Case number: 150441, 150440, 150436

Whether the Courts Service was justified in its decisions to refuse requests under section 37(1) of the FOI Act, for access to records concerning Role Profiles of staff of Combined Court Offices of three separate counties.

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 6 October 2015, the applicant submitted a request under the FOI Act for access to records concerning the business plans, work status reports, and other information about the Combined Court Offices of three separate counties. The applicant also requested access to the Role Profile forms of members of staff identified by grade in the each of the Combined Court Offices. In its decisions, the Courts Service granted access to some records and part granted access to other records on the basis of section 37(1) of the FOI Act. In each of its original decisions, the Courts Service released records concerning what it described as "the General Role Profiles which were drafted in respect of staffing grades being assigned to Combined Court Offices" but refused access to what it described as "personal role profiles" of the individual members of the Combined Court Office staff for 2014 and 2015. The applicant requested internal reviews on 12 November 2015 in respect of the refusal of access to the "specific role profiles" of each staff member for 2014 and 2015. In each of its internal review decisions, the Courts Service affirmed the original decision. On 14 December 2015, the applicant applied to this Office for a review of the decisions of the Courts Service.

By way of background, staff role profiles are created by the Courts Service and other civil service departments and offices under the Performance Management Development System (PMDS) as a tool for Human Resource management.

In conducting my review, I have had regard to the submission of the Department and to correspondence between the applicant and the Department. The applicant was also invited to make a submission. In reply, the applicant stated that her letter of application set out the grounds of her appeal against the decisions of the Courts Service. I have also had regard to the content of the records at issue and to the provisions of the FOI Act. I consider that the reviews should now be brought to a close by the issue of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Courts Service was justified in deciding to refuse access to the staff role profiles on the basis of section 37(1) of the FOI Act.

Preliminary Matters

Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.

In addition, section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded.

While section 18(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, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading.

However, the Commissioner takes the view that the provisions of section 18 do not envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Submission of applicant

In her letter of application to this Office, the applicant set out a number of reasons why she was of the opinion that the information in the records sought should be granted. I will address those issues in the course of this decision but it is useful to summarise them here as follows:

1. The information sought is not personal information within the meaning of section 2 of the FOI Act.

2. The information can be disclosed under the provisions of section 42(a)(II) of the Act.

3. Access to part of the records can be released under section 18 of the Act.

4. Reference to the Data Protection Acts in the internal review decision was not appropriate.

5. Under the Data Protection Acts, the data controller is obliged to disclose information without identifying the individual.

6. Role Profile forms should not contain personal data other than names and training and development requirements.

Submission of the Courts Service
The Service argues that due to the small number of staff in each of the particular Offices, individuals would be identified even if names were redacted from the records. The numbers in each grade are very small; in some cases only one person holds a specific position.

Personal Information - Section 37
The Courts Service refused access to the information sought on the ground that access would involve the disclosure of personal information relating to the staff involved. Section 37 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. For the purposes of the Act, personal information is information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, or (b) is held by an FOI body on the understanding that it would be treated by it as confidential.

The Act details fourteen specific categories of information which is personal without prejudice to the generality of (a) and (b) above. Following the decisions in Rotunda Hospital v Information Commissioner [2009] IEHC 315 and Governors and Guardians Rotunda Hospital v Information Commissioner [2011] IESC26, (the Rotunda case), I must proceed on the basis that information about an identifiable individual can qualify as personal information where it comes within the scope of either subparagraph (a) or (b) of the definition set out above or where it comes within one or more of the categories (i) to (xiv) which are non-exhaustive. Category (v) is information relating to the individual in a record falling within section 11(6)(a) of the Act. That section in turn defines such a record as "a personnel record, that is to say, 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 an FOI 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".

The Act also excludes certain information from the definition of personal information. Specifically, paragraph (I) of the definition of personal information provides that it 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 or any other office or position remunerated from public funds in an FOI 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 those functions. I take it that one of the applicant's arguments is that the Role Profile forms of the various staff members is not personal information relating to the individuals who hold those positions, as it is 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. It is clear, therefore, that the key question I must address in this case is whether the information sought is, for the purposes of the Act, personal information relating to the staff members in question.

Is the information sought "Personal Information"?
Guidelines for PMDS , including the setting of role profiles by managers and jobholders are published by the Department of Public Expenditure and Reform. These stress the collaborative nature of the PMDS process and the need for agreed goals to be specific and measurable to encourage discussion and agreement about strengthening individual performance as well as the organisational goals and service to the public. Individuals are required to identify precise goals and record how performance will be supported and measured in order to achieve those goals. In some of the role profiles, specific tasks are assigned to the grades. In others, goals relating to personal development and effectiveness have been identified. Learning and development plans are part of the form. The role profile and goal setting process feed into performance reviews and feedback, after which the manager awards a rating.

