Decision
Mr X and University of Limerick
From Office of the Information Commissioner (OIC)
Case number: 160137
Published on
From Office of the Information Commissioner (OIC)
Case number: 160137
Published on
Whether the University was justified in refusing access to a record of a review of its Student Administration System under the provisions of sections 29, 30, 35, 36 and 40 of the FOI Act
Conducted in accordance with section 22(2) of the FOI Act, by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review
30 November 2016
On 25 September 2015 the applicant submitted a request to the University for access to the "Deloitte report into the Student Academic Administration System at the University of Limerick, dated 9 February 2015". The University's decision of 22 October 2015 refused access to the record in full on the basis of sections 29(1), 30(1)(a), (b) and (c), 36(1)(b) and (c) and section 40(1)(b) and 40(2)(n) of the FOI Act. Following a request for an internal review, the University affirmed the original decision on 14 December 2015.
On 29 March 2016, this Office received a request from the applicant for a review of the decision of the University.
In conducting this review, I have had regard to submissions from the applicant and the University, to correspondence between this Office and the University, and to a copy of the record at issue. I have also had regard to the provisions of the FOI Act.
During the course of this review the University submitted that the record is also exempt under the provisions of section 35(1)(a). Consequently, this review is confined to whether the University has justified its decision to refuse access to the report under sections 29(1), 30(1)(a), (b) and (c), 35(1)(a), 36(1)(b) and (c), 40(1)(b) and 40(2)(n) of the FOI Act.
Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.
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 public body concerned considers appropriate, of the record with the exempt information removed. Section 18(1) does not apply, however, if the copy provided for thereby would be misleading (section 18(2) refers). This Office takes the view that, generally, neither the definition of a record nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from a record (or where relevant, the remainder of a record) for the purpose of granting access to those particular sentences or paragraphs.
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant a request under section 11 shall be presumed not to have been justified unless the head of the relevant public body shows to the satisfaction of the Commissioner that its decision was justified.
When a record is released under the FOI Act, it effectively amounts to disclosure to the world at large, as the Act places no restrictions on the type or extent of the subsequent use to which a record may be put.
Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited.
While the University exempted the record on the basis of a number of sections of the FOI Act, claiming exemptions in the deliberative process; functions and negotiations of FOI bodies; confidentiality; commercial sensitivity and financial and economic interests of the State, I decided to consider section 30(1)(b) first.
Section 30(1)(b)
Section 30(1)(b) provides for the refusal of a request if access to the record could reasonably be expected to have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff). Where a public body relies on section 30(1)(b), it should first identify the potential harm to the performance of any of its functions relating to management that might arise from disclosure of the information at issue and then consider how release of the particular record(s) could reasonably be expected to result in the significant, adverse effect envisaged.
The wording of section 30(1)(b) makes it clear that the words "industrial relations and management of its staff" are, in the context of that section, a subset of "functions relating to management". In previous decisions the Commissioner has found that management is a word of wide import and that, apart from management of staff and industrial relations, it is apt to cover a variety of activities of an FOI body, including strategic planning, the management of financial resources and the management of operational matters.
In examining the merits of an FOI body's view that the harm identified could reasonably be expected by the release of records, the Information Commissioner does not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.
The University says that the record includes a range of proposals, suggestions and recommendations for consideration by it, regarding the proposed development of its Student Administration System. It states that the report has "multiple recommendations" and that the University is now required to commence a process of consideration and review, following which a decision would be taken. It states that its options regarding procurement of appropriate contractors would be negatively affected by premature release of "proposed estimates of costs and effort models" in the record. The University also states that the record provides an extensive amount of detail, including information concerning management and deployment of staff, and that premature disclosure would reduce the ability of senior management to perform their management functions, disclose positions being considered and diminish its ability to complete the review.
It may be the case that releasing certain parts of the report would contribute to a lesser degree than others to the adverse effects identified. However, under the provisions of section 18, as detailed above, I do not consider it appropriate in the circumstances, to extract particular sentences or occasional paragraphs from the record for the purpose of granting access to those particular sentences or paragraphs. It seems to me that the structure of the report as a whole is such that release of parts would be misleading.
Having regard to the harm tests required to be satisfied for 30(1)(b) to apply, I accept that the University has identified significant adverse effects on its management functions, including industrial relations and management of its staff which could reasonably be expected if the record was released.
I accept that, in this case, ensuring the senior management's ability to conduct management decision making and negotiations are management functions for the purpose of section 30(1)(b).
Accordingly, I find that section 30(1)(b) of the FOI Act applies to the record, subject to the provisions of section 30(2).
Section 30(2)
Section 30(2) requires me to consider whether, on balance, the public interest would be better served by granting than by refusing the request.
The applicant states that the record should be published in the public interest. He states that the University would not be justified in refusing to grant access to the records in a situation where "irreparable damage had been done to the integrity of the student records system". The applicant refers to "shortcomings" in the University's current Student Administration System, which were highlighted in a newspaper article in January 2015. He also notes that the University is a state-funded body. He refers to other decisions of the Commissioner and comments concerning discrepancies found in the University's submissions in an "adequacy of search" case. I take it that the latter is intended to support an argument that inadequacies within the University's systems should be exposed further by release of the report.
The University acknowledged the delay in 2015 in releasing student examination results. The University explained that its review of procedures was incomplete at the time of the delay and that it added additional checks before releasing the student grades.
It appears that the University accepts that its systems need to be assessed and improved. From my reading of the record, it is a very detailed and technical review of the University's Student Administration System, encompassing both current and future matters of concern to the University. It seems to me that the applicant is under the impression that the focus of the report is on student record keeping, including data concerns, and on short-comings which resulted in a delay in 2015. It is fair to say that the report goes well beyond examining specific incidents, or shortcomings. The applicant says that these shortcomings are a matter of public interest.
On balance, I am of the opinion that the public interest in protecting the integrity of the University's review of its Student Administration System process, and ensuring that the performance of its management functions are not adversely affected, outweighs the public interest in releasing the record at this time. I accept, of course, that there is a public interest in openness and transparency in the University's carrying out of its functions. However, in weighing up the public interest considerations, I have had particular regard to the fact that the University's review process is not yet complete, and that, as the University stated in its submission, a two-stage process involving 'implementation' and 'remediation' will require at least 24 months from the date of completion of the review. I am satisfied that the public interest in refusing access to the record currently outweighs the public interest in disclosure. However, given the comments of the University in its submission, about possible public disclosure following completion of its "planning and rollout stages", it may well be the case that, once this process has been completed, the public interest factors for consideration in the context of the section 30 exemption may change.
In conclusion, therefore, I am satisfied the University has justified its claim that section 30(1)(b) of the FOI Act applies, and that the public interest would not, on balance, be better served by the release of the record at this time. Having found the record to be exempt under section 30(1)(b), I do not consider it necessary to consider the application of sections 29, 30(1)(a), 30(1)(c), 35, 36 and 40 of the FOI Act to it.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the University's decision to refuse access to the record under section 30(1)(b) of the FOI Act.
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.
Elizabeth Dolan
Senior Investigator