Whether the Commission was justified in its decision to refuse the applicant's request for certain information relating to disciplinary investigations conducted by or on behalf of the Commission and relating to staff who departed the Commission in 2018 under section 37(1) of the FOI Act
3 April 2019
On 26 November 2018 the applicant submitted a five part request to the Commission for the following information:
1. The number of disciplinary investigations conducted by or on behalf of the Commission in accordance with the Civil Service Disciplinary Code in 2018
2. The number and outcome of each disciplinary investigation finalised/completed in 2018
3. The disciplinary action, if any, taken as a result of each completed disciplinary investigation
4. The number and current status of each ongoing disciplinary investigation
5. The number of staff, broken down by grade, to leave, transfer from, or be seconded from the Commission in 2018 and the reason for each
In its decision of 21 December 2018 the Commission decided to grant the first part of the request and refused parts two to five under section 37 of the FOI Act, which is concerned with the protection of personal information relating to third parties. The applicant sought an internal review of that decision following which the Commission affirmed its original decision on 28 January 2019.
On 31 January 2019, the applicant sought a review by this Office of the Commission's decision. I have decided to conclude this review by issuing a binding decision on the matter. In conducting the review, I have had regard to the correspondence between the applicant and the Commission as set out above and to the correspondence between this Office and both the applicant and the Commission on the matter. I have also had regard to the nature of the information at issue.
Scope of Review
In his application for review, the applicant expressed concerns about the manner in which the Commission handled his FOI request. He referred to issues that arose in relation to the manner of access to the information sought and to apparent deficiencies in the Commission's internal review decision. As well as seeking a review of the decision of the Commission to refuse access to the information sought, he stated that he also wanted this Office to review the initial refusal of the Commission to provide the original decision electronically and to review what he regarded as the Commission's failure to issue an internal review decision.
I have not done so. This review has been carried out under section 22(2) of the Act and is confined to reviewing decisions of a type set out in section 22(1). Accordingly, the review is concerned solely with whether the Commission was justified in its decision to refuse parts 2 to 5 of the applicant's request under section 37(1) of the Act.
Nevertheless, I would make the following comments. On the question of the manner of access, the Commission initially sought to provide the information it intended to release with its original decision in hard copy format and informed the applicant of its intention to do so in advance. It would appear that at that stage, the applicant expressed a desire to receive the relevant information in PDF format and for it to be forwarded by email. However, it is not apparent that he specified a particular access format in his original request. In any event, I note that the Commission subsequently provided the information electronically.
On the matter of the applicant's view that the Commission failed to issue an internal review decision, that view appears to be based on his belief that the internal review that issued failed to meet the requirements of section 21. While I agree that the internal review decision fell somewhat short of the requirements of section 21, this does not mean that the Commission failed to issue an internal review decision. I am satisfied that it did so. In any event, where a public body fails to issue an internal review decision within the time period specified in the Act, a decision refusing to grant the request is deemed to have been made (section 19(2) refers).
Before I address the substantive issues arising, I would like to make a number of preliminary comments.
Firstly, I note that during the course of the review the applicant sought a copy of the submission made by the Commission to this Office. As Ms Whelan of this Office explained, the policy of this Office is that submissions are generally not exchanged between parties to a review. However, the parties are notified of material issues arising for consideration that are not already known to them. Such material issues might include applicable exemptions not previously raised, pertinent search details not previously disclosed to the applicant, and new court judgments which may have a bearing on the outcome of the review. No such issues arise in this case.
Under section 45(6) of the Act, the Commissioner has discretion to adopt such procedures as are appropriate in all the circumstances of a case. In all circumstances, this Office aims to ensure that the approach adopted is fair, and seen to be fair, to all the parties concerned.
Secondly, it is important to note at the outset that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought.
Furthermore, the Act does not require public bodies to create records if none exist, apart from a specific requirement, under section 17(4), to extract records or existing information held on electronic devices. If the body does not hold a record containing the information sought and cannot search for and extract the electronically held records by taking reasonable steps, then that is the end of the matter.
