Case number: OIC-122728-W6D1M6

Whether the Council was justified in refusing access to a special investigation audit report conducted by the Council in 2008

 

22 December 2022

 

Background

In a request dated 16 December 2021, the applicant submitted a request to Laois County Council and sought access to the following records:

1. All Council Audit Committee meeting minutes from 2010 – present.

2. Any reports issued by the Council Audit Committee, from 2010 – present

3. All audits issued by the Council’s internal audit unit from 2010 – present.

4. Any external audits commissioned by the Council from 2010 – present

5. A 72-page special investigation report undertaken by the internal audit unit.

In a decision dated 28 February 2002, the Council responded and clarified that the requester was seeking the following:

  • All audits issued by the Internal Audit Unit, from 2014 – present
  • Any external audits commissioned by the Council completed by an outside agent, from 2014 – present
  • The 72 page report completed in respect of the investigation.

The Council identified 14 records in total as relevant to the request. It partially granted access to the 13 records associated with parts one and two of the request. Access to record 14, which was the special audit investigation report was refused in full in accordance with section 37(1) and 35(1)(a) of the Act. The Council stated that the record in question contained the personal information of others, and information, which was provided on the basis that it would be treated as confidential. On 4 April 2021, the applicant submitted a request for internal review. He stated that the application was only in connection with record 14, the special investigation report, and further clarified in a later email that he was not seeking the associated appendices. He argued that given the lengthy passage of time that has elapsed the council should release this report in full in the interests of transparency and accountability.

The Council issued its internal review decision on 26 April 2022. It stated that it was upholding the original decision in respect of record 14. It argued that the report was exempt from release, as it constituted a personnel record. It noted that due to the nature of the record it would not be possible or practical to extract the information that does not fall within the exemptions.

On 27 April 2022, the applicant applied to this Office for a review of the Council’s decision. The applicant stated that his application was only in relation to the Special Investigation report withheld by the Council. He stated that the report should be released on the basis that the public has a right to know about the internal working of local authorities, especially in regard to public monies. He also argued that due to the passage of time, concerns in relation to confidential information do not stand up.

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 relevant parties, the applicant’s comments in his application for review and to the submissions made by the FOI body in support of its decision.  I have also examined the record at issue and I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

This review is concerned solely with whether the Council was justified in its decision to refuse access, under sections 37(1) and 35(1)(a), to record 14, the special investigation report carried out by the Council’s internal audit unit in 2008. 

Preliminary Matters

Finally, it is important to note that section 25(3) of the FOI act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the record is limited.                                              

Analysis and Findings

The record

The record withheld constitutes a 72-page report undertaken by the internal audit unit into financial irregularities within a Department in the Council. In its submissions, the Council noted that the contents of the report have not been made public and that at the time of the report, all participants were afforded the highest level of confidentiality and participated in the matter on that basis. It contends that the sensitivity of the matter has not diminished with time. Without going into detail, the report constitutes an audit of the finance handling practices of a former employee of the Council, the issue involves public monies which were allegedly mishandled during the course of this individual’s duties. The report contains interviews with a number of staff members who worked with the named individual at the time.

The Council maintain that its position is that this record is a personnel record relating to the competence of the individual in relation to their employment within the Council.

Section 35(1)(a) – Information Obtained in Confidence

Section 35(1)(a) provides for the protection of information given to an FOI body in confidence.

Section 35(1)(a) provides for the protection of information given to a public body in confidence.  For the exemption to apply, it is necessary to show the following:

  • that the information was given to an FOI body in confidence, 
  • that the information was given on the understanding that it would be treated by the FOI body as confidential,
  • that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
  • that it is of importance to the body that such further similar information should continue to be given to the body.

Before I consider the applicability of section 35(1)(a), I must consider whether section 35(2) applies, as this section serves to disapply section 35(1).  That section provides that subsection (1) does not apply to a record that is prepared by a member of the staff of an FOI body or a service provider in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than an FOI body or a service provider or to a member of the staff of an FOI body or a service provider.

The record constitutes an internal audit report prepared by employees of the Council. It comprises interviews with nineteen employees of the Council, and one former employee. The report is entitled an “internal audit investigation” and as previously stated, it relates to the misuse of public monies by an employee.

In the Council’s submissions, it argued that all four requirements of section 35(1)(a) are met, and that the release of such information would prejudice the Council’s ability to conduct such investigations in the future. It does not appear that it has adequately considered section 35(2). It stated that each of the participants would have an expectation that the matter was afforded the highest level of confidentiality, and participated in the process on that basis.

As the record in question was created by the Council, in respect of a matter involving staff and Council money, refusal of the record on the basis of section 35(1) cannot apply unless a duty of confidence is owed by way of an agreement to a third party, which is not an FOI body or a service provider. Although the Council has referenced a reporting ban which was verbally communicated to staff, this does not meet the criteria under section 35(2). As such I find that section 35(1)(a) cannot apply to the record.

Section 37 – Personal Information

Section 37(1) and 37(7)

The Council also contends that this record should be exempt from release under section 37(1) and 37(7). 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 relating to a third party. 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.

