Whether the Council was justified in refusing access to records relating to the applicant’s deceased husband in full or in part under sections 30, 31, 32, 35 and 37 of the FOI Act 

10 December 2021

Background

The background of this review lies in a previous case (180411), where the applicant sought a review of the Council’s decision to refuse to grant her request received on 27 February 2018 seeking access to all personal data and medical records it held relating to her deceased husband. The Council’s refusal was made on the basis that granting access to the records would involve the disclosure of personal information relating to her late husband. The applicant sought an internal review of that decision and the Council affirmed its original decision under section 37 of the FOI Act. 

The applicant sought a review by this Office of the Council's decision. In her application for review, the applicant stated that she was also the personal representative of her late husband's estate and submitted documentation in support of that claim.

Section 37(8) of the FOI Act provides that, notwithstanding subsection (1), the Minister may provide by regulations for the grant of a request where the individual to whom the record concerned relates is deceased. The Section 37(8)) Regulations 2016 (S.I. 218 of 2016) (the section 37(8) Regulations) provide that, notwithstanding section 37(1), a request may be made for records which involves the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one or other of specified classes. The specified classes include the spouse of a deceased individual.

In the decision in case 180411, which issued on 28 January 2019, the Senior Investigator was not satisfied that the Council had properly considered the 37(8) Regulations when processing the applicant’s request. He also did not consider that the Council had justified its decision to refuse access to the records sought. Accordingly, he annulled the decision and instructed the Council to undertake a fresh decision-making process relating to the applicant’s request, with due regard to section 37(8) and the provisions of the 37(8) Regulations.

On 21 March 2019, the Council’s decision identified seven files holding relevant records, to which it granted access in part. It released a sick leave file and files relating to FOI and data protection requests in full, as well as various other records in full or in part, as set out below. It refused access to the remaining records under sections 29, 30, 31, 32, 35 and 37 of the FOI Act. 

The applicant requested an internal review on 26 April 2019. The Council’s internal review decision on 21 May 2019 indicated that it affirmed its earlier decision, although the Council did not rely on the same exemptions in respect of each record. The Council also found some records to be outside scope and it released three additional records to the applicant. It appears that the internal review decision relied on sections 30(1)(b), 31(1)(a), 35(1)(b), 37(1) and 37(8) of the FOI Act to refuse access to the records withheld. 

On 16 September 2019, the applicant applied to this Office for a review of the Council’s internal review decision. 

I have now completed my review in accordance with section 22(2) of the FOI Act. I would like to apologise for the length of time that this case has taken to reach a conclusion.

In carrying out my review, I have had regard to the applicant’s comments in her application for review, and her correspondence with this Office during the review and to the submissions made by the FOI body in support of its decision. 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 

Please note that I have used the Council’s naming and numbering system for the records concerned for ease of reference, other than in relation to the Miscellaneous file, which contains four “sub-files”, two of which contain a number of separate records.
 
Records that post-date the original FOI request
I note that this Office’s Investigator informed the applicant of her view that any records created after the Council received her original FOI request on 27 February 2018 fell outside the scope of her request. I agree and I note that it is open to the applicant to make another FOI request to the Council for additional records if she wishes. Therefore, Miscellaneous File (Insurance) records 1-8, 12-28 and 37 which were created after this date, will not be considered as part of this review. 

Records released at Internal Review
The Council confirmed that the following records had been released at internal review stage: Health and Safety File records 8, 10 and 11.

Records outside scope
The internal reviewer considered a number of records to be outside the scope of the applicant’s request, as he was of the view that they did not relate to her late husband’s personal data or medical records. 

Having examined these records, I am satisfied that Operations record 42 is outside the scope of the applicant’s request. I am also satisfied that Personnel record 168 is a duplicate of record 166, Miscellaneous file 2 (Insurance) record 29 is a duplicate of record 10 in the same file and that Health and Safety record 14 is a duplicate of record 13 with some additional information which does not comprise the applicant’s deceased husband’s personal information. 

I am also satisfied that a number of records in the Miscellaneous and Personnel files do not relate to the personal information of the applicant’s deceased husband.

Accordingly, the information withheld from release in the following records will not be considered in this review:

• Health and Safety file: records 8, 10-11 and 14
• Miscellaneous file 2 (Insurance): records 1-8, 11-28, 29, 31, 32-35, 37 and 40 
• Miscellaneous file 4 (Legal claims): records 2, 4, 6-8 in full and 10 in part
• Operations file: record 42
• Personnel file: records 135, 136, 163 and 168 

However, I am not satisfied that all of the information contained in Personnel file record 169 is outside the scope of the applicant’s request. Accordingly, I will consider this record as part of this review.

Records at issue
The applicant has clarified to this Office that she is appealing the Council’s decision to refuse access to records in full or in part. Therefore, all of the information withheld from the remaining records will be considered as part of this review.

Accordingly, the remaining records at issue in this case are as follows: 

• Grievance File: records 1-28 
• Health and Safety file: records 7, 12, 13, 15-18 and 21-24 in full, and 20 in part 
• Miscellaneous file 1 (CCTV): in full
• Miscellaneous file 2 (Insurance): records 9, 10, 30, 36, 38 and 39
• Miscellaneous file 3 (Staff operations diary): in full
• Miscellaneous file 4 (Legal claims): records 3, 5, 9 and 11-13 in full and 10 in part
• Operations File: records 1, 2, 6, 12, 14-17, 20, 21, 24, 25, 27-29, 31, 32, 34-41 and 43
• Personnel File: records 25, 30, 31, 33-42, 45, 51, 52, 55, 58-61, 63-72, 74-91, 93-96, 104, 108, 110, 112, 114, 115, 118, 121, 123, 125-127, 143, 146, 149, 150, 152, 155-157, 159, 161, 166, 170, 171, 173-175, 177, 179, 181, 185 and 189-193 in full and records 3, 4, 9, 47, 50, 113, 119, 141, 154, 160, 167, 169 and 180 in part

I note that this Office’s Investigator asked the Council to clarify exactly which exemption(s) it was relying on in respect of its refusal of each record, as this was not immediately clear from the various schedules provided to this Office. In its submission to this Office, the Council stated that it was relying on sections 30(1)(b), 32(1)(a)(i), (ii) and (iv), 35(1)(b), 37(1) and 37(8). However, the updated records schedule provided by the Council solely referred to sections 30(1)(b), “32(iv)”, 35(1)(a), 37 and the 37(8) Regulations in support of its decision.

From a close examination of the records, submissions and various record schedules provided, I am proceeding on the basis that the Council intended to rely on sections 30(1)(b), 32(1)(a)(i), (ii) and (iv), 35(1)(a) and (b) and 37 of the FOI Act in support of its decision to refuse access to the records at issue. During the review, this Office’s Investigator formed the view that section 37 of the FOI Act applied to the majority of the records concerned. She considered that the Council was justified in its refusal to release the majority of the records at issue, on the basis that they contained a mixture of third party and joint personal information. She informed the applicant of this and some other matters and offered her an opportunity to comment. The applicant indicated that she wished the review to proceed but did not address the application of section 37 in her response.

Therefore, this review is solely concerned with whether the Council was justified in refusing to grant access to the records set out above, in full or in part, on the basis of sections 30, 32, 35 and 37 of the FOI Act. 

Preliminary Matters

Before setting out my analysis and findings in relation to this case, I would like to point out a number of preliminary matters.

I should state that the records are particularly hard to reference in this case, due both to the volume of records involved and to the inadequate scheduling of these records by the Council. I should also state that this Office was required to issue a section 45 notice to the Council in order to compel it produce a copy of the records at issue in order to progress this case. It is important that all staff dealing with FOI matters be made aware of the importance of proper scheduling of records, as well as the importance of providing information and records to this Office in a timely fashion. In this case, proper schedules would have listed all records on each of the various files, as well as the Council’s decision to release or withhold. This, combined with the timely provision of the records at issue, would have saved a lot of time in this case, for both our Offices.

Section 2 of the Act defines “record” as including “a copy or part” of anything falling within the definition of a record. Section 18(1) provides, that "if it is practicable to do so", access to an otherwise exempt record shall be granted by preparing a copy, in such form as the head of the FOI body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). The Commissioner takes the view that neither the definition of a record under section 2 of the Act 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, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Before setting out my findings, I should point that while I am required by section 22(10) of the FOI Act to give reasons for my decisions, this is subject to the requirement of section 25(3) that I take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record or that would cause the record to be exempt if it contained that information. For this reason, the description I can give of the contents of the records is limited.

It is also important to note that under FOI records are released without any restriction as to how they may be used and thus, FOI release is regarded, in effect, as release to the world at large.

Analysis and Findings

1. Records relating to third parties
Section 37 - personal information
The records at issue relate to various complaints and personnel matters. By their nature, many of these issues do not solely concern the applicant’s deceased husband. The records also include names, and occupation details of various Council staff members as well as witness statements and notes of incidents by staff and/or external third parties. 

Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester. 

Where a record or part of a record contains personal information relating to the requester, which is closely intertwined with personal information relating to another party (or parties), and where it is not feasible to separate the personal information relating to the requester from that relating to the other party (or parties), it can be described as joint personal information and section 37(7) must be considered.

"Personal information" is defined in section 2 of Act as follows:

"Personal information means 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 that body as confidential,

and, without prejudice to the generality of the foregoing, includes –

(iii) information relating to the employment or employment history of the individual... 
(v) information relating to the individual in a record falling within section 11(6)(a) [i.e. a personnel record]…
(xii) 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, … and
(xiv) the views or opinions of another person about the individual.”

As a number of the individuals concerned are staff members of an FOI body, paragraph I of section 2 of the FOI Act is relevant. This paragraph excludes certain matters from the definition of “personal information”, including the names of staff members of an FOI body and information relating to their office, position or functions. The exclusion at (I) does not provide for the exclusion of all information relating to staff members of FOI bodies. The Commissioner takes the view that this exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member of an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The Commissioner takes the view that it does not exclude personnel records relating to the “competence or ability of the individual in his or her capacity as a member of staff of an FOI body”.

The majority of the records at issue contain various individuals’ accounts of incidents or complaints relating to the actions of staff members, which took place during working hours. Some records contain details of complaints made by or against individuals personally, as well as their responses to various incidents that occurred. The majority of these records contain information provided by or about the deceased and/or other staff members.

Having carefully examined the withheld records below, I am satisfied that the records contain the personal information of individuals other than the applicant or the applicant’s late husband and/or joint personal information relating to the deceased and various third parties. I am also satisfied that this joint personal information and third party information is intertwined and cannot be separated. I am further satisfied that, due to the context and content of these records, the simple redaction of the names of the third parties concerned would not necessarily render the individuals unidentifiable. Accordingly, I find that section 37(1) applies to the records listed below:

• Grievance File: records 1-2, 4, 9-10, 12-15, 18, and 20-22 and 24-27 in full and 23 in part
• Health and Safety File: records 7, 12 and 15 in full and 23 and 24 in part 
• Miscellaneous File 1 (CCTV): in full
• Miscellaneous File 2 (Insurance): records 9, 10, 30 and 36 in full 
• Miscellaneous File 3 (Staff Operations Diary): in full
• Miscellaneous File 4 (Legal claims): records 3, 5, 9, 11 and 13 in full and 10 and 12 in part 
• Operations File: records 20, 24, 27 and 38-39 in full and 1, 2, 6, 12, 14, 16-17, 21, 32 and 41 in part
• Personnel File: records 41, 42, 45, 55, 58, 63, 69, 82, 83, 85, 88, 89, 95, 104, 108, 112, 115, 121, 125-127, 143, 146, 149, 156, 161, 171, 175, 179, 181, 185, 191 and 193, in full and 3, 4, 9, 47, 50, 113, 141, 154, 160, 167 and 180, withheld in part 

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. The circumstances are as follows: (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of that information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. 

In the circumstances of this case, I am satisfied that section 37(2) does not disapply section 37(1).

Section 37(5) – the public interest
Section 37(5) 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 find no basis for concluding that the release of the information concerned would be to the benefit of the third party individuals to whom it relates. I therefore find that section 37(5)(b) does not apply.

In relation to the public interest test contained in section 37(5)(a), I wish to emphasise that in carrying out any review, this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. In sum, section 11(3) recognises the need to enhance public scrutiny and accountability of government and public affairs, particularly the activities and decision making of FOI bodies. However, in a judgment delivered on 25 September 2020 (The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors, [2020] IESC 57 [59] available on our website), the Supreme Court held that general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather, a “sufficiently specific, cogent and fact-based reason” is required “to tip the balance in favour of disclosure”. 