While the applicant's request in this case was for information as opposed to records, I note that the Commission has not argued that it does not hold relevant records containing the information sought. Accordingly this review has proceeded on the basis of a consideration of whether the Commission was justified in refusing access to the information sought.
Finally, it is important to note in the circumstances of this case that the release of records under FOI is, in effect, regarded as release to the world at large as the Act places no restriction on the uses to which records released under FOI may be put.
Analysis and Findings
The Commission refused part two to five of the request under section 37(1) of the FOI Act. Section 37(1) provides for the mandatory refusal of 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.
In response to part 1 of his request, the Commission informed the applicant that there was one disciplinary investigation conducted in 2018. In its submission to this Office, the Commission essentially argued that it refused parts 2 to 5 of the request on the ground that the release of the information would involve the disclosure of personal information relating to identifiable individuals. It stated that apart from one temporary and two full-time Commissioners, it has only 17 members of staff. It argued that as only one disciplinary investigation had taken place in 2018 and as the applicant, who is a member of staff, is aware of the identity of the staff member who was subject to this disciplinary investigation, releasing the information sought at parts 2 to 4 of the request would involve the disclosure of personal information relating to an individual other than the requester.
In relation to part 5 of the request, the Commission stated that as a staff member, the applicant is aware of the number and identity of staff who left the Commission in 2018 and their reasons for departing. It argued that providing the information sought would involve the disclosure of personal information relating to identifiable individuals. During the course of the review the Commission confirmed that its concerns related solely to the applicant's request for details of the grades of the individuals who departed and their reasons for doing so and not the number who departed. It confirmed that three staff members departed the Commission in 2018.
The applicant, on the other hand, argued that the information at issue does not fall within the scope of section 37(1), as it is not information relating to an identifiable individual. In his application for an internal review, he argued that the information must relate to an identifiable individual and he made reference to the exclusion to the definition of personal information in the Act relating to staff members of public bodies. Finally he argued that by providing a response to part 1, the Commission had implicitly accepted that such information was not personal information.
The 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 the body as confidential. The Act details fourteen specific categories of information which 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) i.e. personnel records of staff of FOI bodies.
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.
Having regard to the small size of the organisation, I am satisfied that the release of the information sought by the applicant would involve the disclosure of information about identifiable individuals. Given the nature of the information sought, I am also satisfied that the information that would be disclosed is personal information relating to those individuals. I do not accept that the exclusion to the definition of personal information applies to the information at issue. Furthermore, the fact that the Commission decided to provide the information sought at Part 1 of the applicant's request does not mean that the remaining information sought is not personal information. In the circumstances, I am satisfied that section 37(1) applies to the information sought.
Section 37 contains other provisions that serve to disapply section 37(1), namely subsections (2) and (5). I am satisfied that none of the circumstances identified at section 37(2) arise in this case. Section 37(5) provides for the release of information to which section 37(1) applies where (a) the public interest in granting the request outweighs, on balance, the public interest in protecting the privacy rights of the individuals concerned or (b) the grant of the request would benefit the individuals concerned. I am satisfied that subsection (b) does not apply.
On the question of whether subsection (a) applies, the FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies, regarding how they conduct their business. Indeed, under section 11(3), in performing any function under the Act, public bodies must have regard to, among other things, the need to achieve greater openness in their activities and to strengthen their accountability.
On the other hand, the FOI Act also recognises a very strong public interest in protecting privacy rights - in 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 is whether the public interest in the promotion of transparency and accountability concerning the manner in which the Commission carries out its functions is sufficiently strong to outweigh, on balance, the public interest in protecting the privacy rights of the individuals concerned. In my view, it is not. Granting the request would involve the disclosure of personal information of an inherently private nature such as an individual's involvement in a disciplinary process. Having carefully considered the matter, I find that the public interest in the release of the records at issue does not, on balance, outweigh the privacy rights of the individuals to whom the records relate. I find that section 37(5)(a) does not apply.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the Commission to refuse the applicant's request for certain information relating to disciplinary investigations conducted by or on behalf of the Commission and relating to staff who departed the Commission in 2018 under section 37(1) 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.