Case number: 170224

Whether the University was justified in its decision to refuse access, in full or in part, to certain records relating the health and safety of students on work placement, under sections 15(1)(a), 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

The applicant submitted a request to the University on 24 January 2017, for access to records from 1 March 2016 to 24 January 2017 "...regarding the health and safety of current or former students of the University who were sent on work placement to [a named place]". In its decision, dated 27 March 2017, the University granted access in full and in part to a number records and withheld access, in full and in part, to information in the remaining records on the basis of sections 31(1)(a) and 37(1) of the FOI Act. The applicant submitted a request for an internal review on 28 March 2017, on the basis that other records may exist. The University acknowledged receipt of the internal review request on 18 April, following receipt of the relevant fee from the applicant (section 27(13) refers). In its internal review decision dated 11 May 2017, the University affirmed the original decision and refused access to further records on the basis of section 15(1)(a) of the Act. On 9 May 2017, the applicant submitted an application for a review to this Office.

In his application for review, the applicant complained about the length of time he says it took the University to process both his initial and internal review requests. In its submission to this Office, the University states that it applied an extension of four weeks to the initial request under the provisions of section 14(1) of the Act and that it informed the applicant in a letter dated 10 February 2017 (as provided for at section 14(2) of the Act). However, that letter was not provided to this Office for the purposes of this review. Consequently, it is not entirely clear to me why the University decided to extend the deadline for processing the applicant's request. In its submission, the University stated that it had experienced "a substantially increased number of FOI requests", during that time. I would remind FOI bodies that while section 14(1)(b) provides for an extension based on "...the number of other FOI requests relating either to the record or records to which the specified request relates...", it does not provide for an extension on the basis that the FOI body is experiencing an increase in FOI requests generally. The University acknowledges that the decision on the internal review "issued two days after the deadline", and states that the delay in processing the applicant's request is regretted.

I would remind FOI bodies of the 'Freedom of Information Decision Makers Manual' published by the Central Policy Unit (CPU) at the Department of Finance, which is available at www.foi.gov.ie. The manual provides a step by step guide to processing an FOI request.

I consider that this review should now be brought to a close by the issue of a formal, binding decision. In conducting my review, I have had regard to the submissions of the University and the applicant, and to correspondence between the applicant, the University and this Office. I have also had regard to the content of the records at issue and to the provisions of the FOI Act.

Scope of Review

It is not clear from his submissions whether the applicant sought a review by this Office of the records withheld as exempt under section 31(1)(a) and 37. However, for the sake of completeness I have included those records in this decision.
Consequently, this review is concerned with whether the University was justified in deciding to refuse access to additional records on the basis that they are not held or cannot be found (section 15(1)(a)), and to the remaining records or parts of records, under sections 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

While section 18(1) of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed, this should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, the Commissioner 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, the Commissioner is not in favour of the cutting or "dissecting" of records to such an extent.

Analysis and Findings

Section 15(1)(a)
Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused if the record does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken. The role of this Office in cases such as this is to review the decision of the FOI 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 and I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records.

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 FOI body, on the basis of which the FOI body concluded that the steps taken to search for records were reasonable. Having regard to the information provided, this Office forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. The applicant believes that certain records associated with his request were not identified by the University. His views informed the necessary searches. However, it is not normally the function of this Office to search for records that a requester believes are in existence.

During the course of this review, an additional record was located by the University and is considered further in this decision. The record is identified as an email between a private individual and the University, dated 27 June 2016. In his submission, the applicant queried the existence of additional records on the basis that the University had not located that particular record which, at the time of his request, was less than a year old. In its submission, the University provided this Office with a copy of the record. It provided a detailed account of how the record had come to light. It stated that it had not been previously located due it being stored in an email account of a member of staff, who, at the time of the request, was acting in a temporary administrative capacity and was the recipient of emails that would otherwise have been stored in another account. The University apologised for the omission and stated that the delay in locating the record was an "honest oversight". It stated that searches for relevant records were conducted across the records of seven named individuals within the relevant Department. Further searches were conducted in email accounts and sub-folders, using a number of search filters. The University also stated that, as a rule, staff members regularly review their accounts and delete emails that would be considered as "routine/administrative in nature", or are deemed to be related to matters that are closed. The University stated that in keeping with its records retention policy, emails are "retain[ed] for the current year, or until they cease to be of administrative use". I have examined the University's Records Management and Retention Policy and it would appear that this is the "Default retention period" for "Routine administrative records, General correspondence including emails". The question of whether the records at issue could or should have been classified differently or retained is not a matter over which the Commissioner has jurisdiction.

