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Case Number: 160207

Whether the Institute was justified in its decision to refuse access to records relating to the selection process for a post and to a review of that process under section 30(1)(b) of the FOI Act, and whether the Institute was justified in refusing to provide a statement of reasons to the applicant under section 10 of the FOI Act

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

On 18 January 2016, the applicant submitted a request to the Institute, comprising sixteen separate categories. Fourteen categories broadly related to the recruitment process for a particular post, matters arising out of that process, including a subsequent review, and associated costs, while the remaining two categories related to minutes of the Institute's Executive Board.

The Institute issued a decision on 3 March 2016 granting access to records it regarded as falling within nine categories of the applicant's request, granting access to some records it regarded as falling within one category, and refusing the balance of the applicant's request.

The applicant sought an internal review of that decision by way of email dated 5 March 2016, raising a number of issues relating to her dispute with the Institute, and ostensibly seeking further information. The applicant contacted this Office on 6 April 2016 on the basis that the Institute was late in issuing its internal review decision. The Institute issued its decision on 13 April 2016. The internal reviewer upheld the original decision, while refusing to release additional information on foot of what he deemed to be further, separate requests for information contained in the applicant's request for internal review. On 7 May 2016, the applicant sought a review by this Office of the Institute's decision.

As detailed submissions have been received from both parties, I consider that the review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the Institute's decision on the matter and its communications with this Office, as well as the applicant's communications with this Office and the Institute. I have also had regard to the provisions of the FOI Act and to the contents of the records in question, a copy of which have been provided to this office for the purpose of this review.

 

Scope of the Review

Categories 15 and 16 of the applicant's request concerned minutes of the Institute's Executive Board insofar as relating to discussions of a specified issue. The Institute's decision maker refused those categories on the ground that no such records exist. She provided an explanatory note which stated that the issue was not formally addressed at any Executive Board meeting. In her application for review to this Office, the applicant made no reference to the board minutes, stating her issue as being that "basically [the Institute] is refusing to grant me communications by and between various members of management". Moreover, the applicant did not take issue in her submissions with the Institute's grounds for refusing these categories, nor did she otherwise refer to them in any way. Accordingly, I am satisfied that categories 15 and 16 are not at issue in this review.

Of the remaining categories, the Institute granted access to records under categories 6 to 13 of the request, while it granted access to some records falling within categories 1, refusing others, refused access in full to the records coming within categories 2, 3, 4 and 5, and refused to grant a statement of reasons under section 10 of the FOI in response to category 14 of the applicant's request, although it did provide her with an explanatory memorandum in that regard.

Accordingly, this review is concerned solely with the questions of whether the Institute was justified under section 30(1)(b) of the FOI Act in its decision to refuse access to records coming within categories 1 to 5, consisting of correspondence between officers of the Institute, and whether it was justified in its decision to refuse to provide a statement of reasons as sought at category 14.

 

Preliminary Matter

While I am required to give reasons for decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions during 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 is somewhat limited as is the level of detail I can disclose in relation to the Institute's submissions. I am also somewhat limited in the extent of the reasons I can give for my decision.

 

Analysis and Findings

Section 30(1)(b)
Categories 1 to 5 inclusive of the applicant's original request were for access to records broadly relating to the recruitment process for a particular post, and a subsequent review of that process. These categories of the applicant's request each correspond to records to which access was previously refused by the Institute under section 22(1)(b) of the FOI Act 1997 (the 1997 Act) on foot of an earlier request. Section 22(1)(b) of the 1997 Act is the predecessor of, and identical in its operation to, section 30(1)(b) of the FOI Act. The Institute's decision on that earlier request was upheld by this Office following a review, in Case 140150.

Section 30(1)(b) of the FOI Act allows an FOI body, subject to consideration of the public interest, to refuse to grant a request for information if it considers that access to the record concerned could reasonably be expected to have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff). When invoking section 30(1)(b), the public body must 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.

As I have outlined above, this Office has previously found, in Case 140150, that the Institute was justified in refusing access to the same records that are at issue in this case under section 22(1)(b) of the 1997 Act. In her recent submissions, the applicant placed significant emphasis on the formal status of relevant HR processes, and in essence contended that the circumstances have changed since her last request, specifically insofar as she alleged that the particular grievances and other relevant HR processes have now formally been brought to a conclusion.

Section 30(1)(b) of the FOI Act requires that a public body must be in a position to demonstrate the significant, adverse effect to its management functions, including industrial relations and staff management, that may reasonably be expected to arise out of the release of the records. Thus, while the precise status of any complaints or grievances may be a relevant consideration, the FOI Act requires a more general appraisal of the surrounding circumstances. The mere fact that HR processes or formal grievances may, or may not, have been completed will not in and of itself determine the question.

