Case number: 130061

Whether the College's decision to refuse the applicant's request for access to documents held by it relating to his property was justified under sections 20(1), 21(1)(a) and (b), 22(1)(a) and 28(1) of the FOI Act

Conducted in accordance with section 34(2) of the FOI Act

Background

On 15 April 2012, the applicant made an FOI request to the College seeking an indexed and itemised listing of all files, records and documents held or created by it, relating to his property or referencing his property or which can be identified in conjunction with other data as referencing this property, from the period September 2007 to April 2012. He further requested copies of this information and data to include paper records, digital electronic, emails, digital audio recordings and digital images.

The College wrote to the applicant on 22 August 2012 with its decision on the request and informed him that access was being granted to part of the records. It explained that certain records were considered exempt under section 22(1)(a), as they qualified for legal professional privilege. Other exemptions cited were sections 28(1) in relation to personal information, section 20(1) in relation to the deliberative process and sections 21(1)(a) and (b) on the basis that disclosure would prejudice the effectiveness of a disciplinary case relating to the tenants in the property and would have a significant adverse effect on the College's ability to manage this and other cases.

The applicant wrote to the College on 17 August and 10 September 2012. In summary, he sought records up to that date. This correspondence was dealt with by the College as a request for an internal review. On 5 October 2012, the College issued a decision on the internal review which varied the original decision. That decision released some records in full including some additional records that had been found and the remaining records were refused in line with the original decision.

On 7 March 2013, the Information Commissioner received a request from the applicant for a review of the College's decision. He said that certain records had been omitted from the information considered by the College and that the exemptions applied were "invalid and unnecessary".

Mr Willy O'Doherty, Investigator, wrote to the applicant on 15 September 2014 setting out his preliminary views on this review. The applicant responded on 1 October 2014 with a detailed submission. I have decided to conclude the review by way of a formal, binding decision.

In carrying out my review, I have had regard to the correspondence between the applicant and the College in relation to the request; the College's decisions on the matter; the application to this Office and subsequent contacts with the applicant; the enquiries and correspondence between the College and this Office, and the provisions of the FOI Act generally. In the interests of clarity, I should point out that this review was carried out under the provisions of the FOI Acts 1997 - 2003 notwithstanding the fact that the FOI Act 2014 has now been enacted. The transitional provisions in section 55 of the 2014 Act provide that any action commenced under the 1997 Act, but not completed before the commencement of the 2014 Act, shall continue to be performed and shall be completed as if the 1997 Act had not been repealed.

Scope of the Review

This review is concerned with whether or not the College is justified under the provisions of the FOI Acts, in its decision to withhold in full or in part:
records numbered 7, 8, 10, 12, 13, 14, 15, 28, 30, 31, 33, 34, 35 and 38 on file 7505
records numbered 2, 6, 8, 9, 11, 19, 20, 21, 24, 25, 26, 27 and 29 on file 7202 and
records numbered 22, 24, 25, 26, 27, 28, 29, 31, 32, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 45 on the Accommodation and Student Activities Office file.

Analysis and Findings

Preliminary Matters

A review under section 34 of the FOI Act is de novo. This means that it is based on the circumstances and the law as they pertain at the time of the review by this Office. It is also relevant to note that under section 8(4) of the FOI Act, the actual or perceived reasons for a request must generally be disregarded by the decision maker, including the Information Commissioner (except insofar as such reasons are relevant to consideration of the public interest or other provisions of the Act). While the applicant's submissions provide useful and relevant background as to how the records came to be created, the issue of allegedly unfounded complaints about the tenants are not matters for investigation by the Information Commissioner. Furthermore, under FOI, records are released without any restriction as to how they may be used and, thus, FOI release is regarded, in effect, as release to the world at large.

I should also clarify the approach to the granting of access to parts of records since I note that it is the applicant's view that redacted copies could be released under FOI where personal information of individuals other than himself appears in the records. Section 2 of the FOI Act defines "record" as including "anything that is a part or a copy" of a record. Section 13 of the FOI 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 13 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, this Office is not in favour of the cutting or "dissecting" of records to such an extent.

