Whether NUIG was justified in refusing to grant access to records between NUIG and Galway University Foundation (the Foundation) from 2010 to 2015 on the basis of sections 35, 36 and 37 of the FOI Act 

 23 April 2018 

Background

The journalist who submitted the original FOI request to NUIG in this case subsequently gave written permission for her colleague to take over her request. On 5 January 2017 the requester sought access to records between NUIG and the Foundation from 2010 to 2016. She indicated that she would be willing to amend her request if required. On 19 January 2017, NUIG informed the requester that the level of retrieval and examination of records required to process the request would cause a substantial disruption to the work of a number of units in NUIG. It indicated that her request would fall to be refused under section 15(1)(c) and/or under section 27(12) on the ground that the search and retrieval charges would exceed the prescribed overall ceiling limit. It offered the requester an opportunity to reduce the scope of her request so that it would not fall to be refused under section 15(1)(c) or section 27(12).

On 26 January 2017, the requester refined her request to records between the Foundation and four separate offices in NUIG: the office of the President; the office of the Vice President for capital projects; the Bursar's office; and the office of the Secretary. On 9 February 2017, NUIG stated that this would still involve the retrieval and examination of a large number of records. On 13 February the applicant restricted her request to records between the Foundation and the offices of the President and Vice President of capital projects, from 2010 to 2015.

On 14 March 2017, NUIG informed the requester that it would require an extension of one and a half weeks to the statutory deadline to issue a decision on her request and that a decision would issue by 22 March 2017. On 29 May 2017, the requester sought an internal review of the deemed refusal of her request as she had not, at that stage, received a decision on the refined request. 

NUIG issued an internal review decision on 21 June 2017, wherein it decided to part grant the request. It identified and considered a number of records as follows:

• President's Office (PO) - 32 records including 26 Foundation records/minutes
• Vice-President's Office (VPO) - 12 records

It released two of the PO records in full and refused access to the remainder. It granted access to the VPO records in part.

NUIG relied on sections 35(1)(a) and 35(1)(b) (confidential information) and 36(1)(b) (commercially sensitive information) in support of its refusal to grant access to the records withheld in full or in part. On 30 June 2017, the applicant sought a review by this Office of NUIG's decision. 

During the course of this review, NUIG indicated that it would be willing to release VPO Record 11 in full and the information that was redacted from the paragraph numbered 3 in VPO Record 12. However, it remained of the view that it was justified in refusing to grant access to the remaining information in the records concerned under the FOI Act. In addition, it cited section 37 (personal information) in respect of certain information redacted from VPO Record 1. 

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, and to the contents of the records at issue.

Scope of Review

This review is solely concerned with whether NUIG was justified in its decision to refuse to grant access in full to VPO Records 1-10 and 12, PO Records 2, 3, 5 and 6, and to the minutes of the Foundation Board, under sections 35, 36 and 37 of the FOI Act. 

Preliminary Matters

In his application for review of NUIG's decision, the applicant referred to his correspondence with this Office in relation to a decision of the Foundation to refuse a separate FOI request on the ground that it is not an FOI body for the purposes of the FOI Act. I note that this Office has since notified the applicant of its finding that the Foundation is not a public body for FOI purposes.

It is also important to note that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

Analysis and Findings

Foundation Board Minutes
NUIG listed 26 records in the document schedule relating to the President's Office as the minutes/records of the Foundation Board. It refused access to these records under sections 35(1)(a) and (b) and 36(1)(b) of the FOI Act. In correspondence with this Office, NUIG essentially stated that these minutes are not NUIG records and are held by the President in his position as a member of the Board. 

Section 11 of the Act provides for a right of access to any record "held" by an FOI body. The FOI Act does not define "held". However, section 2(5) states that an a reference to records held by an FOI body includes a reference to records under the control of that body. In considering the matter of control, I believe that it is necessary to have regard to the relationship between the parties, to any agreement between them concerning the records and to any legal rights which a party seeking to assert control over the records might have. 

NUIG stated that the minutes are held in the President's Office and in the Registrar's Office for filing purposes only, insofar as the President and the Registrar are directors of the Foundation. It stated that the records are marked as confidential and were provided to the directors as individuals and not to the University as a body. It also stated that the only other staff members who may have had access to the records were the President's and Registrar's assistants, and that this was strictly for administrative purposes. It further stated that both offices have their own IT drives and filing systems and that only relevant members of staff of those offices can access records. Its position is that NUIG does not exercise any control over these records.