Having regard to these guidelines and to their contents, the records can, in my view, be described as relating to "the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body ... or an evaluation of the performance of his or her functions..". I am satisfied, therefore, that they can be defined as "personnel records" coming within the scope of section 11(6)(a) of the Act and that, as a result, the information contained in the records comes within category (v) of the definition of personal information.

On the matter of whether the exception in paragraph (I) of the definition of personal information might apply, the Commissioner has previously held that what is excluded is the name of the official, the grade or duties of the official, the terms on which the official holds office and finally, any records created by that official in the course of performing the functions of the office. The exception does not exclude personnel records such as those described above.

Section 18 and parts of records
Turning now to the applicant's assertion that the records could be redacted in order that individuals are not identified, I have examined the records and considered the circumstances of the staff allocated to the areas concerned. I am satisfied that given the content of the records and the numbers and grades involved, it would be possible to identify individuals even if names and training and development information was redacted as suggested by the applicant. I cannot accept the applicant's opinion, as expressed in her internal review requests, that the remaining parts of the records would be factual information only and would not constitute personal information. As explained earlier, the provisions of section 18(1) of the Act provide for the redaction of material from an otherwise exempt record only where to do so is practicable and where the result would not be misleading. I am satisfied that this is not a case to which section 18 can apply.

Having found that the information contained in the records is personal information, I find that the records are exempt pursuant to section 37(1) of the FOI Act.

Exceptions to Section 37(1) and The Public Interest
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance:

(a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or

(b) the grant of the information would be to the benefit of the person to whom the information relates.

I am satisfied that the release of the information at issue would not be to the benefit of the individuals concerned and that section 37(5)(b) does not apply.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

In considering the public interest test at section 37(5)(a), I have had regard to the judgment of the Supreme Court issued in July 2011 in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner (available at www.oic.ie). In the judgment, the Supreme Court outlined the approach that the Commissioner should take when balancing the public interest in granting access to personal information with the public interest in upholding the right to privacy of the individual(s) to whom that information relates. Following the approach of the Supreme Court, 'a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law' must be distinguished from a private interest for the purpose of section 37(5)(a).

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. On the other hand, the FOI Act also recognises the public interest in the protection of the right to privacy both in the language of section 37 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "THE RIGHT TO PRIVACY"). It is also worth noting that the right to privacy has a Constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy.

In Case No. 99451 - Mr X and the Department of Enterprise, Trade and Employment, (available on this Office's website at www.oic.ie) the former Commissioner, Mr Kevin Murphy, commented as follows:

"... it seems to me that public servants, as with all employees, are entitled to a degree of privacy in relation to the evaluation of their work performance, competence or ability and I am satisfied that this type of information is held by public bodies on the understanding that it would be treated by it as confidential and that it is, therefore, personal information for the purposes of the FOI Act."

The information at issue in each of these three cases is personal to the staff members employed in the particular area of the Courts Service. While there is a public interest in openness and transparency in the manner in which the Courts Service performs its functions, I am of the opinion that this has been met to large degree by the release of records that do not identify individuals. I must also consider that 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. I do not consider that the public interest in the release of the refused information in this instance outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply to the records.

Other sections of the Act relied upon by the applicant

Section 42 of the FOI Act provides for the 'Restriction of the Act'. Section 42(a)(II) provides that "This Act does not apply to a record held by the courts ... other than - a record relating to the general administration of the courts or the offices of the courts...". The applicant suggested that the records "can be disclosed" as the information she sought relates to the general administration of the Combined Court Office and is not restricted information. The applicant has correctly stated that, in general, records such as the ones at issue in this review, are not restricted in that the Act does not apply to them. However, the exemption at section 42(a)(II) likewise does not provide that certain records, howsoever defined, can be released but that a person has the right to make a request for access to such records under section 11 of the Act.

The applicant also referred to the Data Protection Acts. I do not find it necessary to comment on the relevance of the Data Protection regime, other than to point to section 1(5)(a) of the Data Protection Act 1988 as amended which provides that

"A right conferred by this Act shall not prejudice the exercise of a right conferred by the Freedom of Information Act 1997 [now the FOI Act 2014]."

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of the Courts Service in each case, as referenced above.

Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator