Mr X and the Department of Jobs, Enterprise and Innovation

• Judge: Elizabeth Dolan Senior Investigator
• Judgment Date: 15 October 2015
• Case Outcome: The Senior Investigator varied the decision of the Department by affirming the decision to refuse access in relation to the majority of the records on the ground that the records are exempt under section 22(1)(a) of the FOI Act. She further found that refusal of access to additional records was justified under section 10(1)(a). She directed the release of the remaining two records.
• Court: Information Commission
• Record Number: 150087
• Respondent: Department of Jobs, Enterprise and Innovation

Whether the Department was justified in deciding to refuse access to records relating to the applicant's employment with the Department on the grounds that the records are exempt under section 10(1)(a) or section 22(1)(a) or excluded under section 46 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 13 March 2014, the applicant made an FOI request to the Department for a copy of all information on his personnel/personal file and copies of all other records relating to his employment, including assignment of duties, performance reviews, expense claims, promotion competitions, meetings related to his employment. By letter dated 28 May 2014, the Department granted partial access to the records and stated that given the volume of records, it was releasing the records on a phased basis. It subsequently emerged that over 1000 records were identified. On 25 June 2014, the applicant appealed this decision. However, in subsequent email correspondence with the Department, he clarified that he did not wish to request an internal review at that stage.
The Department released records to the applicant between May and August 2014. Its decision was to release certain records; partially release other records; and refuse access to the remaining records on the basis that they were not applicable or relevant to the applicant or exempt under section 19(1)(c) of the FOI Act - "AG advice". On 15 September 2014, the applicant applied for an internal review of the Department's decision. The Department issued an internal review decision by letter dated 25 September 2014, in which it affirmed its original decision. On 24 March 2015 the applicant applied to this Office for a review of the Department's decision.
In conducting my review, I have had regard to the Department's decision on the matter; the Department's communications with the applicant and with this Office; the applicant's communications with the Department and with this Office; and the content of the withheld records provided to this Office by the Department for the purposes of this review.
In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997-2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Preliminary Matters
Section 18 - statement of reasons
The applicant's application for review dated 24 March 2015 referred to section 18 of the FOI Act. However, his original FOI request dated 13 March 2014 did not apply for a statement of reasons under section 18. Indeed, the request seemed unambiguous in seeking hard copies of a particular file and records. In subsequent correspondence with this Office, the applicant stated that his original FOI request was intended to elicit all information relating to his employment and was a reiteration of previous requests for statements of reasons.
The Freedom of Information Act 1997 (Section 18) Regulations 1998 (SI 519/1998) state that "An application under section 18 shall be expressed to be made under that section" (reg. 3). Reg. 5 provides, among other things, that:

"Where a public body receives... an application which does not purport to be an application under section 18 but which requests information access to which can be obtained only by way of an application under section 18, the head shall assist, or offer to assist, the individual in the preparation of an application under that section."

I do not see how this Office has jurisdiction on the matter of reasons for acts of the public body in this instance, since the request giving rise to this review was not expressed to be made under section 18 as required and did not request information access to which can be obtained only by way of a section 18 application. Accordingly, this review will not consider section 18 of the FOI Act. By letter dated 11 June 2015, this Office told the applicant that it was open to him to write to the Department requesting a statement of reasons under section 18 (section 10 of the 2014 Act).

Handling of the request by the Department

The applicant's letter of appeal dated 24 March 2015 requested that this Office carry out an investigation into the Department's record-keeping. He has also criticised the Department's handling of the FOI request.
The Department failed to adhere to the statutory FOI time limits and its processing of the request was unsatisfactory in a number of areas. Its position is that the applicant agreed to the phased release of records and that the alternative was to consider refusal of the request under section 10(1)(c) on the grounds that it would, by reason of the number of records to be received and examined, cause a substantial and unreasonable interference with or disruption of the Department's work.
As I note below, a number of the records listed on the Department's schedule fall outside the scope of the applicant's FOI request. In addition, a significant number of the records listed on the schedule and provided to this Office are in fact duplicates of other records. In correspondence with this Office, the Department explained that given the number of records involved, it was not practical to cross-reference each record. It is fair to say that the lengthy schedule, the number of duplicates and the lack of clarity around exemptions cited made the review process longer and more difficult than it should have been. When dealing with FOI requests, public bodies should ensure that their schedule of records is clear and accessible. In this regard, I would refer the Department to the Central Policy Unit's manual on dealing with FOI requests, which contains a sample schedule of records and guidance on preparing schedules. It is clear from that manual that the schedule of records is intended to be an essential reference point, both for the person seeking access and for this Office if the matter goes to review.
It would seem that the Department's reference to section 19(1)(c) of the FOI Act was an error. Again, I would expect that the Department would ensure that its decision-makers were familiar with the various exemptions and would notify requesters of the correct exemptions, as required by the FOI Act. In discussions with the Department, this Office clarified that the exemptions upon which the Department intended to refer in its schedule were in fact section 22(1)(a) of the FOI Act (legal professional privilege) and section 46 of the FOI Act (which excludes records created by the Attorney General's Office).
Under section 36 of the FOI Act, the Commissioner has the discretion to carry out general investigations into FOI practices and procedures, which are separate from reviews under section 34 of the FOI Act. This Office has carried out several investigations under section 36, all of which to date have involved more than one public body. Among the factors considered in deciding to initiate an investigation and publish a report are: the resources available; whether the process and outcome are likely to be...