Whether UCD was justified in its decision to withhold certain records in part, under sections 31(1)(a) and 37(1) of the FOI Act, and whether it was justified in refusing to release any further records under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found

25 April 2023

Background

In a request dated 28 April 2022, the applicant made a request to UCD for all records/information relating to her held by nine named staff members in the School of Nursing, Midwifery and Health Systems (the School) relating to the period 26 August 2019 and 15 March 2022. In a decision dated 8 July 2022, UCD part granted the applicant-�s request, subject to the redaction of information under section 37 of the Act.

On 5 August 2022, the applicant sought an internal review of UCD-�s decision. She argued that the records released to her referred to meetings held by staff members about her and to a record of a -�summary outline-� relating to her, yet neither were released by UCD. She further argued that she received no records from one staff member (staff member A) whom she had named in her initial request.

On 29 September 2022, UCD issued an internal review decision wherein it varied its original decision. It directed the release of the names of some HSE staff, which were contained in the records initially released, and released two further records to the applicant. It continued to rely on section 37 in respect of third party information withheld from release. It informed the applicant that staff member A would conduct a search of her email account and that the FOI Unit would release any further relevant records which were located to her. It relied on section 15(1)(a) of the FOI Act to refuse access to a record of a summary outline relating to the applicant on the ground that no such record exists or can be found. It also relied on section 31(1)(a) to refuse access to a record of a meeting which took place between the School and the UCD Legal Office.

On 7 December 2022, the applicant applied to this Office for a review of UCD-�s decision.

During the course of the review and following correspondence from this Office, UCD identified a further 26 pages of records. These were also released to the applicant apart from some information on pages 4, 5, 8, 9, 12, 14, 20, 21, 23, 24 and 25, which was withheld on the basis that section 37 applied to it. In addition, during the course of this review, UCD revised its position and released several records to the applicant outside of FOI, which it had previously refused in whole or in part under section 37 of the Act.

The Investigating Officer subsequently contacted the applicant and provided her with details of UCD-�s submissions wherein it outlined its reasons for concluding that further records relating to her request did not exist. The Investigating Officer also asked the applicant whether, in light of the additional search information and records provided, she was satisfied that UCD had carried out reasonable searches to identify all records within the scope of her request. The Investigating officer invited her to make further submissions on the matter. The applicant has not made any substantive response to date.

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 applicant-�s comments in her application for review and to the submissions made by UCD in support of its decision. I have also had regard to the contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.

Scope of Review        

I am proceeding on the basis that the applicant is not satisfied with UCD-�s refusal to release certain records or parts of records, nor is she satisfied that all relevant records were located and considered for release.

Accordingly, this review is solely concerned with whether UCD was justified in refusing to release further records under section 15(1)(a) of the FOI Act on the ground that no further relevant records exist or can be found, and whether it was justified in its decision to withhold certain records, in full or in part, under sections 31(1)(a) and 37(1) of the FOI Act.

Preliminary Matters

Before I address the substantive issues arising in this case, I wish to make the following preliminary comments. 

Firstly, in her application to this Office for a review of UCD-�s decision, I note that the applicant indicated her concerns about the content of a number of the records which were released to her. Generally speaking, requests for information and/or asking questions relating to the content of records released under FOI are not viewed as valid FOI requests. It is also important to note that this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

I also note that the applicant appeared to believe that this Office and the FOI Central Policy Unit of the Department of Public Expenditure, NDP Delivery and Reform (CPU) were one and the same. I can confirm that this is not the case. The Office of the Information Commissioner is the appeals body for Freedom of Information in Ireland. CPU provides information, guidelines and other resources relevant to the FOI Act to public bodies and members of the public. Furthermore, unlike CPU, this Office cannot provide advice to parties in relation to FOI requests or decisions on such requests.

In her communications with this Office, I further note that the applicant set out some of the background as to why she was seeking the records at issue. Section 13(4) of the Act provides that in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.

The applicant appears to be of the view that she is entitled to access all records that contain any reference to her. However, while the FOI Act provides for members of the public to obtain access, to the greatest extent possible, to information held by public bodies, this must be consistent with the public interest and the right to privacy. Accordingly, the right of access is not absolute, and section 11(7) of the FOI Act provides that the right of access does not apply to an exempt record, including when the exemption is mandatory.

Finally, 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 some of the records at issue is limited.

