Decision
Mr A and University of Limerick
From Office of the Information Commissioner (OIC)
Case number: OIC-144319-H9D2M8
Published on
From Office of the Information Commissioner (OIC)
Case number: OIC-144319-H9D2M8
Published on
Whether the University was justified in its effective refusal to provide a statement of reasons under section 10 and in refusing access to information in records relating to the discontinuation of a named programme on the basis of sections 29(1), 30(1)(c), 31(1)(a), 36(1)(b), 36(1)(c), 37(1) of the FOI Act and on the basis that further records do not exist or cannot be found
13 August 2024
In a request dated 5 October 2023, the applicant made an FOI request to the University using its standardised template. He indicated that he was making a request under section 12 of the FOI Act (access to records) and under section 10 (reasons for decisions). He stated that he was seeking copies of all correspondence concerning the decision to discontinue a named Professional Diploma programme. He included a list of six offices/individuals most likely to have exchanged correspondence. By way of background, I note that the applicant was employed by the University and worked on the programme in question.
A decision did not issue within the statutory timeframe. On 3 November 2023, the applicant wrote to the University noting the deemed refusal and requesting an internal review on that basis. In a decision dated 17 November 2023, the University part-granted the applicant’s request. It withheld information from the records identified on the basis of sections 29(1), 30(1)(c), 31(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act. It also said that the records contain information which does not fall within the scope of the request and that certain information had been withheld on that basis. The University did not reference section 10 of the FOI Act in its decision letter. On 1 December 2023, the applicant applied to this Office for a review of the University’s decision. In his application for review, the applicant said that the response provided by the University is “insufficient and missing key correspondence, decisions and information”.
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 submissions made by the University 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.
The University identified 32 records as coming within the scope of the review. 16 records were granted in full (apart from certain information considered outside scope which I will address below). The remaining records were part granted on the basis of sections 29, 30, 31, 36 and 37 of the FOI Act, as well as on the basis that certain information in the records was outside the scope of the applicant’s request.
In its submissions, the University said that it is now willing to release a particular phrase redacted from records 2, 13, 14, 16, 23 (referred to erroneously as record 22 in the submissions as record 22 has been released in full) and 24. The information had been withheld on the basis of sections 29(1) and 30(1)(c). The University’s position is that the exemptions no longer apply. The phrase in question is the only information withheld from five of the above records. On the basis that the University intends to release this information, I will not consider records 2, 13, 14, 16 or 23 further. For the avoidance of doubt, I expect the University to release the relevant information to the applicant if it has not already done so.
In his application to this Office, the applicant raised concerned about the “completeness of the information provided” and referenced the discovery of missing emails. He confirmed that his position is that further records coming within the scope of his request exist. As such, the case involves a search issue under section 15(1)(a) of the FOI Act.
In his request to the University, the applicant indicated that he was making a request for reasons for decisions under section 10 of the FOI Act. The decision issued by the University related solely to a request for records. While this may have been an oversight, it constitutes an effective refusal of a statement of reasons and I will consider the matter below.
Accordingly, the scope of this review is concerned solely with the following questions:
• Whether the University was justified in refusing access to certain information on the basis that it falls outside the scope of the applicant’s request;
• Whether the University was justified in refusing access to a statement of reasons under section 10 of the FOI Act;
• Whether the University was justified in refusing access to any further records on the basis of section 15(1)(a) of the FOI Act;
• Whether the University was justified in refusing access to certain information in records 3, 4, 5, 7, 17, 18, 19, 24, 25, 26 and 30 on the basis of sections 29(1), 30(1)(c), 31(1)(a), 36(1)(b), 36(1)(c) and 37(1) of the FOI Act.
Before I address the substantive issues arising, I wish to make a number of preliminary comments. Firstly, I must note that the manner in which the University processed the applicant’s request fell short of the required standards. As noted, the University did not issue an original decision. In its internal review decision, it noted its regret that a decision was not issued within the statutory timelines and stated that the issue arose due to the “amount of time required to complete searches, to retrieve relevant records and the time required to undertake the scheduling and review of the records concerned”. While the FOI Act provides for an extension of time for the consideration of requests in certain specific circumstances, the University has effectively sought to excuse its non-adherence to statutory requirements with reference to the normal steps involved in processing an FOI request. This is unsatisfactory. I would remind the University that the administration of FOI is a statutory function which should be afforded due weight. I expect the University to have regard to these comments and ensure that it complies with relevant timeframes in future.
