Case number: OIC-142583-S4W4K6

Whether the Department was justified in refusing access to records relating to the applicant under sections 30(1)(a) or (b) or 37(1) of the FOI Act

 

22 March 2024

 

Background

In a request dated 12 June 2023, the applicant sought access to “any documents or emails relating to me which were received or issued to and from HR since 1 January 2023. Specifically, I am looking for any documents or emails in relation to an alleged incident in (the workplace) in June 2023 and any documents or emails or reports which were submitted to HR and put on my file since 1 January 2023.” In its decision dated 7 July 2023, the Department identified 20 records as falling within the scope of the applicant’s request. It granted access to nine records and it refused access in full or in part to the remaining records under sections 30(1)(a) or (b) or section 37(1) of the Act. On 4 August 2023, the applicant requested an internal review of the Department’s decision. On 31 August 2023, the Department issued its internal review decision. The Department affirmed its decision in relation to the 20 records it had originally located. It said following a further review, it located five additional records and it granted access to these records. On 26 September 2023, the applicant applied to this Office for a review of the Department’s decision.                          

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the Department and to comments made by the applicant in communications with this Office. I have also had regard to the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is confined to whether the Department was justified in refusing access in full or in part to records 1, 3, 12-20 under sections 30(1)(a) or (b) or 37(1) of the FOI Act.

Preliminary Matters                                                                        

Section 13(4) of the Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act.

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 the description which I can give of the records at issue and the material that I can refer to in the analysis is 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.

Analysis and Findings

Section 30 Functions and negotiations of FOI Bodies

Having regard to the content of the records, it seems to me that section 30(1)(b) of the FOI Act is the appropriate exemption provision to consider first. The Department has relied on section 30(1)(b) in refusing access in full or in part to records 1, 3 and 12-20.

Section 30(1)(b)

Section 30(1)(b) of the Act provides that an FOI body may refuse to grant a request if it considers that access to the record concerned could 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).

Section 30(1)(b) is a ‘harm based’ exemption, i.e. it applies where the granting of access to a record can reasonably be expected to cause a particular prejudice or harm. An FOI body seeking to rely on section 30(1)(b) must show how the harm anticipated could reasonably be expected to result from the release of the record(s). In particular, the body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. Furthermore, an FOI body seeking to rely on section 30(1)(b) should explain how, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged.

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 example, "prejudice" (as per section 30(1)(a) of the FOI 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 significant nature.

In communications with this Office, the applicant says he requested documents or emails which relate to him and which were received or issued to and from HR. He says he was looking for any documents or emails in relation to an alleged incident in June 2023. He says he was provided with a copy of a compliant to HR in relation to the alleged incident. He says, however, he was not provided with email correspondence sent to his manager in relation to the complaint and he argues that if there is information in this correspondence which relates to him it should be released.

The Department states that the records at issue all relate to the management of its staff. It states that management correspondence often necessitates confidentiality to promote frank communication between managers and HR. It states that this confidentiality enables managers to discuss matters openly allowing them to address sensitive issues and make decisions effectively. It states that if these records were made public, this would deter staff and managers from raising critical issues, which would create challenges in maintaining a transparent and productive work environment.

A claim for exemption under this provision must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case. In this case, a complaint was made to HR by a member of staff in relation to an alleged incident involving the applicant. The records which were refused include emails between the applicant’s manager and HR which contain a discussion of the alleged incident and support from HR on how to deal with the situation. I accept that managers should be free to discuss matters with the HR Division that relate to the management of staff and resolving workplace incidents without these sensitive communications being released to the world at large under FOI. I accept that release of these records could reasonably be expected to severely hamper the ability of managers to make considered and appropriate decisions and could hamper future investigations into work place incidents which require the co-operation of staff. I find, therefore, that section 30(1)(b) applies to the information withheld from records 1, 3 and 12-20.

Section 30(2) The Public Interest

As I have found section 30(1)(b) applies to the information withheld from records 1, 3 and 12-20, I am required to consider section 30(2) in respect of these record.  Section 30(2) provides that section 30(1)(b) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

The Department states that if these records were made public, it would erode trust both internally and externally. It states that public perception of the Department would suffer, impacting its reputation and leading to decreased trust from staff. It states that the potential for negative consequences, such as difficulty in recruiting and retaining staff, underscores the importance of preserving the confidentiality of management records.

There is a public interest in ensuring openness, transparency and accountability in how public bodies perform their functions. There is also a public interest in public bodies exercising fair procedures in the context of dispute resolution. In this case, I must balance those considerations against the public interest in public bodies being able to discuss sensitive matters and consider options without adversely affecting the public body's ability to manage staff and resolve disputes involving staff.

The applicant has been provided with a copy of the complaint made to the Department and copies of emails where he was invited to meet with his manager to discuss the issues raised in the complaint. The applicant was also provided with emails in relation to his attendance, behaviour and performance review at internal review stage. In my view, the public interest in openness and transparency has been served to a certain extent by providing the applicant with the complaint and other related records. The Department states that where staff or manager’s contact HR Division for help with an issue, HR will always engage and provide help and guidance as needed. The Department states that it protects these channels of communication so that all staff and managers that contact HR can be assured of confidentiality when corresponding. It states that this creates a better, safer, and more efficient environment for staff and managers to work and lead. Having considered the records and the submissions made, I am of the view that there is a public interest in affording the Department the space to communicate on management of staffing issues without undue interference. This includes granting them the space to discuss matters openly, fully allowing them to address sensitive issues and make decisions. I find that, on balance, the public interest would be better served by refusing rather than by releasing the information withheld from records 1, 3, 12-20. In light of this finding, it is not necessary for me to also consider whether the information withheld from these records is also exempt under section 30(1)(a) or 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Department’s decision. I find that the Department was justified in refusing access in full or in part to records 1, 3, 12-20 under section 30(1)(b) of the FOI Act.

Right of 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.
 

Jim Stokes
Investigator