Whether the Institute was justified in refusing access to records relating to an application under its professorial scheme under section 35(1)(a) of the FOI Act
24 March 2022
Background
In a request dated 17 May 2021, the applicant sought access to the entire file (application, references, external reviews, panel discussion and decision notes) for his application under the Institute's professorial scheme. In a decision dated 15 June 2021, the Institute identified nine records that fall within the scope of the applicant's request. It granted access to records 1-3 which contain the applicant's personal statement, CV and publications. It refused access to records 4 and 5 which contain references under section 35(1)(a) of the FOI Act (information provided in confidence). It refused access to records 6, 7, 8 and 9, which contain an external evaluator's report and three Professorship Evaluation Panel (PEP) evaluation forms under section 29(1) of the FOI Act (deliberations of FOI Bodies). On 16 June 2021, the applicant sought an internal review of that decision. On 9 July 2021, the Institute affirmed its original decision. It also identified one further record (record 10) which contains PEP meeting notes, the Institute refused access to the names of PEP members and details of other candidates and it granted access to the remainder of record 10. On 12 July 2021, the applicant applied to this Office for a review of the Institute'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 and the Institute. I have also had regard to the contents of the records concerned and to the provisions of the FOI Act. I have decided to conclude this review by way of a formal, binding decision.
Scope of Review
During the course of the review, this Office contacted the parties who provided references on behalf of the applicant and enquired whether they objected to the release of their references to the applicant. Both parties indicated that they had no objections and on this basis the Institute agreed to release records 4 and 5 to the applicant. The Institute also agreed to release record 9 (a PEP evaluation form) with the name of the evaluator redacted. It stated that following further consideration of the records, it wished to rely on section 35(1)(a) instead of section 29(1) in refusing access to records 6, 7 and 8. This Office provided the applicant with an update in relation to the Institute's revised position. In reply, the applicant stated that he was agreeable to limiting the scope of his request to records 7 and 8, but to exclude the names of the evaluators.
Accordingly, the scope of this review is confined to whether the Institute was justified in refusing access to records 7 and 8, with the names of the relevant evaluators redacted, under section 35(1)(a) of the FOI Act.
Preliminary Matters
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.
It is relevant to note, that the release of information under FOI is accepted to be generally the same as publishing that information to the world at large.
Analysis and Findings
Section 35 -“ Information provided in Confidence
Section 35(1)(a) provides a mandatory exemption for certain records containing information given to an FOI body in confidence. Section 35(3) provides that section 35(1)(a) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request.
Section 35(1)(a)
In order for section 35(1)(a) to apply, it is necessary to show the following:
- that the information was given to an FOI body in confidence and
- that the information was given on the understanding that it would be treated by it as confidential and
- 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.
All four of these requirements must be satisfied in order for a record to be considered exempt from release under section 35(1)(a) of the Act.
Applicant's Submissions
In his submissions to this Office, the applicant says he is not requesting the identities of the PEP members who provided the evaluations in respect of his application for professorship, he is simply requesting the evaluations themselves. He contends that it is not credible for the Institute to suggest that the release of these evaluations would be likely to prejudice the giving of similar evaluations to the Institute in future competitions in circumstances where the evaluations are anonymised. The applicant says he is aware from the information released to him in record 10, that the external evaluator recommended his application to use the title professor, however the three PEP members did not recommend his application. He says he wishes to see the evaluations in order to understand this decision and he contends that they ought to be released in the interests of openness and transparency.
The Institute's Submissions
During the course of the review, the Institute provided this Office with a document outlining its application and selection procedures for Professorship titled -˜Criteria and Process for use of the Title Professor 2020'. This document outlines that an independent evaluator is selected by the Professorship Review Committee and they complete an external written evaluation of the candidates' applications. It states that each application is also assessed by a Professorship Evaluation Panel (PEP) that consists of:
- President of the Institute (Chair);
- A senior international academic from abroad; and
- At least one additional senior professor external to the Institute.