In addition, I should explain that while the Commissioner is required by section 34(10) of the FOI Act to give reasons for his decisions, this is subject to the requirement of section 43 that he take all reasonable precautions to prevent disclosure of information contained in an exempt record. This constraint places some limitations on what this Office can say about the contents of the records in the course of this review. However, I do not believe that it would be in breach of section 43 if I was to refer to certain limited information about the circumstances and background to the case where relevant.

Section 28(1) - Personal Information
This element of the review is concerned with records 7, 10, 12, 13, 14, 28, 30, 31, 34, 35 and 38 on file 7505 and records 22, 24, 25, 26, 27, 28, 29, 31, 32, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 45 on the Accommodation and Student Activities Office. The College relied on sections 20(1), 21(1)(a) and 28(1) of the FOI Act to refuse access to these records. However, my view is that Section 28(1) is the more appropriate exemption in the circumstances of this case.

Section 28
Personal information is defined in section 2 of the FOI Act 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. The list of information in the definition includes, inter alia, information relating to an individual's educational history, information relating to an individual's property, a number or mark assigned by a public body for identification purposes and the views and opinions of another person about an individual. I am satisfied from an examination of the records - which include specific references to the tenants and to other residents - that they all contain "personal information" as defined by section 2 of the FOI Act.

Section 28(1)
Section 28(1) provides that, subject to certain exceptions examined below, a public body shall refuse to grant access to a record where access would involve the disclosure of personal information. Section 28(5B) of the FOI Act provides that, notwithstanding section 28(2)(a), where a record contains personal information relating to a requester but also contains personal information relating to other individuals , it must remain protected from disclosure, subject to the other provisions of section 28 which I deal with below.

In his correspondence to this Office, the applicant argues that the name and address of third parties can be redacted. He maintains that, once the name is removed, the record will contain no personal information that could be used to identify any third party. While this may be the case in some instances, what must be examined is whether the content of the record contains information about an identifiable individual regardless of whether that person is named. Having considered the matter carefully, I am not convinced that deleting the names of the individuals and their addresses would protect their privacy or take their information outside of the definition of personal information in the circumstances of this case. I say this having regard to the definition of personal information outlined above and to the content of the records including dates and circumstances and I consider that it would be possible to identify individuals from the redacted records. I refer also to the provisions of section 13 of the Act in relation to partial release of records discussed earlier in this decision. Therefore, I am satisfied that the above records which have been withheld by the College are records to which section 28(1) applies, subject to my examination of the exceptions which follows; I find accordingly.

Section 28(2)
Section 28(2) provides for the release of a record to which section 28(1) applies in a number of circumstances. These are: where the record relates to the applicant; where the third party consents to the release of the records to the applicant; where the information is of a kind that is available to the general public; where the third party was informed prior to the information being given that it belonged to a class of information that would or might be made available to the general public; or where disclosure of the information is necessary to avoid a serious and imminent danger to the life or health of an individual.

The applicant maintains that any records which reference or make allegations against the property or the tenants relate directly to him. Even if I accept that all of the records relate to the applicant, I am satisfied that the records also relate to individuals other than the applicant, including the tenants and those who made complaints. Therefore, I do not consider that the exception at section 28(2)(a) can apply since the information does not relate to the requester alone. Indeed, section 28(5B) applies to exempt such "joint personal information". I am not persuaded that any of the other exceptions identified at section 28(2) apply. I find, therefore, that section 28(2) does not apply in this case.

Section 28(5)
Section 28(5) of the FOI Act provides that a request, which would fall to be refused under section 28(1), may still be granted where:
"on balance-
(a) the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld, or
(b) the grant of the request would benefit the individual aforesaid,"

Section 28(5)(a)
In relation to the question of where the public interest lies under section 28(5)(a), I have had regard to the judgment of the Supreme Court in the case of The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women v The Information Commissioner[2011] IESC 26 [more commonly referred to as "the Rotunda Hospital case"]. In the Rotunda Hospital case, the Supreme Court drew a distinction between private interests and public interests. The comments of Fennelly J. indicate that a request made "by a private individual for a private purpose" is not a request "made in the public interest". Moreover, in the opinion of Macken J., the public interest would require "a true public interest recognised by means of a well known and established policy, adopted by the Oireachtas, or by law".

