Case Number: 150201

Whether the University was justified in its decision to refuse access to records concerning its hosting of American Football events under sections 15(1)(a), 30(1)(c), 31(1)(a) and 37(1) of the FOI Act

Conducted in accordance with section 22(2) of the FOI Act by Elizabeth Dolan, Senior Investigator, who is authorised by the Information Commissioner to conduct this review

Background

On 9 January 2015, the applicant made an FOI request to the University for records created on or after 1 May 2013, under the following headings:

1. All records which mention/concern the Irish American Football Association (IAFA);
2. All records concerning a named individual or any of his companies/brands, concerning events or proposed events in the University or involving the University to include any contracts, financial arrangements, internal approvals, and internal reports;
3. All communications between the college and/or its staff and external organisations concerning American football;
4. All communications between two named University staff members and the Athletic Union Council (AUC) concerning funding to the University's American Football Club and all discussions within the AUC concerning funding to the University's American Football Club.

On 26 February 2015, the University granted partial access to the records requested. The applicant applied for an internal review of this decision. On 28 April 2015, the University varied its original decision and released further records to the applicant. On 26 June 2015, the applicant applied to this Office for a review of the University's decision. Both the applicant and the University made submissions in the course of the review. At this stage, I must bring the review to a close by the issue of a formal binding decision as the applicant requires this.
In conducting my review, I have had regard to correspondence between the applicant and the University, to correspondence between the applicant and this Office, to correspondence between the University and this Office, to the records at issue and to the provisions of the FOI Act.
Scope of the review

The University identified 132 records as relevant to the applicant's request. It released 103 records and partially released/withheld 29 records. The records identified came from the University (i) Athletic Union Council (AUC), (ii) Legal Office, (iii) Sports Section, and (iv) Security, Insurance, Risk and Compliance Section (SIRC). In correspondence with this Office dated 14 December 2015, the University agreed to release a further three records (i.e. records 7, 8 and 9) held by its Legal Office. Record 1 held by the AUC was created after the applicant's request and is outside the scope of this review. Likewise, information redacted from records 1b and 1c held by the AUC concern funding to sports clubs other than the American Football Club and also fall outside the scope of this review. The scope of this review is confined to the following issues:

• Whether the University was justified in deciding that section 15(1)(a) of the Act applies as no further records exist or can be found which are relevant to the applicant's request;
• Whether the University was justified in partially refusing/refusing access to the following records on the basis of section 30(1)(c) of the Act: 57, 58, 59, 61, 62, 63, 92, 93, 94, 98, 102, 103, 104, 106, 108, 110, 113 held by SIRC;
• Whether the University was justified in partially refusing/refusing access to the following records on the basis of section 31(1)(a) of the Act: 12, 13, 14, 15, 94 held by SIRC;
• Whether the University was justified in partially refusing access to record 2 located in the Sports Section on the basis of section 37(1) of the Act.
  

Preliminary matters

Section 22(12)(b) of the FOI Act provides that, where a decision to refuse a request is being reviewed by the Information Commissioner, there is a presumption that the refusal is not justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Thus, in this case, the onus is on the University to satisfy me that its decision is justified.

Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. This means that the description which I can give of the records at issue and the material that I can refer to in the analysis is limited.

The applicant states that a named individual referred to in his request "is currently awaiting trial on serious charges" and a University staff member referred to in his request may have "a conflict of interest" in relation to matters referred to in the records. I see no relevance in this information except insofar as it may relate to the applicant's claims that further records might be held which I consider below. This review, conducted pursuant to section 22 of the FOI Act, must be confined to reviewing whether the University has justified its refusal of the request under the FOI Act.

The applicant states that the University failed to provide him with a schedule of records which restricts him in making a case for the release of records. While it is a matter of good practice that public bodies should release records to a requester in a manner that makes it easy for them to follow the sequence of events involved, particularly where there are numerous records, there is no provision in the Act requiring this to be done.