The position of the University is that it has taken all reasonable steps to look for records of relevance to the applicant's request. I do not believe that the FOI Act requires me to direct the University to carry out indefinite new searches. In view of the information provided by it relating to the search undertaken, I consider that the University has taken all reasonable steps to ascertain the whereabouts of any further relevant records. I find, therefore, that section 15(1)(a) of the FOI Act applies.

Section 31(1)(a) - Record considered to attract legal professional privilege
The University refused access to information in record number 12 under section 31(1)(a) of the FOI Act.
Section 31(1)(a) of the FOI Act is a mandatory exemption applying to a record that would be exempt from production in proceedings in a court on the ground of legal professional privilege. It does not require the consideration of the public interest. Previous decisions from this Office have accepted that legal professional privilege enables the client to maintain the confidentiality of two types of communication:

• confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (legal advice privilege), and
• confidential communications made between the client and a professional legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is preparation for contemplated/pending litigation (litigation privilege).

The University claims that legal advice privilege applies to the record concerned. Having examined the record, I accept that the withheld information in the record comprises legal advice sought and received, from the University's professional legal adviser. Section 31(1)(a) is a mandatory provision and accordingly, I uphold the University's refusal of the information in the record concerned under section 31(1)(a) of the FOI Act.

Section 37 - Personal Information
Section 37(1) of the FOI Act provides that access to a record shall be refused if access would involve the disclosure of personal information. Section 2 of the FOI Act defines "personal information" as 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 the body as confidential. Section 2 goes on to list fourteen categories of personal information including the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual.

The University withheld information in records 1-4, in full and in part, under section 37(1) of the Act, on the basis they contained the personal information of identifiable individuals other than the applicant. As mentioned above, during the course of the review, the University identified an additional record (an email dated 27 June 2016) which it confirmed came within the scope of the applicant's request. The University applied the exemption at section 37 of the FOI Act to the record.

It is clear from my examination of the records that release of the withheld information would disclose the personal information of identifiable individuals other than the applicant. I am satisfied that the withheld information in all of the records at issue is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the FOI Act applies to those records.

The effect of section 37(1) applying is that a record disclosing personal information relating to a third party or third parties cannot be released to another person, unless one of the other relevant provisions of section 37 applies, which I will deal with below.

Section 37(2)
Section 37(2) of the FOI Act provides for a number of circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of the circumstances identified at section 37(2)(a), (b), (c), (d), or (e) arise in this case. In particular, I do not consider that it is appropriate to seek the consent of the individuals concerned to release of their information in circumstances where the applicant has not provided this and where release under FOI is considered to be equivalent to release to the world at large. Consequently, I find that section 37(2) does not apply to the details at issue.

Section 37(5) - the Public Interest
Section 37(5) of the FOI Act 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 satisfied that the release of the information at issue would not be to the benefit of any of the individuals concerned and that section 37(5)(b) does not apply.

In relation to paragraph (a), I must consider whether the public interest in granting the request outweighs, on balance, the public interest in protecting the right of privacy of the individuals to whom the information relates.

Section 37(5)(a) provides for access to the personal information of a third party where the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates. In relation to the issue of 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.

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.

Having regard to the above, on balance, I find that the right to privacy of the individuals whose personal information is in the records outweighs the public interest in granting the applicant's request.

I am satisfied that all of the withheld information is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the withheld information in the records.

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby affirm the decision of the University to refuse access to further records under section 15(1)(a) of the Act on the ground that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken. I affirm its decision to refuse access to record 12 under section 31(1)(a) of the FOI Act on the basis of legal professional privilege. I affirm its decision to refuse access to records 1-4, in full or in part, on the basis of section 37(1) of the FOI Act, since the withheld information contains the personal information of individuals other than the applicant.

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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Elizabeth Dolan
Senior Investigator