I further note that the FOI Act itself recognises a very strong public interest in protecting privacy rights, as reflected both in the language of section 28 and in the Long Title to the Act (which makes clear that the release of records under FOI must be consistent with "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 the right to privacy.

On the other hand, the FOI Act itself also recognises the public interest in ensuring the openness and accountability of public bodies in the performance of their functions. In this case, the records were generated as a result of the College's involvement in dealing with incidents of alleged anti-social behaviour by tenants of private rented accommodation. Having considered the contents of the records at issue and the involvement of the applicant in the matter, I cannot see how release of the records in this particular case would enhance, to any significant extent, the public interest in ensuring such openness, transparency or accountability so that a breach of the parties' rights to privacy would be justified.

Accordingly, I am satisfied that, on balance, the public interest in granting the request does not outweigh the public interest that the right to privacy of the individual or individuals to whom the information relates should be upheld. Thus, I find that the College's decision to refuse the request in this case pursuant to section 28 of the FOI Act was justified.

Section 28(5)(b)
Section 28(5)(b) provides that personal information of a party other than the requester may be released where, on balance, the grant of the request would be to the benefit of the person to whom the information relates. No evidence has been presented to this Office to suggest that the release of the personal information relating to third parties would be to their benefit. I find, therefore, that section 28(5)(b) does not apply in this case.

Section 22(1)(a) - Legal Professional Privilege
The College relied on sections 20(1), 21(1)(a) and 22(1)(a) of the FOI Act in refusing access, in whole or in part, to records 15 and 33 on file 7505. It seems to me that it is more appropriate to examine these records under section 22(1)(a). The College has also relied on section 22(1)(a) in refusing access to records 2, 6, 8, 9, 11, 19, 20, 21, 24, 25, 26, 27 and 29 on file 7202.

Section 22(1)(a) provides that:

"A head shall refuse to grant a request under section 7 if the record concerned -
(a) would be exempt from production in proceedings in a court on the ground of legal professional privilege,"

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 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.

Sections 22 is a mandatory exemption and does not does not contain a public interest balancing test.

I am satisfied that the withheld records comprise contacts between the College and its legal advisors either seeking or receiving legal advice. The applicant argues that records 15 and 35 are "memos of attendance" at meetings so that they do not meet the criteria required for legal professional privilege to apply. I am satisfied that the records disclose legal advice given to or sought by the College at meetings with its legal advisors. The applicant also maintains that, as the Statute of Limitations places a limitation of two years on any action he can take against the College, the second limb of the rule described above cannot apply to any of the records. Since I accept that the first limb (legal advice privilege) of the rule applies, the question of whether proceedings were actually contemplated is not relevant and I find that section 22(1)(a) applies to exempt these records on the basis that they would be exempt from production in court proceedings on the ground of legal professional privilege.

Section 10(1)(a)
The applicant maintains that the College is refusing to accurately list and document information that it holds which is directly pertinent to him. He maintains that other records - namely records 15 and 38 on file 7505 - are missing.

He also says that records 29, 32 (and its attachment - record 15 on file 7505) and record 35 from the Student Accommodation and Activities file are missing. Furthermore, he maintains that a digital audio recording, two photographs and documents circulated to two College staff members are not listed in the Schedule. Lastly, he says that record 32 contains six documents, while the College lists only one possible record for this date. This is, in effect, a refusal of part of the request pursuant to section 10(1)(a) of the FOI Act.

Section 10(1)(a) provides that

"(1) a head to whom a request under section 7 is made may refuse to grant the request if - (a) the record concerned does not exist or cannot be found after all reasonable steps to ascertain its whereabouts have been taken."

In cases such as this, the role of the Commissioner is to decide whether the decision maker has had regard to all the relevant evidence and to assess the adequacy of the searches conducted by the public body in looking for relevant records. The evidence in "search" cases generally consists of the steps actually taken to search for the records along with miscellaneous other information about the records management practices of the public body insofar as those practices relate to the records in question. On the basis of the information provided, the Commissioner forms a view as to whether the decision maker was justified in coming to the decision that the records sought do not exist or cannot be found. It is not normally the Commissioner's function to search for records.

