Minister for Agriculture v Information Commissioner

• Jurisdiction: Ireland
• Judgment Date: 17 December 1999
• Date: 17 December 1999
• Docket Number: [1999 No. 48 M.C.A.],1999 No. 48 MCA
• Court: High Court

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997 AND IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 42(1) OF THAT ACT

BETWEEN

THE MINISTER FOR AGRICULTURE AND FOOD

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

1999 No. 48 MCA

THE HIGH COURT

Abstract:

Employment - Freedom of information - Personnel records - Right to privacy - Onus upon public body to justify refusal of access - Role of Information Commissioner - Whether access to records should be allowed - Freedom of Information Act, 1997 (No 13) sections 2, 6(6)(c), 7, 8, 13, 14, 34, 42(1) (No 13).

An employee of the appellant made a request to the appellant for access to certain records contained in his personnel file. The request was made pursuant to section 7 of the Freedom of Information Act, 1997. The appellant granted access to certain records and withheld access to other records. The employee appealed the decision to the Information Commissioner (respondent) who found in favour of the employee and granted increased access. The appellant challenged the decision of the respondent in the High Court claiming that the employee was not entitled to access the said records. O'Donovan J upheld the decision of the respondent and dismissed the appeal.

1 JUDGMENT of Mr Justice Diarmuid B. O'Donovan delivered on the 17th day of December 1999.

2 This is an appeal by the Appellant pursuant to the provisions of Section 42(1) of the Freedom of Information Act, 1997 against a decision of the Respondent dated the 29th day of April 1999 following a review by the Respondent under Section 34 of the said Act of 1997 of a decision of the Appellant made on the 24th day of June 1998 pursuant to Section 14 of the Act. I believe that this is the first appeal against a decision of the Respondent made pursuant to the provisions of Section 42 of the said Act since the Act came into effect on the 21st day of April 1998.

3 The background to the case is that, on the 16th day of April 1998, Mr. Sean Glynn, an employee of the Department of Agriculture and Food made a request to the Department pursuant to the provisions of Section 7 of the Freedom of Information Act, 1997 for a "sight of my entire personnel file." The said request was deemed by the Department to have been received on the 21st day of April 1998; being the date of commencement of the said Act. On the 18th day of May 1998, the Department granted to Mr. Glynn access to the

4 records on his personnel file from the 21st day of April 1995 but, in purported reliance upon the provisions of Section 6(6)(c) of the said Act, refused to grant access to records created prior to that date on the grounds that those records were not being used, or were not proposed to be used in a manner or for a purpose that effects, or would or may effect, adversely the interests of Mr. Glynn. On the 20th day of May 1998, pursuant to the provisions of Section 14 of the said Act, Mr. Glynn sought a review of the said refusal to grant him access to records on his personnel file created prior to the 21st day of April 1995 and, on the 24th day of June 1998, the Appellant affirmed the decision to refuse to grant to Mr. Glynn access to those records. From that decision, Mr. Glynn, by letter in writing dated the 5th day of October 1998 addressed to the Respondent, sought a review pursuant to the provisions of Section 34 of the said Act; to which request the Respondent acceded and, having reviewed that decision in the light of relevant records and of submissions by Mr. Glynn and by the Department of Agriculture and Food, the Respondent, in a decision given pursuant to the provisions of Section 34(2) of the Act and dated the 29th day of April 1999, decided to vary the said decision of the Appellant and to grant to Mr. Glynn full access to certain records specified in the said decision and partial access to other records also specified in the said decision.

5 Pursuant to the provisions of Section 42(1) of the Act and by notice dated the 26th day of May 1999, the Appellant has appealed against the said decision of the Respondent dated the 29th day of April 1999 seeking relief in the following terms, namely:

• (a) an Order discharging the decision of the Respondent dated the 29th day of April 1999 insofar as it directed the Appellant to give access to Mr. Glynn to records specified in the schedule to the said notice.

• (b) a Declaration that the said decision of the 29th day of April 1999 and the consequential directions given by the Respondent in connection with access by Mr. Glynn to the said records are wrong in point of law.

• (c) a Declaration and/or a direction that Mr. Glynn is not entitled to access to the said records, or any of them.

• (d) (if appropriate) an Order remitting Mr. Glynn's request for further consideration by the Respondent in accordance with law and in accordance with such Orders as this Honourable Court may seem meet.

6 At the outset, I think it relevant to emphasise the following matters with regard to the provisions of the Freedom of Information Act, 1997 and, in particular, with regard to the rights conferred by the Act on members of the public to access to records held by public bodies, the manner in which those rights may be exercised and the limitations to the right of appeal to the High Court against a decision by the Respondent following a review by him under Section 34 of the Act. In this regard, I think that it is very significant that, in its preamble, the Freedom of Information Act, 1997 is described (inter alia)as "an Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy,(my emphasis) to information in the possession of public bodies", and that, by virtue of the provisions of Section 6(1) of the Act, every person has a right to and shall, on request therefore, be offered access to any records held by a public body, subject only to the provisions of the Act. Moreover, by virtue of the provisions of Section 8(4) of the Act, the reason why any person might seek access to records to which he/she is entitled is irrelevant, by virtue of the provisions of Section 34(12)(b) of the Act, in a review by the Respondent pursuant to Section 34, a decision to refuse to grant a request under

7 Section 7 of the Act shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified and the right to appeal to the High Court against a decision by the Respondent following a review by him tinder Section 34 of the Act, which is conferred by Section 42(1) of the Act, is specifically limited to points of law. In those circumstances, I think that it follows that, save where access to records is specifically prohibited by the Act e.g. an "exempt record" within the meaning of Section 2(1) of the Act, there is a very heavy onus on a public body, which refuses to grant access to records sought from it, to justify that refusal. Moreover, given that the reason for requesting access to records is not relevant when considering whether or not access should be granted, then, in reviewing a decision to refuse to grant such access, it is not always necessary or desirable that the content of those records be considered.

8 As I have indicated, in response to Mr. Glynn's request of the 16th day of April 1998, the Appellant purported to be entitled to restrict access to records on his personnel file which were created after the 21st day of April 1995 by virtue of the provisions of Section 6(6)(c) of the said Act of 1997 which provides as follows:

9 "(6) Subsection (5) shall not be construed as applying, in relation to an individual who is a member of the staff of a public body, the right of access to a record held by a public body that:

• (a) is a personal record, that is to say, a record related wholly or mainly to one or more of the following, that is to say, the competence or ability of the individual in his or her capacity as a member of the staff of a public body or his or her employment or employment history or an evaluation of the

  performance of his or her functions generally or a particular such function as such member.

• (b) was created more than three years before the commencement of this Act and

• (c) is not being used or proposed to be used in a manner or for a purpose that affects, or will or may affect, adversely the interests of the person."

10 In his said decision dated the 29th day of April 1997, the Respondent indicated that, in reviewing the decision of the Appellant of the 24th day of June 1998, he considered Mr. Glynn's records and submissions from Mr. Glynn and from the Department of Agriculture and Food. Given that by virtue of the provisions of Section 8(4) of the said Act of 1997 which provides:

11 "(4) In deciding whether to grant or refuse to grant a request under Section (a) any reason that the requester gives for the request and

• (b) any belief or opinion of the head as to what are the reasons of the requester for the request, shall be disregarded"

12 I am not persuaded that, when the provisions of Section 6(6)(c) of the Act are relied on to withhold access to records to which the Applicant for access is otherwise entitled, it is either...