Moreover, while the Court stated that the public interest balancing test involves a “weighing of the respective private and public interests in the analysis of the records in issue”, it did not disturb the guidance that it previously gave in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v the Information Commissioner [2011] IESC 26 in which it drew a distinction between private and public interests. Relevant private interests are those that are recognised by law and, in particular, through the protection afforded by the exemption provisions. 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.

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. Moreover, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. 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.

The applicant has indicated that she is seeking access to the records at issue in order to clarify the circumstances leading to her husband’s death. I have great sympathy for the applicant’s loss and the circumstances leading to her making this request. I understand the applicant’s wish to have all information that exists on the circumstances of her late husband’s employment. In my view, however, it is clear from the above judgments that I cannot, in making this decision on the right of access under FOI, take into account the applicant’s private interests in the grant of access to the records withheld.

In this case, a number of records have been released to the applicant in full or in part, and therefore she is aware of the details of some of her late husband’s interactions with his employer. I find no relevant public interest in granting access to the personal information contained in the records which would, on balance, override the Constitutional rights to privacy of the third parties to whom this information relates. Accordingly, I find that the Council’s decision to refuse to grant access to the information withheld from the records set out above, which relate to the personal information of third parties and/or joint personal information, was justified under section 37(1) of the FOI Act.

2. Records solely relating to the applicant’s deceased husband
Section 37(8)
The Council refused access to a number of the remaining records on the basis of section 37(8) and the 37(8) Regulations. However, as the applicant’s request solely sought the personal data and medical records of her deceased husband, I consider section 37(8) and the regulations to be relevant to the majority of the remaining records at issue.

As noted above, section 37(8) provides that, notwithstanding subsection (1), the Minister for Public Expenditure and Reform may provide by regulations for the grant of a request where “the individual to whom the record concerned relates is dead and the requester concerned is a member of a class specified in the regulations”. 

The 37(8) Regulations provide that notwithstanding section 37(1), a request may be made for records involving the disclosure of personal information relating to a deceased individual and shall, subject to the other provisions of the FOI Act 2014, be granted, where the requester belongs to one of a number of classes, including the following:

"... the requester is the spouse or next of kin of the individual and, in the opinion of the head, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant the request".

During the course of this review, the applicant confirmed to this Office’s Investigator that although she was acting as the executor, she did not require the records sought for the purposes of administering her late husband’s estate. Therefore, I need only consider her right of access as the spouse of the deceased.

There is no dispute that the applicant is the spouse of the deceased. The question I must consider in this case, therefore, is whether, having regard to all the circumstances, the public interest, including the public interest in the confidentiality of personal information, would on balance be better served by granting than by refusing to grant her request. 

Minister’s Guidance
In May 2017, pursuant to section 48(1) of the FOI Act, the Minister for Public Expenditure and Reform published revised Guidance concerning access to records relating to deceased persons. Under section 48(3) public bodies must have regard to such guidance in the performance of their functions under the Act. The Guidance states that it is a matter for the decision maker to make such enquiries and engage in such consultation as is necessary to allow him or her to decide if the public interest would be better served by granting than by refusing the request. It suggests that certain factors should be taken into consideration when deciding if release is appropriate to the spouse or next of kin of the deceased.

In its submissions to this Office, the Council stated that it had considered the public interest test and had concluded that, on balance, the public interest was better served by withholding, rather than granting, access to the records. In support of this argument, the Council highlighted certain parts of the Guidance which it indicated had influenced its decision in this regard. The Minister’s Guidance refers to factors to be taken into consideration in deciding if release is appropriate to the next of kin. Factors referred to in the guidance include:

• the confidentiality of personal information as set out in section 37(1)
• whether the deceased would have consented to the release of the records to the requester when living
• whether the person had outlined arrangements in his or her will or other instrument in writing consenting to the release of personal records
• whether release would damage the good name and character of the deceased
• the nature of the relationship of the requester to the deceased and the circumstances of their relationship before the deceased's death
• the nature of the records to be released
• whether the requester can obtain the information they seek without accessing the records of the deceased
• any other relevant circumstances that the requester may set out

Furthermore, in considering the nature and confidentiality of records to be released, the Guidance states that if the record is inherently private and of a very sensitive nature, then there must be compelling reasons for its release. 

