Mr X and the Department of Social Protection

• Judge: Peter Tyndall Information Commissioner
• Judgment Date: 24 July 2015
• Case Outcome: The Commissioner found that section 27(1)(b) of the FOI Act applied to the employer names at issue. He also found, in the circumstances of this case (particularly the Department's effective acknowledgment that it had not complied with fair procedure in its continued exclusion of the employers concerned from the scheme as at the date of the request), that the public interest did not warrant release of the names concerned.
• Court: Information Commission
• Record Number: 140253
• Respondent: Department of Social Protection

Whether the Department was justified in refusing to release the names of the employers that were excluded, at the date of the applicant's request, from further participation in the JobBridge Scheme (the scheme)

Conducted in accordance with section 34(2) of the FOI Act, by Peter Tyndall, Information Commissioner

Background

On 21 April 2014, the applicant made an FOI request to the Department, seeking:

copies of the Department's "report on the 32 host organisations which have been excluded from any further participation in JobBridge";
copies of all briefing material provided to the Minister's office for the purposes of answering Parliamentary Questions 50873/13 on 28 November 2013; and
the "names of all companies that have availed of the scheme and the number of interns each has taken on plus dates".

The Department's decision of 17 June 2014 refused the names of the excluded organisations under sections 20, 21 and 27 of the FOI Act. It also refused to release any of the requested details pertaining to companies that had taken on interns but who "wished their details to remain anonymous", on the basis that section 26 of the FOI Act applied. As I understand it, an employer choosing to participate in JobBridge is asked "Would you like the details of your company NOT to be shown for this vacancy (a so-called closed vacancy)". The employer must choose one of two options: "closed" or "open". The Department's decision considered those employers who had chosen the "closed" option as having "wished their details to remain anonymous". I will refer to these employers as "closed vacancy employers" in the remainder of this decision. The Department released the requested briefing materials and details pertaining to companies that had selected the "open" vacancy option.

The applicant sought an internal review of the Department's decision on 2 July 2014, which affirmed its earlier decision on 24 July 2014.

On 22 September 2014, this Office received the applicant's application for a review of the Department's refusal of the details he had requested pertaining to the excluded organisations and the closed vacancy employers.

Ms Anne Lyons, Investigator, wrote to the applicant on 5 March 2015, clarifying the scope of this review. She noted that while the applicant had sought "reports" on the 32 host organisations, the Department had confirmed that it did not specifically identify, or consider for release, any individual reports that are encompassed by the relevant part of his request. It instead had focussed its decisions on the names of such organisations. Ms Lyons explained that the review in the case at hand would consider only the Department's refusal of the names of the excluded host organisations accordingly.

In relation to that element of the request that sought the "names of all companies that have availed of the scheme and the number of interns each have taken on plus dates", Ms Lyons explained that she considered it reasonable for the Department to have understood this to concern only the names of those employers who took on interns (as opposed to also seeking names of employers who sought to participate in the JobBridge scheme and for whatever reason did not take on interns). She said that the review would consider the withheld relevant details of such companies that "wished their details to remain anonymous".

The applicant did not reply to Ms Lyons' letter.

On 19 March 2015, Ms Lyons, having obtained the relevant contact details from the Department, sought submissions from the various excluded employers as to why release of details identifying them as excluded employers should be withheld under the FOI Act. On 20 March 2015, she sought submissions from the Department on this matter and also on why the requested details pertaining to the closed vacancy companies should be withheld.

By close of business on 23 March 2015, Ms Lyons had been contacted by six employers, who alleged that the Department had not treated them fairly in deciding to exclude them from further participation in the scheme. In dealing with records generated by public bodies, my Office generally assumes that the requirements of fair procedure have been complied with by those bodies. However, because of the similar themes emerging in the contacts from the employers, Ms Lyons emailed the Department on 23 March 2015 to ask it to confirm in its submission whether it had complied with the requirements of fair procedure when deciding to exclude the organisations whose names are at issue. I note that Ms Lyons received similar comments from roughly half of the consulted employers over the following month (the others made no comment at all). On 24 April 2015, the Department made its submission as to why the names of the excluded companies should be withheld.

I am very pleased to note that, on 27 April 2015, the Department confirmed that it no longer intended to refuse any requests for names of participating employers. On 25 May 2015, it confirmed that it had released all details requested by the applicant pertaining to closed vacancy employers.

On 9 June 2015, Ms Lyons emailed the Department to outline why, having regard to particular circumstances on which I will elaborate later in this decision, she considered I should find that the names of the excluded employers be withheld. The Department responded positively to her email on the same date. Two days later, Ms Lyons wrote to the applicant to explain her position. She invited the applicant to make any further submissions he wished, and asked for such submissions to be sent to her by 25 June 2015. As no reply to Ms Lyons' letter has been received, I must now conclude this review by way of a final, binding, decision.

In carrying out my review, I have had regard to various correspondence between this Office and the Department, the third parties, and the applicant, including those specified above. I have had regard also to the provisions of the FOI Act.

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...