Whether the Institute was justified in its decision to refuse access to certain records relating to an investigation carried out by the Institute under sections 10(1)(a) and 28 of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act by Stephen Rafferty, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

By letter dated 20 July 2013, the applicant submitted to the Institute an FOI request regarding an investigation carried out of an allegation of plagiarism made against him. The request took the form of a series of fifteen questions and a request for (i) a copy of the DVD of a graduation ceremony showing him being videoed by phone and (ii) copies of all correspondence between the Institute and the Department of Education (the Department) and the state agency Quality and Qualifications Ireland (QQI).

In its decision of 27 August 2013, the Institute provided its response to the fifteen questions posed. It refused access to the DVD of the graduation ceremony on the ground that it contains personal information of third parties but offered to release stills or a series of still pictures of the applicant if required. It released 49 items of correspondence between the Institute and QQI and also stated that there was no correspondence with the Department of Education in relation to the matter.

The applicant submitted a request for an internal review by letter dated 22 September 2013 on the ground that he considered the answers to his questions to be inadequate and unsatisfactory. In his letter, he posed further questions and/or provided comments arising from the Institute's responses to the fifteen questions he originally posed. On the matter of the DVD, he indicated that he required pictures of an named individual filming with a phone. He also indicated that he found the Institute's assertion that there was no correspondence between the Institute and the Department to be "unbelievable".

I should explain at this stage that requests for information, as opposed to requests for actual records, are not valid requests under the FOI Act. While the FOI Act provides for a right of access to records held by public bodies, it does not generally provide a mechanism for seeking answers to questions, except to the extent that a question can be reasonable be inferred to be a request for a record containing the answer to the question. While the Institute provide answers to the fifteen questions posed by the applicant in his original request, this Office has no role in examining the adequacy, or otherwise, of the responses provided. Furthermore, this Office has no role in examining how public bodies perform their functions generally.

In the case of one particular question (question 6), the applicant asked why notes of the first hearing (presumably in connection with the investigation concerning the complaint of plagiarism) were not made available to him on time and why some of them were still withheld. In its original decision on the request, the Institute stated that the report (of the Investigation Panel) was released to the applicant immediately after it was adopted by the Examinations and Assessments Review Committee and it requested that the applicant be more specific with regard to documents being sought. In his application for internal review, the applicant explained that he sought the notes of three named individuals who appear to have had some involvement in the consideration of his thesis and who were apparently interviewed by the Investigation Panel. The Institute's response was that it needed to check what notes, if any, existed and that it would respond accordingly.

During the course of the review, Mr David Logan of this Office took the view that the records the applicant was referring to at question 6 came within the scope of the original FOI request and he engaged in correspondence with the Institute on the question of access to those records. The outcome of that exchange of correspondence was that the Institute subsequently released three records with certain personal information relating to individuals other than the applicant redacted. However, the applicant was not satisfied that he had received all relevant records. In a letter of 6 August 2014 to the Institute, the applicant stated that he was seeking access to the notes taken by two members of the Investigation Panel during an interview with one of the individuals interviewed. The Institute subsequently provided the applicant with a copy of the handwritten notes of a member of the Investigation Panel taken during an interview with one of the individuals named by the applicant. It refused access to the handwritten notes of a second member of the Panel on the ground that the record in question does not exist or cannot be found.

Following receipt of Mr Logan's letter of 25 September 2014, wherein he outlined his preliminary view in relation to the Institute's position on the DVD and on its position that no further records exist or can be found, the applicant wrote to this Office and stated that he did not believe that the interview notes of the second Panel member do not exist or cannot be found. He also stated that he asked the Institute to have the individual supply contemporaneous notes from memory.

While the Institute has clearly taken a very co-operative approach in making certain records available to the applicant, I disagree with Mr Logan's view that the records referred to by the applicant in connection with question 6 came within the scope of the original request. It is clear to me that question 6 as posed by the applicant was not a request for specific records. Rather, it was a request for an explanation as to why certain records were not made available to him on time and why some of them were still withheld. Accordingly, I do not propose to consider the question of whether the Institute was justified in refusing access to the handwritten notes of the second Panel member on the ground that the record in question does not exist or cannot be found as I am satisfied that such a record, if it exists, was not sought by the applicant in his original request. I would also note, for the information of the applicant, that the FOI Act does not require public bodies to create records if they do not already exist.

During the course of the review, the applicant also stated that he was seeking access to a particular text message sent to him by the President of the Institute and that this text was relevant to question 13. That question requested a response as to why he was "not allowed to travel to Turkey to support A.P.A. team" and in its decision on his request, the Institute responded, notwithstanding the fact that the FOI Act did not require it to do so. In his application for internal review, the applicant argued that the Institute's response contradicted the text message he had received from the President. As I have indicated above, this Office has no role in examining the adequacy, or otherwise, of the responses provided or in examining how public bodies perform their functions generally. Accordingly, I am satisfied that there is nothing for this Office to review in connection with question 13.

The applicant has informed this Office that he does not wish to withdraw his application for review at this stage. Accordingly, I consider that the review should now be brought to a close by the issue of a formal binding decision. In conducting this review I have had regard to the Institute's decisions on the matter and its communications with this Office, to the applicant's communications with this Office and the Institute, and to the provisions of the FOI Act.