Secondly, I wish to comment on a number of matters which the applicant raised in correspondence with this Office. He raised a number of concerns about the actions of the University and provided background information in respect of his request and other processes. He posed questions in respect of the University’s procedures, guidelines and statutes. He referred to possible “conflicts of interest”. While I do not intend to refer to his submissions in further detail, given the sensitive nature of the information, I confirm that I have had full regard to them.
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 how they administer the FOI Act, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. The Office’s remit is confined to establishing whether decisions taken by FOI bodies on requests made under the FOI Act were in accordance with the provisions of the FOI Act. I cannot take account of the applicant’s views on the above matters. To do so would be to go beyond the remit of a review conducted under 22 of the Act. In addition, it is important to note that section 13(4) of the Act requires me to disregard any reasons that the applicant has or may have for making his FOI request.
Finally, it is worth noting that section 11 of the FOI Act provides for a right to access to records held by an FOI body. Requests for information or for answers to questions, as opposed to requests for records, are not valid requests under the legislation, except to the extent that a request for information or for an answer to a question can reasonably be inferred to be a request for a record containing the information or answer sought. In addition, the scope of an FOI request cannot be broadened beyond what was originally sought at either internal review stage or in an application for review made to this Office. I am satisfied that the scope of the applicant’s request was sufficiently clear. Should further queries arise on foot of decision issued by FOI bodies, it is open to applicants to make a fresh request for records.
Records withheld as outside scope
I sought submissions from the University in respect of the information which it considered to be outside scope as it was not immediately clear which information was being withheld on this basis. The applicant also made reference, in his application for review by this Office, to information relating to an “Enterprise Advisory Panel” which he said the University deemed to be outside scope. I understand this to be a reference to record 26 as the schedule provided states that the first email in this thread is out of scope and that the record is regarding “EAP meetings”. I will consider the relevant email below.
The University said that three email threads were considered outside scope. Such emails were not included in full in the version of the unredacted records provided to this Office but were provided subsequently. One of the emails comprises a “briefing circular”, contained in record 10. The University said that there is no information in the email about the discontinuation of the programme or its status and therefore the email was deemed outside scope. It also confirmed that the applicant was one of the original recipients of the email. Having considered its contents, I am satisfied that the email falls outside the scope of the applicant’s request. I note that the same email is also contained in records 8, 19, 21 and 29. I will not consider this email further as part of this review.
Emails in two further threads were withheld by the University on the grounds that they are outside the scope of the FOI request. The emails are contained in records 7 and 26. The University said that the records were considered outside scope as they contain no information relating to the discontinuation of the programme. I have considered the emails in question. While the University is correct in stating that the emails themselves do not reference the named programme, they form part of email threads which come within the scope of the applicant’s request. I consider that the emails provide context in respect of the remaining emails in the relevant threads. It seems to me that withholding such emails as outside scope constitutes an unduly restrictive reading of the applicant’s request. The full context of the email thread should be considered. I am satisfied that the earlier emails in the threads do come within the scope of the request. In the circumstances, I consider that the most appropriate course of action is to annul the University’s decision to withhold the emails and remit the matter for fresh consideration.
Separately, I am satisfied that record 31 contains emails which post-date the applicant’s FOI request and are therefore outside the scope of that request and this review.
As noted above, in his correspondence with the University the applicant indicated (via a tick box) that he was making his request in accordance with both section 12 (access to records) and section 10 (reasons for decisions) of the FOI Act. His request referenced the decision to discontinue a named programme and he stated that he was requesting the information on the grounds that the decision has a direct impact on him.
The decision issued by the University related solely to his request for records. As such, I sought submissions from the University in respect of section 10 of the FOI Act. That section provides that 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, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.
In response to my queries, the University said that the relevant tick box on page one of the FOI request was overlooked. It said that this was an unintentional oversight and that steps had been taken to rectify the matter. It said that the requester was affected by the act/decision concerned and therefore has a material interest in a matter to which the act/decision relates. It provided this Office with a copy of a statement of reasons. It appears that same has not been provided to the applicant.
In light of the University’s acknowledgment of the oversight, and notwithstanding dissatisfaction expressed by the applicant in respect of same, I annul the University’s effective decision to refuse access to a statement of reasons and direct the FOI body to issue the relevant statement to the applicant. Once the applicant has received same, it is open to him to seek a review of the decision of the University in relation to the matter.
Section 15(1)(a) of the 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. The role of this Office in a case such as this is to review the decision of the FOI body and 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. I must also 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 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. 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 and do arise where records are not created, are lost or simply cannot be found. Moreover, the Act is concerned with access to records that a public body holds as opposed to records that a requester considers ought to exist.
