department's part in the way the investigation was conducted. However, the Department says that "the intention was at all times that witness would be afforded complete confidentiality before, during and after the investigation, and it was the reasonable expectation of witnesses that the information they supplied was inherently confidential and was imparted with an explicit commitment to confidence." Having considered the matter, I accept that, if the information was imparted in circumstances imposing an obligation of confidence in respect of that information, such an obligation would also exist after the investigation had concluded.
Thus, I consider that an obligation of confidence extends to those portions of the report containing the views and comments made to the Investigators by a number of parties other than yourself. I am also of the view that the release to you by DCAL of certain portions of the report does not negate any duty of confidence owed to any party in respect of the remainder of the report under the scope of this review. I find that the second test, required in order for section 26(1)(b) to apply, has been met.
In respect of the third test, I am satisfied that release of the information is not authorised by the persons who provided that information. The question remains as to whether or not release of the information would be to their detriment, however.
The Oxford English Dictionary defines the word "detriment" as being "[l]oss or damage done or caused to, or sustained by, any person or thing". It seems to me that the release to you of these records would reveal details provided by various persons in relation to allegations made by you and could well cause the persons concerned to be drawn into discussion or argument which might have the potential to become contentious.
You might argue that the fact that you have already read the report is relevant to my consideration of this issue. While it may be that release of a hard copy of the report might not reveal to you any details further to those you have already read, including the identities of particular witnesses, the fact remains that release of the report to you under FOI is akin to the release of the report to the world at large.
In a context in which a confider never expected that the precise nature of the information provided by them would be revealed, or (in the case of persons against whom no allegations were made but who provided information as witnesses) even the fact that they provided information to the investigators in relation to your allegations, I think it reasonable to assume that such discussion is likely to be unanticipated, unwelcome and thus detrimental. In the circumstances of this case, I consider that the unauthorised use of the information, provided in confidence to the investigators by the persons concerned, would be to those persons' detriment.
Accordingly, I find that the third test has been met and I find that section 26(1)(b) applies to those portions of the report that pertain to information provided by named and unnamed third parties to the investigators in the course of the investigation. The paragraphs of the report that contain such information are set out in column three of the Schedule to this Decision.
As the public interest is not required to be considered in respect of records to which section 26(1)(b) applies, I find these portions of the report to be exempt from release to you.
Section 28(1) of the FOI Act provides for the refusal of a request where to grant it would involve the disclosure of personal information about an individual other than the requester. Section 2 of the FOI Act defines personal information 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 also contains a lists of twelve specific types of information which, without prejudice to the generality of the foregoing, are regarded as personal including;
".... (iii) information relating to the employment or employment history of an individual, and .... ".
(iv) information relating to the individual in a record falling within section 6(6)(a),
(xii) the views or opinions of another person about the individual,
Section 2 specifies that the definition of personal information does not include
"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 which 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"
Furthermore, section 28(5)(a) requires the consideration of whether the public interest in releasing the record outweighs the public interest in protecting the rights to privacy of the individual concerned.
Some of the information concerning particular individuals in the report would, under normal circumstances, be classified as personal information. However, as already noted, the Department and DCAL issued a press statement concerning the allegations, the investigation and the conclusion of that investigation. Thus, it seems to me that any information about individuals, as contained in the press statement authorised by the two sponsor departments, cannot be classed as meeting the definition of section 2(a) or (b) of the FOI Act, as set out above. Accordingly, I cannot accept that such information is personal information for the purposes of the FOI Act or that it is exempt under section 28(1) of the FOI Act.
While your submissions have referred me to the content of a number of press articles, I feel that I must distinguish between information about individuals (that appears in records held by a public body and which meets the definition of section 2 of the FOI Act) that is in the public domain through, for example, media reports on court cases on the one hand, and such information that has been authorised by a public body to be released into the public domain by, for example, an authorised press statement, on the other hand. In the former case, I consider the information in the records held by the public body to remain held by it on the understanding that it remain confidential, until such time as the body might authorise the release of that information into the public domain (e.g. via a press release). Thus, I consider that information about individuals that is contained in the report, but that is also referred to in press articles, still meets the definition of personal information for the purposes of the FOI Act, unless its release has been authorised by virtue of a press statement issued by the sponsor bodies. Accordingly, such information remains exempt under section 28 of the FOI Act.
