Whether UCC was justified in refusing access to records to relating to the establishment, funding, administration and performance of a certain facility on the basis of sections 15(1)(a), 31(1)(a), 35(1)(b), 37(1), and section 40(1)(a) of the FOI Act

26/04/2018

Background

In a request dated 5 January 2017, RTÉ sought access to (1) all costs associated with a certain facility and (2) records relating to the establishment, funding, administration and performance of the facility.  In decisions notified outside of the statutory period on 1 June 2017 and 3 July 2017, respectively, UCC provided information on the costs expended through the facility's cost code for the period October 2014 (when the cost code was created) to April 2017, which totalled €215,125.06.  However, it identified only one record as relevant to the second part of the request:  an agreement between UCC and a named professor.  UCC refused access to the agreement under section 35(1)(b) of the FOI Act on the basis of its claim that the document is subject to a strict confidentiality agreement.  On 12 July 2017, the applicant applied to this Office for a review of UCC's decision.

I have now completed my review in accordance with section 22(2) of the FOI Act.  In carrying out my review, I have had regard to the submissions made by the applicant, UCC, and the professor, who was notified of the review as the affected third party in this case.  I have also examined the contents of the records concerned.  I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

In his application for review, the applicant challenged UCC's decision to refuse access to the agreement with the professor, but he also provided reasons for believing that additional records relevant to his request should exist.  As discussed below, during the course of this review, UCC located additional records and agreed to release many, but not all, of these in full or in part.  The records to which access has been granted do not form part of this review.  Accordingly, this review is concerned with the question of whether UCC was justified in refusing access to the agreement with the professor and the other relevant records that it holds relating to the establishment, etc. of the facility.

Preliminary Matters

Before setting out my findings, I should point out that, while I am obliged to give reasons for my decision, section 25(3) requires that I take all reasonable precautions to prevent the disclosure of information contained in an exempt record or matter that, if it were included in a record, would cause the record to be exempt.  This constraint means that the extent to which I can describe the contents of the records is limited.  

However, I also wish to highlight the provisions of section 11(3) of the FOI Act.  As an FOI body, UCC, like any other FOI body, is expressly required by section 11(3) of the FOI Act to have regard to the following in performing any function under the Act -

(a) the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principle of transparency in government and public affairs,

(b) the need to strengthen the accountability and improve the quality of decision-making of FOI bodies, and

(c) the need to inform scrutiny, discussion, comment and review by the public of the activities of FOI bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies.

This Office considers that section 11(3) is particularly relevant to the consideration of the public interest.  I will return to this point below.

Analysis and Findings

Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant access to a record "shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified."  It should also be noted that a review by this Office under section 22 of the FOI Act is de novo in that it is based on the circumstances and the law as they apply on the date of the decision.

Section 15(1)(a)
Section 15(1)(a) provides that access to a record may be refused if the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken.  In this case, the applicant referred to the history of the agreement, the requirement to receive approval from the Higher Education Authority (HEA), and communications with the Department of Education, the Public Accounts Committee (PAC) and others about the matter.  In the circumstances, he did not consider it credible that the agreement was the only record held by UCC that was relevant to his request.  UCC was therefore asked to detail the steps taken to search for relevant records. 

In response, UCC indicated that it had misinterpreted the request.  Following a fresh search for records, it identified a total of 37 records as relevant to the request, including the agreement with the professor.  UCC decided to grant access to 23 records in full or in part, but it invoked various exemptions in relation to the other records concerned. 

In effect, however, UCC had refused access to the records concerned, apart from the agreement with the professor, on the basis of section 15(1)(a) of the FOI Act.  In the circumstances, it has been established that UCC had not taken all reasonable steps to ascertain the whereabouts of all records captured by the scope of the request in this case.  I therefore consider that this aspect of UCC's decision should be annulled and that UCC should consider the request afresh and make a new, first instance decision in accordance with the provisions of the FOI Act.  The applicant will have a right to an internal review and a review by this Office if he is not satisfied with UCC's decision.

The agreement
I do not believe that I would be revealing exempt information in violation of section 25(3) of the Act by noting the agreement at issue was reached with the assistance of a mediator for the purpose of settling certain long running disputes between UCC and the professor.  In his application for review, a copy of which was made available to UCC, the applicant referred to information about the agreement that is publicly available as a result of records released by the HEA, reporting by the Irish Examiner newspaper, hearings before the PAC, and a Parliamentary Question.  In addition, the professor, in his submission to this Office, made reference to a broadcast programme by RTÉ discussing the matter. 

As noted above, UCC initially refused access to the agreement under section 35(1)(b) of the FOI Act on the basis of its claim that the document is subject to a strict confidentiality agreement.  During the course of the review, UCC raised additional claims for exemption, namely, section 31(1)(a), section 37(1), and section 40(1)(a) of the FOI Act. 