The Commissioner's approach in search cases was upheld in a decision of the High Court in the case of Matthew Ryan & Kathleen Ryan and the Information Commissioner (2002 No. 18 MCA). In his decision, Mr. Justice Quirke stated: "I am satisfied that the respondent's (the Commissioner) understanding of his role, as outlined in evidence, was correct in that he was not required to search for records but was required rather to review the decision of the Department and in doing so to have regard to the evidence which was available to the decision maker and to the reasoning used by the decision maker in arriving or failing to arrive at a decision".

I should also explain that the FOI Act confers a general right of access to records, rather than a general right of access to information. This means that, if the information sought is not contained in a record, the FOI Act does not impose an obligation on a public body to create a record where none exists; nor does it provide a mechanism for answering questions, or for seeking clarification, except to the extent that the question posed or clarification sought can reasonably be inferred to be a request for a relevant record that exists as of the date of the request, and which contains the answer or clarification sought. Therefore, the applicant's request for all files and records relating to his property falls to be treated as a request for access to actual records held by the College which contain the information he is seeking.

I am not convinced that the applicant's claims of "missing" records are correct. As set out above, access to records 15 and 38 on file 7505 are dealt with under section 22(1)(a) and section 28 earlier in this decision as are records 29, 32 and 35 from the Student Accommodation and Activities file. Furthermore, in relation to record 32, the College says that, following a further check of the records, it confirms that there is only one document on file in relation to this record.

In relation to the two photographs which the applicant maintains are missing, the College says that four photographs which were believed to relate to the property were released to the applicant on a CD on 23 February 2013.. The College says there are no other photographs on file. It says that, at the time, staff conducted a search of the office iPad on which the photographs were taken. These were the only photographs found which were relevant to the applicant's property.

In relation to the digital audio recording, the College says that the Student Accommodation Office checked the matter with the Campus Watch Committee and confirms that no audio recordings were ever made at any Campus Watch meetings, including the meeting on 8 March 2012.

In relation to the documents which the applicant says were circulated to two staff members and which are not listed in the Schedule, the College says that one record has been found, while the other record was not found. The College says that these records were not included in the list of scheduled records as they were not considered to be covered by the original FOI request as they relate to the students involved and their reported behaviour, not to the applicant or his property.

The College rejects the claim that it is refusing to accurately list the various documents. It says that it initially provided the applicant with three lengthy schedules of records (two from the Office of the Corporate and Legal Affairs and one from the Accommodation and Student Activities Office) which detailed the records held by the College. It says that, following the Internal Review, the Schedule from the Accommodation and Student Activities Office was amended. It appears that some additional records were released and some further details were added to provide the applicant with greater clarity on the source and destination of correspondence, while not revealing the content of exempt records. In addition, the College says that, when it was brought to its attention in December 2012 that two additional offices (the Registrar's Office and the Office of the Vice President for the Student Experience) might possibly hold records relevant to the request, a search was carried out in those offices. I understand that one further record was found in the Office of the Vice President for the Student Experience and was released in part to the applicant. The College says that, to the best of its knowledge, the Schedule of Records accurately lists and documents all documentation held by it in relation to the FOI request, with the exception of the above mentioned record from the Office of the Vice President for the Student Experience which was provided to the applicant separately. I also note that, in its letter of 22 February 2013, the College suggested that, if the applicant believes that further records are held by it, he might specify what they might be so that the appropriate searches and checks might be undertaken.

In this particular case, the position of the College is that, having conducted its searches and responded to the queries of this Office and the applicant, it can find no further records in relation to the FOI request. Having reviewed the details of the searches undertaken, the schedules and records provided, the clarifications sought by the College and the correspondence the applicant sent to this Office, I am satisfied that the College has taken all reasonable steps to locate records which are covered by the FOI request and this review. I find, therefore, that section 10(1)(a) of the FOI Act applies.

Decision

Having carried out a review under section 34(2) of the Freedom of Information Act 1997 (as amended) I hereby affirm the College's refusal of access to the remaining records.

Right of Appeal

A party to a review, or any other person affected by a decision of the Information Commissioner following a review, may appeal to the High Court on a point of law arising from the decision. Such an appeal must be initiated not later than eight weeks from the date on which notice of the decision was given to the person bringing the appeal.

 


Elizabeth Dolan
Senior Investigator