Case number: 170019
On 1 November 2016, the applicant made an FOI request to the Department for an electronic copy of a report, prepared for it by Equita Consulting, called "PeoplePoint: Optimal Resourcing Review Reflecting Present and Future Organisational Requirements".
The Department's decision, dated 9 November 2016, refused to grant access to the record. It relied on section 30(1)(b), which is concerned with the impact of release of a record on an FOI body's functions relating to management. The applicant sought an internal review of the Department's decision on 10 November 2016, which the Department affirmed on 11 January 2017. On 12 January 2017, the applicant sought a review by this Office of the Department's refusal of her request.
I have now decided to conclude my review by way of binding decision. In carrying out my review, I have had regard to the above; and to correspondence between this Office, the Department, and the applicant. The applicant was invited to make a submission in this case, but did not do so. I have also had regard to the record at issue, a copy of which was provided to this Office for the purposes of this review, as well as the provisions of the FOI Act.
This review is confined to whether or not the Department has justified its refusal of the requested record.
At the outset, it is relevant to note a number of preliminary matters.
Section 13(4) of the FOI Act provides that, subject to the other provisions of the Act, FOI decision makers must disregard any reasons (whether stated or suspected) for the request.
Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). I take the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from the remaining withheld details for the purpose of granting access to those particular sentences or paragraphs.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that, in the circumstances of this case, the extent to which I can support my analysis by reference to any detailed content of the report is very limited.
Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.
Neither the applicant's internal review application, nor her application to this Office, seek a review of the Department's application of section 30(1)(b) to the requested report. Rather, she asks me to review the Department's application of the public interest test, which is contained at section 30(3) of the FOI Act. However, I have decided in the first instance to consider whether the exemption applies.
Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a record if access to the record concerned could, in the opinion of the head, reasonably be expected to "have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff)".
The Commissioner expects an FOI body relying on section 30(1)(b) to:
When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for instance, the "prejudice" standard in other provisions of the Act. In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a more significant nature than that required under those provisions with a "prejudice" standard. Having identified the significant adverse effect envisaged, the FOI body should then explain how release of the particular record(s) could reasonably be expected to result in this significant adverse effect.
Management Functions of an FOI Body
The Department's submissions are concerned with the impact of release of the record on PeoplePoint's performance of its functions relating to management.
Section 30(1)(b) only applies where the performance of the management functions of an FOI body may be affected by release of a record. The Department says that PeoplePoint is an operational facility within the National Shared Services Office (NSSO), which is, in turn, a unit within the Department. In other words, the Department contends that it is effectively the FOI body whose functions relating to management are at issue.
The Department's website describes the NSSO as "an administrative office within [the Department]" that is "responsible for delivering shared services within the Civil Service ... ", consisting of PeoplePoint and the Payroll Shared Service Centre. In such circumstances, I accept that PeoplePoint is part of the Department and that section 30(1)(b) is capable of being applied to records that impact on its performance of functions relating to management.
Significant, Adverse Effect & Reasonable Expectation
In considering section 30(1)(b), I have considered the Department's arguments regarding that provision, as well as arguments made concerning additional exemptions it sought to rely on in the course of this review. Its arguments are summarised in the two paragraphs that follow:
The information in the report would adversely impact on PeoplePoint's ability to carry out its functions relating to planning, management, and resourcing. PeoplePoint (which began providing HR and pensions administration shared services to the Civil Service on a phased basis in early 2013) is still forming as an organisation and optimising its resource requirements. Changes in staffing numbers and arrangements are being introduced in a carefully planned and communicated way. The report was prepared solely as a tool to support the management team in its decision making duties, and contains unpublished information about staff numbers, mix and composition. Information in the report is still under active consideration in forming decisions on what improvements or changes to the organisation are necessary, including how it should expand and develop further. Not all of the recommendations were agreed with or implemented. In addition, the timetable for completion of the recommendations, as set out in the report, was not adhered to and some recommendations are still being implemented.