In his application to this Office, the applicant raised concerns about the “completeness of the information provided” and referenced the discovery of missing emails between key figures. The applicant confirmed that his position is that further records coming within the scope of his request exist. In the circumstances, this Office asked the University to provide submissions detailing the steps taken to search for relevant records.
University submissions
The University’s position is that all reasonable efforts were made to identify records relevant to the applicant’s request. In its submissions, it noted that the FOI request was specific in nature, seeking records of correspondence regarding a decision to discontinue the named programme. It said that records relating to matters beyond the scope of his submitted request were referenced in his application to this Office, a copy of which was provided to the FOI body. It said that these include references to certain employment matters, records relating to the enrolment of students in 2022, funding under a certain initiative and statutes and procedural records. It said that such records do not fall within the narrow scope of the applicant’s request.
In respect of searches undertaken, the University said that the applicant’s request and the type of records sought were considered carefully. It said that the request was deemed clear and unambiguous and it noted again that the applicant specifically sought correspondence records “concerning the decision to discontinue” the named programme. It said that searches progressed on that basis. It noted that the programme in question ran for the first time in June/July 2022 and that a decision was taken not to progress with the programme in summer 2023 due to low applicant numbers. It said that it was agreed that relevant staff members would undertake searches for records over the timeframe from April 2022 to October 2023. In subsequent correspondence the applicant queried whether this stated timeframe meant that the programme was considered for discontinuation from April 2022. I do not consider this to be a matter within the scope of this review. It seems to me that the University determined the parameters of the timeframe having considered the circumstances of the programme in question. This seems to me to be a reasonable approach.
The University noted that the applicant provided specific details of six departments/offices and individuals identified as a list of those most likely to have exchanged relevant correspondence. It said this list included staff in key areas that would be involved in the promotion, recruitment and admissions processes for the programme as well as senior staff responsible for delivering the programme and the Dean of a relevant faculty. It said that it contacted the staff named in the applicant’s request and relevant staff within the named departments/offices and provided comprehensive instructions and guidance for the undertaking of searches. It said that this included the provision of information and prompts regarding searches of relevant IT systems. It said that it provided information about the keywords to be used in searches and the relevant timeframe. It said that staff were requested to provide a summary of searches undertaken when returning copies of the collated records.
The University also provided submissions in respect of its records management policy. In addition, it noted the “absolute importance of careful and effective record creation and records management” and the importance of keeping an open mind to the possibility that records may be accidentally misfiled or misplaced. While the applicant subsequently sought clarification as to the meaning of this statement, I am satisfied that the University was providing a response to a standard sample question posed by this Office. It said that it devoted a significant amount of time to locating and retrieving all relevant records and is satisfied that all reasonable efforts were made to identify the records relevant to the applicant’s request.
I directed the University’s attention to submissions made in the application to this Office. The applicant listed a number of individuals and said that correspondence between them discussing the criteria for closing, continuing or funding the programme was largely missing. In response, the University said that three of the four individuals listed were referenced in the original request and were consulted. It referenced the staff members’ timely and thorough searches for records. It said such searches were carried out on the basis of the wording used in the FOI request. It said the request did not seek information relating to funding or other aspects of the day to day running of the relevant programme. In respect of a fourth individual named in the applicant’s application to this Office, the University said this individual was not named in the request and was not contacted to undertake searches for records. The University said that the three named staff all had a more direct role in the provision and oversight of the programme in question.
Having considered the above submissions, I sought further information from the University in respect of the fourth named individual referenced. It said that upon receipt of the request, it was carefully considered by the FOI unit and colleagues in relevant divisions. It said that a number of meetings and calls were held to facilitate this. It said that the request was considered to be clear and specific in scope. It also noted that the applicant was a staff member and was closely involved with the named programme and that there was an understanding that the search parameters provided in the request were based on knowledge of operations within the University. It provided background information in respect of the programme in question. With regards the fourth named individual referenced above, it again stated that other staff members consulted were considered to have a more direct role in respect of the programme. However, it said that on foot of this Office’s queries, it sought additional clarification directly from the individual to ensure a thorough response. It said that the staff member holds no further records that fall within scope beyond those that have been retrieved and listed in the schedule.
The University said that if it had deemed it necessary, it would have broadened the searches to be completed to ensure the request was fully responded to but, on this occasion, it considered the list provided in the applicant’s request to be adequate to direct the searches. It said that it is satisfied that adequate and reasonable searches were completed.
