Whether the Authority was justified in its decision to refuse access to a draft report into the spin-out and sale of companies from the Telecommunications Software and Systems Group at Waterford Institute of Technology under sections 29, 30 or 37 of the FOI Act 

22/03/2019

Background

The Telecommunications Software and Systems Group (TSSG) is a research centre at Waterford Institute of Technology (WIT). It is in the public domain that, in 2017, controversy emerged in relation to spin-out companies related to TSSG, including Feed Henry, which was sold to a US company in 2014. That controversy was raised in the Public Accounts Committee (PAC) in March and April 2017. Having carried out its own internal review of the matters, WIT requested the Authority to carry out an external review. The Authority appointed a reviewer in June 2017. The report of the external TSSG review was intended for publication upon conclusion of the review. Apparently, the external TSSG review encountered legal difficulties and a final report was not published. However, a draft report was produced which is the record at issue in this review.

On 13 June 2018, the applicant made an FOI request to the Authority for a copy of the review/report carried out into the spin out and sale of companies from the TSSG. The applicant also requested any interim or draft report. On 11 July 2018, the Authority granted access to the interim report. The Authority refused access to the draft report under section 30(1)(a) of the Act on the basis that its release could reasonably be expected to prejudice the effectiveness of the TSSG review. The applicant requested an internal review of the Authority's decision. On 10 August 2018, the Authority affirmed its original decision. On 21 August 2018, the applicant applied to this Office for a review of the Authority-™s decision.

In its submissions to this Office, the Authority states that the draft report was circulated to individuals whose reputations would be affected by its publication for their consideration and response. It states that several of those individuals made detailed submissions to the Authority on the draft report. It states that those submissions included complaints as to the conduct of the external TSSG review, objections to the contents of the draft report and complaints that publication of the draft report would wrongfully harm the good name and reputation of those concerned. The Authority states that it has received legal advice in relation to these matters and has decided that it cannot publish the draft report as it stands. The Authority states that deliberations are ongoing with a view to addressing the complaints. It argues that as deliberations are ongoing, the draft report is also exempt under section 29(1) of the Act.

This Office informed the applicant that the Authority had circulated the draft report to certain individuals and that while the Authority has not argued that the report contains the personal information of those individuals, section 37 of the Act is a mandatory exemption provision and it must be considered where a record contains personal information. This Office also informed the applicant that the Authority was additionally seeking to rely on section 29(1) of the Act in refusing access to the draft report. 

In its submissions to this Office, the applicant argues that the draft report does not contain personal information; neither is it exempt under sections 29 or 30 of the Act and the public interest favours the release of the draft report. 

This Office also informed the relevant third parties and WIT of the review and provided them with an opportunity to make submissions. The third parties and WIT made submissions in which they objected to release of the draft report.

I have decided to conclude this review by way of a formal binding decision. In conducting this review, I have had regard to correspondence between the applicant and the Authority, to correspondence between the Authority and this Office, to correspondence between the applicant and this Office, to correspondence between the third parties and this Office, to the contents of the draft report and to the provisions of the FOI Act.

Scope of Review

The scope of this review is confined to whether the Authority has justified its refusal of the request under sections 29(1), 30(1)(a) or 37(1) of the FOI Act.

Preliminary Matters

At the outset, it is relevant to note a number of preliminary matters. 

Section 2 of the Act defines "record" as including "a copy or part" of anything falling within the definition of a record. Section 18(1) 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 head of the FOI 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).
The Commissioner takes the view that neither the definition of a record under section 2 of the Act nor the provisions of section 18 envisage or require the extracting of particular sentences or occasional paragraphs from records for the purpose of granting access to those particular sentences or paragraphs. Generally speaking, he is not in favour of the cutting or "dissecting" of records to such an extent. He takes the view that, being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records

It should be noted that, while I am required by section 22(10) of the FOI Act to give reasons for my decision, this is subject to the requirement of section 25(3) that I take all reasonable precautions to prevent disclosure of information contained in an exempt record during the course of a review.  This constraint means that the detail that I can give about the content of the record and the extent to which I can describe certain matters in my analysis is limited. 

Finally, the release of a record under the FOI Act is understood, effectively, to be equivalent to its release to the world at large. 

Analysis and Findings

The Draft Report

I am limited in the description of the draft report that I can provide. I can say that it contains six chapters. Chapter one sets out the context for the review. Chapter two outlines the governance, legislative and policy context underpinning commercialisation of intellectual property (IP) in Institutes of Technology. Chapter three provides an overview of WIT, with more detail on TSSG in chapter four. Case studies of certain companies selected for examination in relation to whether appropriate policies, procedures and activities were pursued are contained in chapter five. The matters of concern raised with the reviewer along with the related findings and recommendations are set out in chapter six.   