Furthermore, the participants in the review process that gave rise to the report were assured that the purpose of their involvement was to provide insights and information, which would enable the report authors to recommend confidential changes to the PeoplePoint management team for their consideration. Participants were given verbal assurances that their participation, and the sharing of insights and information, was on the basis of being in confidence. Those participants who did not agree with all the recommendations have said that, if they had been informed that the report could be made public, they would have contested some of the findings or asked that their disagreement with them be noted. These participants have concerns about the harm that may be done to their professional reputations if the report were to be released without such clarifications.
I am precluded from describing the contents of the requested report in any detail because of section 25(3). It reviews the 2014 staffing model for PeoplePoint and identifies and examines various challenges that have arisen since the organisation's establishment. It recommends a high level workforce plan intended to deliver on current and future needs, and also identifies other significant issues to be addressed in order to optimise the impact of its recommendations. I can also accept that it reflects frank views expressed to the report's authors by participants at different levels within PeoplePoint and also external to the organisation.
While the report proposes specific measures for 2014-2015 and more general measures for 2015 onwards, I have no reason to doubt the Department's position that the timetable set out in the report was not adhered to. I accept that publishing details of recommendations that may yet be implemented could hinder PeoplePoint's ability to consider, adapt, and apply those recommendations as may be necessary in the future. I also accept that publishing details of relatively recent recommendations that have not been agreed with, in a case where an organisation is new and still forming, could distract from and negatively impact on PeoplePoint's management's ability to perform their functions relating to management.
I accept that any consultant seeking to make recommendations on staffing needs relevant personnel to be open and frank about matters they might ordinarily be reluctant to discuss. I thus accept that giving staff assurances of confidentiality encourages them to put forward more direct and detailed views than would otherwise be the case. It seems to me that release of any details in the report from which one could infer such views and comments could impact on PeoplePoint's ability to manage its staff. As well as the impact on morale that could be caused through releasing information that staff understood would not be releasable, it seems to me that staff would be generally less likely to fully cooperate with any further similar reviews that may be necessary to ensure that PeoplePoint is operating optimally. I can also accept that the release of findings and recommendations, which might otherwise have been challenged by at least some of the participants, could undermine the standing of those participants in the eyes of their colleagues, and make it more difficult for such participants to carry out their day to day work.
I consider the Department to have justified its position that, at this point in time, release of the record to the world at large under FOI could result in a significant, adverse effect on PeoplePoint's performance of various functions relating to management, including industrial relations and management of its staff. I also accept that its expectation of harm is reasonable in the circumstances. I find section 30(1)(b) to apply to the record.
On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner, 1 I.R. 729,  IESC 26) (the Rotunda case). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to consideration of public interest tests generally.
The applicant is correct in pointing out that the FOI Act requires FOI bodies to ensure, in the public interest, openness regarding the activities of public bodies and their use of public funds, and to ensure accountability and the promotion of the principle of transparency in government and public affairs. She notes that €50,000 of public money was spent on the report, and that PeoplePoint is in receipt of public funds. She argues that, as an important element of the public service reform programme, PeoplePoint has the purpose of saving the State money.
The cost of the report, and the general cost and function of PeoplePoint as a public service entity, do not, of themselves, represent a public interest in release of the record. There is a public interest in ensuring that PeoplePoint is open about, and can be held accountable for, decisions it makes concerning its staffing arrangements. I accept that release of the requested record would meet this public interest and, therefore, that this public interest is of significant weight. On the other hand, there is also a public interest in preventing harm to PeoplePoint's ability to perform its functions relating to management. Given my consideration of the Department's arguments as set out earlier in this decision, I accept that this public interest is also of significant weight.
Having considered the weight of the public interest factors in favour of, and against release, I find that the public interest in favour of release does not outweigh the public interest that the requested record be withheld. In such circumstances, there is no need for me to consider the other exemptions relied on by the Department in this case.
The applicant suggested that release of the report in redacted form should be considered. I considered this in the light of the section 18 provisions referred to earlier. I do not believe that parts of the report could be released in this instance without the resulting copy being misleading.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department's refusal of access to the requested record.
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.