Analysis and Findings

Section 15(1)(a)

Section 15(1)(a) of the FOI Act provides for the refusal of a request where the records sought do not exist or cannot be found after all reasonable steps to ascertain their whereabouts have been taken. Our role in a case 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/her decision. I also must assess the adequacy of the searches conducted by the FOI body in looking for relevant records. The evidence in -�search-� cases generally consists of the steps actually taken to search for records along with miscellaneous and other information about the record management practices of the FOI body, insofar as those practices relate to the records in question. It is important to note that a review by this Office is not concerned with access to records that a requester believes ought to exist.

Submissions by the Applicant

Essentially, the general thrust of the applicant-�s argument is that it is evident from the email records released that other relevant records exist which were withheld from her, including minutes of a meeting held by staff members and UCD Legal and a summary document, which both relate to her.

Submissions by UCD

In its submissions, UCD said that all nine staff members listed in the applicant-�s FOI request were asked to carry out searches for all records held both hardcopy and electronic that related to her. UCD provided details of the searches it said were carried out by staff members, including how the records were held and how the searches were carried out. As noted above, these details were provided to the applicant by the Investigating Officer during the course of this review. Among other steps, UCD stated that staff searched email accounts, local files and folders on work laptops/computers and phones and used various keywords including the applicant-�s name, student number and email address. While the applicant has not made further submissions on foot of these details, I shall address the particular matters raised in her application for review regarding additional records.

In its original decision, UCD said that one staff member named in the applicant-�s request (staff member A) was on leave when the request was received. It stated that while the staff member-�s emails were captured by other staff members when searching for records, the applicant -�may wish to submit a fresh request for any additional records-� the staff member might hold when they returned to the Office. I note that the applicant queried UCD-�s position on staff member A-�s records in her internal review request. In any event, at internal review stage UCD indicated that staff member A would carry out a search of her UCD email account for relevant records. I understand that additional records located by staff member A were subsequently released to the applicant on 3 and 17 October 2022.

The applicant was of the view that a summary or outline document or file relating to her was created by staff member A as set out in correspondence released to her in response to her request. In an internal email released to the applicant dated 20 October 2021, staff member A indicated to another staff member (staff member B) that she would provide an outline of the applicant-�s case in the form of a summary document before going on leave. However, UCD said that staff member A has since confirmed that she did not share or provide a summary document with staff member B or any other UCD personnel. Staff member A also confirmed that she could not locate a copy of the summary document in her UCD email account. According to staff member A, it was possible that she never sent the summary document to staff member B as she went on leave around that time. UCD said staff member B also confirmed that she did not receive the summary outline from staff member A, nor was it uploaded to a shared drive. However, UCD said staff member A, having returned to the office in January 2023, located a hard copy of the summary document. I note that it said a scanned version of the hard copy record has since been released to the applicant by UCD, with the personal information of third parties redacted.

The applicant also queried why she had not been provided with a copy of the minutes of a meeting held about her with UCD Legal. UCD said that the meeting she referred to was held to provide the school with legal advice. It said that during the course of this review, the Director of the School of Nursing, Midwifery & Health Systems Office, conducted a fresh search for minutes of meetings for the requested period and no records were found. UCD stated that generally speaking, only official school office meetings are minuted. It also said that and there is no requirement for minutes to be taken at all meetings held between staff members, including informal meetings between staff members [such as this]. Essentially, UCD-�s position was that no minutes were taken of this meeting and that section 15(1)(a) applies.

It is important to note that the FOI Act is concerned with access to records held by public bodies that actually exist, as opposed to records that a requester believes ought to exist. If the record sought is not held by the body, then that is the end of the matter. The Act does not require public bodies to create records in order to respond to requests for information or questions that a requester may have. The question I must consider is whether UCD has taken all reasonable steps to ascertain the whereabouts of relevant records, including minutes of the meeting with UCD Legal.

The piecemeal manner in which UCD released records in this case is unfortunate and understandably caused the applicant to have concerns as to the completeness of the information released. However, the fact that further records were located during the course of the review does not prevent me from finding that UCD have now undertaken all reasonable searches to locate relevant records. In this regard, it is important to note that a review by this Office under section 22 of the FOI Act is considered to bede novo, which means that it is based on the circumstances and the law as they apply on the date of the decision. 

