Whether TCD was justified in refusing access to emails sent from a former student-�s account on the basis that it does not hold the emails for the purposes of section 11(1) of the FOI Act

16 April 2021

Background

By way of context, TCD students may choose to continue using their @tcd.ie domain email address when they graduate (-�Email4Life-�).

Further to his request to TCD dated 14 May 2020, the applicant sought access to all records dating from 2019 and 2020 relating to him and his minor children that were sent from a specified email account with a tcd.ie domain address. TCD-�s decision of 6 August 2020 refused to grant the request. It said that the email account belongs to a former student and therefore TCD does not hold the requested records for the purposes of FOI. The applicant sought an internal review on 16 August 2020. TCD affirmed its decision on 6 September 2020. On 23 November 2020, the applicant applied to this Office for a review of TCD-�s decision. He later told this Office while he does not want names of individual recipients within organisations, he wants to know the number of organisations to which the requested emails were sent.

I have now completed my review in accordance with section 22(2) of the FOI Act and I have decided to conclude it by way of a formal, binding decision. In carrying out my review, I have had regard to the above exchanges and correspondence between this Office, TCD and the applicant. I have also had regard to the provisions of the FOI Act.

Scope of the Review

The scope of this review is confined to whether TCD was justified in refusing the applicant-�s request on the basis that it does not hold the requested emails for the purposes of the FOI Act. It does not extend to considering whether any substantive provisions of the FOI Act apply to their contents.

Findings

Whether records -�held-� for the purposes of FOI

This Office has previously considered whether records in the physical possession of the relevant FOI bodies were held for the purposes of FOI.

Section 11(1) of the FOI Act provides for a right of access to any record held by an FOI body. While the Act does not define -�held-�, the Commissioner accepts that mere physical possession of a record does not, of itself, mean that the record is held for the purposes of the Act. Indeed, this Office previously found, in Case No. 140228, that records held by the Secretary General of a Department in his capacity as a member of the Commission for Public Service Appointments were not held by that Department for the purposes of the Act.

The Supreme Court has considered the meaning of -�held-� for the purposes of the Act in the case of Minister for Health v Information Commissioner [2019] IESC 40 (the Drogheda Review case). In that case, the Department of Health refused to grant access to a transcript of an interview the requester had with an independent reviewer, a former High Court judge, who had been appointed by the Minister for Health to carry out a review in relation to certain matters at Our Lady of Lourdes Hospital, Drogheda. The review was not established on a statutory basis. Following the completion of his work, the reviewer, who had set the terms upon which he obtained the relevant information, sealed the transcript with other records and deposited them with the Department of Health for safekeeping. The reviewer had stipulated that the boxes of records were not to be disclosed or opened in any circumstances except by court order for discovery, of which he wished to be notified. The issue before the Court was whether the records were held by the Department of Health for the purposes of the FOI Act. The equivalent provision of the Freedom of Information Act. 1997 (the Act of 1997) was section 6(1), which provides for the right of access to records held by public bodies. In her judgment in the case, Finlay Geoghegan J. accepted that this section gives rise to two distinct questions for a decision maker when access to a record alleged to be held by a public body is sought; first, whether it is a record -�held-� by the body and secondly and separately, whether the requester has a right of access to the record. She accepted that the statutory criteria according to which each question is to be answered are distinct. Finlay Geoghegan J. found that for a record to be -�held-� within the meaning of section 6(1) of the Act of 1997, the public body must be in lawful possession of the record in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the record. As I have explained above, section 11(1) of the FOI Act of 2014 is the equivalent of section 6(1) of the Act of 1997; therefore the Court-�s findings in this regard are relevant to my review of this matter.

Having regard to the findings of the Supreme Court in the Drogheda Review case, I accept that for the records sought in this case to be deemed to be held by TCD,that body must be in lawful possession of the records in connection with, or for the purpose of, its business or functions and must also be entitled to access the information in the records.It is not disputed that the account is that of a former student.

The applicant-�s arguments

The applicant says that the requested emails make serious allegations about him that have been proven to be false. He says that the sender uses the email address to add weight to the allegations and to give credentials by association, such that one recipient assumed that the sender works in education.

