Mr X and Department of Social Protection [2024] IEIC 139939 (26 April 2024)

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Right of Appeal

Whether the Department was justified in refusing access to records relating to its hiring of a named individual and its subsequent termination of their employment

26 April 2024

Background

In a request dated 26 May 2023, the applicant sought access to:

1. All records relating to the Department's reaction to queries and stories published about its hiring of a named individual;

2. All records relating to the termination of the individual's employment with the Department.

In a decision dated 2 June 2023, the Department part granted the applicant's request. It identified 26 records as relevant to the request. It granted access to one record and it refused access in full or in part to the remaining records under sections 29(1), 30(1)(a)/(b), 35(1)(a) and 37(1) of the FOI Act. On 2 June 2023, the applicant requested an internal review of the Department's decision. On 26 June 2023, the Department issued its internal review decision in which it affirmed its original decision. On 27 June 2023, the applicant applied to this Office for a review of the Department's decision.

During the course of the review, this Office wrote to the Head of the Department and outlined its view that the original and internal review decisions fell short of the requirements under the FOI Act to provide reasons for the refusal to release records. In accordance with section 23(1) of the FOI Act, this Office required the Department to furnish the applicant and this Office with a statement of reasons for refusal, identifying the relevant provisions of the Act, 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 Department provided the applicant and this Office with its statement of reasons. The Department also provided this Office with focused submissions in support of its decision. The applicant provided this Office with his reply to the Department's statement of reasons, he also provided submissions and links to online newspaper articles in support of his application for review.

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 to date. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review

The scope of this review is confined to whether the Department was justified in refusing access in full or in part to records 1-24 and 26 under sections 29(1), 30(1)(a)/(b), 35(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Section 18 of the FOI Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner takes the view that neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

Although I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large.

Analysis and Findings

The Records

While I am limited in the extent to which I can describe the contents of the records at issue, I believe it would be useful to provide a brief overview of same. The records include correspondence from the Department to a named individual offering a temporary contract of employment, correspondence from the applicant to the Department querying whether it was aware of certain High Court proceedings involving the individual and a reply from the Department's Press Office (this correspondence was partially released). The records include a candidate self-declaration form completed by the individual and correspondence in relation to pre-employment checks. The records include correspondence and notes of investigations and enquiries into the matter including notes of meetings between the Department and the individual and correspondence to the individual outlining the findings and outcome of these investigations.

Section 37 Personal Information

Section 37(1)

Having regard to the content of the records, it seems to me that section 37 of the FOI Act is the appropriate exemption provision to consider first. The Department refused access in full or in part to the records 1-7, 9-12, 14-24 and 26 under 37(1) of the FOI Act. Section 37 is a mandatory exemption provision and it provides for the refusal of a request where access to the record sought would involve the disclosure of personal information relating to an individual other than the requester. For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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.

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 (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual; (vi) information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, (vii) information relating to any proceedings for an offence committed, or alleged to have been committed, by the individual, the disposal of such proceedings or the sentence imposed by any court in such proceedings.

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 applicant states that the individual's employment with the Department was terminated after his story outlining how they had been hired by the Department/ Public Appointments Service (PAS) after certain adverse findings were made against the individual in the High Court. He says he does not believe the confidentiality exemptions put forward by the Department can be so all-encompassing as to prohibit release of all records related to this controversy. He states that if there are issues relating to medical matters they can be redacted. He states that records related to HR issues cannot be universally prevented from release under FOI due to them touching on sensitive matters. He states that such records have been released before, including by the Department concerning investigations into staff breaching Data Protection rules and laws and this has not prevented staff or unions dealing with the Department on sensitive matters.

The Department states that the records contain personal information about actions and processes that relate to the individual as a private citizen and which predates their taking up employment with the Department. It states that documents were sent to the individual prior to their taking up employment that relate to the individual's application and candidacy for the position. It states that these documents would usually be considered very personal, and their specific contents may only become known to the individual or members of the family, or friends, of the individual. The Department states that the records also contain enquiries made into the individual's history before their employment with Department. Again, it states that these records are not related to the carrying out of functions as a staff member of the Department and contain personal information in their capacity as a private citizen. The Department states that elements of the individual's past may be in the public domain, however it says personal information does not stop being personal information when in the public domain.

I have examined the records at issue carefully and I accept that they contain information that would ordinarily be known only to the individual or members of the family, or friends, of the individual including personal phone number, home address, private emails address and availability to work. The records contain information relating to employment history. They also include notes of meetings with the individual which discuss employment history which pre-dates the individual's employment with the Department. The records include a self-declaration form which contains medical and character information which in my view was provided on the understanding that it would be treated by the Department as confidential. I note that there are newspaper articles in the public domain which refer to Court proceedings involving the individual and the fact that the individual secured employment with the Department. I am satisfied however, that the records at issue contain sensitive personal information of the individual which goes beyond the information contained in these newspaper articles.