As I have outlined above, the question I must consider is whether UCD has taken all reasonable steps to ascertain the whereabouts of relevant records. Having regard to the details of the searches undertaken by UCD in this case and in the absence of evidence to suggest that further specified searches are warranted, I am satisfied that it has at this point. I am also satisfied that UCD has adequately explained why it arrived at its conclusion that no additional records relating the applicant-�s request exist or can be found, having located and released further records during the review. Accordingly, I find that UCD was justified in refusing, under section 15(1)(a) of the Act, the applicant-�s request for further relevant records on the ground that no additional records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Accordingly, I find that UCD was justified in refusing access, under section 15(1)(a) of the Act, to further records relating to the applicant-�s request on the grounds that no further records exist or can be found after all reasonable steps to ascertain their whereabouts have been taken.

Section 31(1)(a)

Section 31(1)(a) provides for the mandatory refusal of a request if the record sought would be exempt from production in proceedings in a court on the ground of legal professional privilege. The exemption does not require a consideration of the public interest for or against release.

Legal professional privilege 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).

Where a claim for exemption is made on the basis that the records are covered by legal professional privilege, each record should be considered in its own right. It is important to note that, provided the prerequisites of advice privilege or litigation privilege are present, the fact that a professional legal adviser is employed as an in-house legal adviser does not prevent the client from asserting privilege over the communications at issue. Furthermore, records which may not, on an individual basis, satisfy the criteria for legal advice privilege may nevertheless qualify for exemption under section 31(1)(a) where they form part of a continuum of correspondence resulting from the original request for advice. Privilege may, in certain circumstances, also apply to communications between non-legal advisory staff which detail legal advice sought or received or are part of a continuum of communications arising from an initial request for legal advice.

UCD refused access, under section 31(1)(a) of the Act, to a record of a meeting between the School and the UCD Legal Office. Essentially, UCD said that the record at issue is exempt under the FOI Act on the basis of legal advice privilege, because it consists of confidential communications made between a client (the School of Nursing) and its legal advisor (the Legal Services Division of UCD) for the purpose of giving or receiving legal advice. It said all parties attended the meeting on the understanding that the meeting with UCD Legal was confidential and that the advice was given by a legally qualified professional Solicitor holding a practising certificate.

In her application to this Office for a review of UCD-�s decision, the applicant said she was concerned that a meeting took place with UCD Legal about her -�yet there are no records/minutes of that meeting available to [her]-�. She stated that it was -�very unusual-� for a legal person to give advice regarding any student let alone a student -�who had successfully completed her competency assessment-� on her programme of study. She said it was -�shocking to learn that a government organisation can have meeting about you without informing you why they are speaking to a legal team about you-�.

As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the record at issue. However, I do not believe that I am in breach of section 25(3) by providing the following description. The record comprises a note of a meeting which took place between the School of Nursing and UCD Legal on 17 November 2021, following a request by the former for legal advice, and details the advice given by UCD Legal.

Having reviewed the record, I am satisfied that it reveals confidential communications made between the School of Nursing and UCD-�s internal legal adviser for the purpose of obtaining and/or giving legal advice and/or forms part of a continuum of communications arising from an initial request for legal advice. As such, I find that UCD was justified in refusing access to it under section 31(1)(a) of the FOI Act.

Section 37

Section 37(1) provides for the mandatory refusal of a request if granting access to the record sought would involve the disclosure of personal information relating to a third party, including a deceased individual. This does not apply where the information involved relates to the requester (section 37(2)(a) refers).

However, section 37(7) provides that, notwithstanding section 37(2)(a), an FOI body shall refuse to grant a request if access to the record concerned would, in addition to involving the disclosure of personal information relating to the requester, also involve the disclosure of personal information relating to an individual or individuals other than the requester (commonly known as joint personal information).

In essence, this means that section 37(1) does not provide a basis for refusing access to personal information that relates solely to the requester. However, if that personal information is inextricably linked to personal information relating to parties other than the applicant, then section 37(1) applies.

Section 2 of 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. Section 2 goes on to specify fourteen categories of information that 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, (iv) information relating to the individual-�s membership or former membership of a trade union, (xii) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name would, or would be likely to, establish that any personal information held by the FOI body concerned relates to the individual, and (xiv) the views or opinions of another person about the individual.

Certain information is excluded from the definition of personal information. Paragraph (I) of section 2 of the FOI Act provides that where the individual holds a position as a member of the staff of an FOI body, the definition does not include the name of the individual or information relating to the position or its functions or the terms upon and subject to which the individual occupies that position or anything written or recorded in any form by the individual in the course of and for the purpose of the performance of the functions aforesaid. This Office considers that the exclusion is intended to ensure that section 37 will not be used to exempt the identity of a staff member in an FOI body in the context of the particular position held or any records created by the staff member while carrying out his or her official functions. The exclusion does not deprive staff members of FOI bodies of the right to privacy generally.

