Decision
Dr X and University College Cork
From Office of the Information Commissioner (OIC)
Case number: OIC-155475-J3S1Z1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-155475-J3S1Z1
Published on
Whether UCC was justified, under section 15(1)(a) of the FOI Act, in refusing access to further records relating to the applicant’s WRC dispute on the grounds that no further records exist or can be found, and under section 31(1)(a) of the Act on the basis that a number of records are subject to legal professional privilege
2 July 2025
In a request dated 15 November 2024, the applicant sought access to all records relating to an industrial relations dispute that was referred to the Workplace Relations Commission (WRC) in 2016. On 13 December 2024, UCC part-granted the applicant’s request. It released 30 records with some personal information of third parties redacted under section 37(1) of the FOI Act. On the same day, the applicant sought an internal review of UCC’s decision and highlighted various records she believes to be missing. The applicant did not contest the redaction of personal information by UCC under section 37(1) of the Act.
On 14 January 2025, UCC affirmed its original decision and refused access to further records under section 15(1)(a) of the Act. UCC said that its original decision was subject to the outcome of checking a hard-copy file from UCC’s Office of Corporate and Legal Affairs (OCLA) as there was a possibility that it may contain records relevant to the request. On 17 January 2025, the applicant applied to this Office for a review of UCC’s decision.
On 31 January 2025, UCC wrote to the applicant and said it identified eight additional records in its OCLA file. It released four of the records to the applicant and refused access to the remaining four records under section 31(1)(a) on the ground that the records are legally privileged. Subsequently, during the course of this review, UCC found a number of additional records which it released to the applicant on 25 March 2025. It is UCC’s position that it holds no further relevant records within the scope of the applicant’s request. The Investigating Officer provided the applicant with details of the UCC’s submissions wherein it outlined the searches undertaken to locate the records sought and its reasons for concluding that no further records exist or could be found. The Investigating Officer invited the applicant to make submissions on the matter, which she duly did.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence outlined above and to the submissions made by UCC and the applicant. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether UCC was justified in refusing access, under sections 15(1)(a) of the FOI Act, to further records within the scope of the applicant’s request, and whether it was justified in refusing four records from its OCLA file under section 31(1)(a) of the Act.
Throughout this case, the applicant raised several concerns relating to the workplace dispute itself and how it was handled by UCC. For example, she queried the use of the term ‘mediation’ by UCC as she argued that she never entered into a mediation process. While this was addressed by UCC in its submissions and responded to by the applicant, it is important to note that this Office has no role in adjudicating on how FOI bodies perform their functions generally, nor to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our role in this case is confined to reviewing UCC’s decision on access to the records requested by the applicant in her FOI request.
The applicant also provided some background reasons as to why she is pursuing this FOI request. Section 13(4) of the FOI Act provides that, subject to the Act, in deciding whether to grant or refuse an FOI request, any reason that the requester gives for the request and any belief or opinion of the FOI body as to the reasons for the request shall be disregarded. Thus, while certain provisions of the Act implicitly render the motive of the requester relevant, as a general rule, the actual or perceived reasons for a request must be disregarded in deciding whether to grant or refuse an access request under the FOI Act. As such, this Office cannot have regard to the reasons given by the applicant for seeking access to the records concerned in considering whether UCC was justified in refusing the request.
Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case such as this is to review the decision of the FOI body and to decide whether that decision was justified. This means that I must have regard to the evidence available to the decision maker and the reasoning used by the decision maker in arriving at their decision and also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in “search” cases generally consists of the steps actually taken to search for the records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question.
As noted above, UCC provided submissions to this Office about the searches it undertook to locate the records sought by the applicant, details of which were provided to the applicant. While I do not intend to repeat those details in full here, I confirm I have had regard to them, and to the submissions made by the applicant in response, for the purpose of this review.
In its submissions to this Office, UCC explained its records management procedure for the type of records sought in this request. It said that industrial relations disputes are handled by the Employee Relations section within UCC HR. At the time of the dispute in question, it said that hard copy files were created on each individual dispute or matter. The file relating to the applicant’s dispute is maintained by UCC HR, and UCC stated that its contents were released to the applicant in full. UCC stated that under its retention schedule for HR, files relating to industrial relations processes are retained permanently. Therefore, such files and their contents are not subject to destruction or deletion.
In addition to the HR file, UCC said it also searched emails relating to matter, using the applicant’s name and email address, and those of HR colleagues, IFUT representatives, and WRC officers involved. UCC stated that the records identified were released in full to the applicant. It also said that the mailbox of the former HR Director, who was involved in the implementation of an agreement reached between the parties, was searched and the relevant records found were released to the applicant in full. UCC said that fresh searches were carried out during the course of this review using a broader range of search terms and parameters. As noted above, on 25 March 2025 UCC released a number of additional records to the applicant which it located a result of its fresh searches.