I also asked the University what type of records would typically be created in such circumstances, noting that the records identified comprise emails and MS team messages. The University provided some background information in respect of the decision to discontinue the programme and said that the decision to close a programme would normally happen through email. It said that all records of communications in this case were via email.
Applicant submissions
This Office notified the applicant of the search details provided by the University and invited any further submissions which were duly provided. The applicant made a number of points in respect of the fourth named individual referenced above. He said that the individual in question works with the relevant “Dean’s Office” and that the office was referenced in his request. He noted that the individual in question is an Assistant Dean in that office. He stated that the individual’s records should reasonably be included within the FOI scope. He noted that emails sent by or to the individual appear in “significant volume” in the copy of the records part-granted to the applicant. He referenced the number of times her name appears in the records. It appears that the applicant conducted a search of the records using the individual’s first name. I should note that it appears that the search he conducted also captures other individuals with the same first name as the individual in question. That said, a more focused search still returns a considerable number of appearances. The applicant said that the significant volume of correspondence pertaining to the individual in the records indicates that she possessed further correspondence relevant to the FOI request which other parties may not hold. He noted the University’s position that it had carried out further searches and said that, in the interest of transparency, such records should be provided, even if they are duplicates.
The applicant made further submissions in respect of section 15(1)(a). Some of the submissions received effectively comprise questions arising from the records and search details provided which go beyond the scope of this review. For example, he queried references to viability in the records released and requested clarification of the meaning of the term “non-viable” and how this terminology relates to the discontinuation of a programme. He also made submissions in respect of the current status of the programme in question. I do not consider that such queries are relevant to an examination of the application of section 15(1)(a).
The applicant also raised what he considers to be apparent contradictions in statements made by the University. He referenced its position that decisions to close programmes normally happen through email. He pointed to specific records part-granted and references therein to planned meetings. He said that decisions appear to have been made during a meeting and that the outcome of the meeting is not recorded in the correspondence released. He said that he believes that records and correspondence concerning this and other meetings exist and should be included in the FOI response. In submissions received by the University, it said that the programme in question was reviewed by teams and representatives throughout Autumn 2023. It said that given the continued lack of interest the programme was discontinued. It said that no meeting was held and the relevant team confirmed that it is not normal practice to hold a meeting to cancel a programme particularly when there have been no applications. It said that the decision to close a programme would normally happen through email between the Graduate and Professional Studies unit and the relevant faculty.
The applicant also said he has reason to believe that the University, an institution which he said is in receipt of funding from various sources, would be required to follow set, written procedures in order to make any decisions regarding a programme, including discontinuation decisions. He said that no records reference documented written procedures. He said that correspondence should reasonably exist between the University and the Higher Education Authority. He also referred to detail in the records released which relates to particular reviews and audits. His position is that such information should come within the scope of the review.
Analysis
Before commencing my analysis, it is important to note that the test in section 15(1)(a) is whether all reasonable steps to ascertain the whereabouts of records sought have been taken. The FOI Act does not require absolute certainty as to the existence or location of records, as situations arise where records are lost or simply cannot be found. What section 15(1)(a) requires is that the FOI body takes all reasonable steps to locate relevant records.
I would also note that the FOI Act does not require an FOI body to continue searching indefinitely for records that cannot be found. We do not generally expect FOI bodies to carry out extensive or indefinite searches for records simply because an applicant asserts that more records should or might exist, or rejects an FOI body’s explanation as to why certain records do not exist or cannot be found.
I have carefully considered the submissions made by the University and the applicant. It seems to me that a number of the applicant’s arguments centre on expectations in respect of the procedures which should be followed when a relevant programme is discontinued. The University has said that correspondence in respect of the decision to discontinue the programme took place via email. It provided this Office with a copy of the search instructions provided to staff. It seems to me that the instructions provided would reasonably be expected to return relevant correspondence. While the applicant drew my attention to references in the released records concerning reviews and audits conducted in respect of the programme, it is not clear to me that any such records would come within the scope of the current FOI request, which specifically related to the decision to discontinue the programme. It seems to me that reviews and audits which may have informed that decision could reasonably be considered to relate to the programme more broadly.
Other submissions made by the applicant reflect what I consider to be a general dissatisfaction with the manner in which the decision to discontinue the programme was made. As noted above, the FOI Act provides for a right of access to records held by FOI bodies. We take the view that the FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices. Thus, a review by us is not concerned with the question of what records should exist. If a record does not exist, that is the end of the matter, regardless of the applicant's views as to the appropriateness or otherwise of the absence of certain records. While the applicant may disagree with the University’s explanations, this does not mean that they are unreasonable. It seems to me that the FOI body has provided a reasonable explanation for the type of records identified in respect of the request.
