Decision
Mr B & Trinity College Dublin (TCD)
From Office of the Information Commissioner (OIC)
Case number: OIC-152572-K7B4K1
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-152572-K7B4K1
Published on
Whether TCD was justified in refusing access, under sections 35(1)(a) and 37(1) of the FOI Act, to details of allegations made against the applicant and who made them
20 October 2025
Referencing a report prepared by TCD’s Department of Sport and Recreation of an investigation into alleged breaches of the Trinity Sport Code of Ethics by the Long Term Committee (LTC) of Dublin University Boat Club (DUBC), the applicant submitted a request to TCD on 23 July 2024 for details of what allegations were made against him and who made the allegations. In a decision dated 20 August 2024, TCD refused the request under sections 35(1)(a) and 37(1) of the FOI Act. The applicant requested an internal review of that decision, following which TCD affirmed its refusal of the request. On 7 October 2024, the applicant applied to this Office for a review of TCD’s decision.
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 applicant’s comments in his application for review and to the submissions made by TCD in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
TCD identified four folders of records as coming within the scope of the applicant’s request, identified as records 1 to 4. The records comprise complaints made to TCD, correspondence between complainants and third parties, minutes of a meeting, a secretary’s report, an email thread between a complainant and TCD, a copy of a letter from the DUBC to certain alumni and a letter from the DUBC President circulated to all members.
During the course of this review TCD informed this Office that a number of documents in the records were already held by the DUBC and the applicant would have access to same through his DUBC membership. The applicant was contacted in this regard and he agreed that the minutes of a meeting held on 9 June 2023, an email from the DUBC President dated 10 June 2023, a copy of a letter from the DUBCs LTC to certain alumni on 30 June 2023 discussing certain members and issues signed by three named members, a letter from the DUBC President dated 13 July 2023 circulated to all members and the DUBC Secretary's Report 2023 could be removed from the scope of this review. I will give no further consideration to these records.
It is important to note at this stage that while the purpose of the Act is to enable members of the public to obtain access to information held by public bodies, the mechanism for doing so is by accessing records held by those bodies. In other words, a person wishing to obtain information from a public body must make a request for records that contain the information sought. Requests for information, as opposed to requests for records, are not valid requests under the Act, except to the extent that a request for information can reasonably be inferred to be a request for a record containing the information sought. As I have indicated above, the applicant sought details of what allegations were made against him and who made the allegations. As such, this must be regarded as a request for records that contains such information. Having considered the remaining records at issue, I am satisfied that records 1 and 4 contain no details of allegations made against the applicant but that parts of records 2 and 3 do, indeed, fall within the scope of the FOI request. Both TCD and the applicant were made aware of this and submissions were invited. Submissions were received from TCD but none have been received from the applicant to date.
Accordingly, the scope of this review is confined to whether UCD was justified in refusing, under sections 35(1)(a) and 37(1) of the FOI Act, access to the relevant information in records 2 and 3.
Before I address the substantive issues arising, I wish to make some preliminary comments.
Firstly, the applicant has taken issue with the processes TCD undertook following receipt of the complaints contained in the records at issue. He is of the view that accusations were made against him of which he was not informed and that he was not allowed to participate in the complaint process. It is important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies or indeed third parties.
Secondly, while section 22(10) of the FOI Act requires that I give reasons for my decisions, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt. Therefore, the extent to which I can describe the content of the records at issue is somewhat limited.
Thirdly, section 13(4) 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.
Finally, I also wish to note that release of records under FOI is generally understood to have the same effect as disclosing them "to the world at large". This is because there are no restrictions placed on the use to which information released under FOI may subsequently be put.
Section 37(1)
Section 37(1) of the FOI Act provides that, subject to the other provisions of the section, an FOI body shall refuse a request if access to the record concerned would involve the disclosure of personal information. This does not apply where the information involved relates to the requester (section 37(2)(a) refers). However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information). Essentially, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, the request shall be refused if that personal information is inextricably linked to personal information relating to parties other than the applicant. Section 37(1) is subject to sections 37(2) and 37(5).
Section 2 of the FOI Act defines personal information as information about an identifiable individual that, either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or (b) is held by an FOI body on the understanding that it would be treated by that body as confidential. Section 2 goes on to specify 14 categories of information which, without prejudice to the generality of the above definition, constitute personal information.