The Institute states that these four inputs are discussed at a meeting of the PEP to determine each person's eligibility and the results are then communicated to each applicant. The Institute states that the applicants were also able to request further feedback from the PEP Chair and in this case the applicant was provided with this additional feedback.
The Institute states that the external evaluations were sought by and provided to the Institute in strict confidence and on the stated understanding that they would remain confidential to the Professorship Evaluation Panel members only. It states that it is common practice that such objective external professional advice/opinion is provided to the Institute on the basis that it shall remain confidential to those requesting the input. It states that any forced deviation from this arrangement would materially affect the Institute's ability to seek such external professional input in the future. According to the Institute, applicants had full knowledge of both the criteria and the evaluation process before deciding whether or not to submit an application; it says these are clearly set out in some considerable detail under Sections 1 and 2 respectively of the policy. It says each candidate received a copy of this policy as part of the call for applications, and each evaluator was instructed to conduct their review under these clearly-identified criteria.
The Institute states that academia operates many of its processes on the basis of blind peer review. It states that this is an integral and normal part of academic life. It states that in order to ensure complete freedom of opinion, it is imperative that academic institutions are able to seek such external blind peer reviews on such matters as student assessment (external examiners), recruitment (references), and application processes (such as the Professorships and others) in complete confidence. It states that a commitment to confidentiality is given in order to ensure that the Institute receives the reviewer's true opinion and not one that is influenced by the possibility of it being open to public record which, for obvious reasons, could very well colour the advice given. According to the Institute, this freedom of opinion can only be achieved if such advice is received in confidence for sole use by the Institute members involved in a particular deliberative process. The Institute states that if it was to find itself unable to engage in confidential blind peer review it would be unable to conduct significant parts of its business mentioned above.
Analysis and Findings
It is the circumstances in which the information was imparted and received that determine whether the first two requirements of section 35(1)(a) are met. When considering 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; any assurances sought regarding the information; the purpose for which the information was provided; the practice, procedure or policy of the FOI body with regard to such information; any action which the FOI body may be expected to take in relation to the information; and the nature of the relationship between the provider of the information and the FOI body receiving it.
During the review, this Office's Investigator wrote to the Institute to seek clarification in relation to its submission that the external evaluations were provided on the stated understanding that they would remain confidential. The Investigator noted that the relevant policy document did not appear to state that the PEP evaluation forms were provided in confidence. In reply, the Institute stated that "The confidentiality of this process is not covered in the policy governing the awarding of WIT Professorships as this is an operational matter rather than a policy definition; however, it is clearly understood as the norm by academics engaged in such assessments."
It is clear from the Institute's clarification that the policy governing the awarding of WIT Professorships does not cover the confidentiality of external evaluations. I note, by way of contrast, that in the email request for references the Institute stated "your reference will remain confidential and will only be shared with members of the review committee." However, while an understanding of confidentiality may be express, it can also be implied. In the circumstances of this case, and even though my review is confined to the consideration of anonymised evaluations, I am prepared to accept the Institute's contention that there was an implied understanding of confidentiality.
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 is not necessary that disclosure would definitely prejudice the supply of information; rather what is required is that disclosure would be likely to prejudice the supply of similar information. A number of factors may be relevant in determining whether the giving of further similar information is likely to be prejudiced. For example, it may be in the interests of the supplier to continue to give the information as they may stand to benefit in some way from providing the information.
I note that in communications to this Office, the Institute states that both evaluators were paid directly by the Institute for their independent professional services. It seems to me that it is in the interests of external evaluators to continue to provide evaluations in circumstances where they are paid directly by the Institute for their services. I am not satisfied that the release of the records at issue would be likely to prejudice the giving to the Institute of further similar information from the same person or other persons in circumstances where the evaluators have been paid for their services. I also say this because the records that will be released are anonymised. I find that the four requirements, which must be fulfilled for section 35(1)(a) of the FOI Act to apply, have not been met in this case. As I have found section 35(1)(a) not to apply, there is no requirement for me to consider the public interest test under section 35(3).
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby annul the Institute's decision and I direct it to release records 7 and 8 with the identities of the external reviewers removed.
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