I have also considered the applicant’s arguments in respect of the individuals consulted in respect of the review. I note that the applicant referenced certain individuals and offices in his FOI request. I also note that the applicant was employed by the University and can reasonably be expected to have a better understanding of internal processes than an applicant without such insight. While the University referenced the “search parameters” provided, I do not accept that the applicant set any search limits in his request. Rather, based on the wording of same, I consider that he helpfully directed the University to particular teams and individuals “most likely” to have exchanged correspondence. I specifically asked the University whether it had limited its searches to the six entities listed by the applicant and asked that it explain its rationale for so doing if so. In response, it outlined the internal consideration given to the request and said that the list provided by the applicant was understood to be adequate for directing searches.
The circumstances of the particular case are relevant in considering the adequacy of searches. The individual referenced above, whom the University acknowledged was not originally consulted in respect of the review, appears to have played a relatively central role in matters at issue. However, I note that correspondence sent from and to the individual was identified through the searches conducted. I also note that the individual was subsequently consulted by the University on foot of queries raised by this Office, and it said that no further records have been identified as a result. I would note that a review by this Office is considered to be “de novo", which means that in this case, it is based on the circumstances as they pertain at the time of the decision and is not confined to the basis upon which the FOI body reached its decision. While it may have prudent to consult with the individual from the outset, I am satisfied that the University has now taken appropriate steps to mitigate any oversight. The applicant requested that any duplicate records be released “in the interest of transparency”. I do not consider it necessary to direct the release of duplicate records but it is open to the University to do so on foot of the applicant’s specific request.
I have considered whether the University’s failure to initially consult with the above-referenced individual undermines the integrity of the searches undertaken. I do not consider that it does. This Office does not expect FOI bodies to consult exhaustively. There is no evidence currently before me to suggest that further individuals should have been consulted and the University said that it carefully considered the scope of the request and would have broadened the searches if necessary.
Having considered the submissions made, and in light of the above analysis, I am satisfied that the University has taken reasonable steps to identify records coming within the scope of the applicant’s request. Accordingly, I am satisfied that it has justified its effective reliance on section 15(1)(a) of the FOI Act to refuse access to any further records on the basis that they do not exist or cannot be found after all reasonable steps have been taken.
Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.
Legal professional privilege enables a client to maintain the confidentiality of two types of communications:
• confidential communications made between the client and his/her professional legal advisor for the purposes of obtaining and/or giving legal advice (advice privilege); and
• confidential communications made between the client and a professional legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated/pending litigation (litigation privilege).
The concept of “once privileged always privileged” applies where privilege is based on legal advice privilege, but not where it is based on litigation privilege. Thus, unless otherwise lost or waived, legal advice privilege lasts indefinitely.
The University withheld information from one record on the basis of section 31(1)(a) (record 30). It said that the withheld information comprises correspondence between the University and an external legal adviser. It said that the purpose of the correspondence was to obtain legal advice. It said that the confidential correspondence was withheld on that basis.
In his application to this Office, the applicant said that redactions concerning legal matters impede public understanding and scrutiny. He also queried how such matters relate to the decision to discontinue the named programme. In subsequent communications, he said that legal advice was sought by staff in response to routine emails he sent regarding his work. This position appears to be based on his analysis of the parts of record 30 which were released. He said that he therefore does not believe that legal privilege is applicable to the content of the information requested.
I have examined the parts of record 30 which had been refused under section 31(1)(a). While I must be circumspect in my description of the record, I accept that the correspondence in question comprises communications between the University and its external legal adviser seeking or providing legal advice and that section 31(1)(a) applies. An examination of the record suggests that the relevant communications were clearly intended to be confidential.
In respect of the applicant’s submissions, it is important to again note that section 31(1)(a) is not subject to a public interest test. Arguments pertaining to public understanding and scrutiny are not relevant to a consideration of whether the particular exemption applies. In respect of the applicant’s statement that legal privilege is not applicable to the content of the information requested, this appears to be an argument in respect of the scope of the request and whether the information at issue falls within that scope. For the sake of clarity, if I was to accept such an argument, the information would also fall outside the scope of this review and I would make no finding in respect of it. In short; the applicant would not be granted access to the information by virtue of this argument. Notwithstanding the above, and while I am limited in the extent to which I can describe the content of exempt records, I am satisfied that record 30 comes within the scope of the request and this review.
