Whether KWETB was justified in its decision to refuse access in full and in part to certain records relating to KWETB and schools and colleges under its patronage under sections 29(1)(a), 35(1)(a) and 37(1) of the FOI Act

23 August 2018 

Background

On 13 October 2017, the applicant made a request to KWETB for access to 

1. All correspondence, and all records of other communications, including minutes or notes of meetings, in relation to Community Colleges and Community National Schools between Kildare and Wicklow ETB and representatives of the Roman Catholic Church, including Diocesan Advisors since 1 July 2013
2. Those parts of minutes of Kildare and Wicklow ETB meetings that refer to Religious Education, Religious Education Policy, Ethos, Characteristic spirit, Hiring of Religion teachers and arrangements for opting out of religion in Community Colleges and Community National Schools since 1 July 2013
3. All correspondence, and all records of other communications, including minutes or notes of meetings, between Community Colleges and Community National Schools of Kildare and Wicklow ETB and representatives of the Roman Catholic Church, including Diocesan Advisors since 1 July 2013
4. Those parts of all correspondence, and all records of other communication, including minutes or notes of meetings, and including meetings of School Principals, between Kildare and Wicklow ETB and any of its Community Colleges and Community National Schools, since 1 July 2013, in relation to:
(a) The ethos and characteristic spirit of the school(s)
(b) The Religious Education policy of the school(s)
(c) The hiring of Religion teachers and the Selection Panel
(d) The hiring and payment of Chaplains

In its original decision, issued on 14 December 2017, KWETB granted access in part to a number of records and refused access in full and in part to others on the basis of sections 15(1)(d), 29(1)(a) and 35(1)(a) of the FOI Act. Following a request for an internal review, KWETB released records it had originally refused under section 15(1)(d) and affirmed its decision on other records on the basis of sections 29 and 35 of the Act. On 12 March 2018, this Office accepted an application for review from the applicant.

I am disappointed with the decision making process of KWETB in this case. Neither the original decision nor the internal review decision provided sufficient detail to the applicant. Although the schedule supplied was of some help, it too caused confusion as regards which parts were released and which withheld.

Section 13 of the FOI Act provides that where a body decides to refuse a request, it must notify the requester of the reasons for the refusal, the provisions of the Act under which the request has been refused and the findings on any material issues relevant to the decision and particulars of any matter relating to the public interest taken into consideration for the purposes of the decision (section 13(2) refers). 

During the review KWETB informed the investigator that it was also relying on section 37(1) of the Act to withhold access to a small number of records. It also stated that it now considered the majority of records included in its decision to be outside the scope of the original 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 submissions received from KWETB and the applicant and to correspondence between the applicant, KWETB 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

This review is concerned with whether KWETB was justified in deciding to refuse access, in full and in part, to certain records on the basis of sections 29(1)(a), 35(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

In her submission, the applicant explained why she wanted access to the records. Section 13(4) of the Act requires that, subject to the Act, any reasons a requester gives for making a request shall be disregarded. This means that the applicant's motivation cannot be considered except insofar as this might be relevant to the consideration of public interest provisions.  

In addition, I would note here that reviews carried out by this Office are de novo reviews, which means that the Commissioner considers all of the circumstances and information which exist on the date of a decision. I stress that the findings which follow concern the applicant's right to access records under the FOI Act and do not extend to other matters related to issues concerning the applicant.

Findings

Withheld Information - Outside scope of request and review
During the review, KWETB stated that having undertaken a complete review of the records it was of the opinion that most of them are not within the scope of the original FOI request. KWETB said that, consequently, those records should not have been included in the decision schedule which issued to the applicant.

The records considered by KWETB to be outside the scope of the request are nos. 1, 2, 4, 5-11 inclusive, 14, 15, 17, 54-74 inclusive, 76, 77, 80, 82, 83, 85, 87 & 92-94 inclusive. A smaller number of other records were withheld in part on the basis that the withheld information is outside the scope of the request. I will deal with those records further on in this section.

This Office informed the applicant of the position of KWETB on the scope issue and invited her to make a further submission on the matter. The applicant was advised that a number of the records refer to meetings, correspondence and publications of other agencies which are not related to the subject matter of the original request. 

The question I must address is whether any or all of the records identified above could reasonably be included in the applicant's request as worded and made to KWETB. Although I am obliged to give reasons for my decision, section 25(3) of the FOI Act requires me to take all reasonable precautions in the course of a review to prevent disclosure of information contained in an exempt record. This means that the extent to which I can describe the contents of the records is limited. In her submission, the applicant referred in particular to part 4 of her request and stated that one of her intentions in making her FOI request was to get access to records associated with "... the 'Characteristic spirit' of schools under the management, control and patronage of KWETB". She said that the request for records to include minutes and meetings etc. did not mean that the request was limited to those types of records. She argued that records of meetings of other agencies are part of the request because they relate to the implementation of the Characteristic Spirit of the KWETB/CNS. The applicant also said she should have access to all the records previously identified by KWETB because of what she understands to be the relationship between the matter of ' Characteristic Spirit' and those records. 

The KWETB explained to this Office that it wanted to ensure that the applicant-™s request was dealt with as quickly as possible. It said that as a consequence, it applied exemptions to many records in its decision schedule that should otherwise not have been included. KWETB acknowledged that with hindsight it should have been more careful to include only those records which it regarded as covered by the request. It is clear to me that the applicant was seeking to ensure that a wide range of relevant records were included in her request. I note that early in the decision process, KWETB offered the applicant an opportunity to explain a certain aspect of the scope of her request. It is unfortunate that at that time KWETB did not clarify those other aspects of the request as it now understands them. 

Additional records and withheld information outside scope
In addition to those records identified by the KWETB, I have considered whether a number of other records, either in full or in part, are within scope of the request. Those additional records are nos. 12, 13, 16, 25-30 inclusive, 75, 84, 95 and 96.

Records 12, 13, 16, 25-30 are described in the KWETB's schedule as 'Released'. As stated above, the applicant's request was for access to "Those parts of..." correspondence, minutes and meetings. While the description of the status of these records is 'released', it is clear that substantial parts of them are redacted, and access is in fact granted only in part. 

KWETB stated that it considered records 75 and 84 to be outside the scope of the request as the information in the records is not related to the applicant's request and that the withheld information in the records 12, 13, 16 and 25-30 is refused on the basis that it is not within the scope of the request. 

The applicant's original request is clearly concerned with records relating to correspondence between KWETB and the colleges under its patronage. It is also clear that this is how KWETB eventually understood the scope of her request and that it was on this basis that it made its decision. KWETB referred to this in a letter of 31 October 2017 to the applicant, in which it acknowledged the applicant-™s request "for the 23 schools under the management of Kildare and Wicklow ETB...", and the applicant refers to this in a submission. The applicant said that she was not aware of the existence of other agencies and that as a result, she could not seek access to records created by those agencies.  

Having considered the submissions of the applicant and KWETB and having carefully examined the records, I take the view that the applicant-™s request as worded is confined to information in records held by KWETB concerning the Community Colleges and Community National schools which come under its patronage. I am satisfied that the withheld information in all the records listed above concern various other matters and other agencies which were not specified in the request. I am also satisfied that KWETB has released all information within the scope of the request from those records. 

I appreciate that the applicant did not intend to limit her request in the way that she has done and that she could not have foreseen the consequences of the specific wording that she used in relation to named bodies. However, my remit is confined to reviewing the decision on the records identified as falling within the FOI request originally made. It is, of course, open to the applicant to submit a new request to KWETB or other FOI body to seek access to any further records held.

Summary
I accept that the following records in full or in part fall outside of the request made and I will not consider them further. The records in full are nos. 1, 2, 4, 5-11 inclusive; 14, 15, 17, 54-77 inclusive; 80, 82-85 inclusive; and 87 & 92-96 inclusive. The records in part are nos. 12, 13, 16, 25-30 inclusive.

In a submission KWETB also argued that records 89 and 90 are outside the scope of the request. However, I do not accept that argument based on their content and I will consider those records under section 29 below.

Are further records held?
In her internal review request, the applicant referred to the decision of KWETB to refuse access to certain other records. For example, the decision schedule lists "no response" against a number of schools which KWETB says are under its management but which do not hold any records relevant to the applicant's request. The applicant did not raise the matter in her initial application to this Office. However, during the review she forwarded a letter in support of a query about whether further records might be held.

Section 15(1)(a) of the FOI Act allows a public body to refuse a request on the basis that it has taken all reasonable steps to locate all records within the scope of a request or that the requested records do not exist. In reviewing any such decisions, it is not normally the function of this Office to search for records.

In its submission, KWETB said that for completeness, all schools under its management were listed in the schedule. It said that each school was required to sign a declaration form confirming that searches were made. It said that schools listed in the schedule against which "no records" is recorded, did not hold any records which came within the scope of the request and accordingly, should not have had record numbers associated with them. 

In her most recent letter to this Office the applicant referred to a letter, dated February 2017, which referred to the "engagement" of a person who the applicant alleges was at that time the Education Officer at KWETB. She queried why there were "no records of an employee of KWETB", concerning the subject matter of the original request. In response, KWETB stated that the person to whom the applicant referred was not in the employ of KWETB at the time the letter of February 2017 was written. KWETB said that at that time the person was employed at Dublin-Dún Laoghaire Education and Training Board and in May 2018 was appointed as the Chief Executive of KWETB.

I do not consider that this Office has any basis on which to find that KWETB holds further records covered by the request as made which it has withheld. Similar to my finding above, if the applicant can identify specific additional records which she believes are held by KWETB, it is open to her to consider making a fresh FOI request for access to them. Section 12(1)(b) of the Act requires that an FOI request should contain sufficient particulars to enable the record to be identified by the taking of reasonable steps.

Section 29 (deliberative process)
KWETB also relied on section 29(1)(a) to refuse to grant access to records 89 and 90. 

Section 29(1) provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), 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 are two independent requirements and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.

A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.

The records are email exchanges between members of staff of either KWETB and or schools under its patronage. KWETB argued that release of the records would prejudice such exchanges of views and discussions. Having examined the records, I note that they refer mostly to practical arrangements affecting schools under the patronage of KWETB. While some opinions are expressed, I find it hard to see what deliberative processes were involved or to identify any particular matter in the records which relates to such processes.  

In any event, in addition to showing that a record contains matter relating to the deliberative processes of an FOI body, an FOI body relying on section 29 for its refusal to grant access to a record must show that release of the record would be contrary to the public interest. The public interest test at section 29(1)(b) is a stronger public interest test than the public interest test in many other sections of the Act (which require that, on balance, the public interest would be better served by granting than by refusing to grant the request). The public interest test in section 29(1)(b) requires the FOI body to show that the granting of the request would be contrary to the public interest.

The Commissioner has found that the Act clearly envisaged that there will be cases in which disclosure of the details of an FOI body-™s deliberations - whether before or, in some cases, after a decision based on those deliberations has been made - would be against the public interest. However, this was not to say that such disclosure is always, as a matter of principle, against the public interest (See Case98058which is available onwww.oic.ie). Any arguments against release under section 29 of the Act should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of the Commissioner how granting access to the particular record(s) would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release. 

I do not see how releasing the records could cause the harm envisaged by KWETB. In addition, KWETB has made no argument that the grant of access to the records could result in the requester becoming aware of a significant decision that an FOI body proposes to make (a specific consideration required by section 29(1)(b)). I do not attach any significant weight to the potential to "cause confusion" as claimed by KWETB as a public interest argument in favour of refusal of the request.

Having considered the submissions of KWETB and the requirements of section 29(1)(a) and (b), I do not consider it to have justified its position that the grant of access to the records would be contrary to the public interest. I find, therefore, that section 29 does not apply. 

Section 35 (Information obtained in confidence)
KWETB relied on section 35(1)(a) in its decision to refuse to grant access to record 50. The record is a thread of emails, some of which are between KWETB and a school under its patronage, while other parts of the record are emails to and from a third party.

