Case number: OIC-53421-N2H4N4 (190167)
5 July 2019
The applicant in this case is an employee of the HSE who has been engaged in an industrial relations dispute with the HSE for the past number of years. On 31 October 2018 he submitted a request to the HSE for any correspondence between Human Resources and employee relations section and three named managers and his union representatives since 1 January 2018. In particular he sought access to correspondence a named union representative sent to a named member of the HR Department around April/May 2018 and all replies to same.
The applicant’s request followed a broader request he made on 24 August 2018 for his personal and employment records. The HSE's decision in that case was the subject of a separate review by this Office (Case reference OIC-53259-J7D5H6). While this Office acknowledged that the records sought in the request of 31 October 2018 came within the scope of the earlier broad request, they were excluded from the earlier review based on the fact that the second request had been processed as a separate request by the HSE and was before this Office for review.
It appears that the HSE did not issue a first instance decision on the second request but issued an internal review decision on 20 March 2019 wherein it granted partial access to five records (comprising 20 pages in total) it identified as coming within the scope of the request. It refused access to parts of the records under sections 30 and 37 of the FOI Act. The applicant subsequently sought a review by this Office of the HSE’s decision on 4 April 2019.
I have decided to bring this case to a close by way of a formal, binding decision. In conducting my review I have had regard to the HSE's correspondence with the applicant as outlined above and to the communications between this Office and both the applicant and the HSE on the matter. I have also had regard to the contents of the records at issue.
This review is concerned solely with whether the HSE was justified in redacting certain information from correspondence relating to the applicant's industrial relations dispute with the HSE under sections 30 and 37 of the FOI Act.
In Case reference OIC-53259-J7D5H6, the records under review related to a disagreement, which has been ongoing since 2012, between the applicant and the HSE in relation to the exact working hours required in his specific role. In this case, they comprise a number of overlapping email exchanges between the representative of the applicant and officials working in the HSE and relate primarily to an issue concerning an on call rota.
The HSE has refused access to parts of the relevant records under section 37(1) which provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. The definition also details fourteen specific categories of information that is personal information without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual, and (iv) information relating to the individual's membership or former membership of a trade union.
Having examined the records at issue, I am satisfied that the information to which access has been refused under section 37(1) is personal information relating solely to parties other than the applicant. I find that the HSE was justified in refusing access in part to the relevant records on the basis that the information withheld is exempt under sections 37(1) of the Act.
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. 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 third parties 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), it is important to have 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 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.
Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the actual or perceived reasons for a request must generally be disregarded in deciding whether to grant or refuse an access request under the FOI Act. In the context of determining whether to grant a request in the public interest under section 37(5)(a) of the FOI Act, this means that the reasons given for the request may be considered only insofar as they reflect a true public interest, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. Indeed, an FOI body, in performing any function under the Act, must have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies (section 11(3) refers).
On the other hand, the Act also recognises the public interest in the protection of the right to privacy. This is evident 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.
The question I must consider, therefore, is whether the public interest in enhancing the transparency and accountability of the HSE outweighs, on balance, the significant public interest in protecting the privacy rights of the individuals concerned.
In my view, it does not. It seems to me that the disclosure of the personal information at issue would do little or nothing to enhance the transparency and accountability of the HSE in its dealings with the applicant in relation to the issues arising relating to the on call rota. I find, therefore, that section 37(5)(a) does not apply and that the HSE was justified in refusing access to parts of the relevant records under section 37(1).
The HSE has also sought to rely on the provisions of section 30(1)(c) to refuse access to parts of four records. That section 30(1)(c) provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be carried on by or on behalf of the Government or an FOI Body. The exemption does not contain a harm test but is subject to a 'public interest override' i.e. even where the requirements of subsection (1) have been met, the exemption does not apply where the public interest would, on balance, be better served by granting access than by refusing to grant the request. Any potential level of harm that may result from release would be relevant to the public interest considerations in section 30(2).
An FOI body relying on section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. An FOI body relying on this exemption must show to the Commissioner that release of the record could reasonably be expected to disclose positions taken (or to be taken), etc., for the purpose of any negotiations.
In its submissions to this Office, the HSE stated that the redacted information forms part of its plans in relation to negotiations in an ongoing industrial relations dispute and comprises information relating to the direction and management of the dispute. It argued that the release of the information will disclose the HSE’s position in relation to the management of the ongoing dispute.
Having examined the records at issue, it is not clear to me that the disclosure of the redacted information relating to the on call issue could reasonably be said to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be carried on, by the HSE. Rather it is correspondence wherein HSE staff were attempting to establish the position re the on call rota, following a request from the applicant’s union representative that he be placed on the rota.
I accept that some of the redacted information relating to the on call issue also relates, in a general way, to the ongoing industrial dispute relating to the applicant’s working hours. I accept that the disclosure of that information would involve the disclosure of positions taken or to be taken in relation to the resolution of the ongoing industrial relations matter in question. As with case reference OIC-53259-J7D5H6 I also accept that discussions aimed at resolving that matter can be termed a negotiation for the purposes of reaching some compromise, settlement or mutual agreement.
In conclusion, therefore, I find that section 30(1)(c) applies to the redactions on page 2, the first part of the redaction on page 7 up to “On Call request”, and line five of the redaction on page 16. I find that section 30(1)(c) does not apply to the remainder of the redactions that were refused under this section.
Section 30(2) provides that subsection (1)(c) does not apply where the public interest would, on balance, be better served by granting than by refusing the request.
The FOI Act recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions and the requirement on those bodies, in performing any function under the Act, to have regard to, among other things, the need to achieve greater openness in the activities of public bodies, to promote adherence by them to the principle of transparency in government and public affairs and to strengthen the accountability of decision making in public bodies.
On the other hand, the there is a public interest in allowing it to protect its positions, both taken and to be taken, in relation to the ongoing management of the industrial relations matter concerning the applicant. The HSE argued that there is a public interest in protecting the efficient and effective management of the HSE and that the release of the records at this stage while the industrial relations matter is ongoing may prejudice the case.
The Act requires that the public interest in releasing information which might contribute to the openness and transparency of public bodies must be balanced against the harm which might be occasioned by its release. Section 30(1)(c) is an explicit recognition of the fact that there is a public interest in public bodies being able to protect their negotiating positions. There is also a public interest in protecting a public body’s ability to manage and resolve industrial relations disputes as efficiently as possible. If a public body was required to disclose its negotiating position in relation to an industrial relations matter while the matter was still ongoing, I am satisfied that its ability to manage and resolve such matters would be impaired.
In this case, however, it seems to me that with the exception of line five of the redaction on page 16, the disclosure of the information to which I have found section 30(1)(c) to apply would not involve the disclosure of a position taken or to be taken by the HSE that was not already known to the applicant (see page 12 for example). In the circumstances, I fail to see how the release of that information could prejudice the HSE’s ability to prejudice its effective and efficient management of the industrial relations dispute. I find that the public interest would, on balance, be better served by the release of the information at issue, apart from line five of the redaction on page 16.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of the HSE in this case. I find that it was justified in refusing access to certain information contained in the records at issue under section 37(1). However, I find that it was not justified in refusing access to the remainder of the information redacted from the records under section 30(1)(c) apart from line 5 of the redaction on page 16. I direct the release of the information in question.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.