In sum, I am satisfied that the withheld information in record 30 attracts legal advice privilege and I find therefore that the University was justified in refusing access on the basis of section 31(1)(a).
Section 37(1) 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 relating to an individual or individuals other than the requester. Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their family or friends or, (b) is held by a public body on the understanding that it would be treated by it as confidential. The FOI Act also details 14 specific categories of information that is personal information without prejudice to the generality of the forgoing definition including at (iii) information relating to the employment or employment history of the individual.
Certain information is excluded from the definition of personal information. Paragraph (I) 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 such directors, 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 director of, or office/position holder in, an FOI body in the context of the particular position held or any records created by the staff member, director or office/position holder while carrying out his or her official functions. The exclusion does not deprive such individuals of the right to privacy generally.
In its submissions, the University said that personal information in the records which relates to the applicant has been provided in full. The University has applied section 37(1) to limited information contained in one record (record 3). It said that record 3 contains personal information about a staff member. It said that it deemed this information to be personal in line with the definition of personal information in section 2. It also said that the information in the redacted phrase falls outside the scope of the submitted request. In respect of the latter argument, I am satisfied that the record as a whole falls within the scope of the request. It seems to me that dissecting records to withhold single sentences that may be considered outside scope undermines the spirit of the FOI Act.
The applicant has not made any submissions to this Office in respect of the application of section 37 of the FOI Act.
I have considered the limited information at issue. I must note that the redacted phrase appears to be relatively innocuous and is arguably administrative, relating to the scheduling of a meeting. That said, section 37 is not a harm-based exemption. I am satisfied that the information relates to a staff member and appears to concern personal matters unrelated to the subject of the FOI request. I am satisfied that the information goes beyond the exclusion to the definition of personal information at section 2. I accept that colleagues will often divulge personal information as an aside. It seems to me that this is not the type of information section 2 intended for release. As noted above, the exclusion does not deprive staff members of the right to privacy generally.
I am satisfied that the limited information at issue comprises personal information relating to a third party. I find that the University was justified in withholding the information on the basis of section 37(1). I am satisfied that none of the exceptions set out in sections 37(2) or 37(5) apply.
A further phrase was withheld from record 3. However, no submissions have been received in respect of the phrase, which is contained in the second sentence of the email dated 23 May 2023 16:22. It is not evident to me that the information in the phrase relates to an individual other than the requester such that it comprises personal information and no submissions have been received to that effect. The redacted phrase appears to relate to certain matters at issue but I cannot conceive of a reason that the information would be exempt by virtue of a provision of the FOI Act. The University has not justified its decision to withhold the limited information contained in the redacted phrase and I direct the release of same.
Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative process of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest.
These are two independent requirements and the fact that the first is met carries no presumption that the second is met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the records would be contrary to the public interest.
Section 29(1)(a) – the deliberative process
In order for section 29(1) to apply, the records must contain matter relating to the ‘deliberative process’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative process concerned and any matter in particular which relates to those processes.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. The fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption can no longer apply.
The University said it applied section 29(1) to “a number of small excerpts” in seven of the remaining records at issue. It said that at the time of the decision, the relevant information was considered to be deliberative as it related to an ongoing activity of formulating, considering, weighing up, advising and deciding on issues. It referenced the Department of Public Expenditure, NDP Delivery and Reform’s FOI Central Policy Unit guidance in this regard. It said that the types of deliberations that took place in respect of the programme in question may be underway at any given time across any number of the University’s suite of academic programmes. It referenced certain information in the records and said that release would involve the disclosure of internal thinking and documented options and opinions.
Having considered the above submissions and the content of the records in question, I am satisfied that the matters contained therein relate to a deliberative process, namely the status of the programme referenced in the applicant’s request. I therefore find that the records meet the requirements of section 29(1)(a). However, that is not the end of the matter as I must also consider whether the records meet the requirements of section 29(1)(b) of the FOI Act.
Section 29(1)(b) – the public interest test
The public interest test at section 29(1)(b) is a stronger public test than the public interest test in many other sections of the Act, requiring the FOI body to show that the granting of the request would be contrary to the public interest. This Office has previously held that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body’s deliberations – whether before or, in some cases, after a decision based on those deliberations has been made – would be against the public interest. However, this is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.