UCC stated that one of the additional records is the same as one of the records from the initial release, but it included it because it forms an attachment to correspondence from the WRC and is considered to be the final and accepted form of the agreement. UCC stated that the record forms an attachment to an official letter from the WRC to UCC dated 1 June 2016, advising that as the dispute has been settled by agreement, the WRC has no further jurisdiction in the matter and no further action will be taken on the case and that the complainant/the complainant’s representative had been informed accordingly. In the absence of any further version of the agreement being located following extensive searches, UCC said that this version of the agreement letter must be accepted as the final and definitive record of the agreement reached.
In the updated schedule of records released to the applicant, UCC stated that the search parameters it used were between 11 May 2015 to December 2018. However, some of the records were dated slightly before and after these dates. For clarification, UCC stated that it considers 11 May 2015 to be the beginning of the scope of the request as this was the date when UCC was first contacted by the applicant’s trade union representative regarding the grievance which subsequently became the subject of the WRC complaint referred to in her request. UCC stated that the only records prior to 11 May 2015 which were placed on the file as background and consist of some records released to the applicant under a previous FOI request. UCC said it considers December 2018 to be the end of the relevant date range in the request because UCC’s then Director of Human Resources stated (in Record 29) that the agreement reached had been honoured. UCC stated that the records released during this review support the position that the agreement reached had been fully implemented.
In regard to Record 30, which is dated 29 October 2019, UCC stated that this record was identified on foot of reviewing previous requests from the applicant. UCC said that, while this record was technically outside the scope of the present request, it was included in the release to ensure the applicant was aware that the action referred to in a 2019 DSAR response had been followed up on. UCC stated that the records released in the scope of this request show that the follow up actions arising from the settlement were implemented no later than December 2018, and so this is why it is the upper limit on the search parameters.
In its submissions to this Office UCC said, as it had attempted to explain in its internal review decision letter, the resolution process was one carried out ‘in a spirit of trust and person-to-person communication’ between representatives (e.g., ‘phone calls, in-person meetings). It said that this approach is fairly typical in such cases.
The applicant’s submissions in this case mostly concern queries around records she believes ought to exist which document the outcome and settlement of her dispute with UCC. The applicant explained that she wants to find out why she was promoted in 2016 rather than 2013. I understand that the applicant has since made a separate FOI request to UCC under section 10 of the FOI Act relating to this issue.
After being updated on UCC’s submissions, the applicant responded with a number of submissions of her own. She raised a number of points relating to UCC’s procedures during the dispute and she questioned the use of the term ‘mediation’ by UCC. It appears from the applicant’s submissions that the records she has received from UCC have not provided her with the answers she is looking for.
While I appreciate that the applicant may feel frustrated that she has not obtained the answers she is looking for, as noted above, our role is confined to reviewing the UCC’s decision on access to the records sought by the applicant in her FOI request.
It seems to me that the applicant is looking for reasons underpinning the decision/agreement that was reached following the WRC adjudication hearing and is looking of for records that explain what happened after the WRC hearing. She believes that UCC ought to have further records documenting the dispute resolution process and its outcome. It is UCC’s position that it has released all relevant records to the applicant, other than those refused under section 31(1)(a) of the Act which I will consider below. It is important to note that the FOI Act does not require absolute certainty as to the existence or location of records, as situations can arise where records are lost or simply cannot be found. The Act is not concerned with what records ought to exist, nor does it require FOI bodies to create records to answers questions. What the FOI Act requires is that the public body concerned takes all reasonable steps to locate relevant records. Furthermore, it is open to this Office to find that an FOI body has satisfied the requirements of section 15(1)(a), even where records that an applicant believes ought to exist, or are known to have existed in the past, have not been located. We do not generally expect FOI bodies to carry out extensive or indefinite general searches for records simply because an applicant asserts that records sought ought to exist.
Having had regard to the information before this Office, and in the absence of any evidence to the contrary, I am satisfied that UCC has taken all reasonable steps to locate the records sought by the applicant. In the circumstances, while I appreciate the applicant may be disappointed by my decision, I find that UCC was justified in refusing access to further records relating to the applicant’s request under section 15(1)(a) of the FOI Act, on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.
As noted above, UCC refused four records it located on its OCLA file under section 31(1)(a) of the Act. Section 31(1)(a) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). It does not require the consideration of the public interest.
LPP enables the client to maintain the confidentiality of two types of communication, one of which is confidential communications made between the client and their professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege). Advice privilege attaches to confidential communications made between the client and his/her professional legal adviser in a situation where the legal adviser is acting in a professional capacity. The Commissioner takes the view that privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice. The concept of "once privileged always privileged" applies to advice privilege, and thus, unless otherwise lost or waived, lasts indefinitely.
UCC stated that it relied on the section 31(1)(a) exemption to refuse the release of four records contained in the relevant file held by the OCLA on the basis of legal advice privilege. UCC said that one of the named parties to the correspondence in the four records is a solicitor with UCC Academy and was retained to assist the Corporate Secretary by providing legal advice in the matter. Having considered the nature and contents of the records, I am satisfied they are exempt under section 31(1)(a) of the Act.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCC’s decision to refuse access to further relevant records under section 15(1)(a) of the FOI Act. I also affirm its decision to refuse four records held on its OCLA file under section 31(1)(a) of the 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.
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Richard Crowley
Investigator