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Whether the Department was justified in its decision to refuse a request for access to records relating to named teacher on the basis that section 28 of the FOI Act applies.

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

Background

By letter dated 26 October 2012 the applicant made a request to the Department under the FOI Act seeking information concerning a named teacher. On 28 November 2012 the Department refused the applicant's request pursuant to section 28 of the FOI Act. By letter dated 11 December 2012 the applicant sought an internal review of the Department's decision and on 20 December 2012 the Department affirmed its original decision. By letter dated 18 April 2013 the applicant applied to this Office for a review of the Department's decision.

I note that by letter dated 8 November 2013 Ms Roisin Connolly of this Office advised the applicant of her preliminary view in the matter and in response, the applicant made a submission of further comments to this Office. I have decided to bring this review to a conclusion by issuing a binding decision. In conducting the review, I have had regard to the correspondence between the applicant and this Office, to correspondence between the applicant and the Department and to correspondence between the Department and this Office. I have also had regard to the provisions of the FOI Act and to the contents of the records at issue.

Scope of the Review

The Department was asked to forward to this Office a numbered copy of the records which are the subject of the request in this case. It provided this Office with what it stated was a scheduled copy of all relevant records and it has relied on section 28(1) for its refusal to grant access to all these records. The scope of this review is confined to the question of whether the Department was justified in deciding to refuse to grant the request for access to these records.

Analysis and Findings

Section 43(3) of the FOI Act provides that I shall take all reasonable precautions to prevent the disclosure to a party to a review of information contained in an exempt record. I am therefore limited as to the information I may give regarding the contents of the records in this case.

Section 28(1)
Section 28(1) of the FOI Act provides that, subject to the provisions of the section, a public body shall refuse to grant a request if "... access to the record concerned would involve the disclosure of personal information...". Section 2 of the Act defines personal information 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,"
Section 2 then lists 12 categories of information which "without prejudice to the generality of the foregoing" are included in the definition of personal information. These 12 categories include "(i) information relating to the educational ... history of the individual", "(ii) information relating to the financial affairs of the individual,",and "(iii) information relating to the employment or employment history of the individual".

The applicant's request sought information relating to a named individual teacher. The information sought was as follows: the pay and conditions of the individual; circulars used to calculate the person's pay; the person's qualifications and experience; the circumstances concerning the person in relation to being recognised under a particular Regulation and "subsequent incremental increase on the pay scale"; and certain documentation sent to the Department pertaining to the individual. While I am limited as to the information I may give regarding the contents of the records at issue in this case, it will be clear from the nature of the request that records falling within its scope, to the extent that they exist, would be likely to contain personal information as defined by the FOI Act given the definition of personal information referred to above.

The Department stated, with regard to the employment of teachers, that it is not the employer. It stated that under the Education Act 1998 (as amended by the Education (Amendment) Act 2012) it is the Board of Management or VEC, as appropriate, which is responsible for the recruitment, selection, appointment, discipline and dismissal of staff. The applicant stated that it is her understanding that the Department sets the criteria and guidelines for the Board of Management and VEC to follow for recruitment, selection, appointment, discipline and dismissal of staff. She stated that, as she works as [ ...], the Department sets her pay, not an employer. She referred to a [particular Circular] and stated that the Department has a major part to play in her career in relation to her pay and terms and conditions of her employment.

As mentioned above, the definition of "personal information" in the FOI Act includes information relating to the educational history, the financial affairs and the employment or employment history of the individual. While the Department may set the criteria or guidelines and may have a major role to play in the employment terms and conditions of teachers generally, the position remains that the Department is not the employer. I would add that the teacher concerned in this case is not a member of staff of a public body, as defined for the purposes of the FOI Act. As the individual teacher in this case is not a member of staff of a public body, the exclusions to the definition of personal information contained in section 2 do not arise, including exclusion (I) which relates to, amongst other things, the terms upon and subject to which the individual occupies a position as a member of staff of a public body.

The Department provided a scheduled copy of the records which it states are relevant in this case. I have examined the records provided by the Department and I am satisfied that access to these records would involve the disclosure of personal information relating to individuals other than the applicant. I accept that some record(s) may not, in a different context where they could not be related to any identifiable individual, constitute personal information; however, given the nature of this request which sought certain information specifically as it related to a named individual, I am satisfied that access to the record(s) concerned would involve the disclosure of personal information about that individual.

Section 28(1) provides that, subject to the provisions of the section, a request shall be refused if access to the records would involve the disclosure of personal information. The other provisions of the section of relevance in this case are section 28(2) and 28(5).

Section 28(2)
There are some circumstances, provided for at section 28(2), in which the exemption at section 28(1) does not apply. Having examined the records within the scope of this review, I am satisfied that none of the circumstances identified at section 28(2) arises in this case. I find, therefore, that section 28(2) does not apply in this case.

