Whether Trinity College Dublin was justified in refusing access to records relating to the decision to close the Science Gallery Dublin (Science Gallery) on the basis of sections 29(1), 36(1)(b) and 36(1)(c) of the FOI Act.

22 June 2022

Background

This request concerns records relating to the decision to close the Science Gallery, a public science centre connected to TCD. The Science Gallery was established in 2008 and has been closed since January 2022. For the purposes of this decision it should be noted that the Science Gallery is part of a network of science galleries. Science Gallery International was established in 2012 with the founding goal of establishing a Science Gallery Network, with eight nodes by 2020. According to TCD, the Science Gallery International, and science galleries within the science gallery network, are modelled on the Science Gallery Dublin.

In a request dated 3 November 2021, the applicant sought access to copies of all records relating to the decision made to close the Science Gallery. In a decision dated 30 November 2021, TCD refused access to the records sought under sections 29(1) (deliberations of FOI bodies) and 36(1) (commercially sensitive information) of the FOI Act. The applicant sought an internal review of TCD's decision on the same day. On 21 December 2021, TCD affirmed its original decision. On 17 February 2022, the applicant applied to this Office for a review of TCD'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 correspondence between the applicant and TCD as described above and to the correspondence between this Office and both the applicant and TCD on the matter. I have also 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 Review

TCD identified six records (1a, 1b, 2a, 2b, 2c and 3) that it says fall within the scope of the applicant's request. All six records were refused in full under sections 29(1), 36(1)(b) and 36(1)(c) of the FOI Act.  

During the review, the applicant confirmed to this Office that he was not seeking access to any personal information contained in the records and agreed that such information could be removed from the scope of the review.

Accordingly, this review is concerned solely with whether TCD was justified in its decision to refuse release of the remaining information in the relevant records under sections 29(1), 36(1)(b) and 36(1)(c).

Preliminary Matter

It is important to note at the outset that section 22(12)(b) of the FOI Act provides that in a review by the Commissioner, a decision to refuse a request is presumed not to have been justified unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. In this case therefore, the onus is on TCD to satisfy this Office that its decision to refuse to grant access to the records at issue was justified.

Analysis and Findings

The records

Records 1a and 2b comprise internal briefing notes concerning the operation of the Science Gallery. Records 1b and 2c constitute presentations which mirror much of the content set out in the briefing notes. Record 2a consists of a short memo to the board attaching record 2b while record 3 consists of emails regarding the submission of documents in respect of the above internal meetings.

Records 1a, 1b, 2b and 2c contain information about the development of the Science Gallery, its business and financial model and options in respect of its future.

Section 29 -� Deliberative Processes

Section 29(1) provides that a request may be refused 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), and (b) the body considers that granting the request would be contrary to the public interest. These two requirements are independent. The fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to satisfy this Office that both requirements have been met.

Section 29(1)(a) - Whether the records relate to a deliberative process

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. It is TCD's position that all six of the records identified contain matter relating to its deliberative process.

In his application to this Office, the applicant argued that because the Science Gallery has closed, the exemptions relating to the deliberative process should no longer apply. According to TCD, while the Science Gallery in its current form has closed, discussions regarding the sustainability and future operations of any future Science Gallery or similar model are ongoing. It said no final decision has been made at this time. In any event, there is nothing in the exemption itself which requires the deliberative process to be ongoing, although the issue of whether the deliberative process is ongoing or at an end may be relevant to the issue of the public interest, which I consider below.

Having carefully reviewed the content of the records at issue, I am satisfied that the processes referenced in the records are deliberative in nature. Four of the six records comprise documents drafted to present options to be considered in respect of the future of the Science Gallery. The two remaining records comprise administrative documents in support of same. I find, therefore, that the first requirement of section 29(1), as set out at section 29(1)(a) of the FOI Act, has been met.

Section 29(1)(b) - Whether the granting of the request 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.

TCD argued that the release of the information contained in the records would be contrary to the public interest as the public interest lies in TCD -�ensuring the proper management of the University's functions and finances and ensuring the deliberative process is appropriately concluded-�. It argued that release could have a material effect on the competitive position of any future Science Gallery or similar model, the University and the Science Gallery International (which is a separate legal entity to the University) if the records are in the public domain before the deliberative process has been fully completed. It said the deliberative process is ongoing and disclosure could -�significantly undermine the ongoing analysis of the issues involved-�.

TCD added that the records at issue do not represent a full view of the issues and factors under consideration and it argued that the release of the records at this point in time could prejudice its attempts to carry out and conclude the deliberative process in an

effective and efficient manner. It argued that it is important, and in the public interest, that the University has appropriate time and space to engage in a deliberative process that enables proper consideration of all relevant issues in order to achieve a considered decision.