The University did not make any reference to section 29(1)(b) in its submissions. However, it made some general submissions in respect of the public interest for and against release of the records. As noted above, the public interest test in subsection (b) differs from the balancing test found in other sections of the Act. Nonetheless, I will consider the submissions made. The University referenced disadvantage arising from intrusion on its ability to successfully perform its functions. It said it considered the negative impact on decision making processes and that this would occur without providing any significant benefit to the public. It said that premature disclosure would negatively impact the objectivity needed for decision-making processes, creating a scenario where the University is making business decisions with its current thinking processes set out in the public domain.
I have carefully considered the information at issue and the submissions referenced above. As noted above, the onus is on the University to satisfy this Office that its decision to refuse access to the information was justified. Very limited submissions have been received in respect of the application of section 29(1)(b). However, I must also have regard to the findings 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 Court noted that while the presumption places an onus on the FOI body to justify refusal, that does not mean that the conclusion is always that disclosure is to be ordered. The Commissioner must adjudicate the merits of the decision to refuse by reason of an analysis of the records and the interests engaged, which might suggest either disclosure or refusal.
As noted, I am limited in the extent to which I can describe the contents of the records in question. However, I believe that I can say that the records concern the discontinued programme and comprise internal discussions in respect of same. The University has released a significant amount of information contained in the records to the applicant to date. It seems to me that the applicant is aware of the outcome of any substantive deliberations in respect of the programme. A number of the records refer to proposals or ideas in respect of the programme or related activities. I consider the withheld information to be high-level. It is not clear to me how the release of the information could have a negative impact on the University’s decision making or the objectivity needed for such processes. It is not evident to me that any particular disadvantage or harm could be expected to flow from release. The University has not explained why it considers that granting the information would be contrary to the public interest, nor is this evident to me from an examination of the records. I do not accept that section 29(1)(b) applies.
In sum, while the University has made general submissions in respect of the public interest factors weighing against release, it has not shown to my satisfaction how granting access to the information in question would be contrary to the public interest, nor is this apparent to me following consideration of the records. Accordingly, I find that the University has not justified its decision to refuse access to the records on the basis of section 29(1) of the FOI Act.
Section 30(1)(c) provides for the refusal of a request where the FOI body considers that access to the record concerned could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used or followed, or to be used or followed, for the purpose of any negotiations carried on or being, or to be, carried on by or on behalf of the Government or an FOI body. It is important to note that this exemption does not contain a harm test (unlike section 30(1)(a) and 30(1)(b)). It is sufficient that access to the record concerned could reasonably be expected to disclose such negotiation positions, plans etc.
This Office takes the view that an FOI body seeking to refuse access to information under section 30(1)(c) should identify the relevant negotiations at issue. Relevant factors in considering whether there is or was a negotiation include whether the FOI body was trying to reach some compromise or some mutual agreement. The Commissioner also accepts that, generally speaking, proposal-type information relating to a public body's negotiations would also be exempt under section 30(1)(c).
The University said that it applied section 30(1)(c) to a number of “small excerpts” in eight of the remaining records at issue. It applied section 29(1) to seven of the same records. In its submissions, the University said that the suite of professional diplomas it provides are specifically targeted at business professionals. It said that there is continuous engagement and negotiation with a range of businesses, funding agencies, Chambers of Commerce and other third parties. It said that relationships are continuously being nurtured and developed. It said that release of the redacted information would disclose positions, plans and options under consideration to the world at large. It said that certain information involves reference to specific engagement with potential clients. The University said that the premature release of the information would disclosure positions taken/to be taken resulting in an adverse effect on the University’s relationships with potential clients. It said that this would introduce a risk of financial and competitive disadvantage and an overall material loss.
The University has not identified any specific negotiations in this case, beyond making general references to ongoing engagements with third parties and potential clients. Neither has it pointed to any positions that the records would disclose, or any plans, procedures, criteria or instructions used or followed, for the purposes of any negotiations. Notwithstanding the limited submissions made, I have also carefully examined the withheld information. It is not apparent to me that release would disclose any of the information encompassed by section 30(1)(c). The records do not contain, for example, any proposals for settlement or compromise, any indications of ‘fall-back’ positions, any information created for the purpose of negotiations or information relating to negotiating strategies. Rather, the records contain high-level information about programmes in train or proposed. While there may be reference to external engagements in respect of same, I do not accept that such references disclose the type of information envisaged by subsection (c).
Accordingly, I find that the University was not justified in relying on section 30(1)(c) to refuse access to the relevant information. As such, there is no need for me to examine the public interest test at section 30(2).
Section 36(1) protects certain records containing commercially sensitive information. Section 36(1)(b) of the FOI Act provides that a head shall refuse to grant an FOI request if the record concerned contains financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release.