I have considered whether the exclusion to the definition of personal information contained in Paragraph I applies to the records at issue. The records are largely concerned with investigations and enquiries carried out by the Department in relation to pre-employment matters such as checks, vetting and self-declaration forms. The content of the records is related to the individual's history prior to joining the Department, the content is not related to the individual carrying out of functions as a member of staff of the Department. I am satisfied that the records do not come within the exclusion in Paragraph I. In my view, the records contain information which falls within the definition of personal information as outlined above and I find that they are exempt under section 37(1) of the Act.

Section 37(2)

Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply to the information concerned. That is to say, the information contained in the records does not relate solely to the applicant; the third parties have not consented to the release of their information; the information is not of a kind that is available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 37(5) The Public Interest

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 records would benefit the individuals to whom the information relates and I find that section 37(5)(b) does not apply.

Before I consider the applicability of section 37(5)(a), there are a number of points to note. First, section 13(4) provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the record at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.

Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, which are not relevant here, FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose. All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.

In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, 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. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 ("the Enet case"). In that case, 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.

On the other hand, 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. 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. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a).

The applicant argues that there was inadequate consideration by the Department of the public interest in there being transparency in the failings of the Department/PAS recruitment process and vetting of candidates. He argues that there was widespread disbelief that the Department would employ a person who has admitted to certain specified matters. He says records relating to what enquiries the Department and PAS carried out in this case and what issues were discovered are all matters that should be released in the public interest.

The Department states that it holds vast amounts of data, including correspondence, medical records, disciplinary records, performance evaluations, and other personal details of staff members. It states that it safeguards the personal information of staff members and disclosing such information publicly could have severe consequences for the individuals involved, compromising their privacy and potentially leading to stigmatisation or discrimination. The Department states that while the FOI Act promotes openness and accountability in the public sector, it also recognises the need to protect sensitive information. It states that this exemption protects personal data, encouraging individuals to be more willing to work for public bodies without the fear of their personal details being unduly exposed. On balance, it argues that the public interest is best served by refusing access to these records

There is a public interest in openness and transparency in relation to how FOI bodies carry out their functions including how FOI bodies carry out their functions in conducting pre-employment checks and vetting to ensure that new staff members are of suitable character. This is of particular importance where staff members are carrying out functions such as administering social welfare payments. I note that the Department has stated to the applicant that it recruits staff through the Public Appointments Service (PAS) and where a candidate is being considered for a role, PAS carry out final eligibility and pre-employment checks including Garda vetting before assigning the candidate to a Government Department. I accept that release of certain of the records would provide a level of transparency in relation to the recruitment and vetting process. On the other hand, these records contain sensitive personal information about the individual which pre-dates the individual's employment with the Department. The records also contain sensitive information provided to the Department in the expectation that it would be treated with confidentiality and discretion. In my view, releasing these records to the world at large would result in a significant intrusion into the privacy rights of the individual. I have considered the submissions of the parties and the contents of the records carefully and I take the view that, on balance, the public interest is best served by refusing access to these records. I find that the protection of the individual's privacy rights outweighs the public interest in release of the records at issue.

Section 29 - Deliberations of Public Bodies

The Department relied on section 29 of the Act in refusing access to records 8, 9 and 13-18. I have found that the Department was justified in refusing access to records 9 and 14-18 under section 37 of the Act. I will therefore consider whether the Department was justified in refusing access to records 8 and 13 under section 29 of the Act.

Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest. These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply. Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows how granting access to the particular records would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

The applicant states that the individual's employment with the Department was terminated subsequent to his story outlining how they had been hired by the Department/PAS. He states that in light of this, it is very difficult to see how the Department can maintain its argument that the records are exempt due to an ongoing deliberative process. He says it was 2023 when these matters came to a head and the ongoing use of the deliberative process exemption is not sustainable over such a period of time.

The Department states that records 8 and 13 relate to the deliberative processes of the Department and its deliberations with PAS in order to achieve an agreed way forward. It states that this process is specifically in relation to the management of the employment of the individual and related issues as they have arisen. It states that this is a very sensitive issue and it is clear that deliberation is needed within and between these bodies. It states that the records refer to correspondence that is being drafted to issue to the individual and this correspondence must be drafted by Department but also requires PAS to input and confirm details.