Accordingly, the information, referred to in column four of the Schedule to the Decision, goes beyond the level of detail that is contained in the press statement, and thus, I consider such information to be held by the Department on the understanding that it would be treated by it as confidential. I find the information to meet the definition of personal information as per section 2 of the FOI Act. Given that Waterways Ireland is not a public body, the exclusions to section 2 do not apply.
Accordingly, I consider that the information, set out in column four of the Schedule to this Decision, is exempt under section 28(1) or 28(5B) of the FOI Act. Some of that information would identify persons against whom you made allegations. While some of these excerpts do not mention particular persons by name, I am satisfied that the information therein can be inferred to be criticisms of a particular person or persons, the release of which would amount to the disclosure of personal information about that person or persons. I am also satisfied that the release of some of these references would reveal personal information about other parties, against whom you did not make any allegations. Thus, I am satisfied that, given the definition of personal information, the excerpts concerned contain the personal information of the various parties, and thus, are on the face of it, exempt under section 28(1). I also consider Appendix 19 to be exempt under section 28(1).
I note that some of the withheld excerpts refer to you and another party or parties. Where personal information of a number of people is so intertwined that it cannot be separated in order to release to one party his or her personal information, such is termed "joint personal information". Section 28(5B) provides for the refusal of a request for a record, where release would not only disclose the personal information of the requester, but would involve the disclosure of personal information of an individual other than the requester. I consider the information concerned - contained amongst the contents of paragraphs 48; 61; 81 and 82, as well as Appendices 2, 8; 9; 10; 11 and 12 - to be exempt under section 28(5B), accordingly.
There are a number of exceptions to both section 28(1) and section 28(5B) of the FOI Act, the only one of which I consider applicable to the current case being that at section 28(5)(b) - the public interest test - which requires me to consider whether the public interest is better served by the breach of the rights to privacy of the parties concerned than it would be by withholding such information from you.
You say that the vast bulk of the allegations are public interest issues and you have made a number of arguments that you say weigh in favour of the public interest in the release to you of the report. I do not propose to deal with each point made by you but I consider your position to be summarised as follows in points 1-6 as follows:
1. The public interest in ensuring the openness and transparency as to how the actual investigation was carried out and how the findings were arrived at.
One of the third parties with whom my Office consulted has made the point that there is no public interest in the release of information concerning the activities of a cross border body that is not subject to Irish or UK FOI Laws. I do not accept this point. While Waterways Ireland is not a body for the purposes of FOI, I note that it is subject to the FOI Code, which envisages the release of records pertaining to the activities of cross border bodies, subject to certain exemptions. This emphasises the fact that there is a public interest in bodies, which are funded through Exchequer monies, (whether by Ireland or the United Kingdom) being open and transparent as to how they conduct their business.
Your submissions say that particular allegations made by you were not included in the terms of reference of the report. You also say that some allegations referred to in the terms of reference were not mentioned in the report or joint press release, indicating that they were not investigated. You question the extent to which the investigation was thorough and detailed and you say that there are public interest questions about "how far back in time and where to (sic) cover up goes and how constrained and directed were the investigators in their investigation".
Firstly, it is not part of my role as Information Commissioner to assess whether or not the investigation into your complaints should have been wider ranging than it was. It seems to me, therefore, that the points you have made concerning the scope and adequacy of the investigation are not relevant to my consideration of the public interest.
I consider there to be a public interest in public service bodies being open and transparent as to how particular tasks were conducted. In this case, the press release issued by the sponsoring Departments sets out the allegations that were investigated - which I consider adequately serves the public interest in openness as to what matters within Waterways Ireland were investigated.
The press release also sets out, in brief, the findings into the matters that were investigated. I accept that the release to you of the information in the records to which I have found section 28 applies would, to a limited extent, give further insight as to how the findings were arrived at. However, it is fair to say that those elements of the report, to which I have found section 26(1)(b) to apply, would provide much more detail as to how the investigators arrived at their conclusions - but no potential release under the public interest arises in respect of such information.
In this case, you have read the report, and you participated in the investigation itself. Thus, you have had an opportunity to assess how the investigation was conducted. In my view, the public interest in openness as to how the investigation was carried out has been served adequately, accordingly.
