Mr X and the Department of Social Protection

CourtInformation Commission
JudgePeter Tyndall Information Commissioner
Judgment Date24 July 2015
Case OutcomeThe 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.
Record Number140253
RespondentDepartment 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...

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