Whether UCD was justified in its decision to refuse access to records relating to the applicant, on the ground that they are exempt under sections 15, 31 and 37 of the FOI Act

31/12/2018

Background

On 27 March 2018, the applicant made a request to UCD for "all records and documentation held by the Company (and or doctors or other agents), in relation to me personally under the Freedom of Information Act 2014, whenever they were created", in addition to copies of specific records which she listed. On 8 June 2018, UCD granted access to certain records and refused access to the remaining records under sections 15(1)(a),  29 and 37 of the FOI Act. On 3 July 2018, the applicant applied for an internal review of the decision on the records. UCD did not issue an internal review decision within the statutory time-frame. Following this Office's intervention, UCD issued a decision to the applicant on 14 August 2018, in which it varied its original decision. It released further records and refused access to the remaining records under sections 15(1)(a), 30, 31(1)(a) and 37 of the FOI Act. On 15 August 2018 the applicant applied to this Office for a review of UCD's decision.
In conducting my review, I have had regard to the correspondence between the applicant and UCD and to the correspondence between this Office and both parties, as well as the content of the records that were provided to this Office by UCD for the purposes of this review.

Scope of this Review

UCD organised the records in four schedules: Schedules A, B, C and D. During the review process, the Investigator asked the applicant to confirm if she sought to challenge UCD's decision on all of the records in Schedules A, B, C and D and if not, to specify to which records she sought access. In response, the applicant said that she wished to challenge UCD's decision on all of the records scheduled and attached a support document. This support document makes submissions on Schedules A, B, C and D, as well as information concerning an IP address, which I consider under section 15(1)(a) of the FOI Act below.
Following questions from this Office, UCD granted or part-granted access to more records, which now fall outside the scope of the review. Furthermore, UCD noted that it had misfiled certain records in Schedule D and that those records do not fall within the scope of the applicant's FOI request. Having considered the content of the records concerned and the scope of the applicant's FOI request, I accept this position. I should also note that the applicant queried whether there were legal records prior to March 2016. UCD has confirmed to this Office that the first email in the legal file was received in March 2016.
The question for me is whether UCD was justified in refusing access to the records which fall within the scope of the applicant's FOI request and which remain withheld in whole or part, under sections 15, 30, 31 or 37 of the FOI Act.

Finally, in her submissions, the applicant comments on UCD's handling of a workplace investigation to which many records relate. She also expressed the view that an investigation and report into alleged monitoring of emails and telephone calls should occur. It is important to note that the way in which UCD handled a workplace investigation and how it carries out its functions generally falls outside my remit.

Preliminary Matters

Before considering the exemptions claimed, I would like to note the following. First, my jurisdiction under section 22 of the FOI Act is to make a new decision, in light of the facts and circumstances as they apply on the date of the review. The Courts have endorsed this approach.
Secondly, with certain limited exceptions, the FOI Act does not provide for the limiting of access to records to particular individuals only. When a record is released under the FOI Act, it effectively amounts to disclosure to "the world at large" (H.(E.) v Information Commissioner [2001] IEHC 58). The FOI Act places no restrictions on the type or extent of disclosure or the subsequent use to which the record may be put.

Thirdly, section 18 of the FOI Act provides that if it is practicable, records may be granted in part, by excluding the exempt material. Section 18 shall not apply if the copy of the record provided would be misleading. This Office 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent. Being "practicable" necessarily means taking a reasonable and proportionate approach in determining whether to grant access to parts of records.

Finally, section 22(12)(b) of the FOI Act provides that when the Commissioner reviews a decision to refuse a request, 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 in this case, the onus is on UCD to satisfy me that its decision was justified.

Analysis and Findings

Section 15(1)(a) - Refusal on administrative grounds

The applicant seeks access to information on the owner of a specified IP address between 2010 and 2014. UCD refused access to this information under section 15(1)(a) of the FOI Act. In connection with the information which she seeks, the applicant says that UCD did not carry out sufficient investigations to find out who breached her privacy. However, such a matter does not fall within my remit. The only question for me is whether UCD was justified in refusing access to the record concerned under the FOI Act.