Section 31(1)(a)
Section 31(1)(a) is a mandatory exemption which protects records that would be exempt from production in proceedings in a court on the ground of legal professional privilege. 

Legal professional privilege enables a client to maintain the confidentiality of two types of communication:

(a) confidential communications made between the client and his/her professional legal adviser for the purpose of obtaining and/or giving legal advice (advice privilege); and
(b) confidential communications made between the client and a professional legal adviser or the professional legal adviser 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).

Unlike several other of the exemptions in the FOI Act, the provision at section 31(1)(a) does not provide for the setting aside of that exemption where to do so would serve the public interest.

In its submissions, UCC argues that section 31(1)(a) applies to correspondence with its legal advisers for the purpose of seeking or giving legal advice and communications created in the context of legal proceedings.  However, the agreement, which I accept was prepared with the assistance of legal advisers and the mediator, is not a confidential communication between UCC and its legal advisors; neither does it comprise legal advice.  On the contrary, it is self evident that the agreement was signed by the opposing parties to the disputes concerned and that its contents were known and agreed to by both parties.  Accordingly, I find that section 31(1)(a) does not apply.

Section 35(1)(b)
Section 35(1)(b) is a mandatory exemption that applies 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 (other than a provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified in that Schedule) or otherwise by law".  Under section 35(2), however, the confidentiality exemption does not apply to a record prepared by a staff member of an FOI body or a service provider "in the course of the performance of his or her functions 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 head or a director, or member of the staff of, an FOI body or of such a service provider". 

In this case, I accept that the agreement includes a confidentiality clause that provides that the parties shall, in essence, keep the terms of the settlement confidential apart from the wording set out in the Third Schedule.  However, the Third Schedule refers to the fact that it had been agreed that the professor would become the Head of the new facility.  Moreover, as indicated by the applicant in his application for review and also at least implicitly acknowledged by the professor in his submission to this Office, ample information about the establishment, etc. of the facility as a result of the agreement is already in the public domain.  Indeed, given the public money and public assets involved, it is not surprising that the matter has been the subject of such public scrutiny.  In the circumstances, I am not satisfied that the parts of the agreement relating to the facility have the necessary quality of confidence for the purposes of section 35(1)(b) of the FOI Act.

I further note that the agreement was prepared by the parties to the disputes concerned with the assistance of their external legal advisors and the mediator.  UCC argues that it was prepared by its external legal advisers and the mediator, but it is an agreement between UCC and the professor that was signed by these parties.  At the time, the professor was a member of staff of UCC.  I note that the settlement of disputes would not normally be considered to be a matter carried out in the course of the performance of a staff member's functions (see, e.g., Case 000528 (Sunday Times and The North Eastern Health Board), available at www.oic.ie).  However, again, in light of what is already in the public domain, I do not believe that I would be revealing exempt information in violation of section 25(3) of the Act by observing that this agreement was unusual in that, as indicated by the Third Schedule, it settled the disputes in large part by providing for new terms of employment or service for the professor in relation to the facility that was established on foot of the agreement.  Thus, in preparing the agreement for his new role as Head of the facility to be established, I consider that the professor was operating in the course of the performance of his functions as a UCC staff member, though the terms of his future employment or service were being placed on a contract basis.  In the circumstances, I find that section 35(2) would operate to disapply section 35(1) insofar as it relates to the establishment, funding, administration and performance of the facility, including the terms of the professor's employment or service in relation to the facility.  For the sake of clarity, I note that section 35(2) would also operate to disapply section 35(1) insofar as the agreement is regarded as having been prepared by the UCC's external legal advisers, as such legal advisers qualify as service providers within the meaning of the Act.

However, the agreement contains other provisions relating to the settlement of the disputes that do not directly concern the establishment, etc. of the facility.  Arguably, these provisions do not fall within the scope of the request and thus this review in the first instance.  In any event, I accept that these provisions are of a private nature and that disclosure would constitute a breach of the duty of confidence provided for by the confidentiality clause.

Section 35(1)(b) is not subject to the general public interest balancing test under section 35(3), but as noted in previous cases, a duty of confidence may still be subject to public interest considerations.  I must also have regard to the general principle of transparency and accountability which is reflected in section 11(3) of the FOI Act insofar as it relates to the actions of UCC.  On the other hand, it has also been acknowledged in previous cases (e.g., Case 140108 (Ms. X & The Department of the Environment, Community and Local Government), available at ww.oic.ie), that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public.  Moreover, it has also been recognised by the Irish courts that there is a public policy of encouraging parties insofar as possible to settle their disputes without recourse to costly litigation.  As noted in Case 130017 (Mr. X and the Department of Expenditure and Reform), also available at www.oic.ie, FOI is not intended to undermine the public interest in the settlement of disputes.  In the circumstances, I am satisfied that section 35(1)(b) applies to the following provisions:  the Recitals, paragraphs 2.1 - 2.4, 2.8 - 2.12, 2.14 - 2.17, and the Second Schedule.