Section 28(5)
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1), may still be granted where, on balance -
(a) 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 aforesaid,
No argument has been made, nor do I find any other basis for concluding, that the release of the records at issue would be to the benefit of the individual(s) to whom the information relates (section 28(5)(b) refers). I must, however, consider the matter of the public interest under section 28(5)(a).

The Department decided that the public interest in granting access to the records was outweighed by the right to privacy of the individual to whom the information relates. I note from the Department's internal review decision that the public interest factors taken into account by the Department in favour of release included the right of access under the FOI Acts generally and the need for accountability in decision-making by ensuring equity of treatment between the requester and other people. I note that the public interest factors against release which it took into account were considerations in favour of protecting privacy generally, maintaining privacy of third parties and the legitimate expectation members of the public have to have personal information held by public bodies protected. In a submission to this Office the Department stated that the overriding consideration was to protect the privacy of the individual. It stated that this was weighted against the public interest considerations including the right of access under the FOI Acts generally and the need for accountability in decision making.

The applicant stated that she had received information from this Office stating that under section 28 of the FOI Act that public interest "can be deemed as one single person". I am not aware of the exact information the applicant received from this Office or its context. In her application for review to this Office the applicant stated that the particular record was relevant to her and the refusing of this information would be detrimental to her personally in pursuing her career in education. She argued that the Department had "set precedence" by employing the individual, named teacher. She stated that there is a financial and employment impact for her and others in similar circumstances. She said that it was her understanding that the Department is doing everything in its power to prevent people like herself securing necessary information to make a case for recognition as qualified in the area of [ ... ] Education. The applicant stated that it is important that she gets confirmation of the individual's qualifications as this would allow her to pursue her career in [ ... ] Education. In her submission to this Office the applicant stated that she began an online Facebook campaign page to ask others who are in a similar circumstance to herself if they might wish to come forward and bring this matter into the public domain. She stated that through her Facebook page she has received an overwhelming response with offers of support from all over the country, including peers in similar circumstances. She stated that those peers who had offered support would be writing to this Office, highlighting the importance of her request not just as a private individual request but as a public interest request and the effects it will have on their efforts in their career in education. The applicant stated that she believed that this is now a public interest matter in ensuring openness, transparency and accountability in the public service.

I refer to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"] in relation to the public interest. This case has already been drawn to the attention of the applicant. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. While the comments are obiter, Fennelly J noted that the request in that case was "by a private individual for a private purpose. It was not made in the public interest." Macken J also commented that "any "public interest" would, in my view, require to be a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

The applicant has explained her reasons for seeking access to the records in this case. As she has indicated, there are other persons who may have an interest in the information or records in this case for similar reasons. In the normal course, a requester's motivation in seeking records under the FOI Act must not be taken into account in deciding on the request (section 8(4) of the FOI Act refers). However, this is not necessarily the case where the public interest becomes a consideration. As can be seen from the comments in the Supreme Court in the Rotunda case, there is a distinction to be drawn between what constitutes a public interest as against what is a purely private interest. In some cases, these different interests may overlap, however. It seems to me that the applicant (and others who express an interest in the information) are primarily seeking information for their own private purposes. To the extent that private interest(s) overlap with the public interest in this case, it appears that the public interest concerned is the public interest in openness, transparency and accountability. Indeed, I note that the applicant referred to a public interest matter in ensuring openness, transparency and accountability in the public service.

I consider that there is a public interest in ensuring openness, transparency and accountability in the public service and in ensuring openness and transparency in how a public body performs its functions. I accept that there is a public interest in the disclosure of information which will allow for increased transparency and accountability in how the Department deals with the regulation of employment terms and conditions of teachers and with matters relating to the recruitment and employment of teachers by Boards of Management and VECs. However, I consider that the public interest in ensuring transparency in how the Department deals with these matters is met to a large extent by the information provided in the relevant Circulars and Regulations which are readily available. I note that in its decision of 28 November 2012 the Department informed the applicant that general Circulars regarding pay can be found on the Department's website.

On the other hand, the FOI Act itself recognises a public interest in protecting privacy rights. Both the language of section 28 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") recognise this public interest. The right to privacy also has a constitutional dimension. 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. 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 the right to privacy. In my view the public interest in protecting the right to privacy is a strong public interest.

Having considered the matter very carefully, I find in this case that the public interest that the request should be granted does not outweigh the public interest that the right to privacy of the individual to whom the information relates should be upheld. I find therefore that section 28(5)(a) does not apply in this case.

Accordingly, I find that the Department was justified in refusing access to the records under section 28(1) of the Act.

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