The information at issue comprises complaints made to TCD by certain individuals concerning events that took place in June/July 2023 and correspondence between these individuals and third parties other than the applicant. TCD said the records contain the following information which is considered personal information in section 2 of the FOI Act pursuant to various of the fourteen categories of information identified in section 2:
(i) information relating to the educational, medical, psychiatric or psychological history of individuals,
(iii) information relating to the employment or employment history of the individual,
(vii) information relating to the religion, age, racial or ethnic origin, sexual orientation or civil status (within the meaning of section 2 (1) of the Civil Registration Act 2004) of, any disability of, or the political opinions or the religious or philosophical beliefs of, the individual,
(ix) a number, letter, symbol, word, mark or other thing assigned to the individual by an FOI body for the purpose of identification or any mark or other thing used for that purpose,
(xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and
(xiv) the views or opinions of another person about the individual.
TCD said the records do not specifically contain a complaint about the applicant but make reference to other members of the LTC or to the LTC as a whole. It said the College has provided the LTC, including the applicant, with information on the nature of the complaints made by the individuals and has had in-person meetings with them concerning the complaints made. TCD said that in relation to the personal information of other individuals, these individuals were informed that the information and records provided would not be shared without their permission or consent and the matters would not be escalated without their permission or consent.
TCD said that due to the rowing community in Ireland being small, and due to the specific nature of each complaint or concern raised, it was not possible to effectively anonymise the records. It also said it would be possible for the requester, the LTC, and members of DUBC, to identify those raising their concerns and those discussed. It said it could also be possible for members of the rowing community external to DUBC to identify individuals. It said the records were not part of a formal investigation. It said they were concerns or complaints raised with the College which led the College to carry out a de novo review to consider whether a formal investigation into the DUBC was required.
The applicant said he was never informed what the accusations were, who made them and was never allowed to participate. He said his legal advice is that he is entitled to know what the LTC were accused of and who made the accusations.
Having reviewed the records, I am satisfied that all of the information withheld comprises either personal information relating to other third parties or joint personal information relating to the applicant and other third parties.
I have had regard to section 18(1) of the FOI Act which 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 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). I take the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, therefore, I am not in favour of the cutting or "dissecting" of records to such an extent. In my view, while it might be possible to release parts of the records, the partial copies would be misleading. Accordingly, I am satisfied that section 37(1) serves to protect all of the records in their entirety.
However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, specifically subsections (2) and (5). Accordingly, I must proceed to consider whether any of those other provisions serve to disapply section 37(1) in respect of any or all of the information at issue.
Section 37(2)
Section 37(2) provides that section 37(1) does not apply if;
(a) the information concerned relates to the requester concerned,
(b) the individual to whom the information relates consents, in writing or other such form as may be determined, to its disclosure to the requester,
(c) information of the same kind as that available in the record in respect of individuals generally or a class of individuals that is, having regard to all the circumstances, of significant size, is available to the general public,
(d) the information was given to the FOI body concerned by the individual to whom it relates and the individual was informed on behalf of the body, before it being so given, that the information belongs to a class of information that would or might be made available to the general public, or
(e) disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual.
I am satisfied that any information in the records relating to the applicant is joint personal information relating to the applicant and other third parties. No argument has been made that any of the circumstances outlined above at subsections (b) to (e) are relevant in this case, nor do I consider any to apply. I find that section 37(2) does not apply.
Section 37(5)
Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the
grant of the request would benefit the person to whom the information relates. No argument has been made that section 37(5)(b) applies in this case and I am satisfied that it does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, section 13(4) 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. In relation to the question of the public interest, this means that I cannot have regard to the applicant's motives for seeking access to the records at issue, except in so far as those motives reflect, or overlap with, what might be regarded as true public interest factors in favour of release of the records, i.e. insofar as the concerns raised in relation to the request may also be matters of general concern to the wider public.
Secondly, it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, such as under sections 37(2)(a) and 37(8), FOI is not about granting access to information to particular individuals only and as noted above, a requester's reasons for making a request are generally not of relevance. Thus, records are not released under FOI for any limited or restricted purpose.
All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third-party individuals concerned.
In considering where the balance of the public interest lies in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. However, in doing so, I have also had regard to the judgment of the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (“the Enet case”). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and “there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure”. Although the Court’s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.
In submissions to this Office, TCD said it had not identified any public interest factors in releasing information that solely related to individuals in a private capacity. It said the main factor against the release of the information is the impact it will have on the individuals that submitted complaints. It referenced the implications of the events in question and their impact on the individuals concerned and believes release of the information would further impact them in a negative manner.