Section 37(1)
Section 37(1) is a mandatory exemption that applies where the grant of a request would involve the disclosure of personal information (including personal information relating to a deceased individual).  The exemption is subject to a public interest test under section 37(5)(a) of the Act.  Personal information is defined in section 2 of the FOI Act as information about an identifiable individual that (a) would, in the ordinary course of events, be known only to the individual or their 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 which are included in the definition without prejudice to the generality of the forgoing definition, including "(iii) information relating to the employment or employment history of the individual".

I further note, however, that section 2 excludes certain information from the definition of personal information.  The exclusions specify that the definition of personal information does not include:

 
 "(I) in a case where the individual holds or held (A) office as a director of, (B) a position as a member of the staff of, or (C) any other office, or any other position, remunerated from public funds in, an FOI body, the name of the individual or information relating to the office or position or its functions or the terms upon and subject to which the individual holds or held that office, or occupies or occupied that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid,
 
 (II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, or
 
 (III) the views or opinions of the individual in relation to an FOI body, the staff of an FOI body or the business or the performance of the functions of an FOI body".
 
  
The exclusions to the definition of personal information are intended, in essence, to ensure that section 37 will not be used to exempt the mere identity of a public servant or service provider, the terms of employment or service, or information about the work performed in the course of his or her official functions or service provision.  However, the exclusions to the definition of personal information do not deprive public servants or service providers of the right to privacy generally.

In this case, I have already found that the "private" aspects of the agreement relating to the disputes and the settlement are exempt under section 35(1)(b) of the Act.  The remaining parts of the agreement relate to the establishment, funding, administration and performance of the facility, including the professor's terms of employment or service in relation to the facility.  I find that these parts of the agreement fall within the second exclusion to the definition of personal information and that section 37(1) therefore does not apply.  Alternatively, even assuming that the parts of the agreement concerned include personal information within the meaning of the Act, I consider that any violation of the professor's right to privacy would be minimal given the information about the facility and his appointment as its Head that is already in the public domain.  On the other hand, there is a strong public interest in openness and transparency in relation to the funding, administration and performance of the facility.  As noted, I am also mindful of the general principle of transparency and accountability which is reflected in section 11(3) of the FOI Act insofar as it relates to the actions of UCC.  In the circumstances, even if I were to accept that the remaining parts of the agreement qualify for exemption under section 37(1) of the Act, I would find that these parts of the records should on balance be released in the public interest under section 37(5)(a) of the Act.

Section 40(1)(a)
Section 40(1)(a) states that a "head may refuse to grant a request under section 7 in relation to a record (and, in particular, but without prejudice to the generality otherwise of this subsection, to a record to which subsection (2) applies) if, in the opinion of the head access to the record could reasonably be expected to have a serious adverse effect on the financial interests of the State or on the ability of the Government to manage the national economy".  Subsection (1) does not apply, however, if the public interest would, on balance, be better served by granting rather than by refusing the request (section 40(3) refers).

UCC and the professor have both suggested that disclosure of the agreement would result in the reopening of litigation which was, prior to being settled, ongoing for many years and that this would have an adverse effect on the financial interests of the State.  However, as indicated above, ample information about the establishment, etc. of the facility is already in the public domain.  Indeed, it seems unlikely that, in the era of FOI, UCC and the professor could have reasonably expected that the terms relating to the establishment of a publicly funded facility would remain cloaked in secrecy.  (See, e.g., Case 080232 (Mr Colin Coyle, Sunday Times & Dublin City Council), recognising that there is a need for transparency and accountability in the sale or use of public property and public assets whether or not expenditure or revenue is involved).  In the circumstances, I am not satisfied that disclosure of the parts of the agreement relating to the establishment, funding, administration and performance of the facility, including the professor's terms of employment or service in relation to the facility, could reasonably be expected to have a serious, adverse effect on the financial interests of the State, as claimed.  I also consider that there is a very strong public interest in disclosure of these parts of the agreements.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby vary the decision of UCC in this case as follows:

• I affirm its decision to refuse access to the following parts of the agreement with the professor under section 35(1)(b):  the Recitals, paragraphs 2.1 - 2.4, 2.8 - 2.12, 2.14 - 2.17, and the Second Schedule;
• I annul its decision with respect to the remaining parts of the agreement and direct that access be granted accordingly;
• I annul its effective decision to refuse access to other records relevant to the applicant's request under section 15(1)(a) of the Act and, subject to the applicant confirming that he wishes to pursue this aspect of his request, direct it to conduct a fresh decision-making process in respect of any additional records that it may hold relating to the establishment, funding, administration and performance of the facility. 

I specify that, subject to sections 24 and 26 of the FOI Act, effect shall be given by UCC 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