I am satisfied that the fact that the records at issue are held on the premises of NUIG does not mean that they are held by NUIG for the purposes of the FOI Act. A similar argument was rejected by the High Court in The Minister for Health and the Information Commissioner[2014]IEHC 231. In that case the High Court found that certain records in the possession of the Department of Health were not held by or under its control for the purposes of the Act. O'Neill J. stated as follows:

"I am satisfied that to hold that mere lawful possession of a document was sufficient to make that document amenable to disclosure under the 1997 Act, on the basis that the document was "held" by the public body within the meaning of s. 6(1) would give rise to absurd and wholly unintended consequences, albeit in rare circumstances."

On the question of whether the records could be deemed to be under the control of NUIG, the applicant noted that the main objective of the Foundation, as set out in its Memorandum of Association, is to engage in fund raising activities for the purposes of the furtherance of education and research carried out by NUIG in its pursuit of education, teaching and research. He argued that NUIG enjoys control over the overwhelming majority of resources available to the Foundation. 

NUIG stated that it wished to refute the applicant's claim that it controlled the Foundation. It said that it does not "fund, own the shares, have a majority on the board..., or have a day to day role in the running of what is an independent legal entity company", that only two of the Foundation's directors are employed by NUIG, and that under company law each director was responsible to the company, not to the University. It argued that NUIG "clearly does not have an indirect control of the company nor does it have the power to direct the affairs of the Foundation or to direct the Foundation to take any particular decision". In this regard, it stated that the Foundation was self-funded and was not in receipt of any tax-payer funding. It also stated that the Foundation is audited independently by a different auditing firm to NUIG, sets its own budgets and financial affairs and has its own staff. 

The Foundation is an independent charity whose purpose is to generate financial support for NUIG's programmes and activities. As such, it is a matter for the Foundation to allocate funding to NUIG activities and projects. However the fact that NUIG may be the sole beneficiary of such funding does not mean that it has the power to assert control over the Foundation either directly or indirectly. I am satisfied that NUIG does not have strategic control of the Foundation and that the Foundation does not receive funding from the University and or the State for its fund-raising activities.  Furthermore, I am satisfied that the fact that the building occupied by the Foundation is supplied rent-free by NUIG does not affect the question of control in this case.

I note the applicant's argument that the judgment of the High Court in  Westwood Club v Information Commissioner & anor [2014] IEHC 375 may be relevant. I am satisfied that the facts in that case are entirely different. The public body was a 100% shareholder of the company concerned and had provided a loan in excess of €10 million to the company. 

The applicant also made a number of arguments as to why he considers that the Foundation's records should be open to scrutiny under the FOI Act. However, my role in this case is limited to determining whether a potential right of access exists by virtue of the records being held by or under the control of NUIG. I am satisfied that they are not. I consider that the minutes of the Foundation in this case are held by the President in his position as a director of the Foundation, and they are not under the control of NUIG. I find, therefore, that NUIG was justified in refusing access to the Foundation Board Minutes on the ground that they do not hold the records sought.

Remaining Records
NUIG refused to grant access in full or in part to the remaining records in this case on the basis of a combination of exemptions as set out in sections 35(1)(a), 35(1)(b), 36(1)(b) and 37(1). In some cases it relied on more than one exemption in relation to its decision to refuse access to certain records. I deem section 35(1) of the FOI Act to be of most relevance in this case, so I will initially consider the records concerned under this exemption.

Section 35(1)
Section 35(1)(a) provides for the refusal of a request where the record sought contains information given to an FOI body in confidence and on the understanding that it would be treated by it as confidential and where the body considers that its disclosure would be likely to prejudice the giving to the body of further similar information from the same person or other persons and it is of importance to the body that such further similar information should be given to it.

Section 35(1)(b) provides that a request shall be refused where disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment or otherwise by law. 

Section 35(2) provides that section 35(1) shall not apply to a record prepared by a member of staff of an FOI body unless disclosure of the information concerned would constitute a breach of a duty of confidence that is provided for by an agreement or statute or otherwise by law and is owed to a person other than an FOI body or a member of its staff

NUIG redacted certain information from VPO records 4 to 10 and 12 and PO records 2, 3, 5 and 6 under section 35(1) of the Act. The VPO records were prepared by NUIG, as were PO records 2 and 6. PO records 3 and 5 were prepared by the Foundation. Section 35(1) cannot apply to the records prepared by NUIG unless disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than NUIG or its staff. 