2. The public interest in ensuring that the sponsor Departments are accountable for the extent to which the recommendations made are acted upon
You say that the report contains recommendations that should have been acted upon by DCAL and the Department, over and above actions reported in the Joint Press Statement of 4 Aril 2005. You say that the Departments have failed to carry out those actions, which they want to keep secret, and that revelation of this would impact on the relationship between the sponsor Departments.
I accept that there is a public interest in public service bodies being accountable as to the extent to which they have implemented recommendations for improvement in particular areas. However, I am not satisfied, from my reading of the report, that it contains any recommended actions further to those contained in the press release. It follows that I am not satisfied that the release of the personal information at issue would reveal further such recommendations, and thus it could be argued that your argument is irrelevant to the consideration of the public interest in the release of the personal information at issue. In any event, I consider that the issuing of the press release has satisfied the public interest in ensuring that the sponsor Departments or Waterways Ireland can be held accountable for any actions they took or did not take, as the case might be.
3. The public interest in ensuring accountability for the expenditure of public funds on the investigation
I accept that there is a public interest in ensuring accountability for monies spent on investigations such as this. However, the report does not contain details of any such monies spent in investigating the allegations concerned.
This public interest argument, in my view, is valid in this case only to the extent that revelation of the personal information can be said to serve the public interest in ensuring openness as to how the investigation was conducted. In turn, an informed decision could be made as to the value for that expenditure on that investigation. I have already addressed the issue of the public interest in ensuring openness as to how the investigation was conducted under 1. above. Thus, I consider that any public interest in ensuring accountability for the expenditure of public funds, that might be served (however tenuously) by the release of the withheld details in this case, has already been served adequately.
I also consider other comments you made, in respect of the use of public monies and gifts, not to be relevant considerations in this case.
4. The public interest in ensuring openness and transparency in relation to the appointment practices dealt with in the report, which I consider to be linked to your argument that there is a public interest in the release of all details of the findings made by the investigators on foot of your claims.
I accept that there is a public interest in bodies such as Waterways Ireland being open and transparent as to how they recruit staff, and in showing that they comply with best practice in this regard.
You say that the findings in respect of the appointment practices are particularly relevant, given concerns recently highlighted in respect of the imbalance in the number of former Northern Ireland Civil Service staff compared with staff from the South remaining in Waterways Ireland; in respect of the religious composition of the workforce in Northern Ireland and in respect of claims of sectarianism in Waterways Ireland. You have drawn my attention to recent newspaper articles concerning a fair employment tribunal case taken in respect of how the post of Director of Marketing and Communication was filled.
However, it seems to me that the press release has made it clear that Waterways Ireland was found to be lacking in respect of certain appointment processes, including that of the Director of Marketing and Communications, and why this was the case. I consider that the public interest in release of the personal information at issue here has been reduced, accordingly.
While I accept that the press release merely comments that other allegations made by you were not upheld by the investigators and does not elaborate on why this was the case, I am satisfied that the public interest in openness and transparency has been served by the revelation of the allegations concerned and the findings of the investigators, however briefly they might be set out.
You comment on the manner in which your injury benefit claim was handled and say that you feel that "if one of the Sponsor Departments has been prepared to mislead and cover-up in relation to one issue of this Waterways Ireland matter to avoid the true situation being unveiled, then it may be well doing the same in relation to other public interest issues within the report". You say that the press release issued by the sponsor Departments is misleading and refer me to paragraph 140 (released to you by DCAL), which you say paints a different picture of the overall findings than would the partial release of the report, or than does the joint press release. You say that accurate findings should be disclosed for the appropriate follow on questions to be asked.
I do not consider paragraph 140 to paint a radically different picture of the overall findings to the press release or to the partially released report. In my view, both paragraph 140 and the press release accurately reflect the gist of the findings detailed throughout the report. Thus, I do not consider these particular comments to be relevant to my consideration of the public interest.
5. Ensuring the viability of the North South Bodies and the Good Friday Agreement.
You say that failure to disclose the information at issue will undermine the activity of the North South Bodies and the Good Friday agreement, in that "[r]efusal to disclose is working against the objectives of enhancing respect for the law and promoting good government and good administration, North and South. Adverse effects upon Government policy in relation to Northern Ireland are therefore increasingly due to non-disclosure and are resulting in growing distrust between North and South - the very opposite of the objectives of the Good Friday Agreement and the North South process as a central strand in it - to promote mutual understanding, trust and reconciliation." You also say that there has previously been verification of the existence of serious underlying management, governance and accountability failures.