UCD said the following information in the records released to the applicant was withheld on the ground that it comprises third party personal information:

• The names of two individuals who are identified in the records as being members of the Irish Nurses and Midwives Organisation (INMO).
• References to other students.
• The personal mobile numbers and signatures of other individuals.

As outlined above, during this review, UCD released certain information contained in the records at issue to the applicant, which had been withheld under section 37 of the Act. Having carefully examined the remaining redactions in the records at issue, I find that their disclosure would involve the disclosure of personal information of individuals other than the applicant.

I am satisfied that the exclusion in Paragraph I does not apply to the names of two individuals who are identified in the records as being members of the INMO, notwithstanding they are employees of the HSE, which is a public body. I accept that such a disclosure would disclose more than merely the names of the individuals or information relating to the positions held or their functions or the terms upon and subject to which the individuals occupy those positions, as it would also disclose information relating to their membership of a trade union. I am also conscious that the names of the individuals appear in the records at issue in their capacity as INMO representatives (not as HSE employees).

It may well be the case that some of the withheld information is generally known to the applicant. I also believe the applicant holds some email correspondence containing some of the withheld information, although she indicated to this Office that she wished for us to consider all of the redacted information. That being said, I must have regard to the fact that a record released under the FOI Act effectively amounts to disclosure to the world at large given that the Act imposes no constraints on the uses to which information released under FOI may be put.

I find, therefore, that section 37(1) applies. However, that is not the end of the matter as section 37(1) is subject to the other provisions of section 37. Section 37(2) sets out certain circumstances in which the exemption at section 37(1) does not apply. I am satisfied that none of those circumstances arises in this case.

Section 37(5) provides that a request that would fall to be refused under section 37(1) may still be granted where, on balance (a) the public interest that the request should be granted outweighs the right to privacy of the individual to whom the information relates, or (b) the grant of the information would benefit the person to whom the information relates. I see no basis for finding that the grant of the request would benefit the individuals to whom the information relates and I am satisfied that section 37(5)(b) does not apply in this case.

In relation to the applicability of section 37(5)(a), in carrying out any review this Office has regard to the general principles of openness and transparency set out in section 11(3) of the FOI Act. Section 11(3) provides that an FOI body must have regard to the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. Nevertheless, it is important to note that inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors[2020] IESC 57 (-�the eNet Case-�), the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and -�there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure-�. Although the Court-�s comments were made in cases involving confidentiality and commercial sensitivity, I consider them to be relevant to the consideration of public interest tests generally.

In relation to the issue of the public interest, it is also important to have regard to the comments of theSupreme Court in The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v. the Information Commissioner[2011] IESC 26. It is noted that a public interest should be distinguished from a private interest.

The FOI Act recognises the public interest in the protection of the right to privacy both in the language of section 37 and the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with the right to privacy). Furthermore, unlike other public interest tests provided for in the FOI Act, there is a discretionary element to section 37(5)(a), which is a further indication of the very strong public interest in the right to privacy. Privacy rights will therefore 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.

The applicant stated in her application for a review to this Office that she sought some of the records concerned in order to be reassured -�that there is none of my personal data on the shared drive-�. She did not make any other arguments which could be construed to relate to the public interest in the release of the records sought. I am satisfied that what the applicant has identified in her correspondence with this Office is a private, rather than a public interest. Having carefully considered the matter, I have not been able to identify any sufficiently specific, cogent and fact-based reason for finding that the public interest in granting access to the redacted information in the records concerned outweighs the right to privacy of the individuals to whom the information relates.

Accordingly, I find that the section 37(5)(a) does not apply and that UCD was justified in refusing to release the remaining information contained in the records sought, under section 37(1) of the FOI Act.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm UCD-�s decision. I find that it was justified in refusing access, under section 15(1)(a), to further records relevant to the applicant-�s request. I also find that it was justified in refusing access, under section 31(1)(a) to a record concerning a meeting between the School of Nursing and UCD Legal. Finally, I find that it was justified in redacting certain information from the records at issue under section 37(1) of the FOI Act and I find that the public interest did not warrant its release.

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.

Sandra Murdiff
Investigator