Case number: OIC-119386-P1D6V3
19 August 2022
The Department occasionally assigns staff to higher duties on a temporary basis, which entails the payment of a higher duty allowance HDA, to cover certain contingencies such as staff absences on maternity leave, adoptive leave or long-term sick leave. In a request dated 9 December 2021, the applicant sought information relating to HDA assignments within the Department and his position on the placement lists. Following communications with the Department, the applicant refined his request. In his refined request, he sought, from 1 January 2012 to the present day:
In a decision dated 19 January 2022, the Department decided to part-grant part (1) of the request. It provided the applicant with details of his place on the list at the dates of HDA placements for the years 2017, 2018, 2019 and 2021, but refused access to details for 2014 and 2015 under section 15(1)(a) of the Act on the ground that they do not exist or cannot be found. In relation to part (3) of the request, it provided details of the applicant’s service accrual for the years 2014, 2015, 2017, 2018, 2019 and 2021. Parts (2) and (4) of the request were refused under section 37 of the Act. The applicant sought an internal review of that decision, following which the Department affirmed its original decision. On 10 February 2022, the applicant applied to this Office for a review of the Department’s decision.
In his application for review, the applicant noted, among other things, that there was no mention of 2020 in the information released to him and that he was aware of a placement having been made that year. Following engagements with this Office, the Department informed the applicant that the omission of 2020 details arose as a result of an oversight in the initial searches carried out and it provided him with details of his place on the list for the 2020 placement and his accrued service. Subsequently, the Department informed the applicant that it was refusing access to details of his place on the list for the year 2016 as no relevant records could be found. However, it provided him with details of his service record for each of the three HDA placements for the year.
Following receipt of the Department’s submissions, the Investigating Officer provided the applicant with details of the searches undertaken by the Department to locate the information sought, as set out in its submission and she invited him to make further submissions on the review. The applicant made a submission on 27 May 2022.
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 Department as outlined above, and to communications between this Office and both the applicant and the Department on the matter. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Department was justified in its decision to refuse access, under sections 15(1)(a) and 37(1) of the Act, to certain information concerning higher duty allowance assignments within the Department.
Before considering the substantive issues arising, I wish to make two preliminary points. First, in his correspondence with this Office the applicant expressed concerns about the handling of his previous FOI requests, about the manner in which the Department had treated him, and about the manner in which certain HDA duties were assigned. It is important to note that it is not within the remit of this Office to examine complaints about how FOI bodies carry out their administrative functions. On the matter of its handling of previous requests, this review has been conducted in accordance with section 22(2) of the Act and is therefore confined to the issues identified in the “Scope of Review” section above.
Secondly, section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
In essence, the Department has refused access, under section 15(1)(a) of the Act, to any information relating to the applicant for the years 2014 and 2015, and to details of the applicant’s place on the list in 2016, on the basis that it cannot locate any relevant records.
Section 15(1)(a) provides that a request for access to records may be refused if the records sought either do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. The role of this Office in such cases is to review the decision of the FOI body and to decide whether the decision was justified. We must have regard to the evidence available to the decision maker in arriving at his/her decision. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
In its submission, the Department provided this Office with details of searches it undertook in an effort to locate all relevant records and its reasons for concluding that no further relevant records exist or can be found. As the applicant has already been provided with the details of the Department’s submission, I do not propose to repeat those details in full here. However, I can confirm that I have had regard to them for the purpose of this review.
In short, the Department explained its process for the creation, use and storage of seniority lists for HDA assignments, which are held electronically. It explained that the lists are living documents and that various versions of them are not retained. One main document is updated or overwritten as need dictates and the newest version of the data is used to assess seniority for a HDA placement. It said the live list was kept in one shared area of the Assignments Team’s site, that the records and information would be easily located if not overwritten or deleted, and that deleted emails are not archived and are not searchable/retrievable. The Department said the five managers responsible for the HDA arrangements in the applicant’s office during the date range in question were contacted during the processing of this request. It said HDA’s in the requested FOI date range only began in September 2014 due to a previous embargo across the civil service. Regarding the two 2015 placements, it said that given the time that had elapsed, the nature of the records and how the records were treated, it was understandable that earlier iterations of these records may no longer exist in electronic forms on its system.
