Whether Teagasc was justified in refusing access to records relating to the applicant under section 30(1)(c) of the FOI Act

20 April 2020

Background

On 20 September 2019, the applicant sought access to her personnel file and all records regarding re-grading from 2002 until the date of the request. On 21 October 2019 Teagasc part-granted the request, having identified as relevant both the applicant’s personnel file and an industrial relations file. It part-granted access to the personnel file, withholding certain personal information of third parties (section 37(1) of the FOI Act refers). It also part-granted access to the industrial relations file, refusing access to certain parts of the file under section 30(1)(c) of the Act (disclosure of negotiating positions).

Following a request for internal review, Teagasc varied its decision on 26 November 2019. It released some additional information but continued to withhold certain information under sections 30(1)(c) and 37(1). On 28 November 2019, the applicant sought a review by this Office of that decision.

I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out this review, I have had regard to the communications between the parties, above, and to the communications between this Office and both the applicant and the Department on the matter. I have also had regard to the contents of the relevant records. I have decided to conclude this review by way of a formal, binding decision. In referring to the records at issue I have adopted the numbering system used by the Department when processing the request.

Scope of the Review

In her application to this Office, the applicant stated she was seeking a review of Teagasc’s decision in respect of pages 1, 15, 17-18, 21-23 and 48 of the relevant records. Teagasc confirmed to this Office that it considered these records to be exempt under section 30(1)(c). Accordingly, this review is concerned solely with whether Teagasc was justified in refusing access to the records in question under section 30(1)(c).

Preliminary Matters

It is important to note at the outset 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 at section 25(3) of the Act that I take all reasonable precautions to prevent disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the description I can provide of the relevant records and of my reasoning in this case is somewhat limited.

Furthermore, 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. However, this Office takes the view that the provisions of section 18 do not 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, therefore, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records

Analysis and Findings

Section 30(1)(c) provides for the refusal of a request where the body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body.

The applicant is a staff member of Teagasc. It is not in dispute between the parties that there are ongoing negotiations regarding the applicant’s position in Teagasc. The negotiations at issue concern discussions between the applicant’s representatives and Teagasc regarding her assimilation from one grade to another. The records at issue comprise internal documentation such as email correspondence discussing the applicant and her position and means by which that position might be addressed and/or altered. The applicant has informed this Office that, presently, she is awaiting a response from Teagasc to a letter issued to it by her legal representative, following her rejection of a proposed arrangement by Teagasc in 2019.

In its submission to this Office, Teagasc explained that a particular staff structure was introduced in 2006, following management and union negotiations. It said a particular grade tier was introduced with agreement that the structure would be a three-tiered structure into the future and that pay scales for all grades in the structure were agreed at the time. It said, however, that the underpinning Framework to support the tiered structure had not been fully negotiated and that it was only in 2016, post moratorium, that negotiations between Teagasc Management and Unions resumed on the Framework and then later in January 2019 that the first round of promotions to the second grade tier were implemented.

Teagasc added that prior to then, in 2009, an agreement was reached with the applicant to assimilate her from her current grade to the second tier of the new structure, subject to her meeting certain criteria but with the onset of the moratorium, that agreement could not be progressed and the Framework for the grade structure was put on hold. It said discussions are at a crucial point with the applicant and her Union with regard to agreeing a way forward to assimilate her to the relevant grade tier, in keeping with the provisions available to Teagasc under guidance government promotion and recruitment procedures as set out in the Delegated Sanction Plan Agreement and Government Circulars. It argued that given that discussions are ongoing with the applicant and her Union with a view to internal resolution, visibility on management discussions regarding the 2009 agreement could negatively impact current negotiations.

Having examined the records at issue, and having regard to section 18 as described above, I am satisfied that the release of the records could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of the negotiations identified by Teagasc.

I find, therefore, that section 30(1)(c) applies. However, that is not the end of the matter as subsection (2) of section 30 provides that subsection (1) shall not apply where the public interest would, on balance, be better served by granting than by refusing the request.

On the matter of where the public interest lies, I have had regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner [2011] 1 IR 729, [2011] IESC 26. It is noted that any public interest considered by the Commissioner must be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law. Although these comments were made in relation to another provision of the FOI Act, I consider them to be relevant to the consideration of public interest tests generally.

The FOI Act itself recognises a public interest in ensuring the openness and accountability of public bodies regarding how they conduct their business. Indeed, under section 11(3), in performing any function under the Act, public bodies must have regard to, among other things, the need to achieve greater openness in their activities and to strengthen their accountability.

On the other hand, there is a strong public interest in ensuring that the release of records does not prejudice current or future negotiations. In essence, Teagasc’s argument is that disclosure of information on management discussions regarding the 2009 agreement could reasonably be expected to negatively impact current negotiations with the applicant and her Union. It argued that any negative impact on industrial relations discussions could have an increased cost not only to Teagasc but also increased salary costs to the public sector stemming from any precedent the case may set.

The applicant contended that there are currently no ongoing discussions on the matter but she does not dispute that agreement on the matter of her assimilation has not yet been reached and remains under consideration. Among other things, she argued that Teagasc had sufficient time to progress the agreement but failed to do so and that the matter has not been resolved to date because of its delaying tactics.

It seems to me that the release of the records at issue would allow for the enhancement of transparency and accountability in relation to the manner in which Teagasc has dealt with the ongoing negotiations concerning the matter of the applicant’s assimilation to date. However, having regard to the contents of the records at issue, I also accept Teagasc’s contention that their release could reasonably be expected to negatively impact the ongoing negotiations. Accordingly, I find that the public interest would, on balance, be better served by refusing access to the records. I find, therefore, that Teagasc was justified in refusing access to the records under section 30(1)(c).

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm Teagasc’s decision to refuse access to the records at issue under section 30(1)(c) of the FOI Act.

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