The harm test in the first part of section 36(1)(b) is that disclosure "could reasonably be expected to result in material loss or gain". This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker's expectation is reasonable. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is considerably lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity.
Section 36(1)(c) provides that a head shall refuse to grant an FOI request if the record concerned contains information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates.
The standard of proof required to meet this exemption is relatively low in the sense that the test is not whether prejudice or harm is certain to materialise but whether it might do so. Having said that, the Commissioner expects that a person seeking to rely on this exemption would be able to show that contractual or other negotiations were in train or were reasonably foreseen which might be affected by the disclosure and explain how exactly the disclosure could prejudice the conduct or the outcome of such negotiations.
Section 36(1) also requires a consideration of section 36(2) (exceptions) and section 36(3) (public interest test).
In the University’s decision-making records and in the schedule provided, it indicated that it was seeking to rely on sections 36(1)(b) and (c) to refuse access to information in records 4, 5, 17, 18, 19 and 25. However, in submissions received, it referred only to section 36(1)(c). In its submissions, it again referenced the University’s continuous engagement with a range of businesses, funding agencies and other third parties. It said that it redacted “specific operational and business information” relating to its engagement with named entities. It said that it also redacted information regarding lines of enquiry taken and information that would divulge details around the management of industry relationship and partnerships. It said that such information could prejudice the University’s relationship and future negotiations yet to be entered into between the relevant parties.
While the University has not made any submissions in respect of section 36(1)(b), I will consider the application of the exemption provision for the sake of completeness. I should note at the outset that the University’s limited submissions centre on harms expected to befall the FOI body, rather than any third parties referenced in the records. Depending on the circumstances of the case, the Commissioner has accepted that the FOI Act does not prohibit an FOI body, either as a decision making body or as a third party applicant to his Office, from relying on the provisions of section 36. That said, as a general principle, he takes the view that section 36 is primarily aimed at protecting the commercial interests of parties engaged in commercial activity.
Having carefully considered the information at issue, I am not satisfied that its disclosure could reasonably be expected to result in any of the harms outlined in sections 36(1)(b) or (c). The University has not adequately explained how the release of the particular withheld information could reasonably be expected to result in material financial loss or gain. Nor has it explained how release could prejudice the competitive position or the conduct or outcome of negotiations. The fact that a record might contain reference to commercial entities or engagements does not, by itself, satisfy the harm requirements of the subsection. While I remain limited in the extent to which I can describe the information at issue, it seems to me that it comprises relatively high-level references to external engagements and approaches to same. I do not accept that the disclosure of such information could result in the relevant harms to either the FOI body or the third party entities referenced. The University has already released information contained in the records relating to the programme discontinuance; I do not believe that the release of the high-level information remaining at issue could result in financial loss or prejudice to any entity’s competitive position or negotiations. It seems to me that to find otherwise would be to significantly overstate the nature of the information and the possible impact of release.
Accordingly, I find that the University has not justified its reliance on sections 36(1)(b) or (c). As such, there is no need for me to examine the further provisions of section 36.
In light of the University’s acknowledged oversight in respect of the applicant’s request under section 10, I annul its effective decision to refuse access to a statement of reasons and remit the matter for fresh consideration.
I find that the University was not justified in refusing access to certain emails on the basis that they fall outside the scope of the review. I annul its decision in this regard and remit the matter for fresh consideration.
I find that it was justified in refusing access to further records coming within the scope of the review under section 15(1)(a) on the basis that such records do not exist or cannot be found after all reasonable steps have been taken.
In addition, I find that the University was justified in refusing access to certain information in the records on the basis of sections 31(1)(a) and 37(1) of the FOI Act.
I find that it was not justified in refusing access to information on the basis of sections 29(1), 30(1) and 36(1) and I direct the release of same.
Having carried out a review under section 22(2) of the FOI Act, I hereby vary the University’s decision. If find that it was not justified in its effective refusal to provide a statement of reasons under section 10 and in its refusal of certain email records as outside scope. I remit these matters for fresh consideration. I find that the University was justified in refusing access to further records relating to the applicant’s request on the basis of section 15(1)(a) of the FOI Act. I find that it was justified in refusing access to certain information on the basis of sections 31(1)(a) and 37(1). I find that it was not justified in refusing access to the remaining information withheld from the records on the basis of sections 29(1), 30(1) and 36(1) and I direct the release of same.
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 by the applicant not later than eight weeks after notice of the decision was given, and by any other party not later than four weeks after notice of the decision was given.
Alison Connolly
Investigator