Section 29 is an explicit recognition of the fact that there will be occasions where disclosure of the details of an FOI body's deliberations would be contrary to the public interest. However, I do not accept that the purpose of section 29 is to protect the deliberative process until its completion. As has been noted in previous cases, if the purpose of the exemption was to protect matter relating to the deliberative process until that process had been completed, it would have been a simple matter for the Oireachtas to have enacted a specific provision along these lines. Any arguments against release under section 29 should be substantiated and supported by the facts of the case. It is important that the FOI body shows to the satisfaction of this Office how granting access to the particular records would be contrary to the public interest.

In this case, TCD has argued that the premature release of the records would cause particular harms, namely;

• a material effect on the competitive position of any future Science Gallery or similar model, the University and the Science Gallery International,
• significant undermining of the ongoing analysis of the issues involved, and 
• prejudice to TCD's attempts to carry out and conclude the deliberative process in an effective and efficient manner,
• negative effect on the University's discussions internally and externally with third party funders and/or supporters
• negative effect on any future negotiations with third party sponsors and philanthropic supporters.

However, it has not clearly explained how such harms might arise from the release of the records, nor is it clear to me how they might arise. I note its concerns that the records at issue do not represent a full view of the issues and factors under consideration but it has not explained how this, of itself, might give rise to the harms identified.

I also note that there is a considerable amount of information already in the public domain in respect of the deliberative process in question. I note that some information in respect of the decision to close the Science Gallery has been published by TCD. In a message dated 28 January 2022 published on the Science Gallery website, the Provost states that:

-�the gallery has been wonderful, but it has had problems in recent years. Unfortunately, in its present form, with its substantial and growing debt, it cannot overcome those problems. The current operational model has run its course.

The gallery needs to be totally reimagined and work very differently from the way it does now. Closing the gallery affords us the time to address the problems and build a new, exciting and sustainable way forward.-�

Furthermore, I note that considerable detail contained in the relevant records has already been published by the University Times in an article dated 5 November 2021 and entitled -�Nearly €900k spent on Science Gallery Salaries Last Year-� (available here https://universitytimes.ie/2021/11/nearly-e900k-spent-on-science-gallery-salaries-last-year/). The article appears to reference the briefing note provided to the board and contains detail in respect of the finances, staffing and operations of the Science Gallery. The article also contains direct quotes which appear to be extracted from record 2b.

The public availability of this information was brought to the attention of TCD by this Office and it was invited to comment. In response, TCD said it was unaware of how the information in the relevant article came to be released and it said this was a breach of confidentiality. It added that the article appears to only make reference to specific pieces of information as opposed to the entirety of the documents and the details set out in those documents.

It seems to me that regardless of how the information came to be placed into the public domain, the fact remains that it is publicly available. Moreover, the published information appears to me to comprise significantly salient detail from the records relating to financial positions and funding. In such circumstances, I fail to see how TCD can reasonably argue that the release of the records would give rise to the harms it identified as described above.

Accordingly, I am not satisfied that TCD has satisfactorily shown that the release of the records would be contrary to the public interest. I therefore find that section 29(1)(b) does not apply to the records in question. As both subsections (a) and (b) are independent requirements which must be met in order for section 29(1) to apply, I find that TCD was not justified in refusing to release the records sought on the basis of section 29 of the FOI Act.

Section 36 -� Commercially Sensitive Information

Section 36(1) provides a mandatory exemption for commercially sensitive information. The section is subject to a public interest balancing test which is set out at section 36(3). The exemption at section 36(1) does not apply where the public interest would, on balance, be better served by granting than by refusing to grant the FOI request. TCD has cited sections 36(1)(b) and 36(1)(c) in support of its refusal to release the records. I will consider both sections in turn.

Section 36(1)(b) -� material financial loss/gain or prejudice to competitive position

Section 36(1)(b) protects financial, commercial, scientific, technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates or could prejudice the competitive position of that person in the conduct of their profession or business or otherwise in their occupation.

The harm test in the first part of subsection (1)(b) is whether disclosure of the information -�could reasonably be expected to result in material financial loss or gain-�. The test to be applied in this regard is not concerned with the question of probabilities or possibilities, but with whether the decision maker's expectation is reasonable.

The only requirement which has to be met in the second part of section 36(1)(b) is that disclosure "could prejudice the competitive position" of the person concerned. The standard of proof necessary to meet this test is considerably lower than the standard required to meet the test of "could reasonably be expected to" in the first part of section 36(1)(b). While the degree of harm required to meet the harm test in the second part of this provision is lower than that required to meet the test in the first part, this Office considers that, in invoking the phrase "prejudice", the damage which could occur as a result of disclosure of the information must be specified with a reasonable degree of clarity.

In its submissions, TCD argued that the records contain reference to certain commercial or financially sensitive information, the release of which could result in the University suffering a material financial loss and could impact the competitive position of the University as such information will be made available to competitors who could use the information to their advantage while prejudicing the position of the Science Gallery, or any future model of the science gallery, and the University. It argued that release of the records could affect the ability of any future Science Gallery and/or the University to attract sponsorship and funding from third parties. It also argued that this could prejudice the competitive position of TCD and the Science Gallery.

