Whether TCD was justified in refusing access, under various provisions of the FOI Act, to records relating to a meeting of its Advisory Committee on Honorary Degrees which considered the nomination of a named individual

15 November 2022

Background

In a request dated 6 October 2021, the applicant sought access to documents of a meeting of TCD-�s Advisory Committee on Honorary Degrees in 2019 where a named individual was nominated. He clarified that the documents sought included the meeting agenda, minutes, and any other documents relating to the nomination and subsequent rejection of the nomination.

On 3 November 2021, TCD refused the request under sections 29(1), 30(1)(a), 30(1)(b), 35(1)(a) and 37(1) of the FOI Act. The applicant sought an internal review of that decision, following which TCD affirmed its refusal of the request. On 22 May 2020, the applicant sought a review by this Office of that 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 correspondence between the applicant and TCD and to the correspondence between this Office and both parties on the matter. I have had regard to the contents of the records at issue. I have decided to conclude this review by way of a formal, binding decision.

Scope of the Review

At no point during its consideration of the applicant-�s request did TCD supply the applicant with a schedule indicating what records it considered as falling within the scope of his request.  However, during the course of the review by this Office, TCD indicated that it had identified two relevant records. Record 1 comprises the minutes of a meeting of the Advisory Committee on Honorary Degrees, referred to as an aide-memoire, which took place on 6 December 2018. Record 2 comprises a nomination of a candidate for an honorary degree, dated November 2018. TCD refused access to both records on the basis of sections 29(1), 30(1)(a), 30(1)(b), 35(1)(a) and 37(1) of the FOI Act.

With regard to Record 1, TCD argued that the vast majority of the record falls outside the scope of the applicant-�s request and it has supplied a redacted version of that record to this Office. Having reviewed the redacted information, I consider that item 4 on the agenda on page 1 is also within scope. That aside, I am satisfied that the remaining unredacted parts are the only parts that fall within the scope of the request.

In the course of his application to this Office, the applicant indicated that he was aware of a specific document which he understood had been submitted to the Advisory Committee. He argued that the document should have been released to him. He also supplied this Office with what he indicated was an extract from the aide-memoire of a meeting of the Advisory Committee, other than that contained at Record 1, in support of his view that the specified document was contained in documents of the Committee from 2019.  The Investigator in this case sought TCD-�s comments on the matter.

In response, TCD indicated that the Advisory Committee met on two occasions in 2019; on 17 April 2019 and again on 16 December 2019.  It said there was no information relevant to the applicant-�s request in the documents circulated for the meeting of 17 April 2019, other than Record 1 which was circulated for approval in what I understand to be a similar manner to minutes of a previous meeting. In addition, TCD said that with regard to the 16 December 2019 meeting, there was no information relevant to the applicant-�s request in the aide-memoire of that meeting.

Following a request for further clarification, following which TCD indicated that the specific document the applicant referred to in his application for review had, in fact, been circulated to the meeting of 16 December 2019, although no reference was made to this document in the aide-memoire of that meeting. While it provided this Office with a copy of the document for the purposes of our review, it argued that the record did not fall within the scope of the request it was not a document of the Advisory Committee and was not referred to in the agenda or aide-memoire of the Advisory Committee meeting. It also argued that the record did not fall within the scope of the request as it did not relate to a specific nomination. It further argued that if this Office considered the record to come within the scope of the request, then the provisions of sections 29, 30(1)(b), 30(1)(c) and 36 of the FOI Act were of relevance. 

I have examined the record at issue and the explanations provided by TCD.  Having considered the matter, I consider that it falls within the scope of the applicant-�s request.     In particular, while the position of TCD is that the record contains no information relevant to the applicant-�s request, I am satisfied that the record at issue was circulated to members of the Committee as part of discussions on the nomination in question and therefore falls within the scope of the applicant-�s request.  For the purposes of this decision I will refer to this as Record 3.

Accordingly, this review is concerned solely with the question of whether TCD was justified in refusing access to three records falling within the scope of the applicant-�s request under the various exemptions identified above.