Analysis and Findings

Section 15(1)(a)
The University relies on section 15(1)(a) of the FOI Act, which provides that a request for access to a record may be refused if the record does not exist, or if a record cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The applicant argues that further records relevant to his request ought to exist and have not been released. In such cases, the Commissioner's role is to review the decision of the public body and to decide whether the decision that no further records exist is justified. This means the Commissioner 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 was reasonable. The Commissioner's understanding of his role in such cases was approved by Quirke J. 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 at www.oic.ie).

The applicant states that in 2013, there were communications between the IAFA and the University to resolve issues in relation to an upcoming American Football game. He states that these differences were referred to mediation and this resulted in an agreement between the University and the IAFA. He provided this Office with a copy of the agreement (document "A") which was not amongst the records released by the University. He also provided document "B" which indicates that the two staff members, mentioned in part four of his request, were members of the AUC. The applicant contends that these two staff members gave undertakings to the IAFA, but that very little documentation in relation to these events was released by the University. The applicant also states that, in April 2014, a press release was issued announcing that an American Football game was due to take place in the University in August 2014. According to the applicant, the earliest records in relation to this event date from July 2014 and originate from the SIRC Section and not the Sports Section. The applicant states that such an event should have generated records in the Sports Section including an agreement to host the event as well as documents in relation to stadium rental, staffing and services for the event.

The University states that the applicant participated in the communications in 2013, and was a signatory to agreement "A" and has access to this record outside of FOI. It states that records were sought and searches were made in all the areas from which records were released and all other possible locations where records could be held including the University International Office. In addition to these searches inquiries were made with the parties listed on document "B". The University states that while the applicant may expect the Sports Section to hold more relevant records, for example records dating from when the 2014 football event was announced, the records located in relation to this event concerned insurance issues and sanction issues. The University states that such records would be typically located in SIRC as it deals with all insurance issues and not the Sports Section.

Other than pointing out that he holds a copy already, the University has not provided any arguments as to why the applicant should not be provided with a copy of agreement 'A' . I find that refusal of access to this record has not been justified and that a copy of the record held should be released to the applicant. The applicant says that there was correspondence between the IAFA and the University in May 2013; however, he states that releasing these documents would be "academic" as the IAFA already has access to them. I do not propose, therefore, to address the matter of additional documents in relation to the 2013 game.

The Investigator informed the applicant of the University's position. The applicant made a further submission in which he referred to the possible existence of records in the form of notification by a member of staff to the University's HR Department of an alleged conflict of interests. It is important to note that I can neither confirm nor deny whether evidence of any such conflict of interest exists in the records. I note that the University asked relevant members of staff to conduct searches of their files and to provide same to the University FOI Unit.

The University says that these searches did not locate the records described by the applicant. From the contacts that the Investigator has had with staff of the University, I have no reason to believe that reasonable searches were not carried out in this regard. I also accept as reasonable the University's explanation that the records located in relation to the 2014 game originated from SIRC and not the Sports Section, as the issues which arose in relation to this game related to insurance, sanctioning and health and safety matters. The applicant clearly expected the Sports Section to hold further records, however the FOI Acts do not provide for a right of access to records which ought to exist. It should be noted that the fact that one might expect such records to have existed and to have been retained, and that their absence might suggest inadequate record keeping practices, is not an issue for review. The University says that the Sports Section tended to operate informally and that information may have been conveyed verbally. I am satisfied that the University has demonstrated that it has taken all reasonable steps to search for records relevant to the applicant's request and that it is reasonable to conclude that nothing further can be found. Therefore, I find that section 15(1)(a) applies to the applicant's requests in items 1-4.

Section 30(1)(c) - Negotiations by an FOI Body
The University seeks to rely on section 30(1)(c) of the Act in partially refusing records 57, 58, 59, 61, 62, 63, 92, 93, 94, 98, 102, 103, 104, 106, 108, 110, 113 held by SIRC. Section 30(1)(c) 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 -
(c) 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.

