Case Number: 170199

Whether NUIG was justified in refusing to grant access in full to minutes of the meetings of NUIG's governing body from May 2016 to December 2016, on the basis of sections 29, 30, 36 and 37 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 12 January 2017, the applicant sought access to the minutes of all meetings of the governing body of NUIG from May to December 2016 inclusive. NUIG issued a decision on 9 February 2017, wherein it released three records in part relating to his request and refused access to one record in full. It relied on sections 29(1)(a) - deliberations of public bodies, 30(1)(b) and (c) - functions and negotiations of public bodies, 36 - commercially sensitive information, and 37 - personal information, to withhold information from release. The applicant requested an internal review and NUIG issued a decision on 23 March 2017, in which it released some further information to the applicant. It withheld the remainder of the information in the records concerned on the same basis as its initial decision.

The applicant applied for a review of NUIG's decision on 21 April 2017, on the basis that the public interest in openness and transparency would be better served by release of the withheld information.

During the course of this review, NUIG confirmed that it is willing to release some further information from the records at issue; however it is still of the view that the majority of the information withheld is exempt from release under various sections of the Act. Accordingly, I have decided to bring this review to a close by way of a formal binding decision.

In conducting this review, I have had regard to the correspondence between NUIG and the applicant as set out above. I have also had regard to the communications between this Office and both the applicant and NUIG, as well as the contents of the records concerned.

Scope of Review

NUIG initially identified four records as coming within the scope of the applicant's request: minutes of meetings held on 17 May 2016, 30 June 2016, 1 November 2016 and 2 December 2016. It has referred to these records as M3, M4, M5 and M6 respectively. I shall continue to use NUIG's numbering system for ease of reference. At internal review stage, it also considered the minutes of a meeting held on 15 December 2016 (M7), which had not been finalised/approved when the applicant's request was received.

Record M3
In its original decision NUIG stated that M3 had been released to the applicant in response to an earlier request. During the course of this review, the applicant clarified that he had not received a copy of M3. NUIG released a copy of this record with minor redactions to the applicant on 11 August 2017. The applicant indicated that he was satisfied with this.

Record M4
NUIG relied on section 36 solely to refuse access to information contained in pages 5-8 of M4, as it was of the view that it was commercially sensitive. During the course of this review, NUIG indicated that the information withheld in M4 was no longer commercially sensitive (top of page 5 and 7) or had been redacted in error (pages 5, 6 and 8). Furthermore, it stated that it was now willing to release this information in the public interest. Accordingly, I direct the release of pages 5-8 of M4 in full.

Personal Information
NUIG relied on section 37 to refuse access to information such as staff members' names, etc. During the course of this review, the applicant confirmed to this Office that he is not seeking such information in this case. Therefore, I do not need to consider the application of section 37 to the information withheld.

Accordingly, this review is solely concerned with whether NUIG was justified in refusing to grant access to records M5, M6 and M7 in full on the basis of sections 29(1)(a), 30(1)(b) and 30(1)(c) of the FOI Act.

Preliminary Matters

I would draw NUIG's attention to its obligations under section 13 of the FOI Act to provide reasoned decisions. While NUIG referred to various exemptions in its original decision it did not justify or explain how they applied other than in relation to its refusal of M6 in full. Neither did it demonstrate that it had engaged in the public interest balancing test required under the exemptions cited, other than to state that it had "considered the public interest test for each exemption". Furthermore, its internal review decision did not set out any consideration of the various exemptions claimed or the public interest factors considered; it merely released additional information by way of annotated records with the relevant exemptions noted beside relevant redactions. In this regard, I encourage decision makers to use the FOI resources available, including guidance on the FOI Act published by the Central Policy Unit of the Department of Public Expenditure and Reform and by my Office, to assist them in their decision-making and in ensuring that their decisions comply with their obligations under the Act.

It is important to note that 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.