The essence of TCD's argument is that the release of the records could affect its ability to secure future funding. I accept that financial and commercial information such as details of losses incurred or financial difficulties experienced are matters which, if disclosed, could, in certain circumstances, prejudice an organisation in the conduct of its business. In its submissions, TCD argued that the majority of the information contained in the records is not available publically. However, it seems to me that much of the information contained in the records at issue is already in the public domain. Income and expenditure reports in respect of the Science Gallery are published in annual reviews. Detail in respect of TCD's payments are included in the university's published financial statements. In addition, there was significant media reporting in respect of the decision to close the Science Gallery and many articles included detail about the reasons for same. It also seems to me that the article outlined above, published by the University Times on 5 November 2021, in particular, significantly undermines TCD's arguments in respect of anticipated harm. As noted above, TCD was asked to comment on the likelihood of harms arising from release of the records given the level of information already in the public domain. TCD maintained its original arguments in respect of harm, offering no additional arguments.

In the circumstances, I find that TCD has not justified its decision to refuse to release the majority of the information in the records concerned on the basis of section 36(1)(b) of the FOI Act.

There is limited information contained in the records which concerns third parties. While TCD has not made substantive arguments in respect of this information or the relevant third parties, I intend to consider it given the mandatory nature of section 36. Again, the question at issue is whether release of the information could reasonably be expected to result in a material financial loss or gain or could prejudice the competitive position of the person.

The information includes references to service providers and funders, the amount of funding provided, and references to those who discontinued their financial support. Having reviewed the records in question, I am not satisfied that disclosure of the information in question could cause the harm envisaged in section 36(1)(b). The fact that funders and service providers engaged with TCD and the Science Gallery is a matter of public record. Reference is also made to third parties that TCD engaged with in respect of philanthropic opportunities. Having reviewed the very limited information provided in respect of same, I cannot see that release of the information in question could cause any specific harm captured by section 36.

As stated above, TCD has not made substantive arguments in respect of the impact of release on third parties, other than Science Gallery International, which is a separate entity. In that respect, TCD argues that -�any release of information related to Science Gallery Dublin could have an effect on the Science Gallery International and the international network of science galleries as other Science Galleries are closely modelled on Science Gallery Dublin-�. However, as noted above, information in respect of the closure of the Science Gallery and its financial difficulties is well-documented and publically available. I do not accept that the harms outlined in section 36(1)(b) could flow from release of the information at issue.

Accordingly, I find that TCD was not justified in relying on section 36(1)(b) to withhold release of the records in question.

Section 36(1)(c) -� prejudice the conduct or outcome of negotiations

Section 36(1)(c) provides that access to a record must be refused where the disclosure of information contained in the record could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. While the standard of proof required to meet this exemption is relatively low, I would expect that a person seeking to rely on it would be able to show that contractual or other negotiations were in train or reasonably foreseen and explain how exactly disclosure could prejudice the conduct or outcome of such negotiations.

TCD provided very limited detail in its submissions in respect of this subsection. It stated that the release of the records concerned -�could prejudice any future negotiations-� that TCD may have with third party funders or supporters in relation to -�any future science gallery or future model of the science gallery-�. It argued that -�release would disclose positions that have been taken that may be relevant to negotiations with third parties and decisions that may need to be taken in light of such negotiations.-�

While I accept that negotiations may occur in the future with respect to the Science Gallery, no attempt has been made to explain how the release of the records could have any impact on such negotiations. It seems to me that, should negotiations occur, they are unlikely to relate to the previous operating model of the Science Gallery, given the published acknowledgements by TCD that such a model had -�run its course-� (see https://www.tcd.ie/news_events/articles/science-gallery-dublin-message-from-provost/). In any event, TCD has not provided any evidence or argument as to the relevance that this information would have in future negotiations.

I have also had regard to the fact that a significant level of detail in respect of the records is already in the public domain. It seems to me that any parties engaged in future negotiations will be or could easily become aware of such information. Accordingly, I find that TCD was not justified in relying on section 36(1)(c) to withhold release of the records in question.

Conclusion

In conclusion, I find that TCD was not justified in refusing, under sections 29 or 36 of the Act, the applicant's request for records relating to the decision to close the Science Gallery. I direct the release of the records apart from the following third party personal information:

• Record 1a - personal information relating to staff resignations and the name of a third party employee
• Record 1b - personal information relating to staff resignations
• Record 2b - personal information relating to staff resignations
• Record 2c - personal information relating to staff resignations
• Record 3 -� third party contact details

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby annul TCD's decision. I find that TCD was not justified in refusing access to the records under sections 29(1), 36(1)(b) or 36(1)(c) of the FOI Act. I hereby direct their release, subject to the redaction of certain third party personal information as identified above.

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