Section 37 - Personal Information  

Section 37 of the Act is a mandatory exemption provision whereas sections 29 and 30 are discretionary exemption provisions. It is appropriate, therefore, to first consider whether the draft report contains personal information. The definition of "personal information" is contained in section 2 of Act: personal information means 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. Without prejudice to the generality of the foregoing, the Act details 14 specific categories of information that is personal information including - (iii) information relating to the employment or employment history of the individual; (v) information relating to the individual in a record falling within section 11(6)(a) of the Act (i.e. a personnel record relating to the competence or ability of the individual or an evaluation of the performance of his/her functions generally) and (xiv) the views or opinions of another person about the individual. 

Section 2 part (I) of the Act provides that the definition of personal information does not include certain information relating to an individual who holds or held a position as a director or member of staff of an FOI body or any other position remunerated from public funds in an FOI body. The information excluded includes the name of the individual, information relating to the position or its functions, the terms upon or subject to which the individual holds/held that position, or anything written or recorded in any form by the individual in the course of or for the purpose of the performance of the functions of the position.

The third parties argue that they can be easily identified in the draft report by reference to their job titles or roles in WIT, TSSG or in certain spin out companies. They argue that because of this, any criticism in the report in relation to how these functions were carried out is a direct criticism of their competence or ability. They argue, therefore, that the draft report contains their personal information.

The applicant states that TSSG is part of WIT which is an FOI body under the Act. It states that section 2 part (I) of the FOI Act expressly excludes information relating to FOI staff. The applicant argues that if the individuals, whose personal information is said to be contained in the records, are staff members of TSSG, then section 37(1) cannot apply.

I accept that the third parties hold or held certain roles in WIT which is an FOI body or in TSSG which is part of an FOI body. However, the exclusion in section 2 part (I) does not provide for the exclusion of all information relating to staff members in FOI bodies. The Commissioner takes the view that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of staff in an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion to the definition of personal information at section 2 part (I) does not deprive staff members or office holders in FOI bodies of the right to privacy generally. For example, the Commissioner takes the view that it does not exclude personnel records relating to the competence or ability of the individual in his or her capacity as a member of staff of an FOI body. 

The terms of reference for the report (which are publically available) provide that the role of the reviewer was to make findings in relation to IP commercialisation in WIT, management of conflicts of interest in WIT, links between spin-out companies from the TSSG and the wider management team etc. Having examined the record, it is my view that chapters 5 and 6 of the draft report contain findings in relation to how certain functions in WIT, TSSG or spin out companies were carried out. I accept that the individuals responsible for these functions are identifiable and that chapters 5 and 6 contain information which reflects on the competence or ability of these individuals. 

Chapters five and six of the draft report also contain details of certain "matters of concern" and findings in relation to these. Prior to the establishment of the review, members of the PAC were approached by current and former TSSG and WIT staff who wished to disclose information. Those who came forward to public representatives with information were then invited to speak with the Authority in the context of the review. They were also offered the opportunity to speak directly to the reviewer. The Authority provided the reviewer with details of the matters of concern that had been raised at the PAC through public representatives and by protected disclosures received by the Authority. One of the terms of reference for the review was to consider these matters and to make findings.

The third parties argue that many of the matters of concern raised are demonstrably false and are potentially defamatory. It is beyond the scope of this review to make any findings in relation to these matters of concern. It seems to me, however, that certain matters of concern that are referred to in the report could, if they were found to be true, amount to misconduct on the part of identifiable individuals.

In case number 140157 (Mr. X and Cork County Council) (available on this Office-™s website at www.oic.ie) the Commissioner found that while misconduct might sometimes occur while at work, it cannot be said to be something done for the purposes of performing one's work functions. I consider that the qualification on the definition of "personal information" contained in section 2 part I, which refers to anything recorded by the individual for the purpose of the performance of the functions of the position, does not apply to the matters of concern and findings contained in chapters 5 and 6 of the draft report.  

I have taken account of section 18 of the FOI Act as referred to earlier in this decision and I have considered whether there are parts of chapters 5 and 6 which do not contain the personal information of identifiable individuals and which could be released. It seems to me that there is little in chapters 5 and 6 that is not in some way connected to the personal information of identifiable individuals and, given the nature of the record, I am of the view that it would not be practicable to release occasional parts or paragraphs of these chapters as the result would be misleading. I find that the Authority was justified in refusing access to chapters 5 and 6 of the draft report. This finding applies also to the description of chapters 5 and 6 contained in the table of contents of the draft report.