Preliminary Matters

Before I consider the substantive issues arising, I wish to make a number of preliminary points. 

First, the manner in which TCD dealt with the applicant-�s request and, indeed, the manner in which it engaged with this Office during the review, was wholly unsatisfactory.  Neither the original decision nor the internal review decision complied with best practice as they failed to include a schedule of identified records. The CPU Code of Practice states that a schedule of records should be furnished to requesters and Section 48 of the FOI Act obliges FOI bodies to have regard to the Code in the performance of their functions under the Act.  I would remind TCD of its obligations on this point.

In addition, I consider that in its interactions with this Office, TCD failed to engage in a manner which I consider appropriate for a body which has been subject to FOI for many years.  Despite repeated queries by the Investigator in this case, TCD consistently sought to avoid providing answers to direct queries and, when it finally did so, provided somewhat disingenuous responses.  TCD is well aware of the obligations imposed by the FOI Act and the particular functions of this Office and I expect it to revisit its procedures for engagement with this Office.

Secondly, section 18 of the Act provides for the deletion of exempt information and the granting of access to a copy of a record with such exempt information removed. This should be done where it is practicable to do so and where the copy of the record thus created would not be misleading. However, this Office takes the view that neither the definition of a record nor the provisions of section 18 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, we are not in favour of the cutting or "dissecting" of records to such an extent.

Thirdly, as set out above, although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. Accordingly, the extent to which I can describe the records and certain arguments in some of my analysis and reasoning is limited.

Finally, it is important to note that a review by this Office is considered to be -�de novo-�, which means that it is based on the circumstances and the law as they pertain at the time of the decision. Accordingly, in light of the -�de novo-� nature of our reviews, I consider it appropriate to consider the applicability of exemptions that were not initially relied upon by TCD during its processing of the applicant-�s request.

Analysis and Findings

TCD has argued that sections 29(1), 30(1)(a), 30(1)(b), 35(1)(a) and 37(1) of the FOI Act apply to Records 1 and 2. With regards to Record 3, it has argued that the provisions of sections 29, 30(1)(b), 30(1)(c) and 36 of the FOI Act are relevant. As I consider section 29 to be the most relevant, I propose to consider that exemption first. 

Section 29 -� Deliberative processes

Section 29(1) provides for the discretionary refusal of a request if (a) the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would 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. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest. 

The first requirement which must be met in order for section 29(1) to apply is that the record must contain matter relating to the -�deliberative processes-� of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.

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 fact that a deliberative process exists and is ongoing does not mean that the exemption automatically applies without consideration of all the provisions of section 29. Equally, the fact that a deliberative process is at an end does not mean that the exemption automatically does not apply.

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 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.

In its submission to this Office, TCD argued that the deliberative process at issue was the consideration regarding the awarding of honorary degrees and it considers this to be a highly confidential process. By way of background, TCD explained that following the receipt of nominations by the Advisory Committee on Honorary Degrees, the Committee reviews such nominations and determines which of the nominations should be recommended to the University Board. If candidates are subsequently approved by the University Board their candidature is then forwarded to the University Senate for final approval. TCD further explained that prior to Senate approval the matter remains entirely confidential and in many cases the potential candidates themselves would be unaware of their nomination until contacted by University Registrar to inform them that their candidature has been approved by the University Board and was being forwarded for final approval to the University Senate.

TCD added that there is a maximum of eight to 10 honorary degrees which can be awarded in any given year and therefore the University is engaged in a deliberative process to consider the various nominations. TCD further explained that even when candidates are approved to receive an honorary degree, it may take a number of years for such degrees to be awarded as the Advisory Committee seeks to achieve a balance in the composition of candidates between academic disciplines, gender, age, nationality and geographic region.  In addition, TCD argued that there may be certain sensitivities in circumstances where a nominated candidate is judged not to meet the criteria for the award of an honorary degree. 