In his internal review request, the applicant said the LTC were denied their rights under natural justice to be made aware of the accusations against them, who made these accusations and be given the right under Irish Law to defend themselves. He said this was denied to the LTC in the original report by the Department of Sport and also in a second report. He said individuals who make accusations against people have no rights to confidentiality unless covered by specific whistleblower legislation. He said this was not the case here and if this applied in this case then he sought documentary proof from TCD. He contends that TCD’s Department of Sport were operating outside of the disciplinary procedures of the University. He said that he asked what accusations were made against the LTC in his original FOI request and that question was never covered in the decision. He said TCD’s interpretation of the FOI legislation allows anybody to make false and damaging accusations against a person despite them being incorrect and contends that there is malign intent inherent in the Department of Sport’s report. He said the rights of the LTC to natural justice were denied.
The arguments made by the applicant in his internal review request include 15 points provided by his legal adviser. They outline principles of fairness and due process in dealing with accusations against individuals or organisations. They emphasise the right to know the accuser, the details of the accusation, and the right to a defence. They stress the importance of timely communication, representation, the right to be heard and potential defamation issues. The arguments also stress the importance of transparency and fairness in complaint processes. They address the issue of anonymous complaints, arguing that anonymity impedes the ability of the accused to defend themselves and violates their fundamental rights to a fair hearing. They also emphasise that an accused person must be given the opportunity to understand the specifics of the accusation, including the relevant sections of any code of ethics being invoked, and be informed of the time, date, and place of any inquiry. They highlight the right to representation and the right to be heard. The principle of natural justice is also implied, as is the need to consider the laws of defamation, recognizing the potential for false accusations to cause harm. They also state that those who participate in malicious or unfounded complaints should be held accountable.
The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes it clear that the release of records under FOI must be consistent with the right to privacy). It is also worth noting that the right to privacy has a constitutional dimension, as one of the unenumerated personal rights under the Constitution. Privacy rights will therefore be set aside only where the public interest served by granting the request (and breaching those rights) is sufficiently strong to outweigh the public interest in protecting privacy. Moreover, even where an overriding public interest in granting the request exists, there is a discretionary element to the application of section 37(5)(a). I must have regard to the fact that the release of the records must be regarded, in effect, as release to the world at large.
The applicant made no specific submissions to this Office in respect of the applicability of the public interest test at section 37 but his application for an internal review made arguments which relate to fair procedures which could be considered to be in the public interest. I accept that the applicant has an interest in being able to access information relating to him which is held by the FOI body. However, it seems to me that such an interest is a private one rather than a public one. I also accept that there are public interest factors in favour of release of the records on the basis of fair procedures. What I must consider is whether those public interests are sufficiently strong to outweigh the public interest in protecting privacy.
While I accept that there is a strong public interest in openness and accountability in relation to the manner in which public bodies carry out their functions in dealing with individuals, this does not mean that it is within the remit of this Office to determine or to make value judgments as to whether the applicant should have been provided with further personal information in the course of the complaint process, whether as a matter of fair procedures, "equality of arms", or simply good administrative practice. It also does not permit me to review the question of whether the outcome of the complaint process was correct or not. In other words, it is not open to me to determine that further personal information should be provided to the applicant now, in the public interest under section 37(5)(a) of the FOI Act, as a means of remedying any actual or suspected wrongdoing by TCD or any third party individuals. The question of whether the applicant should have access to further information in order to pursue a remedy or some other form of redress is a matter for the Courts, which have been given exclusive power under the Constitution for the administration of justice. It would be in the context of relevant court proceedings, such as an action for judicial review or defamation, that the applicant's identity as the person against whom allegations were made and his personal reasons for seeking disclosure of sensitive personal information relating to others in addition to himself would be of relevance.
In my view the applicant’s arguments concern the procedures and processes adopted by TCD in dealing with the complaints rather than being specific arguments relevant to the application of the FOI Act to the records. As previously noted, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. It is also worth noting that the applicant’s original FOI request asked what accusations were made against him and not the LTC as he contends in his internal review request. I accept that the applicant is of the view that accusations have been made against him and that he is entitled to be made aware of the nature of such allegations. However, some of the information at issue is of an inherently sensitive and private nature, and even the remaining information that might not be so characterised is nonetheless personal information for the purposes of the FOI Act.
Having considered the matter, and bearing in mind the strong public interest in protecting the right to privacy, I do not accept that there is any public interest in releasing the information at issue, essentially to the world at large, that outweighs the privacy rights of the relevant third parties. I am not satisfied that any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure of the information at issue exists in this case. Accordingly, I find that section 37(5) does not serve to disapply section 37(1) in respect of any of the information at issue.
Having found that section 37(1) of the FOI Act applies to all of the records at issue, it is not necessary for me to consider the applicability of section 35(1)(a).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD’s decision. I find that TCD was justified in refusing access to the relevant information in records 2 and 3 under section 37(1) 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.
Stephen Raferty
Senior Investigator