Case number: 060130
Access to an Investigation Report under the Council's Grievance and Disciplinary Procedures requested by the person who had been the subject of the investigation. WIth the exception of the personal information of individuals which was found to be exempt under section 28(1) of the FOI Act, the Office directed that the requested access be granted.
Whether the Council is justified, under sections 21(1)(a) and 26(1)(a) of the FOI Act, in its decision to refuse access to certain records - pages 23 to 28 of an Investigation Report of a Complaint under the Council's Grievance and Disciplinary Procedure - which related to the Applicant.
Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, Office of the Information Commissioner (authorised by the Information Commissioner ("the Commissioner") to conduct this review).
Having carried out a review under section 34(2) of the FOI Act, the Senior Investigator found that, with the exception of a small amount of information which constitutes the personal information of staff involved, the Council is not justified in its refusal of access to the records at issue. She annulled the decision of the Council and directed it to grant access to the records in question with the exception of the personal information of other individuals found to be exempt under section 28. (1) of the FOI Act. This means that the Council has been directed to grant access to the applicant (the subject of the complaint) to an Investigation Report of a Complaint under the Council's Grievance and Disciplinary Procedure. :
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. Any such appeal must be initiated not later than eight weeks from the date of this decision.:
The Applicant requested access to the report on the Investigation of a Complaint under South Dublin County Council's Grievance and Disciplinary Procedure on 22 September 2005. The Council assigned reference number FOI/0042/05 to the Applicant FOI request. The Council, citing the section 26 exemption, refused that request on 19 October 2005. Impact Trade Union, acting on the Applicant behalf, applied for an internal review of that decision on 2 November 2005. The Council upheld its original decision following internal review and advised Impact Trade Union accordingly on 24 November 2005. The application to this Office for a review of the Council's decision was received on 18 April 2006.
In conducting this review, I have had regard to the following:
The 'record' originally requested by the Applicant is the report submitted by Mr XY, Human Resources Consultant to the County Council in August 2005. That report is made up of several sections, some of which, the Council contends, have already been released to the Applicant by virtue of their having been incorporated in correspondence already issued to the Applicant. I have established that the Council's letter, dated 5 September 2005, included the following extracts from the report:
Three paragraphs from the chapter headed "Introduction"
The chapter headed "The Investigation Process - Methodology"
The chapter headed "Summary of the Allegation made by Mr. XZ"
The chapter headed "Investigation Process"
The chapter headed "Conclusion".
On the information available to me, 1 to 5 above is the full extent of the sections of the report which have already been made available to the Applicant outside the FOI process in the form of extracts contained in the Council's letter dated 5 September 2005.
This review is concerned with the sole issue of whether the Council's refusal to grant the Applicant access to the report in question is justified for the reason given, i.e. that the information was obtained in confidence and is therefore exempt from disclosure under section 26(1)(a) of the FOI Act. In its submissions to this Office, having agreed to grant the Applicant access to certain information, the Council has also cited section 21(1)(a) in support of its decision to refuse access to the remaining withheld parts of that information (contained on pages 23 (part) to 28 of that report). Therefore, this review will also deal with the application of section 21(1)(a) of the FOI Act.
Following correspondence between Marie O'Brien, Investigator at this Office and the Council, the Council has confirmed that, with the exception of certain information contained between pages 23 and 28, it will release the full report to the Applicant. Therefore, the only portion of the report which remains at issue is that contained on pages 23 (part), 24, 25, 26, 27 and 28. The Council's revised position is that the decision to refuse access to the information contained between pages 23 and 28 of the report is exempted by
For purposes of this decision, I will refer to the outstanding pages of the report as the "records at issue".
I should explain at the outset that section 34(12)(b) of the FOI Act provides that a decision to refuse to grant a request for access to records shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified. The underlying presumption of the FOI Act is that requests for access to records will be granted, subject only to prescribed exemptions.
For the avoidance of doubt, I should say that the Commissioner does not have any role in examining how the Council dealt with the matter which was the subject of the record requested. Additionally, the FOI Act at section 8(4), specifically prohibits a decision maker, "[s]ubject to the provisions of this Act", from having regard to any reason the Applicant may have had for making request for access to the record in question.
I should also point out that, while the Commissioner is required, by section 34(10) of the FOI Act, 1997, to give reasons for her decisions, this is subject to the requirement of section 43 that she must take all reasonable precautions to prevent disclosure of information contained in an exempt record, or a record claimed to be exempt, during the course of a review. In the current circumstances, in order to preserve the rights of all parties under section 42 of the FOI Act to exercise their right of appeal to the High Court, and without prejudice to the decision I will give, this means that the extent of the explanation that I can give with regard to the content of the records at issue is limited.
Section 26 of the FOI Act protects information given in confidence from disclosure in certain circumstances. Section 26 identifies two distinctive scenarios where information may be regarded as having been given in confidence and thus, exempt from disclosure under the FOI Act.
Section 26(1)(a) provides that a request for access to a record shall be refused if
"the record concerned contains information given to the public body concerned in confidence and on the understanding that it would be treated by it as confidential (including such information as aforesaid that a person was required by law, or could have been required by the body pursuant to law, to give to the body) and, in the opinion of the head, its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information as aforesaid should continue to be given to the body, ...."
Section 26(1)(b) provides that a head shall refuse to grant a request for access to information 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 (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that schedule) or otherwise by law."
