Case number: 99579
Request for access to records relating to sick leave taken by members of An Garda Síochána in May/June 1998 at the time of the so-called "blue-flu" dispute - whether access to a record created during an industrial dispute, now resolved, could reasonably be expected to have a significant adverse effect on the performance of the body's industrial relations function - section 21(1)(b) - public interest - section 21(2)
Mr X sought access to records relating to sick leave taken by members of the Garda Síochána in May/June 1998; the so-called "blue flu" dispute. The Department refused access to a note prepared by the Department during the dispute which outlined a number of possible options open to the Department in response to the Garda action and the consequences of each option. In doing so the note acknowledged the weaknesses in relation to certain actions.
The Commissioner affirmed the decision of the Department to refuse access.
The Department argued that while the note was prepared during a particular dispute it remained valid in the context of any future industrial action that may occur. Despite the dispute being resolved the Commissioner accepted that there was no evidence to suggest that the options available to the Department had significantly changed since the creation of the record. The Commissioner accepted that the contents of the record could be of use to the Garda staff associations to the detriment of the Department's ability to perform its industrial relations function. He also considered that what was of particular value was the fact that the Department had considered a particular option or options and had indicted the likelihood of it pursuing that option.
Our Reference: 99579
Dear Mr X
I refer to your application for a review of the decision of the Department of Justice, Equality and Law Reform ("the Department") to refuse you access to certain records relating to sick leave taken by members of the Garda Síochána in May and June 1998. Please accept my apologies for the delay which has arisen in dealing with your case. Due to staff shortages and the number of applications before me I have been unable to deal with cases as expeditiously as I would wish.
I have now completed my review of the Department's decision. In carrying out that review I have had regard to your original application to the Department and the Department's submission of 17 August 2001. I have also examined the records to which you were refused access.
In response to your original request the Department granted access to a number of records and refused access to two records. Following contacts with my Office the Department has agreed to release one of those records - a memo titled "Garda Pay on Blue Flu Days". Therefore, my review is concerned solely with the question of whether the Department's decision to refuse you access to the remaining record is correct.
The Department refused access to the remaining record under section 21(1)(b) of the Freedom of Information (FOI) Act, 1997.
Section 21(1)(b) of the Act allows a head, subject to consideration of the public interest, to refuse to grant a request for information if access to the record concerned could, in the opinion of the head, reasonably be expected to -
"(b) have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff) ....." In previous decisions I have indicated that, in arriving at a decision to claim an exemption under section 21(1)(a) of the Act, a decision maker must have reasonable expectations of the anticipated harm arising from release. In my view, in the case of a claim under section 21(1)(b), the establishment of "significant, adverse effect" requires stronger evidence of damage than the "prejudice" standard of section 21(1)(a). When invoking section 21(1)(b), the public body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. 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 section 21(1)(a).
The record in question in this case is a note prepared by the Department at the time the action was taken by members of the Garda Síochána. It outlines a number of possible options open to the Department in response to the Garda action and the consequences of each option. In doing so it acknowledges the weaknesses in relation to certain courses of action.
In its submission the Department claims that while the record was drawn up in the context of a particular dispute, which is now resolved, it remains valid in the context of any future industrial action that may occur. The Department goes on to argue that knowledge, by the other side, of the fact that it has been decided that a particular course of action is unrealistic would put it at a severe disadvantage in future industrial relations negotiations with the Garda staff associations. As a result, the Department claims, release of the record could significantly adversely affect the performance of its industrial relations function.
In considering whether release of this record could have the effect required to meet the provisions of section 21(1)(b) I have had regard to a number of factors. First, I have considered whether the contents of the record could be said to be of use to the Garda staff associations to the detriment of the Department's ability to perform its industrial relations function. It could be argued that someone with a knowledge of the issues involved in this dispute could predict the list of options open to the Department in response to the dispute and the likely consequences thereof. This may be so. However what is of real value in this instance is the fact that one side has considered a particular option or options and arising from its analysis has indicated that it is less likely to pursue certain options. I consider that release of this note could put the Department at a significant disadvantage in any future industrial relations dealings with the relevant Garda staff associations.
I have also considered whether the fact that the particular dispute to which the document relates is currently at an end, is relevant. In other words, could the contents of the record be considered to be relevant to any possible future dispute. I have examined the contents of the record. While the record is general in nature, there is no evidence to suggest that the options open to the Department and the consequences of those actions has significantly changed since the creation of the record or are likely to change in the near future. Therefore I find that the contents of the record could still be relied upon should a similar dispute arise in the future.
In summary, I find that release of the record could reasonably be expected to have a significant, adverse effect on the performance by the Department of its functions relating to industrial relations and that section 21(1)(b) applies.
Section 21(2) of the Act provides that section 21(1) shall not apply in relation to a case in which the public interest would, on balance, be better served by granting than refusing to grant the request. In this case it could be said that there is a positive public interest in revealing how the Department discharges its industrial relations function in relation to this particular dispute. However, the actions of the Department and the outcome of the dispute are known. Therefore I fail to see how release of this document would enhance the understanding of how the Department discharged its industrial relations function. I find that the damage that could occur by release of the record as outlined above outweighs any possible public interest in ensuring that the Department has discharged its functions correctly.
Having carried out a review under section 34(2) of the Freedom of Information Act, 1997, I hereby affirm the decision of the Department in this case.
A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than four weeks from the date of this letter.