Section 15(1)(a) provides that access to records may be refused if the records concerned do not exist or cannot be found after all reasonable steps to ascertain their 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 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.

It is important to note that under the FOI Act, requests for information or for answers to questions posed are not valid requests, except to the extent that a question can reasonably be inferred to be a request for a record containing the answer to the question asked or the information sought. This Office put several questions to UCD regarding this record and UCD advised that it only retains logs of IP addresses for six months and has no log for the period in question. UCD said that its IT services carried out a search of the log for the last six months and the record sought does not exist.

The FOI Act does not require absolute certainty as to the existence or location of records because records may be lost or simply cannot be found. This Office can find that a body's decision was justified under section 15(1)(a) even where records that an applicant believes exist or ought to exist have not been found. It is not this Office's role to search for records itself. Given its responses to the Investigator's queries, I find that UCD was justified in refusing access to the record sought on the ground that it does not exist, under section 15(1)(a) of the FOI Act.

Section 31(1)(a) - Legal Professional Privilege

Section 31(1)(a) of the FOI Act provides that an FOI body shall refuse to grant a request if the record concerned would be exempt from production in proceedings in a court on the ground of legal professional privilege (LPP). In deciding whether section 31(1)(a) applies, I must therefore consider whether the record concerned would be withheld on the ground of LPP in court proceedings. LPP 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 (advice   privilege); and
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).
This Office has considered records which may not, on an individual basis, satisfy the criteria for the attraction of LPP but which form part of a series of confidential communications regarding the giving or receiving of legal advice. The former Commissioner referred to the following comments by Mr. Adrian Keane in "The Modern Law of Evidence" (4th Ed.), Butterworths, 1996, at pp. 521-522: "Communications between a solicitor and his client may enjoy privilege even if they do not specifically seek or convey advice.  In Balabel v Air India (1988) Ch. 317; [1988] 2 All E.R., 246, CA., ...[t]he Court of Appeal held that in most solicitor and client relationships, especially where a transaction involves protracted dealings, there will be a continuum of communications and meetings between the solicitor and client; and where information is passed between them as part of that continuum, the aim being to keep both informed so that advice may be sought and given as required, privilege will attach." I adopt this approach and take the view that privilege attaches to records that form part of a continuum of correspondence that results from the original request for advice.

I should note that the applicant says that since there are not court proceedings, legal professional privilege should not apply. As noted above, legal professional privilege may apply on the basis of legal advice privilege; there is no requirement in this type of communication that court proceedings are in existence or even contemplated. I should also note that the applicant says that she should be entitled to see the documents to correct the record if inaccurate and that the public interest is best served with transparency. However, section 31(1)(a) of the FOI Act does not contain a public interest balancing test.
Having examined the records, I am satisfied that the records listed below disclose confidential communications made between UCD and its professional legal advisers and form part of a continuum of seeking and receiving legal advice resulting from the original request for advice: Record 21 in the JM file in Schedule A; Records 4, 5 and 29 in the GS file in Schedule A; the records in Schedule C and the records in Schedule D.

I find that UCD was justified in refusing access to these records under section 31(1)(a) of the FOI Act.

Section 37 - Personal Information

I will consider the remaining records under section 37 of the FOI Act. They are: Record 5 of the HR File in Schedule A; Records 2, 8 and 9 of the [A] File in Schedule A; Record 10 of the [B] File in Schedule A and Records 5, 6 and 7 of Schedule B. I will refer to these as "the records".

Sections 37(1) and 37(7)

Section 37(1) of the FOI Act provides that access to a record shall be refused if it would involve the disclosure of personal information. The FOI Act defines the term -�personal information-� as information about an identifiable individual that would, in the ordinary course of events, be known only to the individual or his/her family or friends, or information about the individual that is held by a public body on the understanding that it would be treated as confidential. The FOI Act details fourteen specific categories of information which is personal without prejudice to the generality of the foregoing definition. These categories include: (i) information relating to the educational, medical, psychiatric or psychological history of the individual, (iii) information relating to the employment or employment history of the individual and (viii) information relating to the age etc. of the individual.