The information redacted from the VPO records under section 35(1) comprises the identities of certain funders, certain amounts committed to, or available or required for, NUIG projects, and certain information relating to a conciliation agreement. PO record 2 is a report prepared by NUIG containing details of projects funded by the Foundation. PO record 3 is a Foundation income report. PO record 5 is a report to the Foundation Board. PO record 6 is a letter from NUIG to the Foundation requesting certain payments.

A duty of confidence provided for "otherwise by law" is generally accepted to include a duty of confidence arising in equity. In the Supreme Court decision in the case of Mahon v Post Publications Ltd[2007] IESC 15, [2007] 3 IR 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd. [1969] R.P.C. 41, at 47:

"[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it." 

VPO Records 5, 9 and 10 contain a reference to a contractual dispute between NUIG and a third party, which was resolved by way of a conciliation agreement. NUIG stated that a duty of confidence was owed to the third party arising from the agreement. I have examined the settlement agreement in question as well as the public works contract signed by the parties. The contract provides that the details of any conciliation arising from a dispute between the parties shall be confidential. Having carefully considered the provisions of the agreement in question, I am satisfied that the disclosure of the details withheld from the records at issue would constitute a breach of a duty of confidence provided for by a provision of the mediated agreement. 

In relation to the remaining information, NUIG argued that the information in the records concerned was provided by the Foundation in confidence, on the basis that it would remain confidential. It stated that the Foundation's ability to raise philanthropic funding is a key reason why the Foundation would limit the funding information provided to the University in the future. It stated that funding raised by the Foundation is from private individuals who prefer to remain confidential and who chose to donate their private funding to the Foundation and not NUIG. It argued that if confidentiality is not assured (unless otherwise agreed) then funding will suffer and the University and the tax payer will be at a loss of this funding.

It is important to note that NUIG is the body that is subject to FOI and not the Foundation. It seems to me that the applicant's arguments that the release of the information at issue would not inhibit the future supply of information are based primarily on his arguments as to the nature of the relationship between NUIG and the Foundation and as to the question of NUIG exercising some form of control over the Foundation. As I have explained above, I do not accept that NUIG exercised control, either directly or indirectly, over the Foundation.

The applicant also argued that the Foundation has published significant amounts of information online and that this undermines any argument that the information at issue is confidential. However, it is entirely a matter for the Foundation to decide what information about its funding activities it chooses to publish. This does not mean that it cannot reasonably expect NUIG to treat the information it provides as confidential. 

Having regard to the nature of the relationship that exists between the two bodies, I accept that the release of the information at issue would involve a breach of an equitable duty of confidence owed to the Foundation. Accordingly I find that NUIG was justified in refusing access to the information sought under section 35(1)(b).

Section 37(1)
NUIG refused to grant access to information in VPO records 1 to 3 relating to named sites which had been considered for purchase by NUIG. The name of sites' owners were withheld from release on the basis of section 36. NUIG also indicated that section 37 (Personal information) might apply. It seems to me that that the individuals' names, in the context of a discussion of their land, would come under definition of personal information in section 2 of the Act which includes "information about an identifiable individual" that... would, "in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual" and at (xiii), "information relating to property of the individual (including the nature of the individual's title to any property)". 

I therefore find that section 37(1) of the FOI Act applies to this information. This finding is subject to the provisions of sections 37(2) and 37(5). In my view, the only provision of relevance is section 37(5)(a), which 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.

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. 

In the circumstances of this case, where the sites in question were not purchased by NUIG and where the use of public funds was not involved, I am satisfied that, on balance, the public interest in releasing the information at issue does not outweigh the public interest that the Constitutional right to privacy of the individuals concerned should be upheld. I therefore find that section 37(5)(a) does not apply in the circumstances. 

I find, therefore, that NUIG was justified in refusing access to the information redacted from VPO records 1, 2 and 3 under section 37(1) of the FOI Act. 

In conclusion, therefore I find that NUIG was justified in its decision to withhold, in full or in part, the records at issue under sections 35(1) and 37(1) of the FOI Act. As such, I do not need to consider the applicability of section 36 to 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 NUIG to refuse to grant access to the records at issue, in full or in part on the basis of sections 35 and 37 of the FOI Act. I also affirm NUIG's decision to refuse to grant access to minutes of the Foundation on the basis of section 2(5)(a) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal.

Stephen Rafferty
Senior Investigator