Chapters 1 to 4 contain background information in relation to the context for the review. I am satisfied that chapters 1 to 4 do not contain information in relation to the competence or ability of staff members. I find that chapters 1 to 4 are not exempt under section 37(1) of the Act. This finding applies also to the description of chapters 1 to 4 contained in the table of contents. I am also satisfied that appendix one which contains the terms of reference for the report and appendix two which contains a list of acronyms used in the report are not exempt under section 37(1) of the Act. 

Having found that section 37(1) applies to chapters 5 and 6, I must go on to consider if any of the additional elements of section 37 serve to disapply that exemption.

Section 37(2)

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. For the purposes of this review, and with reference to those circumstances, I am satisfied that, (a) the information contained in chapters 5 and 6 does not relate to the applicant; (b) the third parties have not consented to the release of their 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. 

There is a certain amount of information publically available as a result of PAC hearings at which the controversy was discussed. However, having regard to section 37(2)(c), I am satisfied that the information contained in chapters 5 and 6 of the draft report is of a different kind to the information that is publically available.

Section 37(5) 

Section 37(5) of the FOI Act provides that a request which 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 public interest that the right to privacy of the individual to whom the information relates should be upheld, or (b) the grant of the request would benefit the individual concerned. In my view, the grant of the request would not benefit the individuals concerned. I am satisfied that section 37(5)(b) does not apply in this case.

The Public Interest

In considering the public interest test in section 37(5)(a), I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. The Information Commissioner (the Rotunda judgment), (available on this Office-™s website at www.oic.ie). In that case Macken J. stated that in her view, a public interest would "require to be a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law." 

In applying section 37(5)(a) it is necessary to identify the public interest served by the release of the records and weigh that public interest against the public interest in upholding the right to privacy of the persons whose personal information is sought by the requester. Section 11(3) of the Act provides that an FOI body, in performing any function under the Act, shall have regard to the need to achieve greater openness in the activities of FOI bodies, the need to strengthen accountability and the need to inform scrutiny, discussion and review by the public of the activities of FOI bodies. 

On the other hand, the Commissioner considers that both the language of section 37 and the long title to the Act make it clear that the release of records under FOI must be consistent with "the right to privacy". The right to privacy also has a Constitutional dimension as one of the un-enumerated personal rights under the Constitution. In addition, the Commissioner has regard to the fact that, under FOI, records are released without any restriction as to how they may be used and thus, FOI release is regarded in effect, as release to the world at large. 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 the right to privacy. 

The applicant states that the review was initiated in June 2017, it was due to be completed by 30 October 2017 and this deadline was extended to 15 December 2017. The applicant argues that the Authority has had sufficient time to prepare to release the report and has not done so. It argues that because of the subject matter of the report and the surrounding controversy, the release of this information fits squarely within the objectives set out in section 11(3) of the FOI Act. Finally, the applicant argues that the proper reporting of the controversy is not a public interest reason to refuse access. It argues that the whole thrust and structure of FOI is to give the public the right to access public records so that FOI bodies cannot control the narrative or choose how to spin an issue. 

The third parties state that the draft report predates their feedback to the Authority. They argue that the public interest lies in allowing the Authority to consider their feedback rather than releasing a draft report which the Authority cannot stand over and which contains false and potentially defamatory material.

The subject matter of the draft report concerns the commercialisation of valuable intellectual property generated in a publically funded body. In one case, this intellectual property was spun out into a company which was sold for a very significant sum of money with subsequent rewards secured by WIT staff. The Commissioner recognises that there is a public interest in transparency and accountability in the use of public property and public assets. In certain circumstances, disclosure serves as a significant aid to ensuring that the public obtains value for money.

Having said that, the Commissioner considers that his remit does not extend to examining the manner in which an FOI body performs its functions generally, to investigating complaints against an FOI body or to acting as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies. He takes the view that it is not the role of his Office to determine whether complaints or allegations are false or malicious. False or unproven information supplied to an FOI body could well comprise personal information. It is not open to this Office to determine that personal information found to be exempt under section 37(1) should be provided to an applicant in the public interest under section 37(5)(a) as a means of remedying any suspected wrongdoing by a third party individual.

Having carefully considered the matter, I am satisfied that the right to privacy of the third parties whose personal information is contained in chapters 5 and 6 outweighs the public interest in granting the applicant's request. I find that chapters 5 and 6 of the draft report are exempt from release on the basis of section 37(1) and that none of the exceptions under section 37 apply. I am not satisfied that chapters 1-4 are exempt under section 37 of the Act and I consider whether these parts of the draft report are exempt under sections 29 and 30 of the Act below.