I accept that the Department was engaged in a deliberative process and it was seeking to achieve an agreed way forward with PAS. I note that the Department sent a draft letter to PAS and requested its input in relation to the draft letter. However, records 8 and 13 do not contain the draft letter that the Department was deliberating on. Records 8 contains a cover email from the Department to PAS and record 13 contains single line reply from PAS. In my view, these emails cannot reasonably be described as a thinking process which informed decision-making in the Department. They do not involve the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Rather, these records are an email to which the draft letter was attached and a single line reply which does not give any details of the letter under consideration. I find that section 29(1)(a) does not apply to records 8 and 13.

Section 30 - Functions and negotiations of FOI Bodies

The Department relied on section 30(1)(a)\(b) in refusing access to records 3-23 and record 26. I have found that the Department was justified in refusing access to records 3-7, 9-12, 14-24 and 26 under section 37 of the Act. I will therefore consider whether the Department was justified in refusing access to records 8 and 13 under section 30(1)(a)\(b) of the Act.

Section 30(1) of the Act provides for the refusal of a request if the FOI body considers that access to the record concerned could reasonably be expected to:

a.prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof,

b. 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),

Section 30(2) provides that section 30(1) does not apply where the FOI body considers that the public interest would, on balance, be better served by granting than by refusing to grant the request.

Section 30(1)(a)

Section 30(1)(a) is what is known as a harm-based provision. It envisages two potential types of "prejudice" or harm: the decision maker must hold the view that the release of the record could reasonably be expected to prejudice the "effectiveness" of the tests, examinations, investigations, inquiries or audits, or the procedures or methods employed for the conduct thereof. Where an FOI body relies on this provision, it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. A claim for exemption under this provision must be made on its merits and in light of the contents of the particular records concerned and the relevant facts and circumstances of the case.

The Department states that these records are related to investigations and enquiries into the individual's employment with the Department and the findings of these investigations and enquiries. It states that it is not just this specific case that the release of these records may prejudice or harm. It states that release of the records also has the potential to prejudice or harm these types of investigations and enquiries should they happen again, and the processes and procedures utilised therein. The Department did not elaborate further on how it envisaged its processes and procedures being prejudiced, or how release of the particular information could lead to such harm. Nor is it evident to me from a careful examination of the records how the release of such information could possibly cause harm to investigations or the methods used by the Department for its investigations. As outlined above, records 8 contains a cover email from the Department to PAS and record 13 contains a single line reply from PAS. Neither the attached letter nor information in relation to the investigation or the procedure used in carrying out the investigation is contained in these records. I find that the Department was not justified in refusing access to records 8 and 13 under section 30(1)(a) of the FOI Act.

Section 30(1)(b)

Section 30(1)(b) is also a harm-based exemption. In relying on this sub-section, an FOI body should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and, having identified that harm, consider the reasonableness of any expectation that the harm will occur. An FOI body seeking to rely on section 30(1)(b) should explain how, in its opinion, release of the record(s) could reasonably be expected to give rise to the harm envisaged. A claim for exemption under this provision must be made on its merits and in light of the contents of each particular record concerned and the relevant facts and circumstances of the case.

When invoking section 30(1)(b), the FOI body must make an assessment of the degree of importance or significance attaching to the adverse effects claimed. Establishing "significant, adverse effect" requires stronger evidence of damage than, for example, "prejudice" (as per section 30(1)(a) of the FOI Act, above). In other words, not only must the harm be reasonably expected, but it must also be expected that the harm will be of a significant nature.

The Department states that in these records it is corresponding with the Public Appointments Service for clarification on a unified way to proceed. It states that the harm that comes from releasing these record is the envisaged reduction of the processes in place to allow managers to manage. It states that the Department is a large organisation with thousands of staff. It states that the its management deal with many and varied staff issues on a regular basis. It argues that staff would have less trust in the management of the Department if sensitive records, such as these were released under FOI. In my view, the Departments concerns are significantly overstated. I accept that the draft letter that the Department sent to PAS for its input contains sensitive information in relation to a former staff member. However, I have found that this letter is exempt under section 37 and what is at issue here is a cover email from the Department and a one-line reply from PAS. I am not satisfied that release of these records could reasonably be expected to result in the harms outlined in section 30(1)(b) and I find that section 30(1)(b) does not apply to records 8 and 13.

Finally, the Department relied on section 35(1)(a) of the FOI Act in refusing access to records 6, 7, 10, and 12. I have found that the Department was justified in refusing access to these records under section 37 of the Act. It is not necessary therefore to consider whether they are also exempt under section 35(1)(a) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Department's decision. I find that the Department was justified in refusing access under section 37(1) of the FOI Act to records 1-7, 9-12, 14-24 and 26. However, I find that the Department was not justified in its decision to refuse access to records 8 and 13 under sections 29(1)(a) or 30(1)(a)\(b) of the FOI Act and I direct their release 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.

Jim Stokes, Investigator

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