As noted above, the applicant stated that she sought the records at issue in order to clarify the circumstances leading to her husband’s death. In her application for review, the applicant stated that she knew that her late husband “would have consented to the release of these documents”. The Council has not argued otherwise. In the tragic circumstances of this case, I can understand her wanting to access these records in order to shed light on events during the time leading up to her husband’s death. 

On the matter of where the public interest lies and the factors to be considered, this Office generally has regard to the obiter comments of Macken J. in 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. However, I must bear in mind that these comments were made in relation to the requirements of FOI legislation in general and not to the very specific and detailed provisions covering access by next of kin to the records of deceased persons. The Regulations and guidance make it clear that a range of matters such as whether the deceased would have consented to the release of the records to the requester when living, the nature of the records to be released, and "any other relevant circumstances" must be considered. Therefore, matters which may be seen as private interests cannot be excluded solely on the basis that they are not public interest factors.

In terms of "all of the circumstances" to which I have had regard, it is important to note that I must be circumspect in describing or commenting on the factors involved, since to do otherwise would disclose information contained in exempt records. As outlined above, under section 25(3) of the Act, I am required to take all reasonable precautions to prevent the disclosure of material that would be exempt under the FOI Act. As such, I am constrained in relation to the amount of detail I can give regarding the Council’s arguments and regarding the contents of the relevant records. Nevertheless, I can state that, having carefully considered the contents of the records, it is not apparent to me that the deceased would have consented to their release to the applicant. It must suffice for me to state that, upon a review of the contents of the record, in light of the aforementioned guidance issued by the Minister, and in light of the submissions made by the applicant and by the Council, I am satisfied that the public interest in this instance is better served, on balance, by the withholding rather than the granting of access to the majority of the records sought. 

Accordingly, I find that the Council was justified in refusing access to the following records, in full or in part, on the basis of the 37(8) Regulations:

• Grievance file: records 6, 16 and 19 in full and 23 in part
• Health and Safety File: records 16-18 and 22 (in full) and 8, 20 and 23-24 in part
• Operations File: records 1-2, 6, 12, 14, 16-17, 21, 32 and 41 in part and 15, 25, 28-29, 31, 34-37, 40 and 43 in full
• Personnel File: records 25, 30, 31, 33-40, 51-52, 59-61, 64-68, 70-72, 74-81, 84, 86-87, 90-91, 93-94, 96, 110, 114, 123, 150, 152, 155, 157, 159, 166, 170, 173, 174, 177, 189, 190 and 192 in full, and 41-42, 45, 55, 58, 63, 69, 82-83, 85, 86-87, 95, 104, 108, 112, 115, 119, 121, 125-127, 143, 146, 149, 156, 161, 169, 171, 175, 179, 181, 185, 191 and 193 in part.


CCTV footage
The Commissioner takes the view that public bodies are not required to take steps beyond whatever processes they usually use to provide a pixelated or redacted version of CCTV for release. In this regard, I note that the Council has confirmed to this Office that it has no in-house expertise to produce pixelated or redacted footage from the CCTV footage available. It also stated that it has never provided CCTV footage in a redacted format in response to an FOI or data subject access request. However, I also note that the Council also said that it sometimes creates blurred stills from cameras, but that this depends on the age of the camera in use. I further note that Miscellaneous file 4 (Legal claims), record 10 contains still photographs taken from the CCTV footage in this case, which were provided to the HSA. In the circumstances of this case, I am satisfied that the Council is not obliged to take steps beyond those it normally takes in respect of CCTV footage. However, in all of the circumstances of this case, I find that the still photographs in Miscellaneous file 4, record 10, contain the personal information of the applicant’s deceased husband, and that the Council was not justified in refusing their release on the basis of the 37(8) Regulations. Accordingly, I direct their release to the applicant.

