Cinneadh
Ms. X and Munster Technological University
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152613-V1S7T3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Cásuimhir: OIC-152613-V1S7T3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the University was justified in refusing access, under sections 29, 35 and 37 of the FOI Act, to a Special Circumstances Form concerning extenuating circumstances submitted by a student to a specified Examinations Board
7 February 2025
This case has its background in a submission of a Special Circumstances Form (SCF) in relation to a specified module at the University. Special Circumstances Forms are used to provide a declaration of personal circumstances which adversely affected a student’s assessment/examination performance or prevented a student’s attendance at an examination or completion of an assessment. The SCF includes a Professional Opinion Form, which may be completed by a professional authority (e.g. doctor, counsellor, nurse, chaplain, garda). The SCF is considered by the relevant Examinations Board to determine whether the student had made a reasonable case or not.
In a request dated 24 January 2024, the applicant sought access to a copy of any Special Circumstances Forms (SCFs) which were presented at a specified Department’s Exam Board on a specified date and which referenced a specified module. The University identified a single relevant record. In a decision dated 19 February 2024, the University refused the applicant’s request under section 35(1)(a) of the FOI Act on the basis that all information provided on the SCF is treated in confidence. On 13 March 2024, the applicant sought an internal review of that decision, contending that section 35(1)(a) of the Act does not apply to the record for a number of reasons. On 8 April 2024, the University varied its decision. It affirmed its refusal of the applicant’s request under section 35(1)(a), and also refused access to the record under section 29(1) of the Act.
On 7 October 2024, the applicant applied to this Office for a review of the University’s decision. In her application for review, the applicant outlined a number of issues she had with the failure of the University to follow procedure, as well as other matters, relating to the processing of the SCF and its contents. She said that an individual had made an allegation against her in an SCF, which falls outside the remit of an SCF, and there was no investigation or verification of this allegation before it was shared at the Exam Board meeting referenced in her FOI request. She said that an SCF advises the student that the form, once submitted, is ‘for the consideration of the Examination Board’, and therefore the student must have reasonably expected that the contents of the SCF would be deliberated by the Examination Board members. She said that details of the allegation had been viewed by numerous individuals by the date of the Board meeting, and it was unacceptable that she had not been allowed to view the details of the form.
In the course of this review, the University made submissions to this Office in support of its decision to refuse the applicant’s request. As part of those submissions, the University said the record at issue contains sensitive personal information of a student that is exempt under section 37(1) of the Act. The Investigating Officer provided the applicant with details of the University’s submissions and invited her to make submissions, which she duly did.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the correspondence referred to above and to the submissions made to this Office by both parties. I have also examined the record at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is solely concerned with whether the University was justified in refusing access to the relevant Special Circumstances Form under sections 29, 35, and/or section 37 of the FOI Act.
Before I address the substantive issues arising, I would like to make a number of preliminary comments. First, regarding the applicant’s submissions regarding how the University conducted the SCF process, I wish 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. This means we have no role in examining the University’s compliance with its policies and procedures or how it dealt with matters around its handling of the SCF record at issue in this case.
Secondly, section 18(1) of the FOI Act 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). This Office considers 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, this Office is not in favour of the cutting or ‘dissecting’ of records to such an extent.
Thirdly, the applicant also suggested that the handling of her request by particular decision makers gave rise to a conflict of interest in light of their involvement with the substantive matters that formed the background to her FOI request. It is a matter for the FOI body itself to decide which of its staff members are best placed to process FOI requests. Indeed, it is often the case that FOI bodies appoint decision makers who are most familiar with the subject matter of the request as they are often best placed to make determinations on the release of relevant records. This Office has no role in considering the appropriateness or otherwise of specific decision makers having been involved in the processing of the applicant’s request.
Fourthly, in her application for review with this Office, the applicant made reference to Data Protection legislation, including the General Data Protection Regulation, as well as a number of other categories of records she wished to seek access to. It is important to note that this Office has no remit in relation to Data Protection requests, nor can the scope of the review be broadened to records that were not sought in the original request. If the applicant wishes to seek access to records other than the SCF, it is open to her to make a fresh FOI request to the University for such records.
