Case number: OIC-132797-J3B3B3

Whether the HSE was justified in refusing, under sections 32(1)(b) and 37(1) of the FOI Act, the applicant’s request for records relating to employment references provided in respect of his application for employment

 

8 December 2023

 

Background

The applicant applied for a job in the HSE. He was later offered a position conditional on receipt of references from referees. He nominated three referees, two of whom were contacted. The offer of the position was later rescinded by the HSE. On 5 September 2022, the applicant sought “photocopies of all references, statement of employment and any other reference correspondence held on [the HSE’s] files in relation to [his] application”.

In a decision dated 4 October 2022, the HSE refused the request under section 37(1) of the Act, which is concerned with the protection of third party personal information.

It provided a schedule of the records to which access was refused. The applicant sought an internal review of that decision on 1 November 2022, following which the HSE affirmed its refusal of the request. On 28 November 2022, the applicant applied to this Office for a review of the HSE’s decision.

During the course of the review, the Investigating Officer invited submissions from the HSE, the applicant, and from two affected parties she had notified of the review. Submissions were received from the HSE, the applicant, and one of the third parties. In the course of progressing the review, the Investigating Officer considered that certain arguments made in support of the withholding of the relevant records were more relevant to section 32(1)(b) of the Act, as opposed to section 37(1). She invited the HSE to make submissions on the matter and duly received same.

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 correspondence between the applicant and the HSE as outlined above, and to the correspondence between this Office and the applicant, the HSE, and the other affected parties on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by a way of a formal, binding decision. In referring to the records at issue, I have adopted the page numbering system used by the HSE in the schedule of records it provided when processing the request.

Scope of Review

It is important to note that a review by this Office is considered to be “de novo”, which means that in this case, it is based on the circumstances and the law as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. Accordingly, in light of the “de novo” nature of our reviews, I consider it appropriate to consider the applicability section 32(1)(b) in this case, notwithstanding the fact that the provision was not initially relied upon as a ground for refusing access to the records in the HSE’s decisions on the request.

Accordingly, this review is concerned with whether the HSE was justified in its decision to refuse, under section 32(1)(b) and/or section 37(1) of the FOI Act, the applicant’s request for records relating to employment references provided in respect of his application for employment.

Preliminary Matter

It is important to note that under section 22(12)(b) of the Act, a decision to refuse to grant a request is presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. This means that the onus is on the HSE of satisfying this Office that its refusal of the request was justified in this case.

Analysis and Findings

The records at issue

Pages 1 to 14 comprise references provided by two referees in respect of the applicant and associated emails. Pages 15 to 19 comprise correspondence between the applicant and the HSE in respect of his application for employment. Pages 20 to 23 comprise internal HSE emails concerning the applicant’s application for employment.

Section 37(1)

Section 37(1) of the FOI Act 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). Section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, 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”. Section 2 goes on to specify 14 categories of information that is personal information for the purposes of the Act, including (iii) information relating to the employment or employment history of the individual and (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

Certain information is excluded from the definition of personal information. Where the individual holds or held a position as a member of the staff of an FOI body, the individual’s name is excluded, as is information relating to the position held, the functions of the position, the terms upon and subject to which the individual holds or held 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 his or her functions (Paragraph (I) refers). The exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant in the context of the particular position held or any records created by the staff member while carrying out his or her official functions, or information relating to the terms conditions and functions of positions.

In its submissions, the HSE said that in his application for the post, the applicant listed three referees. It said two of the nominated referees were contacted and that it refused access to all of the records at issue as the release of same would confirm the identities of the two referees contacted and the information provided by those referees. It argued that the disclosure of the records would involve the disclosure of personal information relating to the referees, namely the identities of the referees who provided references and the information they provided.

While I am required, under section 25(3) of the Act, to take all reasonable precautions during a review to prevent the disclosure of exempt information, I believe I am not in breach of section 25(3) by noting that all three referees nominated are, or were, public servants, given that it was the applicant himself who nominated them as his former supervisors or managers.