I accept the public interest in ensuring the viability of the North South Bodies and the Good Friday Agreement to be relevant in this case. However, I consider the fact that details of the investigation, the investigators' findings, and their concerns have been made public serves adequately the public interest in openness as to how North South Bodies are managed, and thus the public interest in ensuring their viability and that of the Good Friday Agreement.
6. The public interest in rectifying the public perception that you have made spurious complaints and in ensuring your ability to take any necessary action
Section 8(4) of the FOI Act provides that:
"Subject to the provisions of this Act, in deciding whether to grant or to refuse to grant a request under section 7_
(a) any reason that the requester gives for the request, and
(b) any belief or opinion of the head as to what are the reasons of the requester for the request,
shall be disregarded."
While it is clear from your submissions that you are very anxious to have access to the records in question, it is equally clear that, in general, section 8(4) does not allow me to have regard to the reasons why you are seeking these records. This particular public interest argument is linked to particular reasons for your wanting access to the records in question. The motivation, or perceived motivation, of a requester may be linked to very specific circumstances and, in some cases, these specific circumstances may inform the application of a public interest test. Where this is the case, it is important to be clear that such specific circumstances are relevant only to the extent that they exemplify a matter which serves the public interest. By definition, something which serves the public interest is a matter of general application and not solely something which serves the interests of an individual or of a small group. However, what serves the interests of an individual or of a small group may also serve the public interest.
You have referred me to paragraph 133 (which concerns the treatment of staff who worked for you) which you say confirms that bullying was not confined to yourself. Although this paragraph comments on the treatment by management of staff who worked for you, it is not clear to me that it actually confirms that such treatment constituted bullying. Accordingly, I do not consider this to be a valid public interest argument in the context of the potential release of the information listed above.
In any event, it is not clear to me that the release of the withheld details would have any impact on any perception that may exist in relation to the allegations you made. It is clear from the press release that some of the claims made by you have been upheld and thus, I consider that it cannot be reasonably said that you have made spurious complaints.
I am mindful of the fact that there is nothing in the FOI Act which qualifies or restricts the use by requesters of information released to them under the FOI Act. This contrasts with the position where records are provided on foot of a court order for discovery, where restrictions are placed on any use to which the documents may be put. This reflects a public interest in protecting the privacy of the persons involved. However, there is no restriction or qualification on the dissemination of information released under FOI. Thus, release of information to a particular requester is not qualified and any further use made of the information released cannot be restricted.
I note that you say that you may not be able to seek access to the report under discovery for the purposes of an Industrial Tribunal. While I accept that there is a public interest in enabling citizens to take actions against governmental entities where they consider it necessary, it seems to me that there must be alternative mechanisms by which a tribunal can acquire all information of relevance to its considerations. Therefore, I consider the possibility that you might not be able to seek discovery of the report to be an irrelevant factor to my consideration of the public interest.
7. The public interest in protecting rights to privacy
The countering public interest to the release of the information to you, as set out specifically in section 28(5)(a) of the FOI Act, is that of the protection of the rights to privacy of the persons whose personal information would be revealed. It is clear that the protection of personal information provided at section 28 of the FOI Act reflects the Constitutionally recognised right to privacy. The right to privacy, to the extent that it is recognised in the Constitution, is not absolute. However, it seems reasonable to believe that the extent to which this right must be recognised is, to some extent, governed by the nature of the material whose release would result in a breach of privacy. In the present case, the records at issue constitute sensitive personal information the release of which would constitute a significant breach of the rights to privacy of the parties concerned.
You might argue that any personal information in the report has already been released to you by virtue of your reading the report. However, the excerpts of the report at issue here contain substantial detail about the parties concerned and I must consider release under FOI to be akin to release to the world at large. I am satisfied that, if an actual hard copy of the report was for any reason (including purely by accident) to become accessible to other parties, a serious invasion of the rights to privacy of those referred to therein would occur. I consider this to be a very strong public interest argument in favour of not releasing those parts of the report to you that contain the personal information of individuals other than yourself.