Notwithstanding its original decisions on the applicant’s request, as noted above during the course of this review the University made submissions that section 37 of the Act also applied to the information contained in the SCF. It is important to note that a review by the Commissioner under section 22 of the FOI Act is de novo, which means that it is based on the circumstances and the law as they pertain at the time of his decision.
Finally, although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent the disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the record is limited.
Having regard to the nature of the information at issue, I consider section 37 to be the most relevant exemption to consider first.
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. 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/individuals other than the requester. This is commonly known as ‘joint personal information’.
For the purposes of the Act, personal information is defined as information about an identifiable individual that either (a) would ordinarily 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. The Act details fourteen specific categories of information which are included in the definition without prejudice to the generality of the forgoing definition, including (i) information relating to the educational, medical, psychiatric or psychological history of the individual.
The University’s submissions
In its submissions to this Office, the University said that the SCF record at issue contains personal sensitive information relating to the individual who submitted the SCF, including the professional expert opinion of a medical practitioner. The University said that the record in question (an SCF) is a declaration of personal circumstances which adversely affected assessment/examination performance or prevented attendance at an examination/completion of an assessment.
The University said that the SCF facility is primarily aimed at incidences that occurred at or around a scheduled examination that may have impacted on a student’s performance. It said that the contents of SCFs can often be of a very sensitive and personal nature, as in this instance. The University said that the content of the document is reviewed by the relevant examination board chair who makes an informed determination as to whether there is a plausible case or not. It said the examination board chair may consult with another colleague if required but it is not standard practice that the specific content of the form is shared with the wider examination board as a matter of course. The University said that this is to protect the confidentiality of the process and of the student. It said that the examination board chair would inform the wider group of receipt of the form and would advise of their opinion as to whether the student had made a reasonable case or not. It said that in this case the record contained certified medical information, and the chair of the board would base their decision on this. It said that it is the submission of the form (and the chair's review) that is considered by the wider board, not the detailed content.
The University said that granting access to completed SCFs under FOI is effectively releasing those records to the public at large. In its submissions, the University said that the information was provided to it in good faith that it would be treated as strictly confidential. It said that the record specifically contains the following statement: “Please note that the Institute treats all information provided with strict confidence”.
The University said that, in its view, the right to privacy in this case outweighs the public interest in release as the record concerned contains personal and sensitive information of a student given to the University in confidence, and there is no public interest in release of such information.
The applicant’s submissions
In her submissions to this Office, the applicant said that details of an unverified allegation contained in an SCF, along with the identity of the individual who submitted it, were announced to a significant number of individuals during the Board meeting referenced in the request, and therefore she was concerned that emphasis was being placed on the release of the record under FOI being considered to the ‘world at large’.
The applicant also made a number of arguments in relation to the public interest. She said that there was a public interest in fair treatment and natural justice, and that the University’s refusal of her request for the SCF means she has still not been appraised of the details of the allegation made against her and has not been afforded an opportunity to defend herself despite many staff being informed of the allegation. She said that release of the record would ensure that the University’s decisions are made transparently and fairly.
She said that disclosure would serve the public interest by ensuring accountability in how public bodies, the University in this case, handle complaints and allegations. She said that granting access to the record would enable scrutiny of the procedures followed in handling allegations, which she said were not followed in this instance.
The applicant also said that the public announcement without any investigation into the claims had caused unfair harm, and that there is a public interest in protecting individuals from unfair harm that outweighs the privacy or confidentiality interests of third parties in this context. She also said that any third party personal information could be redacted, as her focus is on accessing information that directly affects her, not information unrelated to her.
The applicant also said that the University would reinforce its commitment to the values of accountability, transparency and fairness by release of this information. She said that the public interest in ensuring fair treatment and adherence to natural justice principles significantly outweighs any interest in maintaining confidentiality or protecting the privacy of third parties in this case.
Section 37(1) and section 37(7)
The effect of section 37 is that, generally speaking, access to a record shall be refused if it would involve the disclosure of personal information relating to individual(s) other than the requester. Under section 37(1), personal information cannot be released unless one of the other relevant provisions of section 37 applies.
