Whether UCC was justified in its decision to refuse access to records relating to a professorship, on the ground that they are exempt under sections 29, 30 and 37 of the FOI Act 

13 June 2019

Background

On 18 July 2018, the applicant made a request to UCC for any records relating to the retirement of a particular professor and any records relating to arrangements to replace said professorship and records relating to communication related to the planning, funding and recruitment of the post or any potential replacement or successor posts. UCC did not issue a decision within the statutory time-frame. Therefore on 24 October 2018 the applicant applied for an internal review of the "deemed refusal". Following this Office's intervention, UCC issued a statement of its effective position to the applicant on 10 January 2019. It granted access to certain records and refused access to the remaining records under sections 29, 30 and 37 of the FOI Act. On 16 January 2019 the applicant applied to this Office for a review of UCC's decision.

For completeness, I should note that on 29 January 2019, UCC issued a further decision letter with an updated schedule. In correspondence with this Office, the applicant confirmed that she wished for this Office to review UCC's decision on the records listed on the updated schedule.

In conducting my review, I have had regard to the correspondence between the applicant and UCC and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by UCC for the purposes of this review.

Scope of this Review

The withheld records in this case are numbered 1, 5, 6, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 22, 23, 26, 27, 30, 31, 32, 35, 37, 38, 39, 40, 42, 43, 45 and 46. The question for me is whether UCC was justified in refusing access to these records under sections 29, 30 or 37 of the FOI Act.

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach. 

Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25. This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited. 

Finally, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office takes the view that the provisions of section 18 do not 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. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records. 

Analysis and Findings

Section 37 - Personal Information
Section 37(1)
I will consider section 37 of the FOI Act first. Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term “personal information” as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: (ii) information relating to the financial affairs of the individual, (iii) information relating to the employment or employment history of the individual and (viii) information relating to the age etc. of the individual.

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. Paragraph II also excludes certain information about service providers. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally". 

I consider that the following records contain personal information about individuals other than the applicant: Records 6, 8 (except the first two pages), 9 (except the first page), 10 (except the first page), 11 (except the first page), 14, 18, 19, 20, 22 (except the first page), 23 (except the first page), 26, 27, 31, 32, 35, 37, 39, 40, 42, 43, 45 and 46. If this information is not exempt under the FOI Act, it will be releasable to the world at large. Some information relates to the employment history, age and remuneration of individuals other than the applicant. These individuals are staff/consultants of FOI bodies. However, given the content of the information concerned, I do not believe that it falls within the exclusions to personal information outlined in paragraphs I or II of section 2 of the FOI Act. Other information contains the opinions and concerns expressed by staff/consultants about their careers, certain posts and staff/consultants. I believe I can take it from the candid tone and content of these records that the authors raised such matters on the understanding that they would remain confidential. Having regard to the particular nature of this information, I do not believe that it falls within the exclusions to personal information outlined in paragraphs I or II of the FOI Act. 

I therefore find that section 37(1) applies to Records 6, 8 (except the first two pages), 9 (except the first page), 10 (except the first page), 11 (except the first page), 14, 18, 19, 20, 22 (except the first page), 23 (except the first page), 26, 27, 31, 32, 35, 37, 39, 40, 42, 43, 45 and 46. 

In theory, one could extract certain words and phrases from these records which do not constitute the personal information of individuals other than the applicant. I have considered whether this would be practicable in the circumstances. However, those particular phrases appear in the context of the personal information of individuals other than the applicant. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated phrases would be to provide misleading records. This finding under section 37(1) is subject to the provisions of sections 37(2) and 37(5), which I examine below.

However, the situation is different in relation to some records or parts of records which I have identified. The following records consist of emails between staff members of FOI bodies which were sent to arrange meetings: Record 5, the first two pages of Record 8, the first page of Records 9, 10, 11, 22 and 23. They do not contain personal information of the kind described above or otherwise. UCC says that these records contain the email addresses of non-UCC contacts and these are personal information. Those email addresses are HSE email addresses which were used in an official capacity. Since the HSE is an FOI body, I cannot accept that the work email addresses of the staff of FOI bodies qualify as personal information. They fall within the exclusion to personal information outlined in paragraphs I or II of section 2 of the FOI Act. I find that section 37(1) does not apply to these records. I am therefore not required to consider sections 37(2) or (5) in relation to them. 

Section 37(2)
Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate 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 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. I am then required to consider section 37(5) as it applies to this information.

Section 37(5) - The Public Interest
Section 37(5) of the FOI Act provides that access to the personal information of a third party may be granted where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or the grant of the request would benefit the person to whom the information relates. 

The FOI Act itself recognises the public interest in ensuring the openness and accountability of public bodies. On the other hand, however, the language of section 37 and the Long Title to the FOI Act recognise a very strong public interest in protecting the right to privacy, which has a Constitutional dimension, as one of the un-enumerated personal rights under the Constitution. Accordingly, when considering section 37(5)(a), privacy rights will 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. 

On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the third parties to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. 