Moreover, section 37(7) provides for the mandatory refusal of a request if granting access to the record sought would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, any such personal information that is inextricably linked to personal information relating to parties other than the applicant is exempt. However, it is important to note that section 37(1) is subject to the other provisions of section 37, and those provisions must be considered before the request can be refused.

Submissions

In its submissions to this Office, the Council argues that the record in question focuses on the work practices and performance of a staff member, the role has been described as a very public interfacing one. As such, the Council states that should the report be released in full or part-granted, it would be easy to identify the staff member concerned. The Council concludes that, on this basis, the information within the report is the personal information of this individual.

The Council has stated that section 2 of the Act provides that the definition includes, at part (iii), “information relating to the employment or employment history of an individual.” It has further noted section 11(6)(a) which clarifies the definition of a personnel record which includes:

a record relating wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of an FOI body or his or her employment or employment history or an evaluation of the performance of his or her functions generally or a particular such function as such member,

The Council also states that it is satisfied that the requirements of section 37(2) are not met. It further notes that the contents of the record contains personal information relating to a number of parties, which is closely intertwined.

In response to the submissions provided by the Council, the applicant argues that its determination to keep the report from being released reflects very poorly on the Council. He has commented that its instinct in such cases is to try to sweep things under the carpet and hope that they are never aired in public. He has stated that in his view, this underscores the overwhelming public interest in releasing the record sought, in these circumstances.

The applicant states that if the request were refused, then it follows that any investigation carried out by a local authority into an employee’s misuse of public funds, or of their position, would fall to be refused even after many years had passed. He has stated that such a position would undermine trust in local government, by placing the potential embarrassment of the Council and employee before the public interest.

Section 2 of Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition. These categories include (i) information relating to the educational, medical, psychiatric or psychological history of the individual; (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; (xiv) the views or opinions of another person about the individual.

Having examined the record carefully, I am satisfied that parts of the record contain the personal information of individuals other than the applicant. The information relates to the employee who is the subject matter of the report. Aside from information relating to the individual’s work in the Council, there is also information, which falls to be exempt because it relates to personal information unrelated to his employment with the Council.

Separately, a number of other third parties, including current and former employees of the Council provided statements. However, I am satisfied that section 2(l)(b) applies in the circumstances and that the information relating to and provided by the employees of the Council does not constitute personal information, as it constitutes the views or opinions of the individual in relation to staff of an FOI body. As such, I believe this information cannot benefit from the exemption under section 37(1) or 37(7). I wish to also note that the exclusions at (l) do not provide for the exclusion of all information relating to staff members, where any information may identify a personal aspect of the individuals life, this will be considered in light of the public interest test below.

Section 37(5)

Subsection (5) provides that a request that would fall to be refused under subsection (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 subsection 5(b) does not apply in the circumstances of this case.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that 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. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources v The Information Commissioner & Ors [2020] IESC 57, available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. While the comments of the Supreme Court were made in the context of the public interest test in section 36, which is concerned with the protection of commercially sensitive information, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, and having 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 [2011] IESC 26, it is important to note 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.

I therefore consider that, if I am to direct the release of the record at issue, I am required to identify a specific public interest, identifiable following an analysis of relevant records in this case, which is sufficiently strong as to outweigh the interests of protecting the right to privacy.

Having carefully examined the record in question, I have noted that severity of the matter at hand. While the Act recognises the strength of the right to privacy, it also recognises the strong public interest in knowing how public monies are spent, and that people in receipt of remuneration of public funds, such as employees or contractors can expect a diminished right to privacy in terms of how these funds are handled. This is based on the public interest in promoting adherence to the principle of transparency and accountability of public bodies.

The Council has argued that the public interest lies with the protecting the privacy of members of staff. While this is a strong argument, it is worth considering the distinction between personal information relating to an individual’s private life and other personal information, which does not relate to private matters. While the record contains some personal information relating to staff members or third parties, this is not the primary purpose of the record and could be dealt with via redaction by the Council. It further argues that there is an interest in public bodies being able to perform their functions effectively, particularly in relation to personnel matters. While this is a fair argument, it seems to me that the misuse of public funds is more than a personnel matter, there is a strong public interest in the accountability of public bodies when it comes to how public money is managed. The actions of an employee during the course of their duties does not meet the definition of personal information under section 37(1). However, I do not consider that there is a strong enough public interest to release the small amount of personal information in the report which does relate to the subject.

On balance, I consider that the public interest lies in favour of releasing the record concerned, subject to the redaction of any identifying information within the report relating to the individuals who provided statements, and third parties referenced to protect their identities.

Having regard to the definition of personal information and the nature of the record, I consider that the following information could be redacted from the record to protect the privacy of the individuals and organisations referred to.

  • All names of staff, past and present, referred to in the report.
  • All names of third parties, including contractors and other businesses referred to.
  • Information relating to services or terms of contract
  • All details concerning the medical history of employees referenced in the report.
  • The name of any solicitors or solicitor firms.
  • Any addresses of businesses, employees, or addresses of Council projects referenced in the report.

I am directing the release of all other information contained in the report to the applicant.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. While I find that it was justified in its decision to withhold access to some of the information relating to the individuals, contractors, and companies referred to in the report. I find that it was not justified in refusing access to the rest of the information in the report, and I direct the release of that information to the applicant.

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 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.

 

Rachael Lord
Investigator