Case number: 180466
21 June 2019
On 30 July 2018, the applicant requested access to a record held by the IPS of a report of an 'Independent verification of savings and costings under the Haddington Road Agreement [HRA]- May 2015'. In its original decision, the IPS refused access to the record on the basis of section 30(1)(b) and 30(1)(c) (Functions and negotiations of FOI bodies) of the FOI Act. Following an application for an internal review, the IPS affirmed its original decision. On 2 November 2018, this Office received an application for review of the decision of the IPS from the applicant who was critical of the decisions it had received.
In conducting this review I have had regard to the submissions of the IPS and to correspondence between the applicant, the IPS 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 applicant was invited to make submissions in addition to his review application but none was received by this Office.
This review is concerned solely with whether the IPS was justified in deciding to refuse access to the record on the basis of section 30(1)(b) and (c) of the FOI Act.
I agree with the applicant on the wholly unsatisfactory manner in which the IPS has handled the request. Neither the original decision nor the internal review decision give the applicant sufficient reasons for the refusal of access to the record as required by the FOI Act. Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision. The IPS ought to be fully aware of its obligations under the FOI Act. There is a wealth of training material and other resources to assist FOI bodies on the website of the Central Policy Unit (CPU) of the Department of Public Expenditure and Reform (DPER) at www.foi.ie, and on the Commissioner's website (www.oic.ie) and I find it hard to understand why decision makers do not avail of the guidance available in carrying out their statutory functions.
In the course of the review, the Investigator sought and obtained submissions from the IPS in order to establish if the section 30(1) exemptions were justified.
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, as well as the detail of the arguments put forward and potential harms identified in my analysis is limited.
Section 30(1)(b) provides for the refusal, subject to a public interest test, of a request if the FOI Body considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management, including industrial relations and management of its staff. When invoking section 30(1)(b), the FOI body must make an assessment of the degree of significance attaching to the adverse effects claimed. Establishing “significant adverse effect” requires stronger evidence of damage than the “prejudice” standard in section 30(1)(a). Having identified the significant adverse effect envisaged, the FOI body should then consider the reasonableness of its expectation that the harm will occur.
In its application for review, the applicant referred to the fact that the record was created in 2015. Also, he noted that the IPS did not refer to the public interest in its decision.
While I am constrained by the provisions of section 25(3) in describing the information in the record in detail, I consider that, without breaching that section, I can give some necessary background to the Report's content.
In 2015, the IPS commissioned a report from consultants (an 'Independent verification of saving and costings under the Haddington Road Agreement'). This was done in what the IPS refer to as "the context of a conciliatory process under the auspices of the Workplace Relations Commission relating to the implementation of the national pay agreement [the Haddington Road Agreement)]". The IPS and one of the staff representative associations were parties to the HRA. The HRA was effective from 2013 to 2016 and was extended by the 'Public Service Stability Agreement 2013-2018' (known as the Lansdowne Road Agreement), which was itself extended by the 'Public Service Stability Agreement 2018-2020'.
Although the Report is dated May 2015, and reviews matters relating to costing and supporting assumptions in respect of the HRA, it also looks at actions and items targeted for savings that were not and were not expected to be delivered within the HRA timeframe.
The IPS said that the purpose of the report was to verify the management position taken under this industrial relations process with a specific staff representative association. It said that the staff representative association is only one of several associations with which it has relations and with whom the IPS is involved in negotiations as part of the Public Service Stability Agreement. It said that several matters referred to in the report have yet to be implemented.
The IPS stated that should the report be released it would serve to undermine its management position in the context of current collective agreements with a number of staff representatives under current and potentially future national pay discussions and may result in significant additional costs to the IPS. The IPS said that matters referred to in the report were still being considered and that release of the record would disclose positions it had taken which may affect its ability to negotiate with other associations. It said that it will rely on positions explained in the record in respect of future negotiations with any number of staff representatives in its service and that release of the information in the record would be detrimental to those negotiations.
In examining the merits of an FOI body's view that the harm identified could reasonably be expected to occur if the records were released, I do not have to be satisfied that such outcome will definitely occur. The test is not concerned with the question of possibilities or probabilities but with whether the decision maker's expectation is reasonable. In other words, are there adequate grounds for the expectation?
When invoking section 30(1)(b), this Office takes the view that the body must identify the function relating to management that would be affected and make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Not only must the harm be reasonably expected but it must also be expected that the harm will be of a significant nature. It is clear from the content of the record and from the submissions of the IPS that the management functions at issue here are those of staff management and industrial relations.
In light of the submissions made and the content of the record, I accept the IPS’s position that release of the record under FOI at this time could reasonably be expected to have a significant adverse effect on its staff management and industrial relations functions, including those concerned with costs and pay. While the report is four years old, it is evident that some of the difficulties identified are still very much “live issues” in the management of the IPS and in its relations with staff. I find that section 30(1)(b) applies.
Section 30(2) - the public interest
Section 30(2) of the FOI Act provides that the exemptions contained in subsection (1) shall not apply in relation to a case in which, in the opinion of the FOI body concerned, the public interest would, on balance, be better served by granting rather than by refusing to grant the request. As a general proposition, I agree that there is a public interest in public bodies operating in an open and transparent manner. However, the Act requires that the public interest in releasing information which might contribute to such openness and transparency must be balanced against the harm which might be occasioned by its release which amounts to disclosure to the world at large.
The IPS said that it accepts the right of the public to information and recognises the importance of accountability. However, it said that the public interest did not favour granting access because release of the record would disclose positions taken on industrial relations issues and affect future negotiations. It said that release of the record would have an adverse impact on service and payroll costs.
I agree that there is a significant public interest in ensuring that the IPS performs its role relating to management of the prison service including industrial relations and payroll costs effectively and efficiently. As I observed above, despite the age of the report and the conclusion of the HRA, at least some of the difficult issues in the report are still the subject of negotiations. In all the circumstances, I find that the public interest would not, on balance, be better served by the release of the record. I find, therefore, that the IPS was justified in refusing the request under section 30(1)(b).
I considered whether it would be possible to extract some of the less sensitive material from the report with a view to directing the release of a redacted version. However, I concluded that this would not be practicable and that, having regard to section 18 of the FOI Act, the resulting copy of the record would be misleading.
Given my finding on section 30(1)(b) it is not necessary for me to deal with section 30(1)(c) – protection of positions taken for the purposes of negotiations – in this review.
Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the IPS to refuse access to the record under section 30(1)(b).
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.