As noted above, section 25(3) requires that I take precautions to not disclose information contained in an exempt record. However, I believe it would not be in breach of section 25(3) to state that the record contains certain information relating to both the applicant and the individual who submitted the SCF to the University, as well as information relating exclusively to the individual who submitted the SCF and the professional authority who filled out the Professional Opinion Form part of the SCF. It is important to note that the fact that the applicant or members of the Examination Board may be aware of the nature of the information contained in the SCF does not mean that it cannot be regarded as personal information relating to the third party for the purposes of the FOI Act.
Having regard to the nature of the record at issue and its contents as described above, I am satisfied that the information in the record comprises personal information relating to the student in question. I am also satisfied that some of the information in the record can properly be described as joint personal information relating to the applicant and the student. Where the information concerns the applicant, it is intertwined with personal information relating to the student. Having regard to the contents of the record, it is not feasible, in my view, to separate information relating to the applicant from that of the student. I have taken account of section 18 of the FOI Act as referred to earlier in this decision. I am satisfied that extracting occasional words is not practicable. 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 section 37, which I will consider below.
Section 37(2)
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 in section 37(2) apply in this case. That is to say, (a) the information contained in the records does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information at issue does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual.
While I note the applicant’s claim that certain information was shared at a specified Examination Board meeting, I am not satisfied that this could be considered release or availability to the general public per the provisions of section 37(2). In the circumstances of the case I am therefore satisfied that none of the provisions of section 37(2) serve to disapply section 37(1) in this case.
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. Given the circumstances of this case, I find that section 37(5)(b) does not apply.
Before I consider the applicability of section 37(5)(a), there are a number of important points to note. Firstly, 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 insofar 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 could 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, 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 individual 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 inThe 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.
As noted above, in her correspondence with this Office the applicant highlighted her concerns that she not been appraised of the details of the allegation made against her and has not been afforded an opportunity to defend herself. While this is, in effect, a private interest in seeking access to the information at issue, the applicant also contends that disclosure would serve the public interest by ensuring accountability in how public bodies, the University in this case, handle complaints and allegations. She said that granting access to the record would enable scrutiny of the procedures followed in handling allegations, which she said were not followed in this instance. She also claimed that release of the record would reinforce the University’s commitment to the values of accountability, transparency and fairness. The applicant argued that the public interest in ensuring fair treatment and adherence to natural justice principles significantly outweighs any interest in maintaining confidentiality or protecting the privacy of third parties in this case.
In its submissions, the University said it considered that there was a public interest in protecting the right to privacy of members of the public, and implicitly the public interest in safeguarding the flow of information to public bodies. It said that it was not satisfied in this case that there was any public interest for release that was sufficient to warrant the breach of the third parties’ rights to privacy.
While I consider that the applicant made her FOI request for reasons that essentially reflect a private interest, as she is mainly concerned with accessing the details submitted by the individual who filled out the SCF, I accept she has also identified relevant public interest concerns relating to the principles of accountability, transparency and natural justice.
While I accept that there is a public interest in enhancing transparency around the manner in which the University carries out its functions generally, it is not clear to me from the record at issue that release of the SCF would reveal anything about the manner in which the University carries out its functions, other than to provide an example of circumstances that may be outlined in an SCF and considered and/or accepted by the University as part of its processes. The record does not, for example, provide any details of how the University carried out its assessment of the SCF or of any alleged failings on the part of the University.
It is not apparent to me that the release of the record at issue in this case would serve the public interest in accountability, transparency or the conduct of fair procedures by the University. Furthermore, any public interest that might serve to support the release of the information must be balanced against the privacy rights of the individuals concerned. 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 an unenumerated personal right. 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).
Having regard to the nature of the information at issue and to the fact that the release of the record must be regarded as being effectively, or at least potentially, to the world at large, it seems to me that the public interest in releasing the record should not be at the expense of the privacy rights of the individual concerned. Accordingly, I do not accept that the public interest in releasing the record outweighs, on balance, the privacy rights of the third party individual concerned. I find, therefore, that section 37(5)(a) does not apply. In conclusion, and while I recognise that this will be a disappointing outcome to the applicant, I find that the University was justified in refusing access to the record at issue under section 37(1) of the FOI Act.
As I have found the record at issue to be exempt under section 37(1) of the Act, I do not need to consider the applicability of sections 29 and 35 to the record.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the University’s decision to refuse the applicant’s request 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.
Richard Crowley
Investigator