The annotations to the records released to the applicant by NUIG have resulted in some differences in the page numbers on the redacted and unredacted versions of the records provided to this Office for the purposes of the review. For ease of reference the page numbers below refer to the unredacted records.

Analysis and Findings

It is important to note that section 22(12)(b) of the FOI Act provides that 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". Therefore, the onus is on NUIG to satisfy this Office that its decision is justified in this case.

The records at issue in this case are minutes of meetings of NUIG's governing body. The information withheld falls into five broad categories as follows:

1. Information relating to the recruitment and selection of a new president for NUIG: M6 pages 2-7 (discussion of proposed procedures and committee remits), M7 pages 10, 12, 16-17 and 25 (establishment of recruitment committees and committee names)
2. Information relating to the appointment of a recruitment firm to assist in finding a new president: M6 page 15 (costs), M7 page 23-24 (proposed budget and discussions), M7 page 25 (discussions)
3. Information relating to a Senior Lecturer Promotions scheme (SLPS) M7 pages 4-11 (discussion of competition and proposed procedures to be adopted)
4. Information relating to financial matters/procurement: M5 pages 5 (income and expenditure), 14 (cost projections relating to the recommendations of a task-force) and M7 page 12 (various contracts at different stages of the procurement process)
5. Information relating to industrial relations matters: M5 pages 8-9 (discussion of a merger with another third level institution)

NUIG refused to grant access to the information withheld on the basis of sections 29(1) and 30(1) of the FOI Act.

Section 29(1)(a)
NUIG relied on section 29(1)(a) in its decision to refuse to grant access to all of the information concerned. Having reviewed the records, I am of the view that section 30 is more appropriate to pages 8-9, M5. Accordingly, I shall consider that under section 30 below.

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, and FOI bodies must show to this Office's satisfaction that both section 29(1)(a) and section 29(1)(b) have been met. In particular, the public interest test contained in section 29(1)(b) requires the FOI body to be of the opinion that releasing the records would be contrary to, or against, the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release.

Essentially, NUIG has argued that all of the matters at 1-4 above are ongoing (or were ongoing at the time of the the applicant's original request/internal review) and the subject of deliberation. It was of the view that release of information relating to the recruitment process (at 1 and 3 above) would contaminate the processes concerned and would affect the fairness of the competition. Furthermore, it stated that in most cases it would have no objection to the release of the information at issue once the processes had concluded. I note that in the course of this review, NUIG indicated that it is willing to release the information withheld on page 14, M5, with the exception of the monetary amounts.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. This Office has found the process to include some weighing up or evaluation of competing options or the consideration of proposals or courses of action. I am satisfied that NUIG's discussions of matters at 1-3 above could be said to fall into this category. Accordingly, I accept that the information relating to 1-3 could be said to relate to various deliberations of NUIG and that section 29(1)(a) would apply. However, I am of the view that the particular information referred to at 4 could not be said to relate to deliberations of an FOI body.

Furthermore, the second requirement of section 29(1) is that release of the information at issue would be contrary to the public interest. In essence, NUIG stated that the public interest lay in it conducting fair recruitment and procurement procedures and being able to make appropriate decisions. It also stated that the public interest will be met by the ultimate publication of the financial information in its accounts, and said that it routinely publishes finalised financial data.

It seems to me that while NUIG may have been deliberating many of these matters at the time of the applicant's requests, much of these deliberations have concluded. For instance, I note that the SLPS competition was advertised on NUIG's website (http://www.nuigalway.ie/senior-lecturer-promotion-scheme-2017/) and that the application date has now passed. Furthermore, a brief search of various tender websites including Etenders shows that the majority of the contracts mentioned in the records have since been advertised and in many cases awarded. I also note that Ms Murdiff asked NUIG whether it still considered information relating to 1 and 2 above to be exempt, when the deadline for receipt of applications for the post of President had now passed, and NUIG has publicly advertised and awarded a contract for recruitment services relating to that post. In essence, NUIG argued that release could be expected to hamper discussions. It said that the release of unfinalised data could mean that eligible candidates might not apply. It also argued that international candidates could challenge the process as they would not have access to information released locally (under FOI). However, NUIG confirmed to this Office that the contract for recruitment services relating to the post of President was awarded in March 2017. It said that at the time of its original and internal review decisions, the post of President had not yet been advertised, but my understanding is that applications have since been received, although the post will not become vacant until January 2018. I also note that information relating to the costs of implementing the task-force recommendations was published by the applicant in March 2017 (see http://connachttribune.ie/alarm-nuigs-e700k-bill-take-unconscious-gender-bias/).