Subsection 1(c) is designed to protect positions taken for the purpose of any negotiation carried on by or on behalf of the Government or an FOI body. Relevant factors in considering whether there is or was a negotiation include any proposal for settlement or compromise; any indications of 'fall-back' positions; information created for the purpose of negotiations; the FOI body's negotiating strategy and an opening position with a view to further negotiation. Subsection 1(c) does not require any expectation of harm.

The applicant states that the University did not identify to him which records it claims are exempt under 30(1)(c). He argues that no rationale has been put forward by the University as to why this exemption may apply in the case of each individual record. The applicant also argues that no public interest test has been undertaken as part of the decision making process.

The University states that the records withheld under section 30(1)(c) contain correspondence informing the University in relation to its negotiations of the contract and arrangements for the holding of a sporting event. The disclosure of terms of insurance cover and the assessment of risk factors continue to be matters of importance in any similar negotiations in the future and 30(1)(c) is applicable. The University states that it considered the need for transparency in its management but it took the view that the protection of the negotiation position, on balance, outweighs the public interest in disclosure.

SIRC records 57, 58, 59 and 61 were partially refused. The same information is withheld from each of these records. In general terms, that information consists of a request to review a document. The information redacted does not disclose positions taken for the purposes of negotiations and I am not satisfied that this information is exempt under section 30(1)(c).

Record 62 was partially refused. The information withheld is a document containing a set of proposed terms and conditions. This document formed part of negotiations between the University and a third party. The document discloses positions taken for the purposes of negotiations and I am satisfied that this information is exempt under section 30(1)(c). Record 63 was refused. This record contains proposed terms and conditions. I am satisfied that this record contains proposal type information relating to the University's negotiations and is exempt under 30(1)(c).

Records 92, 93, 94, 98, 102, 103, and 104 were partially refused. The information withheld from each of these records is described by the University as a draft agreement available to applicant outside of FOI. If the applicant already has the withheld information, release under FOI would not be disclosing positions/proposals to him, however release under FOI is release to the world at large. I accept that releasing various versions of the draft agreement would disclose proposals/positions in relation to a negotiation. I am satisfied that section 30(1)(c) applies to the information withheld from records 92, 93, 94, 98, 102, 103, and 104. In making this finding, I am conscious that section 30(1)(c) does not require any expectation of harm.

Records 106, 108 and 113 were refused in full and record 110 was partially refused. Each of these records contains internal emails between members of University staff. The emails refer to plans or positions considered by the University in the context of negotiations relating to a forthcoming event. I am satisfied that the information withheld is proposal type information which would disclose plans or positions taken by the University in relation to negotiations and this information is exempt under section 30(1)(c).

The Public Interest

Having found that section 37(1)(c) applies to records 62, 63, 92, 93, 94, 98, 102, 103, 104, 106, 108, 110 and 113, it is necessary to consider the public interest in relation to these records. Section 30(1)(c) provides that:

" Subsection (1) shall not apply in relation to a case in which in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned."

While section 30(1)(c) does not contain a harm test, the distinction between disclosures which have the potential to prejudice future negotiations and disclosures which do not is relevant in applying the public interest test under section 30(2). If access to records which disclose positions taken for the purposes of past negotiations could reasonably be expected to prejudice current or future negotiations or cause some other harm, this is a matter which must weigh heavily in the application of the public interest balancing test.

There is a public interest in openness and accountability in how public bodies carry out their functions. There is also a public interest in preventing harm to public bodies through release of information which has the potential to prejudice future negotiations.

I accept that the University SIRC section frequently negotiates insurance contracts and releasing records containing negotiation positions and proposals could be harmful to its ability to negotiate future insurance contracts. I am satisfied that, on balance, the public interest in withholding records 62, 63, 106, 108, 110 and 113 held by the SIRC section outweighs the public interest in their release. However, the information withheld from records 92, 93, 94, 98, 102, 103, and 104 consists of various versions of a draft agreement passed between the University and the applicant's lawyer. I do not accept that release of this agreement could have any effect on future negotiations and I find that, on balance, the public interest favours release of the information withheld from these records.