Paragraph I of section 2 of the FOI Act excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office. However, as this Office observed in Case 090045 (Mr X and University College Cork), this exclusion "is intended, in essence, to ensure that section 28 [now section 37] will not be used to exempt the identity of a public servant while carrying out his or her official functions. The exclusions to the definition of personal information do not deprive public servants of the right to privacy generally".

Section 37(7) provides that access to a record which relates to the requester shall be refused if access to the record would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to people other than the requester. This is subject to certain exceptions, which I consider below.

The records contain information which relates to the educational, medical, psychiatric or psychological history, employment history and age of individuals other than the applicant. Although these individuals are staff members of FOI bodies, given the content of the information concerned, I do not believe that it falls within the exclusion to personal information outlined in paragraph I of section 2 of the FOI Act.
In theory, one could extract certain words or phrases from the records which relate solely to the applicant. I have considered whether this would be practicable in the circumstances. However, those words and phrases appear in the context of other words and phrases which relate primarily to individuals other than the applicant. Having regard to section 18 of the FOI Act, I conclude that to provide the records with isolated words and phrases would be to provide misleading records. My finding under sections 37(1) and 37(7) is subject to the provisions of sections 37(2) and 37(5), which I examine below.

Section 37(2)

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 the circumstances in section 37(2) apply to the information concerned. That is to say, (a) it does not relate solely to the applicant; (b) the third parties have not consented to the release of the information; (c) the information is not of a kind that is available to the general public; (d) the information does not belong to a class of information which would or might be made available to the general public; and (e) the disclosure of the information is not necessary to avoid a serious and imminent danger to the life or health of an individual. I am then required to consider section 37(5) as it applies to the information.

Section 37(5) - The Public Interest

Section 37(5) of the FOI Act 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, or the grant of the request would benefit the person 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.

Many of the records relate to a workplace investigation. The applicant submits that her right of access to the records should outweigh the right to privacy of others and that she has a right of access to all documents which were considered by the investigator in the workplace investigation concerned. She says that she should be entitled to see the documents to comment and correct the record if inaccurate and that the public interest is best served with transparency and compliance with fair procedures in an important process for her. She refers to her right to understand the investigator's decision and challenge the investigator's report. She says that the failure to furnish her the documents in this procedure does not comply with fair procedures and natural justice.

As noted above, I am required to disregard the applicant's reasons for her FOI request. Therefore I can only take into account the purpose for which she seeks this information to the extent that she identifies a public interest. I believe that the interests which the applicant sets out are more properly viewed as private rather than public. I consider that I am supported in this opinion by the High Court decision of FP v The Information Commissioner [2016] IEHC 771. There, the Court found that the public interest in granting access to information was not to be determined on the basis of the appellant's personal circumstances and the fact that access to records might assist the applicant in determining whether he had a cause of action did not qualify as a matter of public interest. I must also bear in mind that release under the FOI Act is tantamount to release to the world at large. Accordingly, this is not a question of whether to disclose the records to the applicant for the purpose of challenging a workplace investigation. It is a question of whether to disclose the records to the world at large.

On balance, I do not consider that the public interest that the request should be granted outweighs the right to privacy of the individuals to whom the records relate. I therefore find that section 37(5)(a) does not apply in the circumstances. It has not been argued that releasing the records would benefit the third parties to whom the information relates and I find that section 37(5)(b) does not apply in the circumstances. I find that UCD was justified in refusing access to the records under section 37(1) of the FOI Act.

As I have found the withheld records to be exempt under sections 31 and 37 of the FOI Act, I do not need to consider section 30 of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I affirm UCD's decision under sections 15(1)(a), 31(1)(a) and 37(1) 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 not later than four weeks after notice of the decision was given to the person bringing the appeal. 
                                    
Elizabeth Dolan
Senior Investigator