Section 35(1)(a) provides for the protection of information given to a public body in confidence.  For the exemption to apply, it is necessary to show the following;

• that the information was given to an FOI body in confidence, 
• that the information was given on the understanding that it would be treated by the FOI body as confidential,
• that disclosure of the information would be likely to prejudice the giving to the body of further similar information from the same person or other persons, and
• that it is of importance to the body that such further similar information should continue to be given to the body. 

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".  Section 35(1)(a) also does not apply if the public interest would, on balance, be better served by granting rather than by refusing to grant the request (section 35(3) refers). 

While a standard disclaimer on record 50 refers to the third party emails as containing confidential information, it is well settled that this, of itself, does not provide a basis for exemption under section 35. This Office wrote directly to the third party referred to in the record and invited it to make submissions on the matter. To date, no submissions have been received in this Office and there is no indication that the email from this Office was not delivered to the party. 

In determining whether the information was given in confidence and on the understanding that it would be treated by the FOI body as confidential, a number of factors may be relevant. These include the expectations of the person giving the information to the FOI body, the purpose for which the information was provided and the circumstances in which the information was received, including any statements or assurances given at the time the information was given. 

KWETB argued that release of the record would breach a duty of confidence to the third party. It did not say on what basis such a duty is owed. However, even if I did accept this argument, the third requirement for section 35(1)(a) to apply is that disclosure of the information would be likely to prejudice the giving to the FOI body of further similar information from the same person or other persons. It seems to me that it is unlikely that release of the record would prejudice the supply of similar information from the third party to KWETB in the future. From the subject matter of the emails and the relationship the third party has with KWETB, it is in the interests of the third party to continue to liaise with KWETB and the schools under its patronage. Therefore, the four requirements of section 35(1)(a) have not been met in this case. I find that section 35(1)(a) does not apply to record 50.  

Section 37 (Personal Information)
The original and internal review decisions did not refer to section 37 but in its submission, KWETB stated that a number of records were withheld in part on the basis of section 37. During the course of the review the applicant was informed by this Office of the exemption and was invited to make a submission on the matter. The records at issue are nos. 31, 41, 44, 46, 47, 49 and 91, and only small portions of the records are affected.

Section 37(1)
Section 37(1) of the FOI Act, subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing the personal information of a party other than the person(s) seeking the record.

Section 2 of the FOI Act defines the term "personal information". It also sets out a non-exhaustive list of 14 examples of "personal information", and three quite narrow exclusions to what shall be considered to be personal information where public servants are concerned. One of the exclusions provides that the name of a person in their capacity as a public servant, is not considered to be their personal information. 

The information withheld in the records are small pieces of information relating to other individuals. I am satisfied that information about individuals in the workplace is not of a type that would come within the exclusions to the definition of personal information.

Section 37(2) of the FOI Act sets out certain circumstances in which section 37(1) does not apply. I am satisfied that none of those circumstances arise in this case. 

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 the individuals concerned and that section 37(5)(b) does not apply.

I cannot identify a public interest which would override the Constitutional rights to privacy of the third parties to whom the records relate. The public interest has been served to some extent by the release of information in records to the applicant. I therefore find that section 37(5)(a) does not apply in the circumstances and that the withheld information in the records is exempt under section 37(1) of the FOI Act.

Having reviewed the relevant records, I am satisfied that all of the withheld information in records 31, 41, 44, 46, 47, 49 and 91 is personal information relating to individuals other than the applicant. Accordingly, I find that section 37(1) of the Act applies to the redacted parts of those records. 

Decision

Having carried out a review under section 22(2) of the Freedom of Information Act 2014, I hereby vary the decision of KWETB. I annul its decision to refuse access to information in records 50, 89 and 90 under sections 29 and 35 of the Act and I direct their release, subject to redactions of personal information of individuals other than the applicant, details of which are being provided to KWETB by this Office. I affirm the decision of KWETB to withhold information from other records under section 37(1) on the basis that they contain the personal information of individuals other than the applicant. I find that the public interest in granting the request in relation to those records does not outweigh the public interest in upholding the privacy rights of other individuals.

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