In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 -2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act but not completed before the commencement of the 2014 Act shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of Review

Questions 6 and 13 apart, the applicant has submitted no evidence to suggest that other relevant records might be held by the Institute which contain responses to the specific questions he posed in his original FOI request. Therefore this review is not concerned with any matters related to those questions or to the responses of the Institute. However, he specifically sought access to a copy a certain DVD and copies of all correspondence between the Institute and the Department and QQI. The Institute's position is that it has released all records relevant to the applicant's request, apart from the graduation DVD. Accordingly the scope of this review is concerned with whether the Institute was justified in refusing access to further records on the basis that no such records exist or can be found after reasonable steps have been taken to ascertain their whereabouts and whether the Institute was justified in refusing access to the DVD sought on the ground that it is exempt under section 28(1) of the FOI Act.

Analysis and Findings

Section 10(1)(a)

The position of the Institute is that, apart from the DVD referred to above, it has released all relevant records in relation to the applicant's original request. Section 10(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The Commissioner's role in cases such as this is to review the decision of the public body and to 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 his/her decision. The evidence in "search" cases consists of the steps actually taken to search for records, along with miscellaneous other evidence about the record management practices of the public body, on the basis of which the public body concluded that the steps taken to search for records were reasonable. The Office's understanding of its role in such cases was approved by Mr Justice Quirke in the High Court case of Matthew Ryan and Kathleen Ryan and the Information Commissioner (2002 No. 18 M.C.A. available on this Office's website,www.oic.ie).

In a submission to this Office, the Institute stated that all of the records that were released in response to the original request were held in the offices of the Registrar and the President. The Institute stated that given the nature of the circumstances that gave rise to the records being created any such records would be held in these offices only and that all records from these offices have been released to the applicant. The position of the Institute is that no further records exist or can be located after all reasonable steps to ascertain their whereabouts have been taken.

The applicant clearly does not accept the Institute's position that there was no correspondence with the Department in relation to the allegation of plagiarism. However, he has presented no argument to indicate why he would expect such records to exist. Accordingly, having reviewed the steps taken to locate the records requested, I am satisfied that the Institute has taken all reasonable steps to locate the records sought and I find that it was justified in deciding to refuse access to further records on the basis of section 10(1)(a) of the FOI Act.

Section 28(1)
The Institute refused to grant access to a DVD of a conferring ceremony on the basis that it contains personal information relating to third parties under section 28(1) of the FOI Act. However, it offered to consider the release of stills or a series of still pictures. In his application for internal review, the applicant stated that he was seeking access to pictures of a named individual filming him with his phone.

Section 28 of the FOI Act provides that a public body shall refuse to grant access to information where access would involve the disclosure of personal information relating to a third party unless it considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. The DVD in question contains a recording of a conferring ceremony and by its nature, captures the images of a large number of individuals. Having reviewed the DVD, I am satisfied that its release in its current form would involve the disclosure, for FOI purposes, of personal information relating to individuals other than the applicant. I find that section 28 applies in respect of such information.

It is clear from the applicant's request for internal review that he is seeking access to the DVD in so far as it shows a named individual filming him. Section 43(3) of the FOI Act requires me to take all reasonable precautions during a review to prevent the disclosure of information contained in an exempt record or matter that would, if it were included in a record, cause the record to be an exempt record. Therefore, while I make no comment on whether or not the DVD contains the information sought, it is clear that the disclosure of any such information would involve, at a minimum, the disclosure of an image of an individual other than the applicant. Section 28(5B) provides that a public body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester, commonly referred to as joint personal information. Therefore, in so far as the withheld DVD contains images of the applicant, such images are inextricably linked to the images of other indivuduals. Therefore, I am satisfied that sections 28(1) and 28(5B) apply and I find accordingly.

The effect of section 28(1) and section 28(5B) is that a record disclosing personal information of a third party cannot be released to another person unless one of the other relevant provisions of section 28 applies - in this case sections 28(2) and 28(5). Under Section 28(2) there are some circumstances in which the exemption at sections 28(1) do not apply. Having examined the DVD in question, I am satisfied that none of those circumstances arise in this case. I am also satisfied that the granting of access to the DVD could not be considered to benefit the individuals other than the applicant and that section 28(5)(b) does not apply.

Section 28(5)(a) provides that sections 28(1) and 28(5B) do not apply where the public body considers that the public interest in granting access would, on balance, outweigh the right to privacy of the individual to whom the information relates. In relation to the question of where the public interest lies under section 28(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[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

Following the approach of the Supreme Court, a public interest ("a true public interest recognised by means of a well-known and established policy, adopted by the Oireachtas, or by law") must be distinguished from a private interest for the purpose of section 28(5)(a). The language of section 28 and of 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 28(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.

The applicant has not, in my view, identified any particular public interest factors in favour of the release of the DVD that would outweigh, on balance, the public interest in protecting the privacy rights of the third parties whose images are captured in the DVD. While I accept there is a public interest in the release of certain information with a view to the promotion of openness, transparency and accountability in relation to the activities of public bodies in general, I am satisfied that such public interest factors do not outweigh, on balance, the public interest in maintaining the right to privacy of the third party individuals identified in the DVD in this case. Consequently, I find that section 28(5(a) of the FOI Act does not apply in this case.

I find, therefore, that the Institute was justified its decision to refuse to release the DVD sought under section 28 of the FOI Act.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997, as amended, I hereby affirm the decision of the Institute in this case.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator