Case number: 170347
The background to this review is complex. From information provided by the applicant and Revenue, it seems the applicant made a number of FOI requests about matters related to a workplace complaint and subsequent investigation. It is evident that the subject matter of the requests overlapped and some were accompanied by a large volume of correspondence. Revenue said that it found it "extremely difficult to keep track of all the records [the applicant] sought and to answer all the queries she has raised" in those requests.
I will not set out the full sequence of events here. It is sufficient to record that on 18 April 2017, Revenue referred the applicant to a pattern of requests made and to the need to avoid a substantial and unreasonable interference with or disruption to the work of the unit in Revenue dealing with the issues. Revenue requested the applicant to submit a detailed request for all the records that she was seeking.
On 28 April 2017, Revenue accepted an FOI request from the applicant in response to its letter of 18 April. She requested access to a number of records, including audio records, held by Revenue. The request also included a large number of queries and complaints. Revenue did not issue a decision within the statutory period. On 30 May 2017, the applicant submitted a request for an internal review on the basis of her request being deemed refused by Revenue under section 19(1) of the Act. On 21 June 2017, Revenue issued an internal review decision and granted access to a number of records in full or in part and refused access to other records on the basis of sections 15(1)(a), 15(1)(i), 30(1), 35(1)(a), 35(4) and 37(1). On 7 July 2017, the applicant sought a review by this Office of Revenue's decision.
In conducting this review I have had regard to the submissions of Revenue and the applicant, and to correspondence between the applicant, Revenue and this Office. I have also had regard to the provisions of the FOI Act. I consider that the review should now be brought to a close by the issue of a formal, binding decision.
The Nature of the Request and the Review
Revenue said it advised the applicant that it considered parts of her request to refer to queries about previous FOI requests she had made and to questions about an investigation involving the applicant. In its submission to this Office, Revenue stated that it had made its internal review decision on the basis of its understanding of what was "the confusing nature of the applicant's correspondence", and that it was trying to "streamline her requests for records and queries on records under the FOI process from her general follow up queries" on an investigation report. As such, Revenue stated that it had requested its 'HR Customer Services' to separately address what it considered to be queries from the applicant. Its FOI Unit set out to respond to what it understood to be requests for access to records. Accordingly, Revenue applied the FOI reference number 'CRMS 2405/2017' to its internal review decision.
The applicant forwarded several letters and emails in support of her application to this Office. In examining that correspondence, this Office found it extremely difficult to determine the specific details of what the applicant wanted the Office to review. It is difficult also to establish which of the applicant's comments refer to previous FOI decisions which are not the subject of this review. The Investigator wrote to the applicant in order to clarify the scope of the review. In so doing, he referred to the applicant's correspondence and to the decision of Revenue to refuse access to records on the basis of sections 15(1)(a), 35(1)(a) and 37(1) of the FOI Act. He stated that the scope of the review would be confined solely to the decision of Revenue in relation to those exemptions. The applicant was also advised that a query she made about section 9 of the Act (Amendment of records relating to personal information) was separate to the decision of Revenue and is not within the scope of this review.
In her application letters, the applicant referred to several numbered points. However, some of those points were complaints or queries in relation to other matters not related to this review.
In reply to the Investigator's letter on the scope of the review, the applicant requested a decision on "each component/query raised" by her. It seems to me the applicant may not fully appreciate the limited remit of the Commissioner.
While the FOI Act provides for a right of access to records held by FOI bodies, requests for information, as opposed to requests for records, are not valid requests under the Act. The Act does not require FOI bodies to create records if none exist and does not oblige FOI bodies to answer general queries. Furthermore, the Act does not generally provide a mechanism for answering questions, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. In addition, this Office has no role in examining how public bodies perform their functions generally. The Act provides for a right of access to records held. However, it also places an onus on requesters to provide sufficient particulars in relation to the information concerned to enable the requested record to be identified (my emphasis).
The applicant referred to section 52 of the FOI Act. Section 52 introduces the penalty of a fine for a person convicted of the deliberate altering or destruction of records which are the subject of an FOI request. However, having examined the records to which the applicant refers, I am satisfied that these matters can be dealt with under the exemptions identified in the scope of this review. In any case, the Commissioner does not have a role in adjudicating on complaints concerning section 52.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
Section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore in this case, the onus is on Revenue to satisfy the Commissioner that its decision is justified.