Under section 26(2), the confidentiality exemption generally does not apply to a record prepared by a staff member 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(2) refers]. The Commissioner's application of this limiting of the use of section 26 has been set out in many previous decisions and was recently upheld by the High Court in The Health Service Executive v The Information Commissioner  IEHC 298. Clearly, the record at issue was prepared by a company providing a service to the Council under a contract for services. No evidence of a relevant confidentiality agreement has been presented, nor am I aware of any applicable statute providing for a duty of confidence in this case. Thus, section 26(1) cannot apply unless disclosure of the information concerned would constitute a breach of a duty of confidence that is owed to some other person who is neither a member of staff of the Council nor a contractor/consultant. No such person has been identified by the Council. I consider that section 26(2) applies in these circumstances.
In addition, although the Council's decisions failed to consider this fundamental qualification, the FOI Act makes it clear section 26(1)(a) does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request [section 26(3) refers].
Although it is not necessary for me to determine whether there is potential breach of a duty of confidence since the information at issue was provided by staff of a public body to a person providing a service to that public body under a contract for services, I would add that I see no basis for concluding that an equitable duty of confidence exists in the circumstances. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited  I.R 611). The tests require that: (1) the information has the necessary quality of confidence about it; (2) the information was imparted in circumstances imposing an obligation of confidence; (3) there is an unauthorised use of that information to the detriment of the party communicating it.
I have not found any evidence in the records at issue themselves to support the Council's claim that information was given to the investigator in confidence or on the understanding that it would be treated as confidential. Indeed, the following statement which appears in several places in the report would indicate to me that the participants in the investigation were not assured that the information would remain confidential vis a vis the Applicant:- "It was pointed out that .... this information .... would form part of the investigation report and as such it would be made available to both parties".
Given my findings that section 26(1) of the FOI Act does not apply, it is not necessary for me to consider whether, on balance, the public interest override provided for in section 26(3) should apply in this case.
In a submission to this Office dated 18 July 2008, the Council has added to its original decision, a contention that the granting of access to the records at issue would prejudice the effectiveness of examinations and investigations conducted by or on behalf of the Council. It says that release of the record would have an undermining effect on the confidential nature of the process whereby witnesses are relied upon to come forward and give evidence in relation to Grievance and Disciplinary cases. In this, the Council is therefore relying on section 21(1)(a) of the FOI Act to refuse access to the records at issue.
Section 21(1)(a) provides that:
"(1) A head may refuse to grant a request under section 7 if access to the record concerned could, in the opinion of the head, reasonably be expected to -
(a) prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of a public body or the procedures or methods employed for the conduct thereof,"
Where a section 21(1)(a) exemption is to be relied upon to refuse access to a record, it is necessary in the first instance to identify the potential harm to the functions covered by the exemption that might arise from the granting of access. Having identified that harm, it is then necessary to consider the reasonableness of any expectation that the harm will occur. The Council contends that granting access to the relevant portion of the record would have an undermining effect on the confidential nature of the process. For these purposes, it is sufficient for the Council to show that the granting of access could be reasonably expected to prejudice the effectiveness of future investigations and that these expectations are justifiable in the sense that there are adequate grounds for such expectations. It is not necessary to show that such an outcome would definitely occur.
I accept that seeking information for purposes of an investigation does constitute an inquiry of a type to which section 21(1)(a) might apply because it forms part of a process which, in this case the Council, undertook in order to deal with a particular complaint. However, the Council has not provided any information to support its assertion that future similar investigations would be harmed or that particular harm would flow from the release to a party to the investigation of the withheld parts of the report as opposed to those it has already agreed to release to him. Neither has it satisfied me that the participants had any expectation of confidence in regard to release to the parties of the information given by them. In the circumstances, having regard to the content of the withheld parts and to section 34(12) of the Act referred to above, I am not satisfied that the section 21(1)(a) exemption applies and I find accordingly.
The Council has not addressed the public interest element of section 21 [section 21(2) refers]. It is not, strictly speaking, necessary for me to do so either given my findings above. However, I would comment that the public interest in ensuring transparency and fair procedures in the methods and procedures used in investigations by public bodies is strong and must be given considerable weight in a context where allegations were made against an employee under a Grievance and Disciplinary Procedure.
Section 28(1) of the FOI Act, provides that, subject to certain exceptions which do not apply here, access to records shall be refused where release would involve the disclosure of personal information and where such information relates to individuals other than the requester. In the case of staff members of public bodies, the definition of "personal information" in section 2 of the Act, excludes information disclosing the name of the individual and the office he or she holds, the functions of that office, the terms on which it is held or anything recorded by an individual in the course of and for the purpose of the performance of his or her functions - [paragraph (I) of section 2 of the FOI Act].
I consider that most of the information to be released in the report (insofar as it relates to staff members) should be released as it does not qualify as their personal information. However, I consider that a small amount of information comes within the definition of personal information as contained in section 2 of the Act. Some of this information is "information relating to the individual in a record falling within section 6(6)(a)", that is, a personnel record. I consider that the public interest in upholding the right to privacy of the persons concerned would outweigh any public interest in the release of such information in this case.
I find, therefore, that the following parts of the records are exempt and I direct that they be deleted from the copy to be released:
Page 25 - last paragraph - line 2 and part of line 3 as far as "Accordingly...".
Page 28 - - last paragraph - part of line 1 after " work..." and first word of line 2.
Having carried out a review under section 34(2) of the FOI Act, I hereby annul the decision of the Council in so far as it relates to the records at issue (pages 23 to 28 of the report) and direct the Council to release to the Applicant. all of the report, subject only to deletion of the lines described above under section 28 of the FOI Act.
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. Any such appeal must be initiated not later than eight weeks from the date of this decision.