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Case Number:150380

Whether the Department was justified in partially refusing a request for access to personnel and disciplinary records relating to the applicant

Conducted in accordance with section 22(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

The applicant is employed by the Department and was previously the subject of a disciplinary process in relation to an allegation made against him [...]. On 6 February 2015 he sought access to his personnel [...] files and the relevant investigation files relating to the disciplinary process that was conducted. The Department issued five separate decisions from the various sections that held relevant records. On 7 April 2015, the applicant sought an internal review of the decision issued by the Department's Personnel Division in respect of records held on his personnel file and the decision issued by the Investigating Officer in respect of records she held relating to the disciplinary investigation. In both cases, access had been granted in part. In the case of the records on the applicant's personnel files, certain information was withheld from 26 records, while access was refused to four other records in their entirety. The Investigating Officer withheld information from two records, while refusing access to nine others in their entirety.

On 1 May 2015, the Department issued two separate internal review decisions, in which the original decision taken on the records held on the applicant's personnel file was varied in so far as access was granted to four records to which access had previously been refused, while the decision taken by the Investigating Officer was affirmed. The decision to refuse access to certain records, whether in whole or in part, was taken on the ground that they contained personal information relating to third parties. On 28 October 2015, the applicant sought a review by this Office of the Department's internal review decisions.

On 18 November 2015, this Office informed the applicant that a fee applies where an application for review involves a request for access to non-personal information or access to personal information relating to parties other than the applicant. It further informed him that if the appropriate fee was not received within two weeks, the review would proceed in relation to those records that contain only personal information relating to him and that his request for non-personal information or personal information relating to other persons would not be considered. No fee was received within the time specified. On 10 December 2015, this Office wrote again to the applicant to accept the application for review and informed him that the scope of the review would be confined to those records that contain only personal information relating to him.

On 4 February 2016, Simon Noone, Investigator, wrote to the applicant and informed him of his opinion that the records that had not been released in full contained personal information of third parties and therefore fell outside the scope of the review. He stated that he intended to recommend to the Commissioner that the review be discontinued under section 22(9)(a)(v) of the FOI Act, which allows for the discontinuance of a review where "there is no longer any issue requiring adjudication, as access to the records in question has been granted by the FOI body in the course of the review." He stated that if the applicant did not agree with this proposed course of action, he should make a submission setting out his objections within two weeks.

On 5 February 2016, Mr Noone received a telephone call from the applicant's wife. She stated that her husband did not agree with the contents of Mr Noone's letter, and that his concern was that not all records falling within the scope of the review had been properly identified and listed on the relevant schedules of records provided by the Department. Mr Noone noted that it did not appear that this argument had been raised before by the applicant, whether in his application for internal review, his application to this Office, or otherwise. He stated that the applicant should provide reasons for his opinion that all records had not been identified, to enable this Office to consider the matter further.

On 22 February 2016, a submission on behalf of the applicant was received, which referred to a number of records which the applicant believed should have been included by the Department. A further submission with enclosures was received on 4 March 2016. Mr Noone subsequently requested a submission from the Department, which was furnished on 13 April 2016.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to the correspondence between the applicant and the Department as outlined above and to the correspondence between this Office and both the applicant and the Department on the matter.

Scope of the Review

The scope of any review is determined by the wording of the original FOI request, subject to any subsequent refining of that request during the processing of the request and any subsequent appeal or review processes. In this case, the Department refused access to number of records, either in whole or in part, in two of five separate decisions. In his letter of 7 April 2015, the applicant sought an internal review of those two decisions. In that letter, he simply stated that he wished to appeal the decisions made by two named decision makers, whom he referred to as having "refused granting of information" and he referred to the attached schedules of records. While I note that during the course of the review, the applicant raised the possibility of further relevant record not having been considered for release, he did not raise this possibility with the Department when seeking an internal review of the original decisions. As such, the Department treated his request for internal review, appropriately in my view, as a request for a review of the decision to refuse access, in whole or in part, to certain identified records. It was not requested to consider whether further relevant records might exist.

Furthermore, the applicant made no reference to the possibility of the existence of further relevant records when he applied to this Office for a review of the internal review decisions made by the Department. Rather, he simply referred to the fact that he had appealed the two decisions of the relevant decision makers who had refused to grant access to certain records. Accordingly, I am satisfied that this review must be confined to whether the Department was justified in withholding access to certain records, as identified in the schedules of records provided to the applicant.

It must be noted, however, that as the applicant failed to pay the requisite fee to allow this Office to consider whether the Department was justified in refusing access to non-personal information or personal information relating to third parties, the review is further confined to the question of whether the Department was justified in withholding or redacting the records on the grounds that the withheld information is not personal information relating to the applicant.

I should add that the applicant is fully entitled to make a fresh FOI request to the Department if he considers that it holds specific records that have not been considered for release when processing the request that is the subject of this review.

Preliminary Matter

In his submissions to this Office, the applicant raised additional queries that are outside of the scope of this review, including a request for clarification as to why certain records were kept on his personnel file, concerns regarding data protection, and concerns about one of the Department's original decisions, in respect of a section other than Investigations or Personnel. The scope of this review is as outlined above. Furthermore, it is not within the remit of this Office to adjudicate on how FOI bodies carry out their functions generally, or to investigate complaints against such bodies.

Findings

The vast majority of records identified by the Department as coming within the scope of the applicant's request were released in full. Following internal review, the position in relation to withheld information is that certain information was redacted from 26 records held on the applicant's personnel files while the Investigating Officer redacted information from two records and refused access to nine others in their entirety.

I have examined the relevant records, and I am satisfied that the Department correctly identified them as containing personal information of persons other than the applicant. Most of the information to which access was refused concerns only third parties. One of the records contains personal information relating to the applicant that is inextricably linked with personal information relating to other individuals, commonly known as joint personal information. I find that none of the information which has been redacted/refused is personal information relating solely to the applicant. Therefore, I find that the Department was justified in refusing access to the records at issue, whether in whole or in part.

Decision

Having carried out a review under section 22(2) of the Act, I hereby affirm the decision of the Department.

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.

Stephen Rafferty
Senior Investigator