This review is solely concerned with whether the decision of the Revenue to refuse the applicant's request under sections 15(1)(a), 35(1)(a) and 37(1) of the FOI Act was justified.
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at his/her decision and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.
The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. However, it is not normally the function of this Office to search for records that a requester believes are in existence.
The Investigator put a number of queries to Revenue about records that the applicant referred to, in order to establish whether they exist and/or are held.
In her submission, the applicant referred to a handwritten document concerning a PMDS rating. The applicant stated that she requested a copy of this record but was refused. Revenue stated that the only rating the applicant received was for 2008 and it is not aware of a handwritten document to support the rating. It said that the applicant had received her PMDS forms "and narrative (if any) on the HRMS system", for 2008, 2010 and 2011, and that hard copies of forms for 2007 and 2008 cannot be found.
The applicant also requested access to details of "out of pocket expenses", and referred specifically to additional costs and phone bills. Revenue stated that it does not record such expenses and that the records do not exist.
Revenue responded to a search query from the Investigator relating to a HR Consultancy company who held records on its behalf, including audio recordings relating to the investigation referred to earlier. It is the position of Revenue and of the company that the audio recordings are no longer held.
In her submission, the applicant expressed her understanding that the audio recordings would be retained for six years. She also stated that she was told she would have access to the recordings on request. In its internal review decision, Revenue referred to a letter from the applicant that pre-dates her FOI request and stated it granted access to a transcript of the audio file record to the applicant in accordance with section 17 of the FOI Act.
Revenue stated that it contacted the company who said that "all possible searches have been carried out for [the applicant]". Revenue confirmed that all records related to the applicant were identified and forwarded to it. It stated the company maintains an investigation file for approximately six years, and that the file is held in a central location. Revenue confirmed that the company had forwarded the file "in its entirety", and any relevant email correspondence. Revenue stated that all records relevant to the applicant's request were considered.
The position of Revenue is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct Revenue to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, I consider that Revenue has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.
Section 37 - Personal information
Revenue refused access to a number of records on the basis of section 35(1)(a) (Information obtained in confidence). However, given the extent of personal information that appears in the records, I consider that section 37(1) is the most appropriate exemption to examine in relation to all the remaining records the subject of this review.
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. 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 the body as confidential. Section 2 goes on to list fourteen categories of personal information including 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.
Section 37(7) provides that a request shall be refused where access to a record would, in addition to involving disclosure of personal information relating to the requester, also involve the disclosure of personal information of other individuals (joint personal information).
Paragraph I of section 2 of the Act excludes certain matters from the definition of personal information where the individual holds a position as a member of the staff of the body, including his or her name, information relating to the position held or to the functions of the position, and the terms and conditions upon and subject to which the individual holds that position. However, this Office considers that the exclusion is intended, in essence, to ensure that section 37 cannot be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally. In this case, the type of workplace dispute involved has resulted in the creation of records containing personal information of staff members which does not relate to their positions or terms and conditions.
Revenue refused access to the information in the records under section 37(1) of the Act, on the basis they contained the personal information of persons other than the applicant. It is clear from my examination of the records that release of the withheld information would disclose the personal information of parties other than the applicant and that this information is of a private nature. I am satisfied that the withheld information in all of the records within the scope of this review is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the FOI Act applies to those records.
The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.
Section 37(2) of the FOI Act provides for a number of circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2)(a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information. Consequently, I find that section 37(2) does not apply to the details at issue.
Section 37(5) - the Public Interest
Section 37(5) of the FOI Act provides that a request that would fall to be refused under section 37(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 the release of the information at issue would not be to the benefit of any of the individuals concerned and that section 37(5)(b) does not apply.
In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.
Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of the public interest, it is 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 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.
The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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 consider that a significant invasion of privacy would occur if the records were disclosed to the world at large, which is the effective result of releasing records under FOI.
Having regard to the above, on balance, I find that the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.
I am satisfied that all of the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the records.
Having found section 37(1) to apply to all of the withheld records, I do not find it necessary to consider the decision of Revenue to exempt certain records on the basis of section 35(1)(a).
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of Revenue to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I also affirm its decision to refuse access to the withheld information on the basis of section 37(1) of the FOI Act, since the withheld information contains the personal information of individuals other than the applicant.
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.