3. Remaining records
I will now consider the remaining records, set out below for ease of reference, which I have not found to be exempt under section 37 above:

• Grievance file: records 3, 5, 7, 8, 11, 17 and 28 
• Health and Safety file: record 13 
• Miscellaneous file 2 (Insurance): records 32, 38 and 39 
• Miscellaneous file 4 (Legal claims): record 10 (in part), 
• Personnel file: record 118

Section 30(1)(b)
Of the remaining records, the Council relied on section 30(1)(b) to refuse access to a number of records, the majority of which I have already found to be exempt above. I note that the internal reviewer indicated that he considered section 30(1)(b) to apply to the Grievance file. However, in the Council’s submission to this Office, the Grievance file was not included in the list of records which the Council considered to be exempt under section 30. Nonetheless, the arguments in the Council’s submission relating to section 35 seem to me to be more appropriate to section 30. Therefore, in the interests of completeness, I shall consider the application of section 30(1)(b) to the following records:

• Grievance File: records 3, 5, 7, 8, 11, 17 and 28
• Personnel File: record 118
• Miscellaneous file 4 (Legal claims): record 10 (in part)

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.

It appears to me that the Council considered section 30(1)(b) to apply to internal staff communications which were, or became part of, a disciplinary/grievance procedure. The Council was of the view that if records of such communications, meetings or discussions were released under FOI, its HR management function of investigating grievances would be adversely affected. It stated that releasing the records concerned would mean that, in future, staff (particularly supervisors) would be less likely to communicate complaints or concerns about staff or colleagues in writing. Essentially, the Council was of the view that records relating to disciplinary or grievance procedures were created and/or submitted with an understanding that they would be treated in confidence. It contended that this particularly applied in relation to correspondence between its staff and HR. It stated that the release of these records would make it very difficult for it to carry out any type of internal/external investigation of incidents which might occur in the future.

The Council also considered that its HR section’s relationship with the civil service unions representing its staff could be seriously adversely affected in the future if the records were to be released. It stated that union representatives often attend grievance interviews on behalf of members, or advise members on their correspondence with HR. It also stated that the union representatives often query whether the relevant matters are being dealt with in confidence. The internal reviewer was also of the view that, while in isolation it may not be obvious why one particular record should be refused, each record has to be viewed in the context in which it was created, as one of a group of records, all relating to the same issue. Having carefully examined the records listed above, I am satisfied that Grievance File: records 3, 5, 7, 8, 11, 17 and 28 comprise standard correspondence with the deceased’s trade union representative, his FOI request for access to his personnel files and related correspondence, and other correspondence setting up various meetings. I am also satisfied that Personnel record 118 comprises two internal Council letters referring to (but not enclosing) a report submitted by the deceased. The CCTV stills in record 10 are as described above. I see nothing in the content of these records that would prejudice the Council’s management functions relating to disciplinary proceedings or industrial relations. In my view, the Council has not adequately demonstrated how section 30(1)(b) applies to the contents of these specific records. Accordingly, I find that it was not justified in refusing to grant access to these records on the basis of section 30(1)(b).

Section 35
In its original decision, the Council refused access to all of the records in the Grievance File on the basis of section 35(1)(a). At internal review, the internal reviewer stated that he did not agree with the decision maker on the application of section 35(1) “in many cases”, as this did not apply to records prepared by a member of staff in the course of their functions, unless confidentiality is “provided for by an agreement”. He said that some of the records were confidential on that basis and that he confirmed their refusal on those grounds – i.e. section 35(1)(b). He then went to say that the entire Grievance file was refused on the basis of section 30(1)(b). 

The final records schedule provided to this Office by the Council during the review stated that 35(1)(b) (among other exemptions) applied to a number of records, all of which I have found to be exempt under other exemptions above. The records schedule also showed section 35(1)(a) as applying to the Grievance file, therefore I shall consider the application of section 35(1)(a) and (b) to those records that I have not already found to be exempt above, as follows: 

• Grievance file: records 3, 5, 7, 8, 11, 17 and 28

Section 35(1)(a) of the FOI Act applies to a record containing information given to an FOI body in confidence. Four requirements must be satisfied for a record to be exempt under section 35(1)(a): the information was given to an FOI body in confidence; the information was given on the understanding that it would be treated by the FOI body as confidential; disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons; and it is important to the body that such further similar information should continue to be given to the body. Section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request (see section 35(3)).

Section 35(1)(b) is a mandatory exemption that applies where "disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law".