Having carefully considered the matter, I accept that the process by which honorary degrees are awarded by TCD is deliberative in nature. In particular, I accept that the Advisory Committee is clearly tasked with evaluating and making recommendations on proposals to award or not to award an honorary degree to those nominated and, by its very nature, this work can be correctly described as the weighing-up or evaluation of various courses of action. I accept that both Records 1 and 2 as set out in the schedule provided by TCD relate to this deliberative process. With regard to Record 3, I consider that in the particular circumstances of this case, release of the record would reveal matter relating to the deliberative process in question. I find therefore that the first requirement of section 29(1), as set out at section 29(1)(a), has been met in the case of all three records.   

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, requiring the FOI body to show that the granting of the request would becontraryto the public interest. This Office has previously held 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 is not to say that such disclosure is always, as a matter of principle, against the public interest. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. An FOI body should show how granting access to the particular record would be contrary to the public interest, e.g. by identifying a specific harm to the public interest flowing from release.

TCD argued that if information in relation to the nomination and award process for honorary degrees were to be released it would undermine the process itself which would not be in the public interest. In particular, TCD argued that the release of such information could result in unwarranted embarrassment for candidates who were not selected to receive honorary degrees and may in fact not be aware of their nomination. TCD further argued that release of such information could have a chilling effect in that potential nominators may hesitate to submit nominations for honorary degrees if they understood that such information could be made public at an early stage and this in turn could affect the calibre of candidates nominated. Finally, TCD argued that release of the information at issue could negatively affect the robustness of discourse at the Advisory Committee when examining nominations. In sum, TCD has argued that release of the information at issue is contrary to the public interest as to do so would impede the Committee in properly engaging in the deliberative process of considering candidates for the award of honorary degrees.

In the course of his submission to this Office, the applicant has argued that there is a clear public interest in releasing the records at issue. More particularly, the applicant argued that there is a public interest in greater information being made available in relation to the deliberations of the Advisory Committee. The applicant also made a number of specific arguments in relation to Record 3. While I will not repeat them here, I can confirm that I have had regard to them.   

While there is nothing in the section 29 exemption itself which requires the deliberative process to be ongoing, the question of whether it is ongoing or not may be relevant to the issue of the public interest. This is not to say it automatically follows that it is contrary to the public interest to release some or all records relating to an ongoing deliberative process. Neither does it follow that it is contrary to the public interest to release records that comprise an incomplete view of the factors and issues under consideration. Each case must be determined on its own merits.

Having carefully considered the matter, I accept that it would be contrary to the public interest to release Records 1-3 in this case. In my view, it is important that TCD be in a position to consider nominations in confidence in circumstances where the person nominated may not be aware of the nomination. I accept that requiring TCD to disclose details of unsuccessful nominees could cause embarrassment for the individuals concerned in circumstances where they have not put themselves forward for nomination and that such disclosure could have a chilling effect on the receipt of nominees which could, in turn, affect the calibre of candidates nominated. I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has also been met in this case.

Having found section 29(1) to apply to the records at issue, I must now consider whether any other provisions of section 29 serve to disapply this finding. Section 29(2) provides that the exemption does not apply if and in so far as the record contains any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme. I am satisfied that none of the exceptions in section 29(2) arise in this case.

Insofar as section 29(2)(b) in particular is concerned, having carefully considered the matter, I am satisfied that the release of what might be regarded as factual information contained in Record 3 would be contrary to the provisions of section 18 of the FOI Act. Section 18(1) of the FOI Act provides for the release of non-exempt material from an otherwise exempt record -�if it is practicable to do so-�. I am of the view that it would not be practicable to attempt to extract any factual information from the record while at the same time ensuring that no exempt information is released. It seems to me that the release of such factual information in this particular case would, of itself, serve to undermine the protection afforded to the confidentiality of the deliberative process by section 29(1).

In conclusion, therefore, I find that TCD was justified in refusing access to Records 1 to 3 under section 29(1) of the FOI Act. As I have found section29(1) to apply, I do not consider it necessary to consider the other exemptions relied upon by TCD.  

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm TCD-�s decision. I find that it was justified in refusing access, under section 29(1) of the FOI Act, to three records relating to a meeting of the Advisory Committee on Honorary Degrees.

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.

Stephen Rafferty
Senior Investigator