There is a strong interest in openness and transparency in how third level institutions carry out their functions, particularly in the expenditure of public funds. This is especially true at a time when third level institutions are coming under intense public scrutiny in relation to their accounting practices and use of public and private funds.

There is also a strong public interest in ensuring that a public body derives value for money. I am of the opinion that release of the discussions relating to the upper limit of the amount NUIG considered spending on marketing and recruitment, which was not disclosed during the procurement process, could affect its ability to achieve value for money. I am of the view that release of such information could affect NUIG's ability to negotiate with the company who was awarded the contract, and other such companies in the future. Accordingly, I am of the view that, on balance, the public interest does not favour the release of information relating to the proposed budget at item 2 above. Accordingly, I find that NUIG was justified in refusing to grant access to information relating to the proposed budget for the recruitment process set out in M6 page 15 and M7 pages 23-24 on the basis of section 29(1) of the Act.

However, having regard to the above, I am of the view that the public interest favours the release of the remaining information withheld on the basis of section 29(1). I find that NUIG was not justified in refusing to grant access to the remainder of the information at 1-3 above on the basis of section 29(1).

Section 30(1)
NUIG also relied on section 30(1)(b) and (c) to withhold the information concerned. As I have found information at page 15, M6 and pages 23-24, M7 to be exempt from release on the basis of section 29, I do not need to consider it under section 30.

Section 30 is a harm based exemption. Accordingly, an FOI body seeking to rely on section 30 should first identify the potential harm in relation to the relevant function that might arise from disclosure and secondly consider the reasonableness of any expectation that the harm will occur.

Section 30(1)(b) of the FOI Act is a discretionary exemption that provides for the refusal of a record 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)".

Section 30(1)(c) of the FOI Act provides that an FOI body may refuse to grant an FOI request if access to the record concerned could reasonably be expected to 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 an FOI body.

While NUIG has cited sections 30(1)(b) and (c) it has not specified which subsection applies to the particular information withheld.

30(1)(b)
For section 30(1)(b) to apply, there must be a reasonable expectation that release of the records at issue could have a significant adverse effect on the performance of NUIG's management functions including industrial relations and staff management. NUIG has stated that release of the information concerned at the time of the applicant's original request or internal review request could have resulted in unfairness or compromised the processes at 1 and 3. It said that the release of unfinalised data could mean that eligible candidates might not apply. It also argued that international candidates could challenge the process as they would not have access to information released locally (under FOI).

However, this is a de novo review, concerned with the circumstances as they stand now, and the processes at 1 and 3 above are now at an advanced stage. Accordingly, I do not see how the release of discussions of the relevant procedures could reasonably be expected to cause a significant adverse effect to the processes concerned at this point.

In relation to item 5, NUIG stated that the discussions relating to the merger were sensitive and that release would not be appropriate at this time. During the course of this review NUIG stated that the merger with NUIG has not yet been finalised and that discussions are still ongoing. However, while I note that there have been industrial relations issues relating to the ongoing merger, these have been in the public domain. Furthermore, NUIG has not explained how release of this information at 5 could have a significant adverse effect on its performance of its management functions including industrial relations and staff management.

Having regard to the above, I am not satisfied that NUIG has justified its stance that management of its staff and recruitment of appropriate staff could reasonably be expected to be significantly effected by the release of information at 1, 3 and 5 above. Accordingly, I find that section 30(1)(b) does not apply to the information concerned.

I do not see how section 30(1)(b) would apply to items 2 and 4 and NUIG has made no specific arguments in this regard.

30(1)(c)
It appears to me that NUIG may have intended to rely on section 30(1)(c) in relation to the information at 2 (M7, page 25) and 4 above. It withheld information in relation to 2 as it said that it was an ongoing process at that time and that release ran the risk of contaminating the process. As noted above, Ms Murdiff asked NUIG to address this in light of the fact that a contract has since been awarded to a recruitment firm and asked whether it still considered the information to be exempt. In essence, NUIG argued that release could be expected to hamper discussions and could contaminate the procurement process.

It also stated that financial matters at 4 above were under negotiation and yet to be finalised. As noted above, NUIG has indicated that it is willing to release the information withheld on page 14, with the exception of the figures concerned. It also stated that the information relating to various contracts at different stages of the procurement process will be released in due course but that "at that time" it was still under negotiation.

However, there is no harm test in section 30(1)(c). Accordingly, having regard to the contents of the records concerned, I accept that information at 2 and 4 could reasonably be expected to disclose positions taken, or to be taken, or plans, procedures, criteria or instructions used, or to be used, for the purpose of negotiations carried on or being, or to be, carried on by NUIG. Accordingly, I find that section 30(1)(c ) applies to the information identified at 2 and 4 above.

NUIG has not made any specific arguments in relation to the application of section 30(1)(c ) to 1, 3 and 5 above.

Public Interest Test
Section 30(1) is subject to section 30(2), which disapplies subsection (1) when the public interest would, on balance, be better served by granting than by refusing to grant the FOI request concerned.

When considering the public interest, it is important to have regard to the comments of the Supreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26 ("the Rotunda case"). It is noted that a public interest ("a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law") should be distinguished from a private interest.

There is a strong public interest in openness and transparency in how NUIG's governing body makes decisions and allocates public funds. This is especially true at a time when third level institutions are coming under intense public scrutiny in relation to their accounting practices and use of public and private funds.

While section 30(1)(c) makes no distinction between disclosures which have the potential to prejudice current or future negotiations or to cause some other harm and disclosures which do not, such a distinction must be made in applying the public interest test in section 30(2). NUIG argued that the public interest in the financial information would be met by ultimate publication of these figures in its accounts, and that it routinely publishes finalised financial data. In relation to its hiring of a recruitment and marketing firm, it stated that the public interest was best served by NUIG running a fair process, making an appropriate decision and selecting the correct firm. A brief search of various tender websites including Etenders shows that the majority of the contracts referred to at 4 above have since been advertised and in many cases awarded. The contract for a recruitment firm has also been awarded. NUIG has not made any arguments that release of the information concerned could prejudice current or future negotiations.

Much of the information concerned is in the public domain, and there is no evidence before me of any harm arising. Therefore, I do not consider that, on balance, the public interest favours the refusal of access to the information at 2 and 4 above. Accordingly, I find that NUIG has not justified its decision to refuse access to the reminder of the information in the records concerned on the basis of section 30(1) of the Act.

Having regard to the above, I direct the release of the following information contained in the records at issue:

• Record M4 - Release pages 5-8 in full
• Record M5 - Release pages 5 and 14 in full
• Record M6 - Release pages 2-7, 10, 12 and 16-17 in full
• Record M7 - Release pages 4-11, 12, 17 and 25 in full

In the interests of clarity, I am not directing the release of the information withheld from release in Records M5 (pages 8-9), M6 (page 15) and M7 (pages 23-24).

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary NUIG's decision. I direct the release of the information set out above. I find that NUIG was justified in its decision to refuse to release the remaining information withheld on the basis of sections 29 and 30 of the FOI Act.

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by NUIG to my decision within five working days of the expiration of the 4 week period for the bringing of an appeal to the High Court from this decision, as provided for at section 24(4) of the FOI 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