He says that TCD controls and holds the records for FOI purposes for various reasons, summarised below:

(i) it holds the emails on its server
(ii) it can insist on persons agreeing to various terms and conditions (Ts&Cs) for use of the account. One prohibits the writing of defamatory material and the applicant says that TCD should act on this part of the policy. Another reserves TCD-�s right to access and disclose the contents of email messages in accordance with legal and audit obligations and for legitimate operational purposes
(iii) TCD retains, at its sole discretion, the right to withdraw Email4Life privileges
(iv) TCD offered to ask the sender to take various steps in relation to the emails. The applicant says that the Drogheda review judgment cannot be relied upon now because he did not agree to this proposal
(v) TCD offered/verbally agreed to send the applicant copies of the emails subject to the redaction of certain information such as receiver email addresses but changed its mind.

The applicant says that the sender has an academic relationship with TCD and uses the email account for university purposes i.e. by using it to contribute to a particular TCD research website. He says that those contributions are of a particular nature that is similar to that of the requested records. He also says that matters relating to alumni are an important part of TCD-�s business, which is recognised on TCD-�s home page and by the Email4Life facility. He says that TCD holds former students-� email accounts for the purposes of its functions.

TCD-�s arguments

In its submissions, TCD refers to Finlay Geoghegan J.-�s comments and to this Office-�s decision in Case No OIC-56530-D1N4W8. It says that it does not and never had lawful possession of the records in question, that it does not have access to the sender-�s email account and that the emails have no connection with, nor are they for purposes of, TCD-�s functions or business. It says that former students do not have active directory accounts and are using Google directly for authentication. It says that the email accounts are subject to Google-�s Ts&Cs of use and that TCD does not monitor compliance with those Ts&Cs or manage the accounts from an IT perspective. It says that the email accounts are the personal property of the graduates and are held by them in a private capacity to use as they wish, just as anyone uses a Gmail account. TCD says that it has no control over any aspect of the accounts.

TCD says that there can be circumstances in which parties other than staff and research students can make submissions to the research website. Such external parties are not required to have @tcd.ie email addresses. It notes that the applicant and other parties submitted the articles a number of years ago. In any event, it does not accept that the fact that the articles were submitted from an @tcd.ie account entitles it to access the sender-�s email account, further to this FOI request.

TCD maintains that former students are processing their personal information rather than TCD information when using their email accounts and that such processing is not in any way connected with, or for the purposes of, the College-�s functions. It contrasts this with emails sent from staff accounts in connection with the functions or business of the College, and which are provided in the course of the FOI requests all the time. Based on its understanding of what the applicant has said, it considers that the requested records are emails between a former student acting in a private capacity and parties unknown that may mention or contain information regarding the applicant and/or his children. It says that information in such emails would be private information relating to the former student.

It disputes that it agreed to send redacted versions of the emails to the applicant. It says that he may be referring to the offer it made outside of the FOI Act to contact the sender and to ask the sender to take certain steps. It says that it could not compel the sender to take the steps concerned.

Analysis

At the outset, it is necessary to clarify a number of matters. The FOI Act requires me not to take into account any reasons that the applicant has for making his FOI request. This Office has no role in examining whether TCD should have taken any steps against the sender of the emails or in directing it to do so. Neither are any steps that TCD might take outside of the FOI Act relevant to whether it holds the requested records for the purposes of the FOI Act.  Furthermore, even if TCD had committed to send the applicant redacted versions of the emails (which TCD disputes), this does not bind me to finding that the records are subject to FOI without an analysis of the relevant circumstances. The applicant-�s views on the sender-�s motives for using the account generally, and whether any allegations made by the sender have been proved false, are also not relevant to my decision.

It is not in dispute that these emails were not sent by a staff member or person carrying out official business or official functions on behalf of TCD. TCD-�s physical possession of the emails and its provision to the sender of an @tcd.ie email address does not mean that it holds the requested emails for the purposes of the FOI Act. I note that TCD may have rights to access/disclose the contents of the email accounts in certain limited circumstances and also to withdraw Email4Life privileges. However, the request seeks access to emails sent by a former student that allegedly contain defamatory information relating to the applicant and his children. I do not accept that such emails can be characterised as comprising information relating to the business of TCD or to the conduct of its official functions. The situation differs from a request seeking access to records created by a staff member while carrying out his or her official functions. Furthermore, I do not accept that TCD holds the requested records for the purposes of its functions because of the general strategic importance to it of retaining links with alumni or because the sender submitted particular material to its research website after graduation or because the sender did so using the email address. Accordingly, I accept that TCD does not hold the requested records for the purposes of section 11(1) of the FOI Act. 

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD-�s refusal to grant the applicant-�s request on the basis that it does not hold the records for the purposes of section 11(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.

Deirdre McGoldrick

Senior Investigator