As I have explained above, the exclusion to the definition of personal information set out in Paragraph (I) provides that personal information does not include the name of an individual who holds or held a position as a member of the staff of an FOI body or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of his or her functions. No argument has been made to this Office that the references were provided in a personal capacity and having examined the references, I am satisfied that they were prepared by the relevant referees in the course of and for the purpose of the performance of their functions. I note, for example, that the reference forms issued to the referees contain a request that the reference should be emailed directly back “as proof of completion from professional email account”. Accordingly, I find that the disclosure of the identities of the individuals who provided references and the information they provided relating to the applicant would not involve the disclosure of personal information relating to the referees. I find, therefore, that section 37(1) does not apply to such information.

I am, however, satisfied that the disclosure of the following information contained in the records would involve the disclosure of personal information relating to the referees:

  • their mobile phone numbers,
  • their signatures,
  • the first sentence of the email on page 12,
  • the first sentence of the email on page 14,
  • the three words of the annotation to page 14 immediately prior to “Told me to ring …”, and
  • the first sentence of the email on page 18.

I am satisfied that the text I have identified above is personal information relating solely to the referees and does not relate to the applicant. I am also satisfied that it is not captured by the exclusion to the definition of personal information and I find, therefore, that section 37(1) applies. I am also satisfied that none of the other provisions of section 37 serve to disapply section 37(1) apply in this case.

Section 32(1)(b)

As I have indicated above, during the course of the review the Investigating Officer considered that certain arguments made in support of the withholding of the relevant records were more relevant to section 32(1)(b) of the Act. I agree. Section 32(1)(b) provides for the refusal of a request where the FOI body considers that access to the record sought could reasonably be expected to endanger the life or safety of any person.

Section 32(1)(b) is not a commonly used exemption. This Office takes the view that the exemption should not be applied without careful consideration having been given as to whether the expectation set out in the subsection is a reasonable one in all the circumstances and that it should only be invoked in circumstances of the most serious nature. An assessment of the expected consequences of releasing particular records in terms of endangering life or safety is required. It is not necessary, or indeed possible, to establish that such physical harm will occur, but there must be a reasonable expectation of such harm arising.

During the course of the review, one of the notified third parties expressed safety concerns were the records to be released. In its submissions to this Office, the HSE said that if section 32(1)(b) was to be invoked, then it should be invoked in respect of all of the records at issue. While it explained why it considered that the safety of an individual could reasonably be expected to be endangered if the records were released, I cannot disclose that reasoning in this decision as to do so would involve the disclosure of the identity of a particular referee and would therefore result in the disclosure of information the HSE has argued to be exempt.

I note that when the HSE notified the applicant that it did not intend to proceed with his employment, it informed him that as part of its clearance process, it required two satisfactory references. It informed him that in relation to his current employment, it received a statement of employment. It informed him that having reviewed the references submitted and statement of employment, there was a high level of absences and insufficient satisfactory reference information for it to proceed with his employment (my emphasis). As such, it will already be apparent to the applicant that at least one of the references fell short in some respect.

It is relevant to note that there is generally no legal obligation on a former employer to provide a reference. No evidence has been presented to this Office to suggest that the references were provided on the understanding that they would be treated as confidential, although I would add that even if it had, it seems to me that the need to accord procedural fairness would have had to be considered. It further seems to me that concerns about the possibility of endangerment to safety if the records were released were not such that prevented the completion and return of the reference forms.

Accordingly, having regard to the particular circumstances of this case, I find that the HSE has not satisfactorily shown its expectation, of the release of the records at issue endangering the life or safety of any person, to be reasonable. I find, therefore, that section 32(1)(b) does not apply.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the HSE’s decision. I find that it was not justified in refusing access, under sections 32(1)(b) and 37(1) to the records withheld, apart from the following information which I find to be exempt under section 37(1):

  •  the mobile phone numbers of the referees contained in the records,
  • the signatures of the referees,
  • the first sentence of the email on page 12,
  • the first sentence of the email on page 14,
  • the three words of the annotation to page 14 immediately prior to “Told me to ring …”, and
  • the first sentence of the email on page 18.

I direct the release of the records with the redaction of the above information.

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 by the requester 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.

 

Stephen Rafferty
Senior Investigator