Section 35(2) disapplies section 35(1) in relation to a record which is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As section 35(1) does not apply where the records fall within the terms of section 35(2), I should consider section 35(2) at the outset. 

The Council has described all of the records in the Grievance file as “Grievance investigation” on the records schedule provided to the applicant. However, having regard to the content of the records listed above, I am satisfied that, despite their context, not all of these records contain information relating to substantive grievance or disciplinary matters. In particular, I note that records 5, 7, 8 and 17 solely relate to an FOI request the deceased made for access to his personnel file. I also note that records 3 and 11 are from the Council to the deceased’s union representative, with details of meetings. Record 28 comprises a page from a registered post book with details of a letter sent to the deceased. 

I am satisfied that the records listed above were all prepared by Council staff in the exercise of their functions. However, I am not satisfied that the Council has demonstrated that the release of records relating to an FOI request or unspecified meetings with a staff member would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or head or a director, or member of the staff of, an FOI body or of such a service provider. As such, I find that section 35(2) applies and, as a consequence, section 35(1) cannot apply.

Accordingly, I find that the Council was not justified in refusing access to the records listed on the basis of sections 35(1)(a) or 35(1)(b) of the FOI Act.

Section 32
The Council also relied on section 32 of the FOI Act to refuse access to all of the records in Miscellaneous file 2 (Insurance) and 4 (Legal Claims). As I have found most of the records contained in these sub-files to be exempt under various sections of the FOI Act above, I need only consider the application of section 32 to Miscellaneous file 2 (Insurance), records 38 and 39 and the CCTV stills in record 10, Miscellaneous file 4 (Legal Claims).
This Office’s Investigator asked the Council to clarify the exemption relied upon in respect of these sub-files, as the records schedule provided solely referenced section “32(iv)”. The Council indicated that it considered sections 32(1)(a)(i), (ii) and (iv) to apply to the records concerned.  
Section 32(1)(a) of the FOI Act provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice or impair:

“(i) the prevention, detection or investigation of offences, the apprehension or prosecution of offenders or the effectiveness of lawful methods, systems, plans or procedures employed for the purposes of the matters aforesaid,
(ii) the enforcement of, compliance with or administration of any law, …
(iv) the fairness of criminal proceedings in a court or of civil proceedings in a court or other tribunal”

In its submissions to this Office, the Council stated that the files concerned related to incidents or events in public parks, which resulted in legal claims. It was of the view that the release of these records would reveal the legal processes and procedures the Council follows, particularly in relation to public liability claims. It considered that this might inform members of the public “how to successfully make a claim against the Council”, which it anticipated could “lead to an increase in Council funds spent on fighting non-legitimate claims”.

I have carefully considered the contents of records 38 and 39, which relate to an accident the deceased had at work and his request to his employer for his medical bills to be reimbursed. As noted above, at information at issue in record 10 are CCTV stills, which I have found to relate to the deceased’s personal information. I fail to see how the contents of these particular records could reasonably be expected to lead to the harms asserted by the Council.  Accordingly, I find that the Council was not justified in refusing access to records 38 and 39 and the CCTV stills in record 10 on the basis of section 32(1)(a) of the FOI Act.

Records to be released
In the interests of clarity, I am directing the release of the following records in full to the applicant:

• Grievance file: records 3, 5, 7, 8, 11, 17 and 28
• Health and Safety file: record 13 
• Miscellaneous file 2 (Insurance): records 38 and 39 
• Miscellaneous file 4 (Legal claims): the CCTV stills contained in record 10
• Personnel file: record 118
 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the Council’s decision. I affirm its decision to refuse access to the majority of the records sought on the basis of section 37(1) of the FOI Act. I also affirm the Council’s decision to refuse access to a number of the records solely relating to the applicant’s husband on the basis of the Freedom of Information Act 2014 (Section 37(8)) Regulations 2016 (S.I. 218 of 2016). I find that, on balance, the public interest, in all the circumstances, does not favour the release of the majority of the records sought. I annul its decision to refuse access to the remaining records in full or in part on the basis of sections 30(1)(b), 32(1)(a), 35(1) and 37(1) of the Act, as I find that it was not justified in finding that these exemptions apply. I direct their release as set out above. 

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.
 
 
Deirdre McGoldrick
Senior Investigator