Following receipt of the Investigating Officer’s description of the explanation given by the Department, the applicant said he did not accept the Department’s assertion that deleted emails cannot be located. The question I must consider in this case is whether the Department has, at this stage, take all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the Department’s submissions and to its explanation as to why it considers that no further relevant records exist, I am satisfied that it has. While the applicant does not accept that any relevant deleted emails cannot be retrieved, I have no reason to doubt the Department’s submission that deleted emails are not archived and are not searchable/retrievable. I am also cognisant of the fact any relevant emails would have been sent six years ago or longer.
In the circumstances, I find that the Department was justified in refusing access, under section 15(1)(a) of the Act, to the relevant records on the ground that they do not exist or cannot be found, after all reasonable steps to ascertain their whereabouts have been taken.
As I have outlined above, the Department relied on section 37(1) of the Act to refuse access to details of the placing on the list of all Clerical Officers who were awarded HDAs during the relevant period and details of their accrued service at the time.
Section 37(1) provides that, subject to other provisions of the section, an FOI body shall refuse to grant a request where access to the record sought would involve the disclosure of personal information relating to an individual or individuals other than the requester.
Section 2 of the FOI Act defines the term “personal information” as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her family or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by it as confidential. The Act details fourteen specific categories of information that is personal, without prejudice to the generality of the foregoing definition, including (iii) information relating to the employment or employment history of the individual, and (v) information relating to the individual in a record falling within section 11 (6)(a) (personnel records).
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 definition does not include his or her name, or information relating to the position, 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 at Paragraph I does not exclude all information relating to staff members. 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. The exclusion does not deprive public servants of the right to privacy generally.
The Department said the applicant would know who received each HDA each year as this would be common knowledge in the working environment and that the information relates to the employment or employment history of the individuals who were awarded a HDA. I note that the applicant did not contest this assertion.
It is important to note that personal information is defined as information about “an identifiable individual…”. In the particular circumstances of this case, I am satisfied that the disclosure of the details sought would involve the disclosure of personal information relating to the individuals who were awarded HDAs. Accordingly, I find that section 37(1) applies to the information at issue.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section. Section 37(2) sets out certain circumstances where section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply in this case.
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where (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 request would benefit the person to whom the information relates. It has not been argued that releasing the information sought would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances.
On the matter of the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies.
It is important to note, however, that in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors  IESC 57, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In weighing the public interest, it is also 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 (“Rotunda Case”). It is noted that a public interest should be distinguished from a private interest.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and 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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.
In his submissions, the applicant argued that officers with less experience than him were offered and accepted HDA. He argued that it not in the public interest for other staff to be awarded HDA, when they were lower down the list than he was.
Following a request by this Office for clarification of how the HDA process operates, the Department said HDA posts are offered as per Office Notice 40/14 : Important Notice re Higher Duty Allowances. It said they are based on a combination of seniority and suitability. The Office Notice in question states that temporary assignments of staff to higher duties are contingent on a number of conditions being fulfilled, including;
“if approved, the submission of nominations by Local Management on the basis of seniority and suitability (including general conduct, sick leave absence record within the limits specified and a minimum Performance Management Development System rating of 3)”.
It is clear, therefore, that seniority is only one factor to which regard must be had by managers when nominating staff for consideration for a HDA. Accordingly, the release of the information sought would not, of itself, allow for accurate conclusions to be drawn as to the fairness, or otherwise, of the application of the HDA nomination process.
It seems to me that the applicant has, in essence, expressed a private interest in arguing for the release of the information sought. While I can appreciate the importance the applicant may attach to accessing the information, the above Supreme Court judgments make clear that in making a decision on the right of access under FOI, I cannot take into account the applicant’s private interests in the grant of access to the records.
On balance, I am not aware of any relevant public interest in granting access to the information sought that outweighs, on balance, the public interest in upholding the privacy rights of the individuals to whom the information relates. In the circumstances, I find that section 37(5)(a) does not apply.
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 its decision to refuse access, under sections 15(1)(a) and 37(1) of the Act, to certain information concerning HDA assignments within the Department.
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.