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Whether the Department was justified in its decision to refuse a request for access to disciplinary files relating to staff who resigned, were dismissed or had their pay reduced following internal department investigations on the basis that section 28 of the FOI Act applies.

Review Application to the Information Commissioner under the Freedom of Information Acts 1997 & 2003 (the FOI Act)

Background

On 8 October 2011, the applicant made a Freedom of Information (FOI) request to the Department seeking access to records of "all disciplinary files relating to staff who resigned, were dismissed or had their pay reduced following internal department investigations between 2009 to date. Please also include documents which show why the staff member was investigated and what the department did in each (if any) case". The Department issued its decision on 1 November 2011, refusing access to the records under section 28 of the FOI Act. The applicant requested an internal review of this decision in a letter dated 12 November 2011. On 28 November 2011, the Department issued a decision on the internal review which upheld the original decision to refuse access to the records but enclosed a schedule containing brief summary details of the relevant disciplinary cases. The schedule gave no details of the reasons why disciplinary action was initiated.

The Information Commissioner received a letter from the applicant on 4 January 2012 in which he requested a review of the Department's decision. I note that Ms Rachel Dunn, Investigator, was in contact with the Department in relation to the public interest requirements which are set down in section 28(5). The Department subsequently agreed to provide a more detailed short summary of each of the six disciplinary cases and Ms Dunn verified the accuracy of these summaries by comparing them to the actual records. The Department claimed that the disclosure of any further details would render the officers concerned identifiable.

It is noteworthy that the Department agreed to the release of the additional summaries in an effort to settle the review. As is his right, the applicant has indicated that he is not satisfied with the level of information released to date. Accordingly, I consider that the review should now be brought to a close by the issue of a formal, binding decision on the question of access to the records at issue. In conducting this review, I have had regard to the wording of the original request, to the submissions which were provided by the Department and the applicant and to the records.

Scope of the Review

This review is concerned with whether the Department was justified in refusing access to six staff disciplinary files under section 28 of the FOI Act.

Analysis and Findings

Section 28 of the FOI Act

Section 28(1)
Section 28(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Personal information is defined in section 2(1) of the FOI Act as" information about an identifiable individual that - (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 a public body on the understanding that it would be treated by it as confidential," The effect of section 28(1) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies, in this case section 28(2) or 28(5).

Section 28(2)
Section 28(2) provides that section 28(1) does not apply in certain circumstances. I am satisfied that section 28(2) is not relevant to the records in question because the information contained within does not relate to the applicant, the individual staff members did not provide consent to the release of the information to the applicant, the information is not of a kind that is available to the general public nor does it belong to a class of information that might be made publicly available, the staff members were not informed prior to the information being given that it might be made available to the general public, and disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.

Section 28(5)
Section 28(5) provides that a record containing the personal information of a third party may be released in certain limited circumstances. The exemption could be set aside if (a) on balance, the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual. I do not consider that release of the information would "benefit the individual" to whom it relates (i.e. each staff member) as envisaged by section 28(5)(b) of the FOI Act.

Turning to section 28(5)(a), there is a public interest in optimising openness and transparency in public bodies and in requesters being able to exercise their rights under the Freedom of Information Act. Specifically, there is a public interest in the disclosure of information which will allow for increased transparency in how the Department deals with disciplinary matters. However, weighing against release of of the records, on the other hand, is the very strong public interest in protecting privacy rights, which is reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "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. Section 28 expressly provides for the protection of personal information relating to third parties. The disciplinary files sought contain inherently private information about identifiable individuals. However, the Department has prepared short factual summaries in relation to the actions that they took to deal with these disciplinary cases and these have been provided to the applicant. I am satisfied that the public interest in increasing transparency in how the Department deals with disciplinary matters is sufficiently served by the release of the summaries provided, and that there are no further public interest factors in favour of the release of the actual files which would outweigh, on balance, the piublic interest in protecting the privacy rights of the persons to whom the information relates. I find, therefore, that section 28(1) applies to the records sought in this case.

Decision

Having carried out a review under section 34(2) of the FOI Act, I hereby affirm the decision of the Department in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator
27 September 2013