Section 29 -“ Deliberations of Public Bodies 

The Authority argues that the draft report is exempt under section 29(1) of the Act. Section 29(1) provides that an FOI request may be refused (a) if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations considered for the purpose of these processes), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.

These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. A deliberative process can be described as a thinking process that refers to the way an FOI body makes decisions. It involves the gathering of information from a variety of sources and weighing up 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. Section 29(2) provides that the exemption contained in section 29(1) does not apply insofar as the records contain any of the following, (a) rules, procedures, guidelines etc; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance of an FOI Body and (e) an expert report.

The applicant states that it did not request access to any information relating to steps to be taken on foot of the report which might be considered to relate to deliberations flowing from the findings. It states that it is requesting the draft report and it argues that it is hard to see, and it has not been stated, how the deliberative process could be prejudiced in such a way that release would be contrary to the public interest.

The Authority states that deliberations are ongoing with a view to addressing the complaints in relation to the external TSSG review and the draft report. It states that these deliberations involve engagement by the Authority with the Department of Education and Skills and the taking of legal advice. It states that the draft report is the subject of and central to those deliberations, thus the draft report relates to an ongoing deliberative process. According to the Authority, publication of the draft report would foreclose those deliberations and the granting of the request would be contrary to the public interest.

Even if I was satisfied that chapters 1-4 of the draft report relate to the Authority-™s deliberative processes, section 29(1) does not apply to a report of an investigation or analysis of the performance of an FOI body. The draft report contains an analysis of the performance of TSSG at WIT. I find that the draft report falls into the category of records described in section 29(2)(d) and that, as a consequence, section 29(1) does not apply to it. In light of this finding, it is not necessary to consider whether release of the draft report would be contrary to the public interest.

Section 30 - Functions and negotiations of FOI Bodies

Section 30(1)(a) of the Act provides that a head may refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to prejudice the effectiveness of tests, examinations, investigations, inquiries or audits conducted by or on behalf of an FOI body or the procedures or methods employed for the conduct thereof. Where an FOI body relies on section 30(1)(a) it should identify the potential harm in relation to the relevant function specified in paragraph (a) that might arise from disclosure, and having identified that harm, consider the reasonableness of any expectation that the harm will occur. 

In examining the merits of an FOI body-™s view that the harm could be reasonably expected, I do not have to be satisfied that such an outcome will definitely occur. The test is not concerned with the question of probabilities or possibilities. It is concerned with whether or not the decision maker's expectation is reasonable. It is sufficient for the FOI body to show that it expects an outcome and that its expectations are justifiable in the sense that there are adequate grounds for the expectations.  

The applicant argues that the Authority has failed to show how release of the draft report could reasonably be expected to give rise to the harm envisaged. 

The Authority argues that release of the draft report could reasonably be expected to prejudice the effectiveness of the investigations and inquiries of the external TSSG review by compelling the publication of the draft report which cannot be approved by the Authority as appropriate for publication. The Authority states that it expects, based on its legal advice, that publication of the draft report would be likely to prompt legal proceedings bringing an end to the TSSG review in litigation and robbing it of its effectiveness.

An FOI body should show the link between granting access to the record concerned and the harm identified. It should do this by reference to the specific record being considered for release: what is it about the particular record or the particular information in the record which, if released, could reasonably be expected to cause the harm envisaged? As I am satisfied that chapters 5 and 6 are exempt under section 37 of the Act, the question I must consider is whether release of chapters 1-4 could reasonably be expected to prejudice the investigations and inquiries of the external TSSG review by bringing an end to the TSSG review.

As outlined above, chapters 1-4 of the draft report contain the context for the review, the governance, legislative and policy context underpinning commercialisation of IP in Institutes of Technology, an overview of WIT and detail on TSSG. In my view, the information contained in chapters 1-4 is general background information which in large part is in the public domain. 

I am not satisfied that the Authority has shown the link between granting access to the information at issue and the harm it has identified. I find that chapters 1-4 are not exempt under section 30(1)(a) of the Act. In light of this finding, it is not necessary to consider whether the public interest would, on balance, be better served by granting than by refusing to grant the information at issue. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act, I hereby vary the decision of the Authority. I find chapters 5 and 6 of the draft report and the description of those chapters contained in the table of contents are exempt under section 37(1) of the Act. I find that chapters 1-4 of the draft report, the description of those chapters contained in the table of contents, appendix 1 and appendix 2 are not exempt under section 37(1) of the Act or the other exemptions cited and I direct release of those parts of the record.

Appeal

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.

Elizabeth Dolan
Senior Investigator