Furthermore, it is arguable that release of the personal information at issue here, without the context of the information to which section 26(1)(b) applies, would be incomplete, thus weighing further in respect of the protection of the rights to privacy of the persons concerned. This is because it would place information relating to allegations about named individuals in the public domain, while comments made by these individuals in their defence of the allegations have been withheld under a provision (section 26(1)(b)) that does not provide for release on public interest grounds.
It should be noted that I considered if the right to privacy of the Chief Executive should be breached in the public interest, in the particular context of that person having overall responsibility for the general culture and ethos of the organisation. I ultimately decided that the issuing by the sponsor departments of the press release meant that such action would not be warranted in this case. Release of such personal information may, however, be an issue for another case.
I acknowledge that your submissions contain elements which constitute valid public interest arguments in support of granting your request. However, a relevant factor to my consideration of the public interest is the fact that the sponsoring departments have made details of the investigation, and its outcome, publicly known via the press release of 4 April 2005.
In the light of this, my overall finding is that the cumulative impact of the public interest arguments raised by you is not such as to displace the very strong public interest served by the protection of the privacy rights of the third parties concerned. On this basis, I find that the public interest in granting your request does not outweigh the public interest in upholding the rights to privacy of the parties concerned. Accordingly, I find that those records, to which I have found section 28(1) or 28(5B) applies and as set out in column four of the Schedule to this Decision, to be exempt from release to you.
The Department, in its submission to my Office of 3 February 2006, also claimed that what it referred to as "section 21(a)" applies to the contents of the report. It says that it is of importance that "further similar information would continue to be provided in the future in terms of undermining the effectiveness of any other similar investigation that might be required to be carried out".
I take the Department's reference to section 21(a) as being a reference to section 21(1)(a) of the FOI Act, which provides that a head may refuse to grant a request if the release of the requested record could reasonably be expected to "prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof."
Firstly, I do not accept that the release of the report could reasonably be expected to have any effect on a concluded investigation. However, the Department argues that access to the report could reasonably be expected to prejudice the effectiveness of future investigations conducted by or on behalf of any North-South body. It contends that it would be impossible for the Department or agents acting on its behalf to conduct an investigation, or to appeal for witnesses or alleged witnesses to come forward, if it was unable to guarantee that the confidentiality of the process would be maintained.
It seems to me that the Department's concerns (and its case for reliance on section 21(1)(a)) have been largely addressed by the facts that I have found all information provided to the investigators in this case to be exempt under section 26(1)(b), and that I have found much of the remaining information to be exempt under section 28 of the FOI Act.
I do not accept that the release of the remaining information - the details of the allegations, the conclusions on those allegations, and the comments by the investigators on the allegations or on how they conducted their work - could be reasonably expected to have any impact on future investigations that might be conducted by, or on behalf of, Waterways Ireland. The press release has already set out the nature of the allegations and the conclusions that the investigators arrived at. Furthermore, I am not satisfied that the release of the comments of the investigators on the allegations, or on how they carried out their work, could have any impact on future similar investigations. I would also add that I do not consider the release under FOI, of that information about individuals that I consider not to be exempt under section 28, could be reasonably expected to have any impact on future similar investigations, given that the sponsor Departments saw fit to release that information into the public domain via a joint press statement.
In summary, I find that section 21 does not apply to the remainder of the report and, accordingly, there is no need for me to consider the public interest in respect of those elements of it. I direct that such elements of the report be released to you, as set out in column five of the Schedule to this Decision.
Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby vary the decision of the Department in this case. I direct that those elements of the report as referenced in column five of the schedule to this Decision be released to you. I direct that the remainder of the report, and the Appendices to that report, be withheld from you.
For avoidance of doubt, I have provided the Department with a copy of the report, highlighted upon which are those elements of the report that were under the scope of this review; those elements that I found to be exempt under section 26s and 28; and those elements, not exempt under sections 26 or 28 that should be released to you. This copy is not for direct release to you, and I would expect the Department to prepare a copy of the report for release to you, with those elements that I have found to be exempt excised in a suitable manner.
A party to a review, or any other person affected by a decision of the Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such a review must be initiated not later than eight weeks from the date of this letter.