While I am constrained by the provisions of section 25(3) in describing the records at issue in this case in detail, I can say that they relate primarily to industrial relations and staff management issues, including grievances between certain employees of the Institute, other than the applicant, and the Institute itself. In its submissions to this Office, the Institute claimed that the relevant HR procedures have not been concluded, and emphasised that in its view not only would the release of these records have a serious adverse effect in relation to these extant processes, but that their release could also be expected to severely impair its ability to handle similar issues in future.

Having carefully considered the matter, I am satisfied that the Institute has established that the release of the records in this case could reasonably be expected to have a significant, adverse effect on its performance of its HR and industrial relations functions. I am satisfied that the release of the records will not only significantly impair the ability of the Institute to resolve the particular situation to which the records directly relate and the related processes, but could also reasonably be expected to significantly impair its ability to document and resolve future industrial relations issues. Indeed, I note that I accepted this same argument in my decision in Case 140150. In that case, I accepted that the release of the records would "not only significantly impair the ability of the Institute to resolve the grievances concerned, but could also reasonably be expected to significantly impair its ability to document and resolve future industrial relations issues".

Previous decisions of this Office under section 30(1)(b) of the FOI Act and section 22(1)(b) of the 1997 Act confirm that the exemption would not apply if the sole consequence of the release of records would be that it caused a "potentially difficult industrial relations situation". In my view, the Institute has shown that a more significant harm may reasonably be anticipated as arising from the release the records at issue in this case. Accordingly, having carefully examined the contents of each of the records at issue, I find that section 30(1)(b) applies in relation to each of them. However, that is not the end of the matter as I must also consider the public interest balancing test as set out in section 30(2).

Section 30(2) provides that the exemption under section 30(1)(b) does not apply if the body considers that the public interest would, on balance, be better served by granting than by refusing the request. While I am satisfied that there is a public interest in public bodies being open and transparent in matters related to regulation and governance, this must be balanced against the public interest in ensuring that public bodies are free to conduct their functions relating to management, including industrial relations and management of their staff, in an effective manner. Moreover, there is also a strong public interest in public bodies being able to resolve sensitive matters and to facilitate the parties involved in co-operating fully and providing information in a frank and open manner, without fear that any confidences will be breached.

The applicant, in her submissions, expressed a concern that HR processes could be invoked simply as a mechanism to "defeat FOI". However, having carefully considered the Institute's submission, having regard to the contents of the records at issue and the general relevant circumstances, I am satisfied that there is no question that this might be the case. Nor do I believe that the release of the records would serve to further transparency to any significant degree in how the Institute performs such functions.

I am therefore satisfied, having carefully considered the contents of each of the records at issue, that the public interest would, on balance, be better served by refusing access to the records at issue and I find that section 30(2) does not apply.

Accordingly, I find that the Institute was justified in its decision to refuse access to the records falling within scope of Categories 1 to 5 inclusive of the applicant's request on the basis that section 30(1)(b) applies to them.

 

Section 10
At category 14 of her request, the applicant asked why the Institute had decided not to re-hold certain interviews. The Institute's internal reviewer noted that the original decision maker, while deeming the request to be outside the scope of the FOI Act, had provided an explanatory note on the matter. He decided that the applicant was not entitled to a statement of reasons under section 10 of the Act as she did not have a material interest in the decision as defined at section 10(5) of the Act.

Section 10 of the FOI Act provides that a person who is affected by an act of a public body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act. Section 10(5) provides that a person has a material interest in a matter affected by an act of a public body or to which it relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.

Insofar as it might be argued that the Institute's decision not to re-hold certain interviews had the consequence or effect of withholding from the applicant a benefit, such a benefit would have been withheld from all other potential applicants for the post. In any event, I am not satisfied that the fact that the Institute did not re-hold interviews had the effect of withholding a benefit from the applicant. While her participation in the interview process may ultimately lead to the conferring on or withholding of a benefit, in this case appointment to a position or placement on a panel, no advantage to her arises out of the re-holding of the interviews in itself, not least because she will be no better placed than other eligible candidates participating in the process.

Accordingly, I find that the Institute was justified in its refusal to issue a statement of reasons under section 10 of the FOI Act to the applicant in response to category 14 of her request. I note, however, that despite having taken the position that the applicant was not entitled to a statement under section 10 of the FOI Act, the Institute nevertheless issued an explanatory memorandum to her, outlining its position in relation to the question posed by her. Insofar as it is relevant, it seems to me that even had I found the applicant to be entitled to a statement of reasons under section 10, the memorandum provided to her would have been sufficient to meet the statutory requirement.

 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the Institute's decision to refuse access to records coming within categories 1 to 5 inclusive of the applicant's request, and also affirm its refusal to provide the applicant with a statement under section 10 of the FOI Act in response to category 14.

 

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