Findings

I find that UCC was justified in refusing access to the following records, under section 37(1) of the FOI Act: Records 6, 8 (except the first two pages), 9 (except the first page), 10 (except the first page), 11 (except the first page), 14, 18, 19, 20, 22 (except the first page), 23 (except the first page), 26, 27, 31, 32, 35, 37, 39, 40, 42, 43, 45 and 46. I find that UCC was not justified in refusing access to the following records under section 37 of the FOI Act: Record 5, the first two pages of Record 8, the first page of Records 9, 10, 11, 22 and 23. 

Section 30(1)(b) - Functions and negotiations of FOI bodies
I will now consider section 30(1)(b) of the FOI Act in relation to the remaining records. The remaining records are: Records 1, 5, 15, 16, 17, 30, 38; the first two pages of Record 8; the first page of Records 9, 10, 11, 22 and 23. 

Section 30(1)(b) allows an FOI body to refuse to grant an FOI request if access to the record concerned could, in the opinion of the head, reasonably be expected to have a significant, adverse effect on the performance by an FOI body of any of its functions relating to management (including industrial relations and management of its staff). 

When an FOI body relies on section 30(1)(b), it should identify the potential harm to the performance by an FOI body of any of its functions relating to management that might arise from disclosure and having identified that harm, consider the reasonableness of any expectation that the harm will occur. The FOI body should go on to consider the public interest test under section 30(2).  

The following records concern the recruitment process for a new professor: Records 1, 15, 16, 17, 30 and 38. I accept that this recruitment process is a function relating to UCC's management. UCC says that the recruitment process is ongoing, with approvals currently being sought from the relevant bodies. It says that this involves a significant decision regarding the provision of a particular service in Ireland and that disclosure would have a significant adverse effect on its ability to manage its staff. It says that public bodies should be able to discuss matters of significance to the management of their institutions, without adversely affecting their management functions. The records disclose a business case for a professorship, which includes proposals and options. They also disclose correspondence about this post. As indicated earlier, I must take care not to disclose exempt material. However, given the context of this recruitment process, which I can glean from the content of the records generally, I accept that it is reasonable to expect that disclosing these records while the process is ongoing could have a significant, adverse effect on UCC's management functions in relation to this post and issues surrounding it. I find that section 30(1)(b) applies to these records. 

In view of this finding, I am required to apply the public interest balancing test under section 30(2) of the FOI Act. On the one hand, section 30(1)(b) itself reflects the public interest in FOI bodies performing their management functions effectively. On the other hand, there is a public interest in transparency around the way in which UCC carries out its functions. Section 11(3) of the FOI Act requires FOI bodies to have regard to the need to achieve greater openness in their activities and to strengthen their accountability and improve the quality of their decision-making. In the circumstances, I consider that while the process is ongoing, the public interest in allowing UCC to perform its management functions in recruiting for this post outweighs the public interest in transparency around the way in which UCC carries out its functions. I consider that on balance, the public interest would not be better served by granting access to the records. I find that UCC was justified in withholding access to Records 1, 15, 16, 17, 30 and 38 under section 30(1)(b) of the FOI Act.

However, I am not satisfied that section 30(1) applies to Record 5, the first two pages of Record 8, the first page of Records 9, 10, 11, 22 and 23. As noted above, these consist of emails between staff members of FOI bodies which were sent to arrange meetings. UCC claimed sections 30(1)(b) and (c) over these records. Having regard to the content of these records, I do not accept that it is reasonable to expect that disclosing them could have a significant, adverse effect on the performance by UCC of its management functions. Neither do I accept that these records disclose positions etc. taken for the purposes of negotiations. I find that sections 30(1)(b) and (c) do not apply to these records. I am therefore not required to consider section 30(2) in relation to them. 

I find that UCC was not justified in refusing access to Record 5, the first two pages of Record 8, the first page of Records 9, 10, 11, 22 and 23 under sections 30(1)(b) or (c) of the FOI Act. 

UCC also claimed section 29 of the FOI Act over these records and I must therefore consider this exemption also.

Section 29 - Deliberations of FOI Bodies
Section 29(1) of the FOI Act provides that an FOI body may refuse to grant an FOI request if the record contains matter relating to the deliberative process and granting 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 also met. It is therefore important for public bodies to show to the satisfaction of the Commissioner that both requirements are met. The public interest test contained in this provision differs from the public interest test found in other exemptions under the FOI Act. To avail of this exemption, the public body must be of the opinion that releasing the records would be against the public interest. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. In my view, this exemption tends more strongly towards release of the records. This means that public bodies have a higher hurdle to overcome in demonstrating that it applies.

I have noted the content of the remaining records above. I do not accept that they contain matter relating to a deliberative process. They are emails sent between staff of FOI bodies in order to arrange meetings. I find that section 29(1)(a) does not apply to these records and I am therefore not required to consider section 29(1)(b). I find that UCC was not justified in refusing access to Record 5, the first two pages of Record 8, the first page of Records 9, 10, 11, 22 and 23 under section 29(1) of the FOI Act.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I vary UCC's decision as follows: I find that UCC was justified in refusing access to the majority of the records under sections 30 and 37 of the FOI Act, in accordance with my findings above. I find that UCC was not justified in refusing access to the remaining records and I direct their release. For the avoidance of doubt, the records which fall for release are as follows: Record 5, the first two pages of Record 8, the first page of Records 9, 10, 11, 22 and 23. 

Right of 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