Section 31(1)(a) - Legal Professional Privilege
The University relies on section 31(1)(a) of the Act in partially refusing records 12, 13, 14, 15 and 94 located in SIRC. Section 31(1)(a) of the Act provides that a head shall refuse to grant an FOI request if the record concerned would be exempt from production in proceedings in a court on the ground of Legal Professional Privilege (LPP). In deciding whether section 31(1)(a) is applicable, the issue to be considered is whether or not the record concerned would be withheld on the grounds of LPP in court proceedings. LPP enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal advisor for the purpose of obtaining and/or giving legal advice (advice privilege), and
• confidential communications made between the client and a professional legal advisor or the professional legal advisor 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)
  

LPP belongs to the client who has the right to waive this privilege if he or she so wishes. Waiver may also be implied in certain circumstances. There are some situations in which LPP may not attach to communications between lawyer and client, for example: non-confidential communications; legal assistance other than the giving of advice; and, communications in furtherance of a criminal offence. The LPP exemption contains no public interest balancing test.

The applicant states that section 31(1)(a) only applies to legal advice; it does not apply to legal assistance or legal services being undertaken. He contends that legal services provided by external lawyers in relation to the preparation of contracts could not be considered legal advice. The applicant submits that section 31(1)(a) only applies to privileged legal advice i.e. advice given by an independent solicitor representing the University, not an internal employee even if that internal employee is legally qualified.

The University states that records 12, 13, 14, 15 and 94 are records of legal advice sought and given by an external legal advisor. These records are withheld claiming legal advice privilege in circumstances where a contract was being negotiated by the University necessitating such advice and where it was threatened with court action in relation to the matter covered by the contract.

I am satisfied that the information withheld from records 12, 13, 14, 15, and 94 (pages 1-3) located in the SIRC section contains either requests for or the provision of legal advice by the University's external legal advisor and this information is exempt under section 31(1)(a) of the Act. In the circumstances in which the records were created, I do not consider that they contain legal assistance.

Section 37(1)
The University withheld information in record 2 held in the Sports Section on the basis of section 37(1) of the Act. Section 37(1) provides for the refusal of a request where access to the record would involve the disclosure of personal information relating to an individual or individuals other than the requester.Under the FOI Act, personal information is defined as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or his/her 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 details fourteen specific categories of information that is personal including "...(iii) information relating to the employment or employment history of the individual...".

The information withheld from record 2 identifies a third party and provides information about that individual's employment. I am satisfied that granting access to the information withheld would disclose personal information relating to individuals other than the requester. Accordingly, I find that section 37(1) applies. Sections 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 set out in section 37(2) arise in this case. 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 information would be to the benefit of the person to whom the information relates. I am not satisfied that the public interest that the request should be granted outweighs the right to privacy of the individual concerned, neither am I satisfied that release of the information would be to the benefit of the person to whom the information relates. I find that section 37(5)(a) and 37(5)(b) do not apply to the information at issue and I find that the section 37(1) exemption is justified. Finally, the University also sought to rely on section 30(1)(c) in withholding this information, as I have determined that it is exempt under section 37(1), it is not necessary to consider whether it is exempt under section 30(1)(c).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I vary the decision of the University. I affirm the University's decision under section 15(1)(a) of the Act; I direct that the University release document "A" to the applicant. I annul the University's decision under section 30(1)(c) in respect of records 57, 58, 59, 61, 92, 93, 94, 98, 102, 103, 104 and I direct their release. I affirm the University's decision under section 30(1)(c) in respect of records 62, 63, 106, 108, 110 and 113. I affirm the University's decision in relation to sections 31(1)(a) and 37(1) of the Act.

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