Decision
Mr X and University College Dublin
From Office of the Information Commissioner (OIC)
Case number: OIC-147932-R2W5X2
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-147932-R2W5X2
Published on
Whether UCD was justified in its decision to refuse access, under sections 35(1) and/or 37(1) of the FOI Act, to certain records relating to its investigation of a complaint the applicant made concerning alleged misconduct in research
19 September 2025
In 2020, a staff member of UCD (‘Mr A’) had a paper published in a specified Journal (‘Journal X’). This published paper formed the basis for a complaint of misconduct in research the applicant made to UCD in 2022 regarding alleged duplication and plagiarism of a previously published research paper he had co-authored. As the applicant was not happy with the outcome of his complaint, he submitted a request to UCD on 7 January 2023 for all records held by its Research Integrity Office that mention him in any capacity and any correspondence it holds from seven named organisations, including Journal X, concerning him.
In a late decision dated 7 September 2023, UCD part-granted the request. Of the 42 records (34 records and eight attachments) it identified as coming within the scope of the request, it released six records in full, 17 records in part with redactions made under sections 35(1)(a) and 37(1) of the FOI Act. One record was withheld under section 31(1)(a) and access was refused to the remaining 18 records under sections 35(1)(a) and 37(1). On 3 October 2023, the applicant sought an internal review of that decision, following which UCD affirmed its earlier decision. On 2 April 2024, the applicant applied to this Office for a review of UCD’s decision. In referring to the records at issue, I have adopted the numbering system used by UCD in the schedule of records it released to the applicant with its internal review decision.
During the course of the review, the applicant indicated that the review could be confined to records 3, 3a, 4, 4a, 5, 5a, 6, 10, 10a, 11, 12, 13, 16, 20, 20a, 23, 23a, 25, 25a, 26 and 31. Subsequently, UCD informed this Office that while record 31 was withheld under section 35(1), it also wished to rely on section 37(1) as a ground for refusing access. The applicant was informed of UCD’s revised position and invited to make further submissions. He duly did so.
I have now completed my review in accordance with section 22(2) of the FOI Act. In doing so, I have had regard to the correspondence between this Office and both the applicant and UCD on the matter. I have also had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether UCD was justified in refusing access in whole or in part, under sections 35(1)(a) and/or 37(1) of the Act, to records 3, 3a, 4, 4a, 5, 5a, 6, 10, 10a, 11, 12, 13, 16, 20, 20a, 23, 23a, 25, 25a, 26 and 31.
In his application for review to this Office, the applicant indicated that he required a review of UCD’s decision to withhold certain records and of its decision to refuse to give him reasons for an act that materially affected him. Under section 10 of the FOI Act, a person who is affected by an act of an FOI body and has a material interest in a matter affected by the act or to which it relates can apply for a statement of reasons for the act. No such application was made in this case. Accordingly, as outlined above, this review is confined to a consideration of whether UCD was justified in withholding certain records, in whole or in part. Moreover, section 13(4) of the Act provides that any reason that a requester gives for a request and any belief or opinion of the FOI body as to the reasons for the request must generally be disregarded.
I also note that in his application to this Office, the applicant set out a number of concerns about the manner of UCD’s handling of his complaint. It is important to note that it is not within the remit of this Office to examine the manner in which an FOI body performs its functions generally, to investigate complaints against an FOI body, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. Our remit is confined to a review of the decisions taken by FOI bodies on FOI requests made.
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. In essence, this means that while section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester, if that personal information is inextricably linked to personal information relating to another individual, then section 37(1) applies to the entirety of the information.
For the purposes of the FOI Act, personal information is defined in section 2 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. Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 provides that where an individual is a member of staff of an FOI body, personal information does not include the name of the individual, or information relating to the position held or its functions, or the terms upon and subject to which the individual occupies or occupied that position, or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions of the position. The exclusion at paragraph (I) does not provide for the exclusion of all information relating to staff or office holders. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member or office holder in an FOI body in the context of the particular position held or any records created by that staff member or office holder while carrying out his or her official functions. The exclusion does not deprive such individuals of the right to privacy generally.
In his correspondence with this Office, the applicant argued that the information sought is not personal information in relation to Mr A but did not explain why he holds this view. The fact that some or all of the information may reasonably be described as personal information relating to the applicant does not mean that section 37 cannot apply. As I have outlined above, section 37 will, indeed, apply where a requester’s personal information is inextricably linked to personal information relating to another individual.
The vast majority of the records at issue comprise Mr A’s email submissions to UCD in response to a complaint of misconduct made against him. Certain third-party names and email addresses have also been redacted from a number of the records. Record 31 comprises the final determination of the Inquiry Panel on the complaint made. Having regard to their subject matter, I am satisfied that the release of the records would involve the release of personal information relating to Mr A. I accept that some of the records contain personal information relating to the applicant. However, such information is, in my view, inextricably linked with Mr A’s personal information such that release would also involve the disclosure of personal information relating to Mr A. I am also satisfied that the names and email addresses redacted from the records concern individuals other than the applicant and/or Mr A and that such information is personal information relating to the individuals concerned.
Moreover, notwithstanding the fact that Mr A is a staff member of UCD, I am satisfied that the information in the records relating to Mr A is not captured by the exclusion to the definition of personal information described above. I am satisfied a staff member’s response to allegations of misconduct made against the staff member does not comprise information written or recorded by the staff member in the course of, and for the purpose of, the performance of his/her day-to-day functions. As I have outlined above, the exclusion does not deprive such individuals of the right to privacy generally.
In sum, I find that section 37(1) applies to all of the information at issue. However, that is not the end of the matter as section 37(1) is subject to the other provisions of the section, which I will consider below.
Section 37(2) of the FOI Act sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances provided for in section 37(2) apply in this case. That is to say, the third-parties to which the information relates have not consented to the release of their information; the information is not of a kind available to the general public; the information at issue does not belong to a class of information which would or might be made available to the general public; and the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
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. I am satisfied that subsection (b) does not apply in this case and no argument has been made that it does.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. First, as I have outlined above, section 13(4) of the Act provides that any reason that a requester gives for a request and any belief or opinion of the FOI body as to the reasons for the request must generally 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 which are not relevant here, 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 FOI 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 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 comments of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (‘the eNet judgment’). 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 his correspondence with this Office, the applicant said he was notified by UCD on 30 May 2022 that there was not sufficient evidence that would warrant the establishment of an investigation panel and that he was seeking information on how that decision was made. He said he was concerned that UCD had not adhered to its research integrity procedures document, including a concern that it had failed to conduct a transparent and open inquiry in light of the fact that he was not given all documentation, including Mr A’s response to his complaint. He said he provided his information to UCD in good faith and cannot see how allegations of research misconduct can be addressed without all parties (both complainant and respondent) having equal and open access to inquiry information as part of a Research Integrity Inquiry.
In its submissions, UCD said that its Research Integrity Policy sets out the principles of research integrity and research misconduct and outlines the principles that underpin transparent, fair and effective procedures to deal with allegations of research misconduct when they arise. It said that in accordance with the Principles of the Policy, the procedure is conducted in a confidential and sensitive manner, disclosure to third-parties is made on a confidential basis, subject to certain disclosure requirements in accordance with its Procedure for the Investigation of Misconduct in Research (‘the Procedure’). It said the Procedure outlines the procedure to be used to manage allegations of research misconduct within UCD. It set out the details of the manner in which it investigated the applicant’s complaint in this case, which included the establishment of an Inquiry Panel, whose role it described as being to determine whether, in its reasonable opinion, clearly supported by the evidence, the allegations were sufficiently serious and had sufficient substance to justify the establishment of an Investigation Panel. It said the Inquiry Panel carried out the review in accordance with the Procedure and determined that the applicant’s allegations did not justify the establishment of an Investigation Panel, as there was no substantive evidence that would warrant an investigation into potential research misconduct. It said all parties were notified of the Panel’s decision on 30 May 2022
UCD added that in accordance with its Integrity Policy and the Procedure, reviews, inquiries, and investigations in the area of research are conducted in a confidential manner, with any necessary disclosures made on a strictly confidential basis. It said such complaints and investigations operate within a framework of confidentiality to foster openness in reporting concerns and to protect all parties involved. It said correspondence between reviewers and the respondent contains sensitive discussions, deliberations, and evidence-sharing, all intended solely for the purpose of internal resolution. It said release of the records into the public domain could:
a) deter honest reporting and full participation in future investigations,
b) undermine the fairness and integrity of the process for both complainants and respondents, and
c) cause undue harm to Mr A’s reputation as even though the inquiry concluded in this case that the allegations was unfounded, the mere association with a complaint of plagiarism could cause significant damage to Mr A’s professional and personal reputation.
UCD said the FOI Act requires the University to carefully balance the public interest in transparency against the rights of individuals and the broader interests of effective governance. It said that in this instance, while there is a legitimate public interest in promoting transparency and accountability, this interest does not outweigh the significant risks associated with breaching confidentiality. It said disclosing sensitive information could harm Mr A's reputation and undermine trust in the confidentiality of internal complaints processes. It said such outcomes may deter future participation in these processes, thereby compromising their effectiveness. It said that maintaining confidentiality, by contrast, fosters a robust environment for resolving complaints in a fair and thorough manner, which ultimately serves the public interest more effectively.
The Long Title of the FOI Act reflects that there is a general public interest in openness and transparency with respect to information held by public bodies, provided that it is consistent with the right to privacy. I fully accept that there is a strong public interest in enhancing the openness and accountability of FOI bodies in respect of how they carry out their functions. In this case, the applicant’s arguments are, in my view, reflective of a public interest in ensuring procedural fairness in how UCD has carried out its functions in respect of its consideration of his complaint. However, this does not mean that it is a matter for this Office to determine the precise scope of what fair procedures would have required of UCD in this case. Rather, it means that there is a strong public interest in revealing information that would shed light on whether UCD carried out its functions in a manner that was consistent with the principles of natural and constitutional justice as well as the right to privacy. It does not, however, 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 investigation of his complaint, whether as a matter of fair procedures, or simply good administrative practice.
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 Freedom of Information 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).
It seems to me that a certain degree of transparency currently exists in relation to UCD’s complaint investigation process and in relation to its investigation of the applicant’s complaint. I note, for example, that its complaint procedure is publicly available. I also note that UCD informed the applicant of the outcome of its investigations (record 33 refers). It explained that the Inquiry Panel had determined that the applicant’s allegations did not justify the establishment of an Investigation Panel, as there was no substantive evidence that would warrant an investigation into potential research misconduct. It explained that the Panel made no adverse findings against Mr A or the other authors of the papers in question.
I fully accept that the release of the records sought in this case would further enhance the transparency of UCD both in relation to the manner in which it examined the applicant’s complaint and in relation to its decision not to move to the next step in the investigation of the complaint. The question I must consider is whether the public interest in further enhancing that transparency would, on balance, outweigh Mr A’s privacy rights. Having regard to the inherently sensitive nature of the information at issue and to the fact that the release of records under FOI must be regarded, in effect, as release to the world at large, I am satisfied that it does not. I also accept that disclosing sensitive personal information potentially to the world at large would undermine trust in the confidentiality of UCD’s internal complaints processes, thereby compromising their effectiveness. Having considered that matter, I am not satisfied that there is any sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure in this case. In the circumstances, I find that the public interest in releasing the information at issue does not, on balance, outweigh the privacy rights of the individuals to whom the information relates. I find, therefore, that section 37(5)(a) does not apply.
Accordingly, I find that UCD was justified in withholding all of the information at issue under section 37(1) of the Act. Having done so, I do not need to go on to consider the applicability of section 35(1).
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCD’s decision to refuse access under section 37(1) of the FOI Act to certain records relating to its investigation of a complaint the applicant made concerning alleged misconduct in research.
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 Rafferty
Senior Investigator